Prior to the enactment of the Companies Act 71 of 2008 as amended (the “Act”), all disputes involving the Act was adjudicated through the traditional channels, including the courts.

 

The practical implication of this is, that many aggrieved parties simply did not have access to recourse. Resulting in businesses failing, which is, especially now in a troubled economy, crucial to avoid.

 

Approaching tribunals like industry ombud structures, is free of charge and should be more cost effective and speedier than the traditional litigious route.

 

According to the tribunal’s website they deal with

The Tribunal may:

    1. adjudicate any application that may be made to it and make any order provided for in the Act;
    2. assist in the resolution of disputes as contemplated in Part C of Chapter 7; and
    3. perform any other function assigned to it by or in terms of this Act.

 

In addition, any decision of a panel on a matter referred to it, must be in writing and include reasons for that decision. Importantly, any decision of a single member of the Tribunal or of a majority of the members of a panel, is the decision of the Tribunal. An order of the Companies Tribunal may be filed in the High Court as an order of the court.

 

In addition, a decision by the Companies Tribunal with respect to a decision of, or a notice or order issued by, the Commission (ie. CIPC) is binding on the CIPC, subject to any review by, or appeal to a court.

 

Voluntary referral

Chapter 7 of the Act makes it clear that parties may elect to approach the tribunal or an accredited alternative dispute resolution body.

 

Types of matters

Looking at the Tribunal’s website, the majority of matters heard to date refer to name disputes. In addition, disputes including:

  • applications seeking extensions regarding convening of annual general meetings;
  • applications to be exempted from appointing a Social and Ethics Committee;
  • removal of directors;
  • interdicts against directors by the company; and
  • disputes relating to auditing of financial statements.

 

Their findings are in writing and publically published. It seems to be an efficient, cost effective and speedy mechanism to resolve disputes. Accordingly, parties should consider this more seriously.

About The Author

Nicolene Schoeman-Louw

I founded the firm Schoemanlaw Inc in 2007 aged 24 and am the Managing Director of the firm. I am an admitted attorney of the High Court of South Africa, as well as a Conveyancer , Notary Public and Mediator. I obtained my LLB degree cum laude and successfully completed my LLM degree (dissertation) in commercial law and B-BBEE at the University of the Free State. In addition I obtained my postgraduate diploma in financial planning (CFP) at the University of Stellenbosch. An abstract of my LLM dissertation was published in the Journal for Estate Planning in 2006 and is regularly published in De Rebus (the SA attorneys’ journal) as well as Without Prejudice and Polity.org (legalbriefs). I also write regularly for various online publications such as Spice for Life and other mainstream publications such as The Entrepreneur Magazine, Personal Finance Magazine and have a regular slot on SAfm’s The Law Report with Karen Key. For more information visit http://www.schoemanlaw.co.za/about-us/

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