Bibliographie sélective OHADA

Section 71(3) of the Companies Act 71 of 2008 has introduced into South African company law a provision which for the first time permits the board of directors to remove another director from office in certain specific instances. A further significant innovation in the Companies Act 71 of 2008 is contained in section 162, which empowers a court to make an order declaring a director delinquent or placing him under probation in specific instances. The effect of section 162 is that a court is empowered to remove a director from the board of directors. The focus of this thesis is the removal of directors from office by the board of directors and by the judiciary. The thesis explores the underpinning philosophy of the statutory provisions relating to the removal of directors from office. It also examines the impact of the power given to the board of directors and to the courts to remove a director from office. The grounds and the procedures for the removal of directors by the board of directors and the judiciary are examined. The fiduciary duties applicable to directors in removing a director from the board of directors are also explored. In addition, this thesis examines the removal of directors holding multiple positions or capacities in relation to a company, such as an employee or a shareholder with loaded voting rights. The remedies which may be relied on by a director who has been removed from office by the board of directors are examined. Recommendations are made to strengthen and improve the provisions in the Companies Act 71 of 2008 relating to the removal of directors from office by the board of directors and the judiciary. Amendments to the Companies Act 71 of 2008 are suggested to remove ambiguities; to guard against the abuse of sections 71(3) and 162; to improve the grounds and procedures for the removal of directors by the board of directors and the judiciary, and to enhance the remedies that may be relied on by a director who has been removed from office by the board of directors.