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IN THE COMPANIES TRIBUNAL OF THE REPUBLIC OF SOUTH AFRICA
(“THE TRIBUNAL”)
CASE NO: CT02736/ADJ/2026
Ex Parte Application:
Sethekgo Private Party (RF)(Pty) Limited Applicant
Member of Tribunal: H K Dlepu
Date of Decision: 21 June 2026
Decision and Reasons
1. INTRODUCTION
1.1. The Applicant is Sethekgo Private Party (R F)(Pty) Limited, a company
registered in terms of the laws of South Africa with Registration No.
2006/029236/07 and having its registered address at C/O ANF, Block D,
Ground Floor, Oak Office Park, 372/376 Oak Avenue Ferndale, Randburg,
2194.
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1.2. The Applicants affidavit was deposed by Estelle Esme Zwanepoel, the
Company Secretary of the Applicant who has been duly authorized to act
on behalf of the company.
1.3. This is an application in terms of section 72(5)(b) of the Companies Act
seeking an exemption from the requirement to appoint a social and ethics
committee.
2. BACKGROUND
2.1. The Applicant is a Private Company ring-fenced (RF) company, with
conditions set out in the Company’s Memorandum of I ncorporation. The
Applicant’s had previously applied to the Companies Tribunal for an
exemption an order was on the 2nd of July 2021 for a period of 5 years. The
company was originally established in 2006 registered as a trading and an
as principal in its wid est form, its main object is “to undertake and
implement the project to finance, design, construct and operate and
maintain the head office of the Department in Pretoria”.
2.2. The Company has no employees , and there are no products and
consumers involved, and has no environmental health and safety impact
or involved in social and economic development and it is believed that it is
not reasonably nec essary in the public interest to require the Applicant to
have a Social and Ethics committee, having regard to the nature and
extent of the activities of the Applicant as stated in Section of the
Companies Act.
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2.3. The Applicant has no employees with the PI score of 766 the calculation of
the score was attached to the Applicants affidavit, which is more than 500
for the past 2 financial yea rs as required in terms of the C ompany’s Act.
The higher than 500 PI Score is due to its high third-party debt and
turnover. A copy of the company registration and memorandum of
incorporation was attached to Applicants’ founding affidavit.
2.4. The Applicant was incorporated on the 18th of September 2006, and it falls
under a category of companies that are required in terms of section 72 (5)
of the Company’s Act. The Company has 11 (eleven) Directors and has in
the past two of the previous five years exceeded the PI score of 500 and
the time of the application had not had a Social and Ethics Committee in
place as required in terms section 72 of the Companies Act 71 of 2008
read with regulation 43 of the Regulations, 2011.
2.5. The Company is not a subsidiary of another company but maintains sound
governance and ethical practices through its Board and existing
committees, one of its governance committees is the Finance, Risk &
Audit Committee consisting of the minimum of 3 directors and/or
independent people nominated by the Board of Directors , including the
Chief Financial Officer with no record of material non-compliance or ethical
issues and is not required by any other legislation to have a formal
mechanism that substantially performs the function to be performed by the
social and ethics committee.
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2.6. There is no contribution of the company to Social and economic
development of the community in which it operates, if there is it would be
negligible due to the limited exposure to the community, ( Regulation)
43(5)(a)(i)
2.7. There is no effect of the company as a corporate citizen in the particular
community (Regulation)43(5)(a)(ii)
2.8. By virtue of the nature, size of the company, with no employees and the
company’s activities and it is not required in the public interest to have a
social and ethics committee, taking into consideration all these factors and
the size of the company and the applicants boards function, the Applicant
is a small to medium sized company to have a Social and E thics
Committee
3. APPLICABLE LAW
3.1. Section 72(4) of the Companies Act provides for the Minister to prescribe,
by way of regulation, those companies which shall be required to appoint
a Social and Ethics Committee.
3.2. Section 72(5) provides that notwithstanding a requirement to appoint a
social and ethics committee, a company may apply to the Tribunal in the
prescribed manner and form for 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 some other legislation to have
and does have, some form of formal mechanism within its
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structures that substantially performs the function that would
otherwise be performed by the social and ethics committee; 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 activities of the company.
3.3. Regulation 43(1)(c) of the Act requires that any other company that has in
any two of the previous five years scored above 500 points in terms of
Regulation 26 (2) is required to appoint a Social and Ethics Committee.
3.4. Regulation 43 (2)(a) of the Act requires that 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 company
will perform the functions required by this regulation on behalf of
that subsidiary company; or
(b) it has been exempted by the Tribunal in accordance with section
72(5) and (6).
3.5. Regulation 26(2) sets out the methodology that is used in calculating its
“public interest score”.
3.6. Section 72(4) stipulates that the categories of the companies that must
each have a social and ethics committee, if is desirable in public interest,
having regard to:
(i) annual turnover.
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(ii) workforce size; or
(iii) the nature and extent of the activities of such companies.
(b) the functions to be performed by the social and ethics committees.
required by this subsection; and
(c) the rules governing the composition and conduct of social and
ethics committees.
3.7. Regulation 43(1) provides that a social and ethics committee must be
appointed by:
(c) Any company with a public interest score of above 500 in any two
of the previous five (financial) years.
3.8. The public interest score is calculated in terms of regulation 26(2) as
follows:
(a) a number of points equal to the average number of employees of
the company during the financial year (“employee has the meaning
set out in the Labour Relations Act 66 of 1995.
(b) one point for every 1 million Rand (or portion thereof in third party
liability of the company held by creditors at the financial year end.
(c) one point for every 1 million Rand (or portion thereof) in turnover
during the financial year; and
(d) one point for every individual who at the end of the financial year, is
known by the company: -
(i) in the case of the profit company, to directly or indirectly
have a beneficial interest in any of the company’s issued
securities, or
(ii) in the case of non- profit company, to be a member of a
company, or a member of an associate that is a member of
the company.
4. ISSUES
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4.1. The issue to be decided is whether the Applicant has made out a proper
case for an exemption in accordance with regulation 43(2)(b) and section
72(5) and (6).
5. ANALYSIS OF THE FACTS
5.1. The Applicant that has over 500 Public Interest scores is required to have
a social and ethics committee unless exempted to do in terms of the
Companies Act.
5.2. The two conditions of exemptions stated in the Act are:
5.2.1. if the company is already required by another law to have an existing
structure in place that actually performs the functions prescribed by the
Act to the social and ethics committee; or
5.2.2. if the nature and extent of the company’s activities are such that it does
not have any significant impact on the public interest.
6. MY ASSESSMENT OF THE APPLICANT’S SUPPORTING AFFIDAVIT
The Applicant has sufficient mechanisms and existing structures to substantially
deal with matters related to social and ethics committee and has a Finance, Risk
& Audit Committee (consisting of a minimum of 3 Directors ) including the CFO
as confirmed in the audited annual financial statements and Memorandum if of
Incorporation and as such I am satisfied that the applicant has made out a proper
case, tin that there are s hat it is not reasonably necessary to require the
Applicant to appoint a Social and Ethics committee.
7. ORDER
In the circumstances l make the following order:
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7.1. The Applicant is exempted for a period of five (5) years from appointing a
social and ethics committee and;
7.2. A copy of this order must be served on the Applicant and the
Commissioner of the Companies and Intellectual Property Commission
(CIPC).
HLALELENI KATHLEEN DLEPU
MEMBER OF THE COMPANIES TRIBUNAL