Page 44 - Q&A Book.indd

Can a director establish his own
competing company?

Candice Reynders
April 2017

“I am currently a director in a printing company. I find that
the owners are very conservative and are not interested in my
Commercial ideas for expanding the company. I’ve now started thinking
that I should start my own company, which will probably
compete directly with my current company. I don’t have a
restraint of trade, but I am worried that as a director I could
get into trouble if I do this. Can I start my own company?”

This is not a straightforward question to answer. Assuming there are
no contractual restrictions prohibiting you and ignoring aspects of
unlawful competition, the question boils down to whether your fiduciary
duty as a director of your current company, prohibits you from opening
a competing business.

A director of a company is relied on for his expertise and experience in
the business of the company. As such directors have a fiduciary duty
towards the company that in essence demands that a director be
loyal to the company and act in good faith and in the best interest of
the company when conducting business on behalf of the company.
Such a duty includes avoiding conflicts of interest and the promotion
of self-interest. These duties were embodied in our common law, but are
now given statutory force through section 76 of the Companies Act 71
of 2008.

This section addresses the position of a director, but leaves it open
whether these duties can be extended to a director that has resigned.
Our courts, on interpreting this section have deemed it appropriate to
in certain circumstances extend the fiduciary obligation of a director
beyond his resignation.

For example, our courts have prohibited a director who has resigned
from a company from exploiting corporate opportunities which
rightfully belonged to the company for himself after he had resigned
as a director of the company. It was held that resignation from the
office did not terminate the director’s fiduciary obligation owed to the
company.

The reason that our courts are open to the extension of the obligation

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