Being a company director (or a senior manager) comes with onerous duties and risks which require constant management.
And 2020 is shaping up to be a year in which you will find yourself under increasing scrutiny, with the NPA now showing a distinct appetite for charging delinquent directors criminally, and with the ongoing risk of personal liability and class actions by trade unions and other stakeholders.
We discuss the standards to which you are held by the Companies Act and remind you of several specific and growing risk areas, not all of them immediately obvious but all of them important.
The past few years have seen scandals emerging in both the private and public sectors. Steinhoff, State Capture, Eskom, the Guptas and Bosasa, to name a few, have revealed how endemic corruption has become in South Africa.
The National Prosecuting Authority (NPA) is now beginning to charge those who have been involved in these scandals. This has been greeted with relief by the public, who have become increasingly frustrated that perpetrators have appeared to have escaped from accountability for their actions.
Clearly, the directors and senior managers of these affected entities are being scrutinised and face potential prosecution.
Your obligations and your risks
The Companies Act places onerous obligations on directors and senior managers who are to perform their duties:
- Having the necessary skills and experience to make informed, independent decisions,
- Keeping themselves up to date on the plans and activities of the company,
- Having sufficient data to make carefully considered and impartial recommendations to all issues raised at directors’ meetings, and
- With no conflicts of interest. If a director has a conflict or potential conflict, then that director(s) shall make full disclosure of the conflict to fellow board members.
Failure to adhere to these standards opens directors to the possibility of being liable for any damages or losses incurred. In certain instances they face the potential to be held criminally liable and directors who transgress by failing to meet their obligations can also be disbarred as directors either permanently or on a short-term basis.
Additionally stakeholders, such as unions, may undertake class action against directors personally.
Other danger areas
Now that all directors are under increasing scrutiny, you also need to bear in mind issues such as your company causing environmental damage, trading in insolvent circumstances (for example SAA directors face potential litigation here), failing to ensure your business is protected against hackers, poor accounting policies and being party to the company suffering reputational damage which leads to a collapse in the share price (Tongaat directors risk exposure to this).
As a director, remember you are in the public’s and the NPA’s sights. Be extra careful that you execute your duties in line with the dictates of the Companies Act.
If in doubt, use your accountant as a sounding board and advisor.