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A reflection on conflicts of interest and misappropriation of corporate opportunity under modern Company Law in South Africa.
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In Gore NO and Another v Ward and Another [2022] 2 All SA 178 (WCC), liability for loss caused by fraudulent acts committed by company director, the authority of directors to control companies is vested and actual.
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In Sand Grove Opportunities Master Fund Ltd and Others v Distell Group Holdings Ltd and Others [2022] 2 All SA 855 (WCC), standing of an investment fund not registered as a shareholder to object to a scheme of arrangement.
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In Shiva Uranium (Pty) Limited (In Business Rescue) and Another v Tayob and Others 2022 (2) BCLR 197 (CC), if a company enters business rescue voluntarily in terms of s 129, the power to appoint a substitute, if the practitioner resigns, remains with the company.
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In Department of Agriculture, Forestry and Fisheries and Another v B Xulu and Partners Incorporated and Others [2022] 1 All SA 434 (WCC) if there is in fact no distinction between the separate juristic personality of a juristic entity and those controlling it improperly, a piercing is justified.
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A case from the Commercial Court in Gauteng is fascinating because it illustrates the far-reaching effects of conflicts of interest in companies and why they should be avoided.
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In Massyn v De Villiers NO and Others [2021] 3 All SA 578 (WCC), establishing an inquiry by liquidators into the affairs of a company in terms of s 417 of the Companies Act, is if deemed fit, acceptable and necessary for winding-up the affairs of the company and distributing its assets.
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A recent judgment in First National Nominees Pty Ltd and Others v Capital Appreciation Limited has, to a certain extent, provided much-needed clarity as to whether a company's acquisition of more than 5% of its issued shares is in fact a scheme, or merely subject to the procedural requirements thereof. Either way, are appraisal rights triggered when the company proposes such a buyback?
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Before totally closing down your business you might want to consider a business merger with a business that offers or renders the same goods and services as yours.
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Directors wanting to address problems in financially distressed companies need to be proactive, diligent, and aware of all options available to them, including the option of business rescue, its value, and the importance of its timing.