4.4.4.1 Member of a company

S. 994 (1) requires the petitioner to be a member of the company. It seems simple and clear that the petitioner must be a member when he brings an action to recover any damage he may have suffered. Therefore, understandably, members cannot make allegations relating to conduct that pre-dates their registration as shareholders. An exception has nonetheless been laid down which has become known as the "continuing wrong theory". This exception allows a plaintiff to bring an action to challenge a wrong that existed before he acquired his shares if it stil continues after he became a member.1 This section, however, does not address the issue of whether a former shareholder who subsequently discovers unfairly prejudicial conduct at a time when he was a member of the company can also bring a petition. This issue is disputed. The general consensus is that he cannot.2 Nevertheless, this issue does not seem to cause any problem in practice because to date, there has not been any case law on this issue.3