Shareholder Loans: Fact or Fiction

Abstract

Shareholder loans are often used as an alternative to traditional third-party loans or equity especially for private companies in various jurisdictions, including South Africa, to finance their business activities. These loans provide companies with greater flexibility to meet their financing needs, i.e., there is no need to seek external financing while offering shareholders a potentially profitable investment opportunity. However, the legal nature of shareholder loans could pose complex legal questions and this form of loans may not necessarily be as straightforward as it first appears. This article explores the legal framework and practical considerations surrounding shareholder loans in South Africa in small private companies, with a focus on developments in case law and their implications for companies and shareholders. Amongst other issues, the application of the principle of arbitrium boni viri to the interpretation and enforcement of these agreements will be discussed. The article aims to provide a critical analysis of the legal questions associated with shareholder loans in South Africa.

Keywords

• private companies
• Companies Act
• creditors
• shareholders
• Insolvency Act
• Shareholders loan accounts