Abstract
LL.M. (Commercial Law)
Section 81(1)(d) of the Companies Act 71 of 2008 allows a company, one or more of its directors or shareholders to apply to a court of law to wind up a solvent company. In essence, they can do so under three specified circumstances namely, where the directors are deadlocked in the management of the company and the shareholders are unable to break the deadlock, the shareholders are deadlocked in voting power and have failed for a period that includes at least two consecutive annual general meeting dates, to elect successors to directors whose terms have expired, or it is otherwise just and equitable for a company to be wound up.
Item 9 schedule 5(1) of the Companies Act 2008 states that chapter 14 of the Companies Act 1973 continues to apply in regard to winding-up and liquidation of companies under the Companies Act 2008 as if the Companies Act 61 of 1973 has not been repealed. By virtue of this schedule, section 347 of the Companies Act 1973 still remains applicable. However, section 347(1) of the Companies Act 1973 still makes reference to section 346 of the Companies Act 1973 which is no longer applicable for winding-up of a solvent company and for that very reason it appears as though the intention is that section 347(1) of the Companies Act 1973 should not apply in such circumstances, I recommended that an amendment be made to the Companies Act 2008 to rectify this discrepancy.
In light of the inclusion of section 347(2) of the Companies Act 1973, by virtue of item 9 schedule 5 of the Companies Act 2008, an application brought by shareholders places a definitive onus and an additional burden on the applicants to prove that they have exhausted all remedies available to them and they had no other alternative but to bring a winding-up application as a last resort.
The all encompassing provision of section 81(1)(d)(iii) of the Companies Act 2008, I argued, should allow for a winding-up of a company, even in respect of the weaker forms of deadlock, where it does not fit neatly within section 81(1)(d)(i) and section 81(1)(d)(ii) of the Companies Act 2008. The word ‘otherwise’, in my opinion, has been correctly included in section 81(1)(d)(iii) of the Companies Act 2008. The courts will inevitably be
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left to determine the perimeters of section 81(1)(d)(iii) of the Companies Act in relation to the sections 81(1)(d)(i) and 81(1)(d)(ii) of the Companies Act 2008.
I discovered striking similarities to the wording of the just and equitable provision and this wording has been consistent in various versions of the companies acts (both current and previous) in various jurisdictions. The ejusdem generis principle, I argued, is not applicable and the just and equitable provision needs to be looked at independently of the other grounds. From the recent case law arising on the interpretation of section 81(1)(d) of the Companies Act 2008, it is clear that the various principles which were developed during the era of the previous companies acts were still applicable and relevant to the Companies Act 2008, unless the Supreme Court of Appeal in South Africa decides otherwise.