n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Obstacles and barriers to the derivative action : costs orders under section 165 of the Companies Act of 2008 (part 2)




The submission is made in paragraph II above that the South African courts should extend the principled approach to costs orders propounded in to costs orders under section 165 of the Act, so as to grant to shareholders, who have already obtained leave for a derivative action, a mandatory right to an indemnity from the company (save in exceptional circumstances). This proposal is bolstered by substantial authority in comparable jurisdictions. Other Commonwealth jurisdictions have also espoused the Wallersteiner approach to costs orders, whether directly in legislation or through decisions of the courts.


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