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the opportunity was not an opportunity that could be classified as
belonging to his previous company.

The point remains, that resignation from the position of director does not,
in itself, breach the fiduciary relationship between the resigning director
and the company. It is the reasons behind the resignation which may
result in the fiduciary duties being considered to have been extended
post-resignation and consequently breached by certain conduct. Some
of such reasons could include:
• Where a director resigns in order to personally benefit from a
maturing corporate opportunity that the company was Commercial
actively pursuing.
• Where the director acquires the opportunity in his/her
personal capacity.
• Where the resignation of the director is influenced by a desire to
acquire the corporate opportunity for his/her own benefit.
• Where the position of the director in the company was the
cause which led his/her to the opportunity which he/she
acquired after his/her resignation.
Notwithstanding the above, our courts have also held that the setting
up of a competing business after resignation is not in itself unlawful. It
is only when a resigning director takes advantage of his position in the
company and divests interests or opportunities of the company to the
new competing business which he is desirous to start, that things get
tricky and a potential breach of fiduciary duty must be considered.

In your case, it does not sound like you are contractually restricted from
setting up a competing business. Additionally, as stated, the setting up of
a competing business is also not of itself unlawful. Where it becomes more
complex is whether you would be taking advantaged of your current
position as a director to create opportunities for your new business. It is
advisable to obtain legal assistance to help you carefully navigate the
setting up of your competing business to ensure that no fiduciary duty
is breached and to ensure that you start your new business on a good
footing.

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