Diminution’ in share value and third-party claims for pure economic loss: the question of director liability to shareholders
Affiliations: Senior Lecturer in Law, University of the Western Cape, PhD Commercial Law (UCT), LLM Environmental Law (UKZN), LLB (Fort Hare)
Source: South African Mercantile Law Journal, Volume 31 Issue 1, 2019, p. 107 – 128
When a shareholder suffers pure economic loss as a consequence of a reduction in shareholding value, the natural temptation for a shareholder is to seek a remedy that includes a personal claim against a director. This is because directors, as agents of a company, are decision-makers in a company. However, the common law in South Africa and elsewhere holds that a shareholder does not have a cause of action to recover personal damages against a director simply because a company in which he or she holds shares, suffered damages. This article argues that the Supreme Court of Appeal (SCA) in Itzikowitz v Absa Bank Limited confirmed that this principle still applies in South African common law. Yet, despite the SCA clarifying the contours between delicts committed against a company and those committed against a shareholder, there are still cases in which shareholders seek damages against directors for pure economic losses suffered by him or her. This article identifies the ambiguity in section 218(2) of the Companies Act 71 of 2008 as part of the problem. Suggestions are made to adopt a judicial approach to the interpretation of section 218(2) in order to distinguish between instances where the general remedy under section 218(2) is applicable and instances when it is not. The focus first falls on the correct position at common law regarding a remedy for pure economic losses. Thereafter, the focus moves to the proper interpretation of section 218(2) in order to ensure that courts do not arrive at an absurd outcome—that is, to avoid an absurdity so glaring that it could never have been contemplated by the legislature.