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Legal Tapas

Legal Tapas

Welcome to Legal Tapas, the first of a series of articles dealing with bite-sized servings of legal and business topics to keep you informed of changes in matters pertaining to your company.

We have exciting new developments in the works which we will be unveiling in the next month or so. Watch this space!

If you have any topics you’d like us to deal with, please drop us a mail at office@heyattorneys.co.za.

1. WHAT IS THE FAIR MARKET VALUE OF SHARES?

The recent case of BNS Nominees and Others v Arrowhead Properties and Others has set the cat amongst the pigeons with regard to determining the fair market value of shares in a company. This case involved minority shareholders exercising their rights to have their shares valued by the court following a transaction by a company in which it was a shareholder. BNS had voted against the transaction and so is considered a “dissenting shareholder” in terms of section 164 of the Companies Act.

BNS wanted their shares to be purchased in terms of section 164 and exercised their rights to have these shares bought at “fair value”.

The court considered a range of factors around the question of what constitutes “fair value”. Finding that there is no real agreement around this definition, the court put forward this tentative definition of fair value:

Fair value is the value a share would realise in an undistorted market, in the medium term, with free interaction between buyers and sellers with proper information, and without any exceptions being made for minority holdings or the effect of the corporate action which has led to the dissent.

Although this definition was put forward by the court in the context of shareholder rights in all listed companies, section 164 applies to public and private companies too. It is essential when looking at fair value in the context of buying out shareholders in a scenario where section 164 is applicable that proper, independent valuations are performed that take this “tentative” definition into account.

This is a developing area of law and it will be interesting to see how these principles are applied to other aspects of company law.

If you need any assistance in applying these principles in respect of your business, please contact us.

2. THE DEREGISTRATION OF LIQUIDATED COMPANIES AT SARS

It has come to our attention that SARS is no longer automatically deregistering liquidated companies for tax. This is despite the fact that they are advised by liquidators of the liquidation of the entity and the end of its legal obligations.

We advise all previous owners of liquidated businesses to check with their accountants regarding the tax status of the company in liquidation and ensure that this entity is deregistered for tax purposes.

3. WHO OWNS YOUR SHARES?

The General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, No. 22 of 2022 places new obligations on, amongst others, companies and trusts to register certain information relating to beneficial ownership of shares or trust property as the case may be.

With regard to trusts, the trustees are obliged to provide information relating to a person who ultimately controls the trust property, the founders of the trust, the trustee of a trust and any beneficiaries named by name in the trust deed (or the ultimate owner of the beneficiary if it is a company or another trust).

In respect of companies, the recording around beneficial ownership is about who ultimately controls the company whether by owning shares held on his / her / its behalf by another person (including a company or trust) or by being able to remove directors or influence the management of a company.

If you are a director of a company and need guidance on what disclosures you need to make in respect of shares held by one person on behalf of another, including shares held by a trust, please contact us for assistance.

ABOUT THE AUTHOR

Robyn MacMhaoinigh

Robyn MacMhaoinigh (formally Hey) doesn’t only have a new and unpronounceable surname but has been working behind the scenes to make sure that you can be sure to expect nothing but the best and most practical legal services.

Robyn has been working with businesses for over 18 years, initially as a lawyer but more recently in her capacity as a business developer and problem solver. She has almost two decades of experience in dealing with both underperforming and growing businesses and is uniquely placed to assist businesses to avoid common pitfalls and maximise growth opportunities. Robyn has worked in a range of sectors and across the UK and Europe as a business consultant. She also sits on the board of a non-profit organisation (The South African Heart Association) as an independent director and understands the pressures and difficulties facing boards.

Robyn has coached and mentored business owners through business growth. She has walked the road with businesses through complex transactions and handles their business needs as a trusted advisor. As an entrepreneur herself, Robyn is a confident and experienced business specialist with an innate understanding of business needs throughout the business cycle.

© 2023 Hey Attorneys

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© 2023 Hey Attorneys

Web Design by Joanna Reypert