A critical analysis of the judicial review procedures under section 71 of the Companies Act 71 of 2008
Authors Rehana Cassim
Affiliations: Senior Lecturer, Department of Mercantile Law, School of Law, University of South Africa, Attorney and Notary Public of the High Court of South Africa
Source: South African Mercantile Law Journal, Volume 30 Issue 2, 2018, p. 302 – 329
Section 71(5) of the Companies Act 71 of 2008 provides that a director who has been removed from office by the board of directors may apply to court to review the board’s decision. If the board of directors decides not to remove a director from office, any director who voted in favour of the removal, may, under section 71(6) of the Companies Act 71 of 2008, apply to court to review the board’s decision. This article critically examines: the powers of a court under the judicial review processes; the permissible court orders which may be made; the locus standi to apply to court for a judicial review under section 71(5) and 71(6); the time period within which an application for judicial review must be instituted; the costs of the judicial review procedures; and the discretion of a court in granting or dismissing such applications. It is argued that the judicial review processes in section 71(5) and 71(6) are unclear and ambiguous in certain respects. Recommendations to amend and modify section 71(5) and 71(6) are made with a view to removing ambiguities in these provisions, and to improving and strengthening the judicial review processes under these provisions.