| (1) |
A court may order a solvent company to be wound up if— |
| (ii) |
applied to the court to have its voluntary winding-up continued by the court; |
| (b) |
the practitioner of a company appointed during business rescue proceedings has applied for liquidation in terms of section 141(2)(a), on the grounds that there is no reasonable prospect of the company being rescued; or |
| (c) |
one or more of the company’s creditors have applied to the court for an order to wind up the company on the grounds that— |
| (i) |
the company’s business rescue proceedings have ended in the manner contemplated in section 132(2)(b) or (c)(i) and it appears to the court that it is just and equitable in the circumstances for the company to be wound up; or |
| (ii) |
it is otherwise just and equitable for the company to be wound up; |
| (d) |
the company, one or more directors or one or more shareholders have applied to the court for an order to wind up the company on the grounds that— |
| (i) |
the directors are deadlocked in the management of the company, and the shareholders are unable to break the deadlock, and— |
| (aa) |
irreparable injury to the company is resulting, or may result, from the deadlock; or |
| (bb) |
the company’s business cannot be conducted to the advantage of shareholders generally, as a result of the deadlock; |
| (ii) |
the shareholders are deadlocked in voting power, and have failed for a period that includes at least two consecutive annual general meeting dates, to elect successors to directors whose terms have expired; or |
| (iii) |
it is otherwise just and equitable for the company to be wound up; |
| (e) |
a shareholder has applied, with leave of the court, for an order to wind up the company on the grounds that— |
| (i) |
the directors, prescribed officers or other persons in control of the company are acting in a manner that is fraudulent or otherwise illegal; or |
| (ii) |
the company’s assets are being misapplied or wasted; |
| (f) |
the Commission or Panel has applied to the court for an order to wind up the company on the grounds that— |
| (i) |
the company, its directors or prescribed officers or other persons in control of the company are acting or have acted in a manner that is fraudulent or otherwise illegal, the Commission or Panel, as the case may be, has issued a compliance notice in respect of that conduct, and the company has failed to comply with that compliance notice; and |
| (ii) |
within the previous five years, enforcement procedures in terms of this Act or the Close Corporations Act, 1984 (Act No. 69 or 1984), were taken against the company, its directors or prescribed officers, or other persons in control of the company for substantially the same conduct, resulting in an administrative fine, or conviction for an offence; or |
| (g) |
in the case of a designated institution as defined in the Financial Sector Regulation Act, 2017 (Act No. 9 of 2017), the Reserve Bank has applied to the court for an order to wind up the company on the grounds that the company has been placed in resolution in terms of that Act and there are no reasonable prospects that the company will cease to be in resolution. |
[Section 81(1)(g) inserted by section 27(a) of the Financial Sector Laws Amendment Act, 2021 (Act No. 23 of 2021), Notice No. 789, GG45825, dated 28 January 2022- effective 1 June 2023 per (b)(i) of Commencement Notice No. 3202, GG48294, dated 24 March 2023]
| (2) |
A shareholder may not apply to a court as contemplated in subsection (1)(d) or (e) unless the shareholder— |
| (a) |
has been a shareholder continuously for at least six months immediately before the date of the application; or |
| (b) |
became a shareholder as a result of— |
| (i) |
acquiring another shareholder; or |
| (ii) |
the distribution of the estate of a former shareholder, |
and the present shareholder, and other or former shareholder, in aggregate, satisfied the requirements of paragraph (a).
| (3) |
A court may not make an order applied for in terms of subsection (1)(e) or (f) if, before the conclusion of the court proceedings— |
| (a) |
any of the directors have resigned, or have been removed in terms of section 71, and the court concludes that the remaining directors were not materially implicated in the conduct on which the application was based; or |
| (b) |
one or more shareholders have applied to the court for a declaration in terms of section 162 to declare delinquent the directors, if any, responsible for the alleged misconduct, and the court is satisfied that the removal of those directors would bring the misconduct to an end. |
| (4) |
A winding-up of a company by a court begins when— |
| (a) |
an application has been made to the court in terms of subsection (1)(a) or (b); or |
| (b) |
the court has made an order applied for in terms of subsection (1)(c), (d), (e) or (f). |
Older Persons Act, 2006
