The Suspension and Setting Aside of Delinquency and Probation Orders under the Companies Act 71 of 2008

  • Rehana Cassim University of south Africa
Keywords: Company law, delinquent directors, sections 162(11) and 162(12) of the Companies Act 71 of 2008, suspension of delinquency orders, setting aside of probation orders, rehabilitation of delinquent directors, discretion of court


A significant innovation of the Companies Act 71 of 2008 is contained in section 162. This provision empowers a court to declare a director delinquent or under probation on various grounds. The effect of a delinquency order is that a person is disqualified from being a director of a company, while being placed under probation means that he or she may not serve as a director except to the extent permitted by the order. A delinquency order may be unconditional and subsist for the director's lifetime, or it may be conditional and be effective for seven years or longer, as determined by the court. A probation order generally subsists for a period not exceeding five years, and may be subject to such conditions as the court considers appropriate. The harsh effects of these orders are alleviated by section 162(11) of the Companies Act. Under this provision, a delinquent director may apply to court after three years have elapsed, to suspend the delinquency order and to substitute it with a probation order, with or without conditions. A person who was placed under a probation order may apply to court after two years for the probation order to be set aside. This article examines the procedure under section 162(11) of the Companies Act for the suspension and setting aside of delinquency and probation orders. The factors that a court must take into account in exercising its discretion whether or not to grant the application, as set out in section 162(12) of the Companies Act, are also examined. This article draws on relevant jurisprudence as decided on the equivalent provisions in the corporate legislation in the United Kingdom and Australia. The method of interpretation used in these jurisdictions provides useful guidance on how best to apply and interpret sections 162(11) and (12) of the Companies Act. Recommendations are made regarding the proper approach to interpreting, applying and enhancing sections 162(11) and (12) of the Companies Act.



Author Biography

Rehana Cassim, University of south Africa

Department of Mercantile Law Department, School of Law, University of South Africa

Senior Lecturer

Attorney and Notary Public of the High Court of South Africa

BA (cum laude) (Wits)

LLB (cum laude) (Wits)

LLM (cum laude) (Wits)


