n South African Law Journal - Big brother and the holding company : ministerial consent to dispose of indirect controlling interests in mining companies
|Article Title||Big brother and the holding company : ministerial consent to dispose of indirect controlling interests in mining companies|
|© Publisher:||Juta Law Publishing|
|Journal||South African Law Journal|
|Affiliations||1 High Court of South Africa, 2 High Court of South Africa and 3 Walkers Inc|
|Publication Date||Jan 2013|
|Pages||85 - 124|
The Mineral and Petroleum Resources Development Act prohibits disposals without ministerial consent of controlling interests in mining (and petroleum production) companies. This probably includes indirectly-held controlling interests. While the Act criminalises disposals without ministerial consent, it does not clearly render them void. As such, the article considers arguments for and against the nullity of such disposals. Secondly, the article considers the extent of criminal liability for a disposal of equity in a foreign holding company with a South African mining subsidiary. Thirdly, we consider whether transferees, attorneys and others assisting with unauthorised disposals could be criminally liable as accomplices, and whether there could be a defence that any one of these parties was acting in reasonable ignorance of the law. The article also considers actions to enforce transfer of a controlling interest where ministerial consent has not been granted, including dilatory pleas and excipiability, and whether restitution is appropriate if transfer occurs without such consent. As the Act currently stands, the exemption for changes of controlling interests in listed companies probably extends to companies listed abroad. If and when a 2008 amendment commences, the prohibition will extend to disposals of any interests in unlisted companies and controlling interests in listed companies, both of which could apply to companies abroad.
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