164.   Interpretation

            In this Part, unless the context otherwise requires, the terms -

            "entitled person", "former shareholder", and "shareholder" include a reference to the executor or other personal representative of an entitled person, former shareholder, or shareholder and a person to whom shares of any of those persons have passed by operation of law.

165.   Interdict

            (1) The court may, on an application under this section, make an order restraining a company that, or a director of a company who, proposes to engage in conduct that would contravene the constitution of the company or this Act, from engaging in that conduct.

            (2) An application may be made by -

     (a)     the company;

     (b)     a director or shareholder of the company; or

     (c)     an entitled person.

            (3) If the court makes an order under subsection (1) it may also grant such consequential relief as it considers appropriate.

            (4) An order may not be made under this section in relation to conduct or a course of conduct that has been completed.

            (5) The court may, at any time before the final determination of an application under subsection (1), make, as an interim order, any order that it is empowered to make under that subsection.

166.   Derivative actions

            (1) Subject to subsection (3), the court may, on the application of a shareholder or other entitled person or director of a company, grant leave to that shareholder, entitled person or director to -

     (a)     bring proceedings in the name and on behalf of the company or any subsidiary; or

     (b)     intervene in proceedings to which the company or any related company is a party for the purpose of continuing, defending, or discontinuing the proceedings on behalf of the company or subsidiary, as the case may be.

            (2) Without limiting subsection (1), in determining whether to grant leave under that subsection, the court shall have regard to -

     (a)     the likelihood of the proceedings succeeding;

     (b)     the costs of the proceedings in relation to the relief likely to be obtained;

     (c)     any action already taken by the company or subsidiary to obtain relief; or

     (d)     the interests of the company or subsidiary in the proceedings being commenced, continued, defended, or discontinued, as the case may be.

            (3) Leave to bring proceedings or intervene in proceedings may be granted under subsection (1), only if the court is satisfied that either -

     (a)     the company or related company does not intend to bring, diligently continue or defend, or discontinue the proceedings, as the case may be; or

     (b)     it is in the interests of the company or subsidiary that the conduct of the proceedings should not be left to the directors or to the determination of the shareholders as a whole.

            (4) Notice of the application shall be served on the company or subsidiary.

            (5) The company or related company -

     (a)     may appear and be heard; and

     (b)     shall inform the court, whether or not it intends to bring, continue, defend, or discontinue the proceedings, as the case may be.

            (6) Except as provided in this section, a shareholder or other entitled person or director of a company is not entitled to bring or intervene in any proceedings in the name of, or on behalf of, a company or subsidiary.

167.   Costs of derivative action to be met by company

            (1) The court shall, on the application of the shareholder or other entitled person or director to whom leave was granted under section 166 to bring or intervene in the proceedings, order that the whole or part of the reasonable costs of bringing or intervening in the proceedings, including any costs relating to any settlement, compromise, or discontinuance approved under section 166, shall be met by the company unless the court considers that it would be unjust or inequitable for the company to bear those costs.

            (2) A shareholder or other entitled person or director may bring an application for costs under this section at the same time as an application is brought under section 166 to bring or intervene in the proceedings, and the court may make an order on that application at the same time as the court grants leave under section 166.

168.   Powers of court where leave granted

            The court may, at any time, make any order it considers appropriate in relation to proceedings brought by a shareholder or other entitled person or a director or in which a shareholder or other entitled person or director intervenes, as the case may be, with leave of the court under section 166, and without limiting the generality of this section may -

     (a)     make an order authorising the shareholder or any other person to control the conduct of the proceedings;

     (b)     give directions for the conduct of the proceedings;

     (c)     make an order requiring the company or the directors to provide information or assistance in relation to the proceedings; or

     (d)     make an order directing that any amount ordered to be paid by a defendant in the proceedings shall be paid, in whole or part, to former and present shareholders or other entitled person of the company or subsidiary instead of to the company or the related company.

169.   Compromise, settlement, or withdrawal of derivative action

            No proceedings brought by a shareholder or other entitled person or a director or in which a shareholder or a director intervenes, as the case may be, with leave of the court under section 166, may be settled or compromised or discontinued without the approval of the court.

170.   Actions by shareholders against directors

            (1) A shareholder or former shareholder may bring an action against a director for breach of a duty owed to him as a shareholder.

