Compliance notices in terms of the Companies Act 71 of 2008: Some observations regarding the issuing of and objection to compliance notices
Authors S de Lange
Affiliations: Lecturer, Mercantile Law Department, University of Stellenbosch
Source: South African Mercantile Law Journal, Volume 30 Issue 3, 2018, p. 434 – 455
As a mechanism to address contraventions of the Companies Act 71 of 2008 (Companies Act), compliance notices play an important role in the decriminalisation of company law. Being issued with a compliance notice, and especially failure to comply with it, can have serious and far-reaching consequences. It is therefore vital that compliance notices are issued in a manner which is fair and just, and that appropriate remedies are in place for an aggrieved person to object to or dispute the notice. As the issuing of a compliance notice is classified as administrative action, it must meet the requirements of lawfulness, reasonableness, and procedural fairness as contemplated in section 33 of the Constitution of the Republic of South Africa, 1996 (the Constitution), [fn1]read with the Promotion of Administrative Justice Act 3 of 2000 (the PAJA). This article considers some administrative justice aspects relating to the limitations or constraints on the issuing of compliance notices. It further addresses possible remedies or avenues of redress available to aggrieved persons once a compliance notice has been issued. In this regard, observations are made relating to the rights of an aggrieved person to object to a compliance notice in terms of section 172 of the Companies Act while also considering the PAJA. footnote 1: Constitution of the Republic of South Africa, 1996.