Directors' Duties Research: Independent Judgement Proposals for South Africa

Understanding Directors' Duties Under South Africa's Companies Act

South Africa's corporate governance landscape is primarily shaped by the Companies Act 71 of 2008, which outlines the fiduciary duties and standards of conduct for directors in section 76. These duties include acting in good faith and for a proper purpose, avoiding conflicts of interest, and exercising the degree of care, skill, and diligence reasonably expected from a person carrying out the same functions. 2 16 While this framework provides a solid foundation, one critical aspect remains uncodified: the duty to exercise independent judgement. Recognized under common law, this duty requires directors to make decisions free from undue influence, domination by others, or pre-committed fetters on their discretion.

In practice, directors must evaluate matters on their merits, resisting pressure from shareholders, executives, or external parties. This ensures decisions prioritize the company's best interests, fostering robust governance. For professionals in higher education, such as university council members, these principles mirror their fiduciary responsibilities under the Higher Education Act 101 of 1997, where independent oversight is vital for institutional integrity. 84

The Gap in Codification: Why Independent Judgement Matters Now

Unlike the United Kingdom's Companies Act 2006, which explicitly codifies the duty in section 173, South Africa's section 76(3) omits it. Directors rely on common law precedents, creating uncertainty in enforcement and interpretation. Recent corporate scandals and governance failures have highlighted vulnerabilities, where dominant personalities swayed board decisions, leading to losses for stakeholders. 0

King IV, South Africa's leading corporate governance code, reinforces independent judgement through Principle 8, urging governing bodies to structure delegations that promote unfettered discretion and balance of power. Yet, without statutory backing, compliance remains voluntary, particularly in public entities like universities where council dynamics can mirror corporate boards. 90 As economic pressures mount in 2026, calls for reform grow to protect investors and the public.

English Law Experiences: Lessons for South Africa

Pre-2006 English common law treated breaches of independent judgement harshly, as seen in cases where directors allowed themselves to be 'bamboozled' or dominated. Courts held that fettering discretion—such as blindly following shareholder instructions—constituted a breach. Post-codification, section 173 balances this by permitting reliance on professional advice if reasonable, while prohibiting irrevocable pre-judgements. 1

This evolution offers a blueprint for South Africa, where similar issues arise in nominee director scenarios or family-controlled firms. English judgments emphasize that independence safeguards minority shareholders and ensures objective decision-making.

Spotlight on Recent Research: Prof Mupangavanhu's Groundbreaking Paper

In November 2025, Associate Professor Brighton Mupangavanhu from the University of the Western Cape published 'Directors' duty to exercise independent judgement – English experiences and proposals for South Africa' in a Juta Journals special edition. Drawing on his expertise in commercial law, the paper analyzes English precedents and critiques South Africa's statutory silence. 0 49

Mupangavanhu argues that codification would clarify expectations, reduce litigation, and align SA with global standards. His work, accessible via ResearchGate, has sparked discussions among legal scholars and governance experts.

Key Proposals for Legislative Reform

The research advocates inserting a provision akin to UK's s173 into section 76, stating directors must exercise independent judgement but may consider delegated reports or advice reasonably. Proposals include:

• Explicit prohibition on fettering discretion in advance.
• Protection for informed reliance on experts, integrated with the business judgement rule in s76(4).
• Guidance for boards on assessing independence in diverse contexts, like state-owned enterprises.

These changes would enhance accountability without stifling managerial flexibility. 30

Implications for Corporate Boards and Higher Education Governance

For JSE-listed companies, codification could deter rubber-stamping, vital amid 2025's CIPC Guideline 1 emphasizing director liability. 102 In higher education, university councils—responsible for strategy and finances—face parallel duties. King IV application notes urge independent non-executives to provide objective oversight, preventing vice-chancellor dominance seen in past controversies.

Explore career advice for governance roles or South African academic jobs to engage with these evolving standards.

Case Studies: Breaches and Business Judgement Rule Applications

South African courts have invoked common law independence implicitly. In family firms, directors succumbing to patriarchs risk delisting. The business judgement rule (s76(4)) shields rational decisions, as in recent insolvency cases where informed reliance absolved liability. 116

Stakeholder Perspectives: From Regulators to Academics

The IoDSA welcomes reform proposals, aligning with King V's 2025 release focusing on ethical leadership. 98 Academics like Mupangavanhu stress multi-perspective views, while business lobbies caution against over-regulation. Universities, via USAf, advocate strong governance to attract international students and funding.

Internal perspectives from university jobs highlight demand for governance-savvy leaders.

Challenges, Solutions, and Future Outlook

Challenges include cultural deference in SA boards and resource constraints in SMEs. Solutions: mandatory training, diverse boards. With King V and potential 2026 amendments, codification seems imminent, promising resilient governance.

• Step 1: Assess board independence annually.
• Step 2: Document decision rationales.
• Step 3: Leverage King IV for best practices.

Prospective directors can prepare via higher ed career advice.

Photo by Artem Maltsev on Unsplash

Actionable Insights for Directors and Institutions

To thrive, directors should foster debate, seek external advice, and minute independent rationales. For universities, this means empowered councils driving innovation. Visit Rate My Professor for faculty insights or higher ed jobs for governance positions. As reforms unfold, staying informed positions you ahead.

In summary, Mupangavanhu's research catalyzes essential evolution in directors' duties, benefiting South Africa's economy and academia alike. Engage with career resources and post opportunities on AcademicJobs.com.