| (a) |
a prescribed officer; or |
| (b) |
a person who is a member of a committee of a board of a company, or of the audit committee of a company, irrespective of whether or not the person is also a member of the company’s board. |
| (2) |
A person who is ineligible or disqualified, as set out in this section, must not— |
| (a) |
be appointed or elected as a director of a company, or consent to being appointed or elected as a director; or |
| (b) |
act as a director of a company. |
| (3) |
A company must not knowingly permit an ineligible or disqualified person to serve or act as a director. |
| (4) |
A person who becomes ineligible or disqualified while serving as a director of a company ceases to be entitled to continue to act as a director immediately, subject to section 70(2). |
| (5) |
A person who has been placed under probation by a court in terms of section 162, or in terms of section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984), must not serve as a director except to the extent permitted by the order of probation. |
| (6) |
In addition to the provisions of this section, the Memorandum of Incorporation of a company may impose— |
| (a) |
additional grounds of ineligibility or disqualification of directors; or |
| (b) |
minimum qualifications to be met by directors of that company. |
| (7) |
A person is ineligible to be a director of a company if the person— |
| (b) |
is an unemancipated minor, or is under a similar legal disability; or |
| (c) |
does not satisfy any qualification set out in the company’s Memorandum of Incorporation. |
| (8) |
A person is disqualified to be a director of a company if— |
| (a) |
a court has prohibited that person to be a director, or declared the person to be delinquent in terms of section 162, or in terms of section 47 of the Close Corporations Act, 1984 (Act No. 69 of 1984); or |
| (b) |
subject to subsections (9) to (12), the person— |
| (i) |
is an unrehabilitated insolvent; |
| (ii) |
is prohibited in terms of any public regulation to be a director of the company; |
| (iii) |
has been removed from an office of trust, on the grounds of misconduct involving dishonesty; |
| (iv) |
has been convicted, in the Republic or elsewhere, and imprisoned without the option of a fine, or fined more than the prescribed amount, for theft, fraud, forgery, perjury or an offence— |
| (aa) |
involving fraud, misrepresentation or dishonesty, or money laundering, terrorist financing, or proliferation financing activities as those terms are defined in section 1(1) of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001); or; |
| (bb) |
in connection with the promotion, formation or management of a company, or in connection with any act contemplated in subsection (2) or (5); or |
| (cc) |
under this Act, the Insolvency Act, 1936 (Act No. 24 of 1936), the Close Corporations Act, 1984, the Competition Act, the Financial Intelligence Centre Act, 2001, the Financial Markets Act, 2012, Chapter 2 of the Prevention and Combating of Corruption Activities Act, 2004 (Act No. 12 of 2004), the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004 (Act 33 of 2004) or the Tax Administration Act, 2011 (Act 28 of 2011); or |
[Section 69(8)(b)(iv) substituted by section 59(b) of the General Laws (Anti-Money Laundering & Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022) Notice No. 1532, GG47802, dated 29 December 2022 - effective 31 December 2022 per Proclamation Notice 109 (a), GG47805, dated 31 December 2022]
| (v) |
when a person is subject to a resolution adopted by the Security Council of the United Nations when acting under Chapter VII of the Charter of the United Nations, providing for financial sanctions which entail the identification of persons or entities against whom member states of the United Nations must take the actions specified in the resolution. |
[Section 69(8)(b)(v) inserted by section 59(c) of the General Laws (Anti-Money Laundering & Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022) Notice No. 1532, GG47802, dated 29 December 2022 - effective 31 December 2022 per Proclamation Notice 109 (a), GG47805, dated 31 December 2022]
| (9) |
A disqualification in terms of subsection (8)(b)(iii) or (iv) ends at the later of— |
| (a) |
five years after the date of removal from office, or the completion of the sentence imposed for the relevant offence, as the case may be; or |
| (b) |
at the end of one or more extensions, as determined by a court from time to time, on application by the Commission in terms of subsection (10). |
| (9A) |
A disqualification in terms of subsection (8)(b)(v) ends when the Security Council of the United Nations takes a decision to no longer apply that resolution to a person contemplated in that subsection. |
[Section 69(9A) inserted by section 59(d) of the General Laws (Anti-Money Laundering & Combating Terrorism Financing) Amendment Act, 2022 (Act No. 22 of 2022) Notice No. 1532, GG47802, dated 29 December 2022 - effective 31 December 2022 per Proclamation Notice 109 (a), GG47805, dated 31 December 2022]
| (10) |
At any time before the expiry of a person’s disqualification in terms of subsection (8)(b)(iii) or (iv)— |
| (a) |
the Commission may apply to a court for an extension contemplated in subsection (9)(b); and |
| (b) |
the court may extend the disqualification for no more than five years at a time, if the court is satisfied that an extension is necessary to protect the public, having regard to the conduct of the disqualified person up to the time of the application. |
| (11) |
A court may exempt a person from the application of any provision of subsection (8)(b). |
| (11A) |
The Registrar of the Court must, upon- |
| (a) |
the issue of a sequestration order; |
| (b) |
the issue of an order for the removal of a person from any office of trust on the grounds of misconduct involving dishonesty; or |
| (c) |
a conviction for an offence referred in subsection (8)(b)(iv), |
send a copy of the relevant order or particulars of the conviction, as the case may be, to the Commission.
| (11B) |
The Commission must notify each company which has as a director to whom the order or conviction relates, of the order or conviction. |
| (12) |
[Section 69(12) deleted by Act No. 3 of 2011] |
| (13) |
The Commission must establish and maintain in the prescribed manner a public register of persons who are disqualified from serving as a director, or who are subject to an order of probation as a director, in terms of an order of a court pursuant to this Act or any other law. |
South African Council for Educators Act, 2000
