DIRECTOR'S GUIDE 2011

Administrative FinesA court, on application by the Commission or Panel may impose anadministrative fine – only for the failure to comply with a compliance notice(the court could also refer the matter to the National Prosecuting Authorityfor prosecution of an offence in terms of Section 214(3) but may not doboth in respect of any particular compliance notice);As set out in the Act, the amount of the fine in any particular case is tobe determined having regard to several factors, and may not exceed thegreater of –a) The maximum prescribed by the Minister – Regulation 163 prescribesas R1 000 000, andb) 10% of the respondent’s turnover for the period during which thecompany failed to comply with the compliance notice.Protection of whistle-blowers Section 159●●●●●●●●Any shareholder, director, company secretary, prescribed officer, employee,a registered trade union or other representative of the employees, supplierof goods or services to the company, or employee of such a supplier –who has reasonable grounds to suspect that the company or any of itsdirectors or employees have contravened the Act, or a law mentionedin Schedule 4 or any statutory obligation or is engaged in conduct thathas or is likely to endanger the health and safety of any individual or hadharmed or was likely to harm the environment or has unfairly discriminatedor condoned unfair discrimination in contravention of the Constitution orUnfair Discrimination Act 2000 or has contravened any other legislationthat could expose the company to an actual or contingent risk of liability oris inherently prejudicial to the interests of the company and in good faithdiscloses this information to the Commission, Companies Tribunal, Panel,a regulatory authority, an exchange, legal adviser, a director, prescribedofficer, company secretary, auditor, a person performing the function of aninternal audit, board or committee of the company concerned, then thatperson (the whistle-blower), has qualified privilege in respect of thatdisclosure and will be immune from any civil, criminal or administrativeliability for that disclosure, if the conditions set out in S159 are met;If a person who has made such a disclosure is subjected to express orimplied threats or conduct that causes detriment to him/her by any otherperson, then (s)he will be entitled to compensation for damages suffered;Any provision of a company’s MOI or an agreement is void to the extentit purports to limit or negate this Section 159;A public company and SOC Ltd must establish a system for confidentialdisclosures.14. EASIER ACCESS TO REMEDIES PROVIDEDBY THE ACT●●A new body, the Company Tribunal is created by the Act, and anystakeholder, including a shareholder has free recourse to lay a complaintagainst a Director or company with the Tribunal;28