The Definition of Member / Shareholder in the South African Companies Act: A Brief Comparison with Australian Legislation

Abstract

AbstractThis article discusses relevant Australian case law with reference to the oppressive remedy in company law. In South Africa, only shareholders who are entered in the shareholders’ register can make use of the remedy, contrary to the Australian application. The Australian case law explains thelocus standiof shareholders who are not entered in the register. Reference is also made to South Africa's previous Companies Act 1973 due to theSmyth v Investecappeal court case, where the court applied the principles, relevant to an oppressive remedy under the 1973 act. In this regard, the appeal court's reasoning is compared to that of the Australian court; possible new perspectives relevant to South Africa's new Companies Act 2008 are also discussed. The Australian perspective is included to facilitate investigation of a South African court's approach to oppressive conduct concerning the narrow interpretation of “shareholder”. It is concluded that “shareholder” should also be interpreted to include a beneficial shareholder.