MCL5901 ASSIGNMENT 2 2024 S2
Due: Thursday, August 2024, 8:00 PM
, 1|Page
QUESTION 1.1
Locus Standi of OACSA to Bring a Delinquency Application
In this question, the key issue is whether OACSA, as an organization against
corruption in South Africa, has the necessary standing (locus standi) to bring a
delinquency application against Simphiwe. The relevant legal framework is provided
by the Companies Act 71 of 2008 (the Act).
According to Section 162(2) of the Act, an application to declare a person a
delinquent director may be made by the company, a shareholder, a director, a
company secretary, a prescribed officer, a registered trade union that represents
employees of the company, or another person authorized by the court. In this case,
OACSA does not fall into any of these categories, as it is not the company, a
shareholder, a director, a company secretary, or a prescribed officer of Metsi South
Africa SOC Ltd.
However, the Act also allows "any other person who has a legal interest in the
matter" to bring a delinquency application (Section 162(2)(e)). In the case of
Msimang NO v Katuliiba and Others (2013), the court held that the locus standi
requirement should be interpreted broadly, taking into account the public interest in
holding directors accountable.
As an organization against corruption in South Africa, OACSA could argue that it has
a legal interest in ensuring that directors who have breached their duties are held
accountable, which serves the public interest. Therefore, while OACSA may face
some challenges in establishing its locus standi, it is likely that a court would find that
OACSA has the necessary standing to bring the delinquency application against
Simphiwe, given its stated purpose and the public interest in the matter.
QUESTION 1.2
Bringing a Delinquency Application Against a Former Director
The second question addresses whether OACSA can bring a delinquency
application against Simphiwe even though he is no longer a director of Metsi South
Africa SOC Ltd. The Act states that a delinquency application can be brought against
a person who is a director "at the time the application is made" (Section 162(1)).
Due: Thursday, August 2024, 8:00 PM
, 1|Page
QUESTION 1.1
Locus Standi of OACSA to Bring a Delinquency Application
In this question, the key issue is whether OACSA, as an organization against
corruption in South Africa, has the necessary standing (locus standi) to bring a
delinquency application against Simphiwe. The relevant legal framework is provided
by the Companies Act 71 of 2008 (the Act).
According to Section 162(2) of the Act, an application to declare a person a
delinquent director may be made by the company, a shareholder, a director, a
company secretary, a prescribed officer, a registered trade union that represents
employees of the company, or another person authorized by the court. In this case,
OACSA does not fall into any of these categories, as it is not the company, a
shareholder, a director, a company secretary, or a prescribed officer of Metsi South
Africa SOC Ltd.
However, the Act also allows "any other person who has a legal interest in the
matter" to bring a delinquency application (Section 162(2)(e)). In the case of
Msimang NO v Katuliiba and Others (2013), the court held that the locus standi
requirement should be interpreted broadly, taking into account the public interest in
holding directors accountable.
As an organization against corruption in South Africa, OACSA could argue that it has
a legal interest in ensuring that directors who have breached their duties are held
accountable, which serves the public interest. Therefore, while OACSA may face
some challenges in establishing its locus standi, it is likely that a court would find that
OACSA has the necessary standing to bring the delinquency application against
Simphiwe, given its stated purpose and the public interest in the matter.
QUESTION 1.2
Bringing a Delinquency Application Against a Former Director
The second question addresses whether OACSA can bring a delinquency
application against Simphiwe even though he is no longer a director of Metsi South
Africa SOC Ltd. The Act states that a delinquency application can be brought against
a person who is a director "at the time the application is made" (Section 162(1)).
