Business & Economy

Thursday, 11 October 2018 12:22

Shadow director jeopardy stalks SA advisory boards

Written by 
J Michael Judin

By *Gusti Coetzer (Signium Africa) and **J Michael Judin (Judin Combrinck Inc)

Advisory boards seem an obvious way forward for companies run by executives with limited global leadership exposure. One of the biggest advantages of advisory boards in South Africa is the facilitation of input and advice from wise old heads. In this way, highly respected, vastly experienced managers can make an important contribution to the company and the new South Africa.At the same time, younger managers and business school graduates benefit from the sort of knowledge not found on an MBA course.So, where’s the potential flaw?The pitfall is found in the grey area between advice and direction or between a general observation and a specific instruction.

If an instruction or direction is given, an advisor may be regarded, for legal purposes, as a ‘shadow director’ and that could spell trouble for any advisor who has not taken out insurance to cover the risks run by formal boards of directors in the event of liquidation or fraud.October 2018Some concepts are so useful in a new nation crying out for skills that widespread adoption is only a matter of time. The danger is that the advantages are so manifest they distract attention from the one potential flaw that could turn a well-intentioned initiative into catastrophe.For example, the coming trend around the establishment of advisory boards carries with it a largely overlooked risk that deserves to be examined in detail before any harm is done.

To explain …Advisory boards seem an obvious way forward for companies run by executives with limited global leadership exposure.One of the biggest advantages of advisory boards in South Africa is the facilitation of input and advice from wise old heads. In this way, highly respected, vastly experienced managers can make an important contribution to the company and the new South Africa.

At the same time, younger managers and business school graduates benefit from the sort of knowledge not found on an MBA course.Some businesses also recruit advisory board members for the ‘halo effect’. They borrow credibility or gravitas as a line-up of advisory board luminaries can smooth the path to the big league and might attract investors or assist in fundraising.Practical considerations also support the trend.Formal board structures are expensive to set up while company directors carry heavy fiduciary and statutory responsibilities.Remuneration of advisory board members is often modest, making these informal structures affordable for young, dynamic companies.In effect, relatively inexperienced executives tap into a wealth of knowledge at a discount while the business benefits from diversity and access to a wider range of opinions.

Of course, an ‘elder statesman’ is sometimes seen as a human Rolodex, with scores of local and international contacts. Gaining access to such a high-level network can be as simple as bringing a senior figure on to the advisory board.Other needs can also be addressed through the use of advisory boards. For example, a company planning to enter new, high-growth markets dominated by black consumers may need the insights of black influencers, who could be recruited to the advisory team.

Young advisors might also be used on an advisory board to lend digital skills to an older board with limited understanding of high-tech developments.For all of these reasons, many companies (and some charities) increasingly ask leading firms of executive ‘head-hunters’ for the names of possible candidates for places on their advisory boards.This can be an easy ‘sell’.Many senior personalities are eager to give back. They are generous with their time and eager to share knowledge with a new generation of business leaders.Advisory board remuneration may not be spectacular but advisors carry no statutory or fiduciary responsibilities.

It’s not a hard slog in the corporate trenches. You’re not giving blood, you’re giving strategic insights.So, where’s the potential flaw?The pitfall is found in the grey area between advice and direction or between a general observation and a specific instruction.If an instruction or direction is given, an advisor may be regarded, for legal purposes, as a ‘shadow director’ and that could spell trouble for any advisor who has not taken out insurance to cover the risks run by formal boards of directors in the event of liquidation or fraud.Advisors found to have acted as shadow directors may be held to be just as accountable as formal directors.The definition in the UK Companies Act is illuminating. It says a shadow director is someone “in accordance with whose directions or instructions the directors of a company are accustomed to act”. Though our Companies Act does not specifically refer to shadow directors, section 1 is broad enough to include the concept in view of the phraseology “occupying the position of a director”.

Risk also applies should a company portray an advisory board member as a member of the formal board.Individuals are also on risky ground if they regularly negotiated on behalf of the company or took on a corporate function; perhaps recruitment of certain specialists or professionals who might have been impressed by the involvement of such a senior figure.Should a firm become insolvent, a liquidator will closely scrutinise the actions of all responsible persons, and this may include members of the advisory board. Much the same applies in the event of fraud.In a worst-case scenario, creditors may target anyone assumed to have ‘long pockets’, including advisory board personalities who apparently acted as shadow directors. The result could be personal bankruptcy.Overstepping the line between advice and active participation in the business can be extremely easy.As the advisor works more and more closely with senior figures, he or she may be consulted quite frequently.

You may think you are simply being helpful by going over a business plan or reviewing financial projections. This may become a habit. After a time, what you say goes on specific issues … taking you into the no-go area where you become a shadow director.If you wish to avoid directorial liability, don’t go there. The good news is that alleged liability only becomes an issue if you functioned as a shadow director. If you simply acted as an advisor while sitting on an advisory board, you are totally in the clear.

*Auguste Coetzer is a Director of Signium Africa (previously Talent Africa), a leading South African-based executive search and talent management company servicing sub-Saharan Africa. **J. Michael Judin is a partner in the Johannesburg law firm of Judin Combrinck Inc. He is a member of the King Committee, a non-executive director of the American Chamber of Commerce in South Africa and co-chairman of a sub-committee of the American Bar Association Business Law Section.

 

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