---

IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA, PRETORIA

 

CASE NO: CTR 008 FEB 2014

 

 

In the matter between:

 

SBGL                                                             Applicant

 

And

 

STANDARD BANK GROUP LIMITED          Respondent

 

Coram: Kganyago M.F

 

Decision handed down on the 15^th April 2014

 

 

DECISION

 

 

INTRODUCTION

 

[1]     The applicant has brought an application on behalf of Siyakha Fund (RF) Limited in terms of section 72(5) of the Companies Act 71 of 2008 (“the Act).The applicant is seeking an order that Siyakha Fund (RF) Limited (“the company”) be exempted from appointing a social and ethics committee.

 

BACKGROUND

 

[2]     The company is a public company incorporated in accordance with the company laws of the Republic of South Africa.

 

[3]     According to the applicant, it is not reasonable necessary in the public interest to require the company to have a social and ethics committee, having regard to the nature and extent of the activities of the company. The applicant alleges that the company is part of Standard Bank Group Limited which has established a Group Social and Ethics Committee.

 

[4]     According to the companies memorandum of incorporation the main purpose of the company and it main business has been stated as follows:-

 

“acquire the rights, title and interest in and to home loan agreements and all the related security (other than a written indemnity given by a borrower to the home loan lender originally or to such home loan lender’s assignee and/or an indemnity bond registered over the property of a borrower as security for, inter alia, such indemnity (including a sectional title indemnity bond) with regard to such home loan agreements (including without limitation and to the extent applicable, the security of a limited guarantee from a special purpose entity or the seller of the home loan agreements, as the case may be, and/or a mortgage bond registered over the property of a borrower in the name of the home loan lender originally as security for, inter alia, the loan granted under a home loan agreement)

 

(collectively referred to as the “Participating Assets”) pursuant to a securitization scheme described in the programme memorandum of the Blue Granite Investment Master Programme dated 28 October 2005 and the transaction supplement issued by the Company dated 11 December 2007, both as amended, supplemented or replaced from time to time, with funds raised directly or indirectly through the issue of Debt Instruments, and to operate the business so acquired; and sell, assign, transfer or otherwise dispose of the Participating Assets (or portion or portions thereof) from time to time pursuant to the securitization scheme.”

 

[5]     The applicant further submit that the company does not have employees, its third party liability amount to 1 653 909 000, its turnover is 151 934 000, it has no beneficial interest and its score is 1806.

 

APPLICABLE LAW

 

[6]     Section 72(5) of the Act read as follows:-

 

“ A company that falls within a category of companies that are required in terms of this section and the regulations to appoint a social and ethics committee may apply to the Tribunal in the prescribed manner and form for an exemption from that requirement, and the Tribunal may grant such an exemption if it is satisfied that:-

 

(a)    the company is required in terms of other legislation to have, and does have some form of formal mechanism within its structures that substantially performs the functions that would otherwise be performed by the social and ethics committee in terms of this section and the regulations; or

(b)    it is not reasonably necessary in the public interest to require the company to have a social and ethics committee, having regard to the nature and extent of the

company.”

 

[7]     Regulation 43(2) (a) of the Act read as follows:-

 

“ A company to which this regulation applies must appoint a social and ethics committee unless:-

(a)        It is a subsidiary of another company that has a social and ethics committee, and the social and ethics committee of that other company will perform the functions required by this regulation on behalf of that subsidiary company.”

 

EVALUATION

 

[8]     The applicant has brought an application on behalf of the company, seeking exemption to appoint a social and ethics committee in terms of section 72(5) (b) of the Act.

 

[9]     The company is having a score of 1806. If the company were to be assessed on this score alone, it will be required to appoint a social and ethics committee. It is immaterial whether it is having employees or not.

 

[10] In terms of regulation 43 (2) (a) of the Act, the Company would qualify for an exemption if it is a subsidiary of another company which has a social and ethics committee which will perform the functions required by this regulation. The applicant is not stating that the company is its subsidiary. The terms of reference of the applicant’s social and ethics committee have not been attached. In my view there is no proof that the applicant is having a social and ethics committee.

 

[11] The activities of the company does not prevent it from appointing a social and ethics committee. For it to quality for exemption, it must be a subsidiary of the applicant, and there is no evidence presented which proves that the company is a subsidiary of the applicant.

 

FINDINGS

 

[12] Therefore, under the circumstances, it is my findings that the applicant has failed to show that it is not reasonable necessary in the public interest to require the company to have a social and ethics committee.

 

ORDER

 

[13] The applicant’s application is hereby refused.

 

 

Dated at POLOKWANE on this 15^th day of APRIL 2014.

 

M.F KGANYAGO

MEMBERS OF THE COMPANIES TRIBUNAL

---