"A focus on directors' duties of care, skill and diligence in terms of the common law and the Companies Act 71 of 2008".

Abstract

This paper aims to expose the common law directors’ duties of care and skill encapsulated under the South African commercial law. Thereafter an in depth analysis of the newly introduced statutory duty of care, skill and diligence contained in section 76(3)(c) of the South African Companies Act 2008, which replaced the Companies Act 61 of 1973. Lastly the focus will shift to the origin and application of the business judgment rule which was previously unknown to our legislature and freshly introduced under the provisions of section 76(4) of the Companies Act 2008. A historic overview will commence in introducing the common law duties of care and skill, there after moving to the judiciaries in which South Africa followed in moulding the partial codification of directors duties of care, skill and diligence encompassed in the Companies Act 2008. An evaluation to the newly hybrid stringent test adopted in our statute as opposed to the common law lenient view shall also be exposed. The forth chapter will focus on the “safe-harbour” which is provided for in the business judgment rule which focuses on more than just shielding directors who act in good faith with the requisites encompassed under the provisions of section 76. A synopsis will also be carried out to the American based business judgment rule which our South African law has adopted as well as the critique and reviewing factors of the South African modelled business judgment rule. After outlining the crux of each chapter a condensed summary into the topic at hand will be explained.