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Companies Act, 2008 (Act No. 71 of 2008)

Chapter 1 : Interpretation, Purpose and Application

Part A : Interpretation

2. Related and inter-related persons, and control

 

 

1) For all purposes of this Act
a) an individual is related to another individual if they—
i) are married, or live together in a relationship similar to a marriage; or
ii) are separated by no more than two degrees of natural or adopted consanguinity or affinity;
b) an individual is related to a juristic person if the individual directly or indirectly controls the juristic person, as determined in accordance with subsection (2); and
c) a juristic person is related to another juristic person if—
i) either of them directly or indirectly controls the other, or the business of the other, as determined in accordance with subsection (2);
ii) either is a subsidiary of the other; or
iii) a person directly or indirectly controls each of them, or the business of each of them, as determined in accordance with subsection (2).

 

2) For the purpose of subsection (1), a person controls a juristic person, or its business, if—
a) in the case of a juristic person that is a company
i) that juristic person is a subsidiary of that first person, as determined in accordance with section 3(1)(a); or
ii) that first person together with any related or inter-related person, is—
aa) directly or indirectly able to exercise or control the exercise of a majority of the voting rights associated with securities of that company, whether pursuant to a shareholder agreement or otherwise; or
bb) has the right to appoint or elect, or control the appointment or election of, directors of that company who control a majority of the votes at a meeting of the board;
b) in the case of a juristic person that is a close corporation, that first person owns the majority of the members’ interest, or controls directly, or has the right to control, the majority of members’ votes in the close corporation;
c) in the case of a juristic person that is a trust, that first person has the ability to control the majority of the votes of the trustees or to appoint the majority of the trustees, or to appoint or change the majority of the beneficiaries of the trust; or
d) that first person has the ability to materially influence the policy of the juristic person in a manner comparable to a person who, in ordinary commercial practice, would be able to exercise an element of control referred to in paragraph (a), (b) or (c).

 

3) With respect to any particular matter arising in terms of this Act, a court, the Companies Tribunal or the Panel may exempt any person from the application of a provision of this Act that would apply to that person because of a relationship contemplated in subsection (1) if the person can show that, in respect of that particular matter, there is sufficient evidence to conclude that the person acts independently of any related or inter-related person.