Critical analysis of the extended legal standing provisions under section 157(1) of the Companies Act 71 of 2008 to apply for legal remedies

• Jurisdiction: South Africa
• Citation: (2015) 1(1) JCCL&P 35
• Published date: 16 August 2019
• Author: Justice Chris Jafta
• Date: 16 August 2019
• Pages: 35-43

35

CRITICAL ANALYSIS OF THE

EXTENDED LEGAL STANDING

PROVISIONS UNDER SECTION 157(1)

OF THE COMPANIES ACT 71 OF 2008

TO APPLY FOR LEGAL REMEDIES

JUSTICE CHRIS JAFTA*

Justice of the Constitutional Court of South Africa

Keywords: Legal proceedings, legal standing, Companies Act,

common law, statute, Parliament

ABSTRACT

Legal standing (or locus standi) is a requirement for instituting

legal proceedings, irrespective of vwhether the claim is rooted in

the Constitution, statute law or the common law. For claims based

on the common law or statutes, the standard for establishing legal

standing is generally the same. In passing the Companies Act 71 of

2008, Parliament must have been aware of the narrow approach to

standing at common law and the fact that in the case of a statutory

claim, legal standing is determined with reference to the relevant

statute. It cannot be gainsaid that the aim of the legislature,

encapsulated in s 157, was to alter the common-law position on

legal standing and expand the class of persons who may institute

legal proceedings. The section has revolutionised legal standing

in matters where the Act applies. This article considers the scope

of that legal standing, the determination of which involves the

interpretation of s 157.

I INTRODUCTION

Legal standing (or locus standi) is a requirement for instituting

legal proceedings, irrespective of whether the claim is rooted in the

Constitution, statute law or the common law. For claims based on the

common law or statutes, the standard for establishing legal standing

is generally the same. At common law, a party is allowed to institute

proceedings if it shows that it has a direct and substantial interest

(which is sometimes referred to as substantial interest) in the case

(2015) 1(1) JCCL&P 35

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