Business judgment rule to directors against personal liability for breaches of some of their duties
Author: Xolisa Beja
Affiliations: LLM candidate, University of Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 1, 2021, p. 1 – 35
This article examines the extent to which s 76(4)(a) of the Companies Act 71 of 2008 protects directors against personal liability for breaches of their duties to act in the company’s best interests, with due care, skill and diligence. The essential substantive elements of s 76(4)(a) create (as a minimum) a business judgment rule. Generally, that rule provides a director with a defence against liability for a breach of his duty of care, skill and diligence if, when he acted (or omitted to act), he did so reasonably, honestly, with no self-interest and in the interests of the company. In analysing s 76(4)(a) as an embodiment of features of a traditional business judgment rule, this article briefly discusses how a similar rule in Australia is drafted and applied in practice by their courts. The article concludes that s 76(4) (a) creates protection for directors that is more than the protection that is provided by a traditional business judgment rule. This conclusion is based on the extensive nature and scope of authority and powers which s 66(1) of the Act grants to directors. In the same breath, however, s 76(4)(a) manages to make directors appropriately accountable to the company’s stakeholders, in keeping with some of the fundamental objectives and purposes of the Act.