Case Comments: Mass Resignation of the Board and Social Responsibility of the Company: Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd

• Jurisdiction: South Africa
• Date: 25 May 2019
• Author: Stephanie Luiz
• Published date: 25 May 2019
• Citation: (2009) 21 SA Merc LJ 420
• Pages: 420-425

Mass Resignation of the Board and Social

Responsibility of the Company: Minister of

Water Affairs and Forestry v Stilfontein Gold

Mining Co Ltd

STEPHANIE LUIZ

University of KwaZulu-Natal

ZUENÉ TALJAARD

University of KwaZulu-Natal

1 Introduction

Just as one might accept an appointment as a director, so one can also

resign as a director. When a person becomes a director of a company, it is

commonly accepted that he or she owes a f‌iduciary duty to the company to act

bona f‌ide and in the best interests of the company (see generally, Robinson v

Randfontein Estates Gold Mining Co Ltd 1921 AD 168; S v DeJager&

Another 1965 (2) SA 616 (A); Howard v Herrigel NO 1991 (2) SA660 (A);

Phillips v Fieldstone Africa (Pty) Ltd 2004 (3) SA 465 (SCA)). The ambit of

this duty necessarily involves an interpretation of the particular relationship

and surrounding circumstances (Phillips v Fieldstone Africa (Pty) Ltd supra in

par 27 at 477) as well as the underlying principles of the Constitution,

especially the Bill of Rights (Michele Havenga ‘Directors’ Fiduciary Duties

Under Our Future Company-Law Regime’ (1997) 9 SA Merc LJ 310 at 313).

One of these rights is found in s 24 of the Constitution of the Republic of

South Africa, 1996, which entitles everyone to an environment that is not

harmful to their health or well-being and to have the environment protected

through reasonable legislative and other measures that prevent pollution,

promote conservation and secure ecologically sustainable development.

Section 19(1) of the National WaterAct 36 of 1998 is a measure that has been

taken to protect this right. It requires landowners and users to take reasonable

measures to prevent pollution. Directives can be issued in terms of s19(3)

requiring persons to take specif‌ic action to prevent and remedy the effects of

pollution.

The case of Minister of Water Affairs and Forestry v Stilfontein Gold

Mining Co Ltd & Others (2006 (5) SA 333 (W)) involved an attempt to ensure

that a company and its directors could not ignore its environmental

obligations with impunity by resigning en masse. Although this is not a

Supreme Court of Appeal case, it raises two pertinent issues of corporate law:

the right of a director to resign his office, and whether this right is tempered

by a director’s f‌iduciary obligations to act in good faith and in the best

420

(2009) 21 SA Merc LJ 420

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