| (1) |
If the Agency materially or persistently fails to meet the objectives and targets as contained in its corporate planning instruments and as specified by the Minister in terms of binding shareholder instructions as contained in shareholder compacts, the Minister may call a special general meeting of the Agency to consider the corrective action to be taken. |
| (2) |
In the circumstances contemplated in subsection (1), the Minister may— |
| (a) |
request any additional information required; |
| (b) |
commission an independent investigation of the Agency, or a subsidiary, in relation to its operations and finances; |
| (c) |
require, in consultation with the Board, that the Agency be restructured with a view to meet the financial and non-financial support objectives of the State in relation to small enterprises or reducing the Agency’s costs or increasing its revenue; |
| (d) |
review Board membership and provide additional capacity to the Board; |
| (e) |
issue instructions to the Board to remedy the failure; or |
| (f) |
apply to the High Court to appoint a curator, on such terms as the Court may determine, to take control of the management of the Agency. |
| (3) |
If the Minister exercises any of the powers listed in subsection (2), the powers of the Board and the performance of its functions to manage the business and affairs of the Agency are restricted accordingly, notwithstanding anything to the contrary contained in section 66 of the Companies Act. |
| (4) |
If the Minister commissions an independent investigation in terms of subsection (2)(b)— |
| (a) |
the Board must ensure that the person carrying out the investigation has access to all relevant information of the Agency; and |
| (b) |
the person carrying out the investigation must— |
| (i) |
ensure that the information gleaned in the investigation is confidential and may not be communicated to any person other than the Minister, the Board or an applicable law enforcement agency; and |
| (ii) |
submit a written report of the findings arising from the investigation to the Minister and the Board. |
| (5) |
If a curator is appointed in terms of subsection (2)(f), the curator assumes all the duties, functions and powers of the Board. |
| (6) |
Both the Minister and the Board must disclose any appointment and main findings of an independent investigator in the Minister’s annual report and the Agency’s annual report. |
[Section 12 substituted by section 4 of the National Small Enterprise Amendment Act, 2024 (Act No. 21 of 2024), GG50965, Notice No. 5049, dated 23 July 2024 - effective 1 October 2024 per Commencement Notice 190 of 2024]
Protection of Businesses Act, 1978