Ashworth A Sentencing and Criminal Justice 5th ed (Cambridge University Press Cambridge 2010)
Belcher A "What Makes a Director Fit: An Analysis of the Workings of Section 17 of the Company Directors Disqualification Act 1986" 2012 Edin LR 386-409
Bristoll S "Permission to Act whilst Disqualified" 2014 Insolvency Intelligence 49-54
Cassidy J "Disqualification of Directors under the Corporations Law" 1995 C&SLJ 221-239
Cassim R "Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35" 2016 PELJ 1-28
Davies PL and Worthington S Gower: Principles of Modern Company Law 10th ed (Sweet & Maxwell London 2016)
Delport P Henochsberg on the Companies Act 71 of 2008 - Vol 1 (LexisNexis Durban 2011)
Du Plessis J and Delport P "'Delinquent Directors' and 'Directors under Probation': A Unique South African Approach Regarding Disqualification of Company Directors" 2017 SALJ 274-295
Goddard R "Leave to Act and the Disqualified Director: Re Hennelly's Utilities Ltd" 2004 Company Lawyer 222-223
Griffin S "The Disqualification of Unfit Directors and the Protection of the Public Interest" 2002 NILQ 207-231
Hicks A "Director Disqualification: Can it Deliver?" 2001 JBL 433-460
Kemp G et al Criminal Law in South Africa 2nd ed (Oxford University Press Cape Town 2015)
Terblanche SS Guide to Sentencing in South Africa 2nd ed (LexisNexis Durban 2007)
Adams v Australian Securities & Investments Commission [2003] FCA 557
Companies and Intellectual Property Commission v Cresswell 2017 ZAWCHC 38 (27 March 2017)
Companies and Intellectual Property Commission v Zwane 2019 ZAGPPHC 381 (8 August 2019)
Gihwala v Grancy Property Limited 2017 2 SA 337 (SCA)
Grancy Property Limited v Gihwala 2014 JDR 1292 (WCC)
Harris v Secretary of State for Business, Innovation and Skills [2015] BCC 283
Hennelly v Secretary of State for Trade and Industry [2004] EWHC 34 (Ch)
Hosken v Australian Securities and Investments Commission [1998] TASSC 101
In Re Marsden (1981) 29 SASR 454
Khan v Sprint Logistics SA (Pty) Ltd 2016 JDR 2002 (KZD)
Koen v Wedgewood Village Golf & Country Estate (Pty) Ltd 2012 2 SA 378 (WCC)
Kukama v Lobelo 2012 JDR 0663 (GSJ)
Lewis Group Limited v Woollam 2017 2 SA 547 (WCC)
Lobelo v Kukama 2013 JDR 1434 (GSJ)
Luthuli Power Corporation (Pty) Ltd v Transfix Transformers SA (Pty) Ltd 2017 JDR 0806 (FB)
Msimang v Katuliiba 2013 1 All SA 580 (GSJ)
Mtolo Guilder Investments 10 (Pty) Ltd 2017 ZAKZDHC 6 (2 March 2017)
Murray v Australian Securities Commission (1994) 12 ACLC 11
Nedbank Ltd v Bestvest 153 (Pty) Ltd; Essa v Bestvest 153 (Pty) Ltd 2012 5 SA 497 (WCC)
Oakdene Square Properties (Pty) Ltd v Farm Bothasfontein (Kyalami) (Pty) Ltd 2013 4 SA 539 (SCA)
Prospec Investments (Pty) Ltd v Pacific Coast Investments 97 Ltd 2013 1 SA 542 (FB)
Rabinowitz v Van Graan 2013 5 SA 315 (GSJ)
Re Barings plc (No 3), Secretary of State for Trade and Industry v Baker [1999] 1 All ER 1017
Re Brian Sheridan Cars Ltd Official Receiver v Sheridan [1996] 1 BCLC 327
Re Britannia Homes Centres Ltd, Official Receiver v McCahill [2001] 2 BCLC 63
Re C & J Hazell Holdings Pty Ltd and Related Companies [1991] TASSC 11
Re Chapman [2006] NSWSC 99
Re Chartmore Ltd [1990] BCLC 673
Re Dawes and Henderson (Agencies) Ltd [2000] 2 BCC 204
Re Gibson Davies Ltd [1995] BCC 11
Re Hamilton-Irvine (1990) 8 ACLC 1067
Re Jarret [1999] FCA 503
Re Magna Alloys & Research Pty Ltd (1975) 1 ACLR 28353
Re Majestic Recording Studios Ltd [1989] BCLC 1
Re Minimix Industries Ltd (1982) 1 ACLC 511
Re Tech Textiles Ltd, Secretary of State for Trade and Industry v Vane [1998] 1 BCLC 259
Re Van Reesema (1975) 11 SASR 28249
Re Westmid Packing Services Ltd Secretary of State for Trade and Industry v Griffiths [1998] 2 All ER 124
Re Zim Metal Products Pty Ltd (1977) ACLC 29556
S v Nkambule 1993 1 All SA 485 (A)
S v Nombewu 1996 12 BCLR 1635 (E)
Secretary of State for Trade and Industry v Barnett [1998] 2 BCLC 64
Secretary of State for Trade and Industry v Collins & Ors [2000] BCC 998
Secretary of State for Trade and Industry v Palfreman [1995] BCC 193
Secretary of State for Trade and Industry v Swan (No 2) [2005] EWHC 2479
Southern Palace Investments 265 (Pty) Ltd v Midnight Storm Investments 386 Ltd 2012 2 SA 423 (WCC)
Tyre Corporation Cape Town (Pty) Ltd v GT Logistics (Pty) Ltd 2017 3 SA 74 (WCC)
Zuker v Commissioner for Corporate Affairs [1980] ACLC 34334
Australian Corporations Act, 2001
Companies Act 71 of 2008
Companies Act, 1961 (Victoria)
Companies Amendment Act 3 of 2011
Company Directors Disqualification Act, 1986
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