21.8 CONCLUSION
The problem with the above is that all the compliance issues may easily fit into both a larger or smaller company except that I don’t believe that a smaller company can afford to go the route of appointing an independent expert.
We need to ask the question what the position is with a company where there is one director and one shareholder and they decide to do a buy back. Is it then necessary for the company to retain this independent expert at a huge cost in order to comply with a section of the act that is not really applicable to a smaller company?
I would suggest that in a case like this the shareholders sign a resolution to the effect that it is not necessary to get an independent expert owing to the huge costs involved and as long as all the shareholders sign together with a waiver it should be sufficient. The problem with this is that after a distribution the company goes insolvent and creditors lose money then the directors could become liable.
Another issue is that if the private company is a regulated company then they have to make the application for a compliance certificate or an exemption from the Take-over Regulation Panel and it looks like if not regulated then on a strict reading of the act in terms of s114 they have to appoint the independent expert. Can the tribunal grant and exemption to the company?