Piercing the corporate veil: A critical analysis of section 20(9) of the South African Companies Act 71 of 2008
- 6 April 2020
- journal article
- Published by Virtus Interpress in Corporate and Business Strategy Review
- Vol. 1 (1), 17-26
- https://doi.org/10.22495/cbsrv1i1art2
Abstract
When a company is incorporated it becomes a juristic entity with rights and obligations of its own and is distinct from its shareholders and directors. Hence, company liabilities are not those of its shareholders and directors. However, section 20(9) of the Companies Act 71 of 2008 grants the court the discretion to disregard the corporate veil where there is an unconscionable abuse of the juristic personality so as to impose personal liability upon directors or any other person involved in that transaction. However, the section fails to define what constitutes “unconscionable abuse” which is the key to the application of that provision. This research thus seeks to discover what constitutes unconscionable abuse of the juristic personality. Simply put, this research aims to identify the circumstances under which the corporate veil may be pierced. The results from this extensive inquiry are that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this rather legislative innovation remain to be confounding until a specific meaning is assigned to it by the parliamentKeywords
This publication has 4 references indexed in Scilit:
- Statutory discretion or common law power? Some reflections on “veil piercing” and the consideration of (the value of) trust assets in dividing matrimonial property at divorce – Part OneJournal for Juridical Science, 2016
- Piercing the corporate veil: An incursion into the judicial conundrumCorporate Board: role, duties and composition, 2015
- Fraudulent Trading: The Intent to Defraud ElementCommon Law World Review, 2006
- PENTOSURIAThe Medical Journal of Australia, 1962