South African company law is currently the object of comprehensive review. One o f the areas under
scrutiny is that of corporate governance. Control over management is vital in the interests of the
company itself, its shareholders and its creditors. Effective accountability should be balanced
against the need to allow those who manage a certain measure of freedom and discretion in the
exercise of their function.
Company directors are subject to various duties. This thesis concentrates on their fiduciary
obligation. It is suggested that this sui generis obligation is owed to the company as a separate
entity. Interests of other groups may sometimes merit con sideration.
Against the background o f a com parative investigation, a "corporate opportunity" is
defined as any property or economic opportunity to which the com pany has a claim. South African
law protects a company’s claim to an opportunity if it is in the company’s line of business and if
the company has justifiably been relying upon the director(s) to acquire it or to assist in its
acquisition for the company. The application of established fiduciary principles suffice to resolve
corporate opportunity matters. Essentially the application o f these rules amount to a
determination whether the director has complied with his fundamental duty to act in the company’s
best interests. There seems to be no need for a separate doctrine of corporate opportunities.'
A director should only be absolved from liability on account of the company’s inability to pursue
an opportunity or its rejection by the company if there was no real conflict of interest. The
appropriation of corporate opportunities should not be ratifiable, both because the ratification
constitutes a fraud on the minority, and because the decision to ratify cannot be regarded as being
in the interests of the company.
The relationship between the appropriation of corporate opportunities, misuse
of confidential information and competition is investigated. These aspects fre quently overlap,
but should be distinguished because their bases, and accordingly their appropriate remedies, may
differ.
Effective control may benefit by a restatement of directors’ fiduciary duties in
the Companies Act. To this end certain amendments to the Act are recommended. / Mercantile Law / LLD
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:unisa/oai:uir.unisa.ac.za:10500/18316 |
| Date | 06 1900 |
| Creators | Havenga, Michele Kyra |
| Contributors | Pretorius, J. T. |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 1 online resource (xiv, 511 leaves) |
Page generated in 0.0028 seconds