COMPANIES BILL - Department of Trade and Industry

130(aa) the company as a consequence of an act or omission thatcontravened this Act or the company’s Memorandum of Incorporation,rules or applicable debt instrument, or violated any rightcontemplated in paragraph (a); or(bb) any of its directors to the extent that they are or may be held liablein terms of section 77.(2) The right to apply to a court in terms of this section is in addition to any otherremedy available to a holder of a companies securities—(a) in terms of this Act; or(b) in terms of the common law, subject to this Act.510Application to declare director delinquent or under probation162. (1) In this section, ‘‘legislation’’ means any national or provincial legislation—(a) relating to the promotion, formation or management of a juristic person;(b) regulating an industry or sector of an industry; or(c) imposing obligations on, prohibiting any conduct by, or otherwise regulatingthe activities of, a juristic person.(2) A company, a shareholder, director, company secretary or prescribed officer of acompany, a registered trade union that represents employees of the company or anotherrepresentative of the employees of a company may apply to a court for a order declaringa person delinquent or under probation if—(a) the person is a director of that company or, within the 24 months immediatelypreceding the application, was a director of that company; and(b) any of the circumstances contemplated in—(i) subsection (5)(a) to (c) apply, in the case of an application for adeclaration of delinquency; or(ii) subsections (7)(a) and (8) apply, in the case of an application forprobation.(3) The Commission or the Panel may apply to a court for an order declaring a persondelinquent or under probation if—(a) the person is a director of a company or, within the 24 months immediatelypreceding the application, was a director of a company; and(b) any of the circumstances contemplated in—(i) subsection (5) apply, in the case of an application for a declaration ofdelinquency; or(ii) subsections (7) and (8) apply, in the case of an application for probation.(4) Any organ of state responsible for the administration of any legislation may applyto a court for an order declaring a person delinquent if—(a) the person is a director of a company or, within the 24 months immediatelypreceding the application, was a director of a company; and(b) any of the circumstances contemplated in subsection (5)(d) to (f) apply withrespect to any legislation administered by that organ of state.(5) A court must make an order declaring a person to be a delinquent director if theperson—(a)(b)(c)consented to serve as a director, or acted in the capacity of a director orprescribed officer, while ineligible or disqualified in terms of section 69,unless the person was acting—(i) under the protection of a court order contemplated in section 69(11); or(ii) as a director as contemplated in section 69(12);while under an order of probation in terms of this section or section 47 of theClose Corporations Act, 1984 (Act No. 69 of 1984), acted as a director in amanner that contravened that order;while a director—(i) grossly abused the position of director;(ii) took personal advantage of information or an opportunity, contrary tosection 76(2)(a);(iii) intentionally, or by gross negligence, inflicted harm upon the company ora subsidiary of the company, contrary to section 76(2)(a);(iv) acted in a manner—(aa) that amounted to gross negligence, wilful misconduct or breach oftrust in relation to the performance of the director’s functionswithin, and duties to, the company; or15202530354045505560