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 De Jager &
Another 1965 (2) SA 616 (A); Howard v Herrigel NO 1991 (2) SA 660 (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 s 19(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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