Abstract:
It is trite law that minority shareholders are subordinate to the will of the majority in the
company structure. However, the majority may not exercise this power in a manner which is
oppressive or unfairly prejudicial to the minority. The statutory oppression remedy was first
inserted into the Companies Act 46 of 1926 in an attempt to provide minority shareholders who
wanted to exit a company an alternative to making an application for winding up of that
company. With the repeal and replacement with the Companies Act 61 of 1973, this provision
was widened so as to apply to any fact pattern so long as the minority shareholder had suffered
unfair prejudice. Finally, with the implementation of the Companies Act 71 of 2008, the
remedy was further widened as to the class of applicants, the alleged conduct suffered, and
perhaps with regard to the relief available to reflect the changing attitude toward the oppression
remedy in South Africa and in other jurisdictions. This research firstly maps the important
development changes between the three different South African acts and discusses whether
such development, based on judicial interpretation and academic analysis, is being done in a
manner to make this valuable remedy easier for the affected applicants to access. Secondly, the
South African remedy has been compared with that in Australia, Canada and England to
determine how the remedy follows international consensus and in what way the remedy may
be improved with foreign jurisdictions as a goalpost.
