LET COMPANIES TRIBUNAL ASSIST IN RESOLVING COMPANY DISPUTES
Disputes can have negative effects on a company, emanating from protracted and costly litigation with the potential to drive the company into bankruptcy. Companies should utilise the services of the Companies Tribunal (the Tribunal) in resolving their disputes. The Tribunal is an agency of the Department of Trade and Industry established in terms of section 193 of the Companies Act 71 of 2008 to adjudicate applications made in terms of the act and serve as a forum for mediation, conciliation and arbitration.
The Tribunal was created to ensure the speedy and cost-effective resolution of company disputes. Some of the applications that can be lodged with the Tribunal include removal of directors, exemption from establishing social and ethics committees, convening and extension of time for holding of AGMs, and reviewing of compliance notices issued by the Company and Intellectual Property Commission among others. Below are some of the cases the Tribunal has handled.
Gretha Terblanche (applicant) v Gerrit Christo Greyling (respondent) Case number: CT004JAN2017
In this case, the applicant (who is a director) brought an urgent application to the Tribunal for the removal of the respondent as director of the company, in terms of section 71(8) of the Act. The basis for the application to remove the respondent as director include, among others, lengthy periods of absence from the workplace, diversion of funds due to the company to himself, and failure to perform his duties as director in good faith. The Tribunal found the applicant had a proper case for the relief sought, ordering that the respondent be removed as director of the company in terms of section 71(8) of the Act.
MEMORANDUM OF INCORPORATION (MOI)
In the application of Aqua Vista Home Owners Association NPC, the Tribunal considered an application for an administrative order exempting the applicant’s MOI from a prohibition contained in the Act that prohibits the ‘automatic membership’ of any person if the MOI of a non-profit company provides for the company to have members, unless it is life-time membership awarded to a person for service to the company. The Tribunal decided that the automatic membership clause served a necessary purpose and in no way defeats or reduces the effect of the prohibition. The relief sought was granted.
ALTERNATIVE DISPUTE RESOLUTION (ADR)
The Tribunal has resolved a number of disputes between directors and shareholders through an ADR process (mediation, conciliation and arbitration). Parties retain ultimate control over the process and its outcome as mediators and conciliators merely serve to help parties in dispute to find a mutually acceptable solution and preserve relationships. To help save costs for companies in distress, during the business rescue process, ADR can be utilised in resolving disputes that arise when it comes to disputed claims put forward by creditors and voting on the business rescue plan or any other dispute.
Applicants can approach the Tribunal for resolution of company law disputes by filing their application by email, fax, delivery at the Tribunal’s registered address or registered mail.