            (2) An action may not be brought under subsection (1) to recover any loss in the form of a reduction in the value of shares in the company or a failure of the shares to increase in value by reason only of a loss suffered, or a gain forgone, by the company.

            (3) Without limiting subsection (1), the duties of directors set out in -

     (a)     section 135, which relates to the duty to disclose interests; and

     (b)     section 143, which relates to the duty to disclose share dealings -

are duties owed to shareholders.

            (4) Without limiting subsection (1) the duties of directors set out in -

     (a)     section 130(1)(c), (f), (h), (j), (k) and (m), which relates to the duty of directors-

           (i)       to act in good faith and in the best interests of the company,

          (ii)       not to compete with the company, and

          (iii)       to properly use and account for assets;

     (b)     section 160, which relates to the duty of directors on insolvency;

     (c)     section 130(1)(e), which relates to the duty not to agree to a company incurring certain obligations;

     (d)     section 158, which relates to a director’s duty of care;

     (e)     section 140, which relates to the use of company information; and

     (f)      section 189 and 190, which relate to keeping proper accounting records, are duties owed to the company and not to shareholders.

171.   Actions by shareholders against company

            A shareholder of a company may bring an action against the company for breach of a duty owed by the company to him as a shareholder.

172.   Actions by shareholder to require company to act

            Notwithstanding section 171, the court may, on the application of a shareholder of a company, if it is satisfied that it is just and equitable to do so, make an order requiring the company or its Board or a director of the company to take any action that is required to be taken by the constitution of the company or this Act and, on making the order, the court may grant such other consequential relief as it considers appropriate.

173.   Representative actions

            Where a shareholder of a company brings proceedings against the company or a director, and other shareholders have the same or substantially the same interest in relation to the subject-matter of the proceedings, the court may appoint that shareholder to represent all or some of the shareholders having the same or substantially the same interest, and may, for that purpose, make such order as it considers appropriate including, without limiting the generality of this section, an order -

     (a)     as to the control and conduct of the proceedings;

     (b)     as to the costs of the proceedings; or

     (c)     directing the distribution of any amount ordered to be paid by a defendant in the proceedings among the shareholders represented.

174.   Prejudiced shareholders

            (1) A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or prejudicial to that person in that capacity or in any other capacity, may apply to the court for an order under this section.

            (2) If, on an application under this section, the court considers that it is just and equitable to do so, it may make such order as it considers appropriate including, without limiting the generality of this subsection, an order -

     (a)     requiring the company or any other person to acquire the shareholder’s shares;

     (b)     requiring the company or any other person to pay compensation to a person;

     (c)     regulating the future conduct of the company’s affairs;

     (d)     altering or adding to the company’s constitution;

     (e)     appointing a receiver of the company;

     (f)      directing the rectification of the records of the company;

     (g)     putting the company into liquidation; or

     (h)     setting aside action taken by the company or the Board in breach of this Act or the constitution of the company.

            (3) No order may be made against the company or any other person under subsection (2) of this section unless the company or that person is a party to the proceedings in which the application is made.

175.   Alteration to constitution

            (1) Notwithstanding anything in this Act, but subject to the order, where the court makes an order under section 174 altering or adding to the constitution of a company, the constitution shall not, to the extent that it has been altered or added to by the court, again be altered or added to without the leave of the court.

            (2) Any alteration or addition to the constitution of a company made by an order under section 174 has the same effect as if it had been made by the shareholders of the company pursuant to section 43 and the provisions of this Act shall apply to the constitution as altered or added to.

            (3) Within 10 working days of the making of an order under section 43 altering or adding to the constitution of a company, the Board of the company shall ensure that a copy of the order and the constitution as altered or added to is delivered to the Registrar for registration.

            (4) If the Board of a company fails to comply with subsection (3), every director of the company shall be guilty of an offence and liable to the penalty set out in section 492(1) of this Act.

176.   Ratification of certain actions of directors

            (1) The purported exercise by a director or the Board of a company of a power vested in the shareholders or any other person may be ratified or approved by those shareholders or that person in the same manner in which the power may be exercised.

            (2) The purported exercise of a power that is ratified under subsection (1) is deemed to be, and always to have been, a proper and valid exercise of that power.

            (3) The ratification or approval under this section of the purported exercise of a power by a director or the Board does not prevent the court from exercising a power which might, apart from the ratification or approval, be exercised in relation to the action of the director or the Board.