Statutêre beskerming van die voordeeltrekkende aandeelhouer in die Suid-Afrikaanse maatskappyereg

Abstract

The Companies Act, 1973 ("the Act") contains no specific provision dealing with the relationship between a nominee shareholder and its principal, the beneficial shareholder. The Act merely contains a variety of references to this unique relationship without specifying the content thereof or elaborating on the rights of the beneficial shareholder. It is clear from the Act that no legal connection exists between the company and the beneficial shareholder and a company is only obliged to recognise its registered members. It has become apparent that beneficial shareholders need more protection than is currently afforded to them in terms of our common law. Currently beneficial shareholders have a common law right to claim return of their shares from any person (even bona fide third parties) in the event of the misappropriation of such shares by their nominee shareholders. Beneficial shareholders are unprotected if their nominee shareholders were to act contrary to their instructions, for example by not voting at the general meeting in accordance with the instructions of the beneficial shareholders. Having regard to the fact that the relationship between the beneficial shareholder and the nominee shareholder is based on agency or trusteeship, the beneficial shareholder will be entitle to compel its nominee to transfer the shares to another person. This may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the only solution for the beneficial shareholder. In deciding which section of the Act should be adapted to include the rights of beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of prejudice), section 440K (compulsory acquisition of securities of minorities) and section 344(h) (liquidation on grounds of equity). The only one of these sections which provides the court with a wide enough discretion to afford the required protection is section 252. An important point in this regard is that section 252 cannot effectively be extended to beneficial shareholders unless they also acquire the right to have access to the same company information as the members of the company would receive. In an attempt to create a balance between the needs to greater protection of beneficial shareholders and the avoidance of unnecessary cumbersome administrative obligations on companies, it is suggested that a register of beneficial shareholders be created and that companies be obliged to inform all beneficial shareholders appearing on such register of the same company information as is provided to registered members. The Act must make it clear that : • a beneficial shareholder can only be recorded in the register with the assistance of its nominee shareholder; • the relevant nominee shareholder must satisfy the company secretary that the person which is recorded in the register is in fact its principal; • the only two instances where the company secretary will be entitled to remove the beneficial shareholder is in the first instance where the beneficia] shareholder consents to such removal and secondly where the shares held by the registered member is transferred. The latter ground will avoid continued provision of company information to persons not involved with the company. No duty will be placed on companies to ensure that the names and addresses of beneficial shareholders are correct. This will be the responsibility of beneficial shareholders. The improved flow of company information will facilitate the improved awareness by beneficial shareholders of relevant events and together with the appropriate extension of section 252, will go a long way in improving the much needed protection of beneficial shareholders.