Financial Assistance to Directors
Submitted by: Kiyaam Bekko, SchoemanLaw Inc Save to Instapaper
Kiyaam Bekko | SchoemanLaw Inc
Category: Commercial Law
Directors often receive loans and financial assistance from companies. When a Board grants financial assistance to directors, it must adhere to the provisions of section 45 of the Companies Act 71 of 2008 (Companies Act).1 This section of the Act deals with direct and indirect assistance a company may extend to its directors and related parties.
Before a company may consider providing financial assistance to a director, the board must satisfy specific requirements which is discussed hereunder before assistance may be approved.
The underlying rationale is to prevent the board from acting against the interest of shareholders by burdening the company with commitments for the benefit of directors.
What is Financial Assistance?
Section 45(1) of the Companies Act describes financial assistance as, amongst other things:
the lending of money; guaranteeing a loan or other obligation; and securing any debt or obligation.
It is essential to bear in mind that financial assistance does not include lending money in the ordinary course of business by a company whose primary business is the lending of money (Section 45(1)(b)).2
Financial assistance is, however, not limited to company directors only. Section 45(2) of the Act extends the list of parties the board may authorize the company to provide direct or indirect financial assistance to:
- a director or prescribed officer of the company; or
- of a related or inter-related company, or
- to a related or inter-related company or corporation, or
- to a member of a related or inter-related corporation, or
- to a person related to any such company, corporation, director, prescribed officer or member.
Compliance Considerations
The board is only authorized to provide financial assistance if the assistance is pursuant to the following:
- to a special resolution (adopted within the previous two years approving the financial assistance);
- an employee share scheme;
- the company would satisfy the solvency and liquidity test immediately after providing the financial assistance;
- the terms under which financial assistance is given are fair and reasonable to the company; and
- any conditions or restrictions respecting the granting of financial assistance set out in the company’s Memorandum of Incorporation have been satisfied.
The company's solvency and liquidity requirements are met where:
the fair value of it's assets is equal to or exceeds the fair value of the liabilities; and the company will be able to pay its debts as they become due and payable within twelve (12) months from the date the liquidity test is performed.
Conclusion
Any Financial assistance offered that does not comply with Section 45 of the Act is considered void. In addition, directors can be personally liable for non-compliance with the provisions of Section 45. Finally, a Board should get legal advice when there is uncertainty as to whether a transaction falls within the scope and practice of Section 45.
Kiyaam Bekko | SchoemanLaw IncAttorneywww.schoemanlaw.co.za
SchoemanLaw Inc Attorneys, Conveyancers and Notaries Public is a boutique law firm offering its clients access to high quality online legal documents and agreements, together with a wide range of legal services. The firm has an innovative and entrepreneurial mindset that distinguishes it from other law firms. We apply our first-hand understanding of the challenges facing entrepreneurs (regardless of their business size) to develop proven, practical solutions incorporating legal compliance, risk aversion and business sense. We achieve this by offering clients tailored, yet holistic support comprising of legal gap analysis, the design of tailored legal solutions and the practical implementation thereof through training and automation. With your personal interests in mind, our ultimate aim is to implement measures that protect the results of your hard work as effectively as possible.
Latest Press Articles
- Bridging Work and Home - A Conveyancing Approach to Employee Tenancies.
- Suretyships in Commercial Contracts - What Every Business Should Know
- Navigating South Africa’s Labour Law Reform - Proposed Amendments to the Labour Relations Act
- Review Applications in South African Labour Law - Legal Constraints and Procedural Discipline
- Parental Alienation in South Africa - A Silent Form of Emotional Abuse in Family Law Disputes
- Market Trust Starts Inside - Aligning Your Legal Documents with Your Marketing Message
- Exploring Suretyship - Capacity, Liabilities, and Types of Sureties.
- The "Without Prejudice" Rule Under Fire - Recent Developments in South African Law
- Navigating the Storm - How Rule 43 and Rule 58 Applications Provide a Lifeline During Divorce
- Beyond the Traditional - Execution of Judgments Through Attachment of Bank Accounts
- Guardianship vs Custody in South Africa - What Parents Need to Know When Travelling Abroad with a Minor
- What steps can I take if someone registers a domain name that is too similar to mine?
- Understanding the Revised Automotive Aftermarket Guidelines for Competition (R2R)
- Considering Artificial Intelligence, the responsibility of Employee management
- Mistake, Misrepresentation, and Duress - When Can a Business Escape a Contract?
The Pulse Updates
- New Report Reveals Msme Funding Realities In South Africa – And What Must Change (May 30, 2025)
- Opinion Piece: Incorporating Ai Into Workforce Planning (May 26, 2025)
- Bridging The Gap: Why Finance And Hr Must Collaborate For Business Success (May 19, 2025)
- Reclaiming Johannesburg’s Running Narrative Powered By The Streets. Refreshed By Pura. (May 16, 2025)
- Double Gold Triumph For Hansgrohe Innovations (May 16, 2025)