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IN THE COMPANIES TRIBUNAL OF SOUTH AFRICA
Case no.: CT02488/ADJ2025
In the ex parte application of:
ABSA HOME LOANS (RF) (PTY) LTD
(registration number: 2003/021488/06) Applicant
Presiding member:
Date of decision:
31January 2026
Nomagcisa Cawe
DECISION (Reasons and Order)
1. This is an application for an exemption to appoint a Social and Ethics
Committee (“SEC”) which has been applied for on behalf of the Applicant by
Mr. Jan Louis du Plessis (“du Plessis”), a director of the Applicant.
2. This application is brought in terms of section 72(5)( b) of the Companies Act
71 of 2008 (“the Act ”) for an exemption from the requirement to appoint a
Social and Ethics Committee, notwithstanding that the Applicant’s public
interest score exceeds the threshold prescribed in regulation 43 of the 2011
Companies Regulations . Mr. du Plessis submits that, having regard to the
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nature and extent of its activities, it is not reasonably necessary in the public
interest for the company to be required to appoint an SEC.
PRELIMINARY MATTERS
Publication of intention to lodge an application
3. Section 13 of the Companies Amendment Act 16 of 2024 modifies Section
72(5) of the Companies Act 71 0f 2008 (“the Act”), by adding a new subsection
5(a) which stipulates that Applicants must publish their intention to submit an
application for exemption with the Tribunal . This amendment took effect on 27
December 2024.
4. The amended Section 72(a) provides that-
“(5) A company that falls within the 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 for an exemption from that requirement
in the following manner: (a) The company must publish the intention to lodge
an application for exemption with the Tribunal in the prescribed manner”.
5. The “prescribed manner” for the publication has not been promulgated.
6. The filing record of the Applicant does not show that the Applicant published a
notice of its intention to apply for an exemption from the requirement to
appoint a Social and Ethics Committee.
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7. In the absence of the promulgation of how the publication of the intention to
apply for the exemption and proof of such application should be carried out ,
the Tribunal will consider the instant application.
8. According to Mr. du Plessis the company’s Public Interest Score in the past 2
years ( i.e 2023 and 2024) has been calculated and the resultant PIS is in
excess of 500 points . Accordingly, the company is required to appoint a SEC.
However, taking into account the company’s activities the Board has
determined that, in terms of the purpose for which the company was
established and legislative rationale for a company to establish a SEC , it is
prudent for the company to make use of the dispensation opportunity
contained in Section 72(5)(b) of the Act to apply for an exemption to establish
a SEC.
9. The Applicant explains that because it is not a listed public company in terms
of regulation 43(1) (b), but rather an asset-backed debt listed on the JSE and
regulated by the Debt and Specialist Securities Listings Requirements, the
application for exemption is made solely on the basis that:-
9.1 The company is controlled, serviced, administered and managed by ABSA
Bank Limited and due to the nature of its business, has no employees;
9.2 the Applicant is not operational nor trading in the true sense. The sole
purpose of the company is to issue Notes in order to raise sufficient funds to
purchase participating assets (as defined in its Transaction Documents). The
Servicer is responsible for the identification of participating assets which the
issued Notes are backed against;
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9.3 the ordinary share capital of the company is held solely by the Owner
Trust, ABSA HOME LOANS 101 OWNER TRUST; and
9.4 the Applicant’s Public Interest Score exceeds the prescribed threshold
almost entirely as a result of its third- party liabilities, which are intrinsic to its
function as a debt funding vehicle, and does not maintain an operational
footprint.
10. Having regard to the nature and extent of the Applicant’s activities described
above, and as set out in the founding papers, there is nothing on the
Applicant’s papers to suggest that the Applicant’s activities engage with the
broader public in a manner that would require formal oversight by a Social and
Ethics Committee in order to achieve the purposes of the Act.
11. I am satisfied that the appointment of a SEC would not meaningfully advance
the public interest objectives of the Act. The Applicant has accordingly made
out a proper case for exemption in terms of section 72(5)(b) and regulation 43.
ORDER
12. The Applicant is exempted from the requirement to appoint a social and ethics
committee in terms of section 72(5)( b) of the Companies Act 71 of 2008, for a
period of five (5) years from the date of this decision.
__________________________
NOMAGCISA CAWE
Member of the Companies Tribunal
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