Directors’ Co-liability for Delicts
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Authors
Havenga, Michele
Issue Date
2006
Type
Article
Language
en
Keywords
Co-liability , Directors , Delicts
Alternative Title
Abstract
It is an established principle of company law that a company is a separate
legal entity and that as a general rule, incorporation confers the benefi t of
limited liability on its shareholders and directors (see Salomon v A Salomon
& Company Ltd [1897] AC 22 (HL)). This principle, together with the
‘identifi cation’ or ‘alter ego’ theory, which ascribes the directing mind and will
of the person acting on behalf of the company to the company itself (see, eg,
Lennard’s Carrying Company Ltd v Asiatic Petroleum Company Ltd [1915] AC
705 (HL) at 713; HL Bolton (Engineering) Co Ltd v TJ Graham and Sons Ltd
[1957] 1 QB 159 (CA); Tesco Supermarkets Ltd v Nattrass [1972] AC 153 (HL);
Meridian Global Funds Management Asia Ltd v Securities Commission [1995]
2 AC 500 (PC)), lead to the sometimes problematic conclusion that a person
acting on behalf of a company will, in principle, not incur liability personally
and that a prejudiced third party must look to the company for recourse (for
further authorities on the point, see Louis de Koker ‘Die Aanspreeklikheid van
Direkteure vir Delikte Gepleeg in Ampsverband’ 2002 Tydskrif vir die Suid-
Afrikaanse Reg 18 at 20 et seq).
But the principle that everyone should answer for his delictual acts, is equally
established. Where it is sought to hold a director delictually liable, these two
principles need to be balanced (on the diffi culties involved in doing so, see
John H Farrar ‘The Personal Liability of Directors for Corporate Torts’ (1997)
9 Bond LR 102). It is particularly diffi cult to do this where the director may
be co-liable with the company for the infringement of intellectual property
rights (see Mentmore Manufacturing Co Ltd v National Merchandising
Manufacturing Co Inc ((1979) 89 DLR (3d) 195 (Fed Ct App) at 202; De
Koker op cit at 22).
Description
Citation
Havenga, Michele (2006) Directors’ Co-liability for Delicts. 18 SA Merc LJ 229–237
Publisher
Juta. © 2006. All rights reserved.