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1
Cassim, Rehana. "Delinquent Directors under the Companies Act 71 of 2008: Gihwala v Grancy Property Limited 2016 ZASCA 35." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (October 6, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1246.
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The Companies Act 71 of 2008 has introduced into our company law an innovative provision which permits a wide range of persons to apply to court to declare a director delinquent. This provision is contained in section 162 of the Companies Act 71 of 2008. The effect of an order of delinquency is that a person is disqualified for a specified period from being a director of a company. In Gihwala v Grancy Property Limited [2016] ZASCA 35 the Supreme Court of Appeal was faced with some important questions surrounding the declaration of delinquency of a director. It was contended by the appellants that section 162(5)(c) of the Companies Act 71 of 2008 is unconstitutional on the grounds that it was retrospective in its application, and that there was no discretion vested in a court to refuse to make a delinquency order or to moderate the period of such order to less than seven years. It was further contended that section 162(5)(c) of the Companies Act 71 of 2008 infringed the constitutional right to dignity, the right to choose a trade, occupation or profession and the right of access to courts. In assessing these contentions, the SCA addressed and clarified some important questions surrounding the declaration of delinquency of a director. This note discusses and analyses the judgment of the SCA. It points out some anomalies in section 162 of the Companies Act 71 of 2008. This note contends that, in assessing the rationality of section 162(5) of the Companies Act 71 of 2008, the SCA ought to have considered the equivalent provisions in leading foreign jurisdictions that have influenced our Act, particularly since section 5(2) of the Companies Act 71 of 2008 permits a court where appropriate to consider foreign law in interpreting the Act. Further, this note analyses the test applied by courts in determining whether the offences set out in section 162(5) of the Companies Act 71 of 2008 have been committed, and argues that the courts ought to make more effective use of their power to impose ancillary conditions to declarations of delinquency.
2
Schoeman, Heidi C. "The Rights Granted to Trade Unions under the Companies Act 71 of 2008." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 3 (May 3, 2017): 236. http://dx.doi.org/10.17159/1727-3781/2013/v16i3a2365.
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With the entering into force of the Companies Act 71 of 2008 in 2011 a number of rights were granted to trade unions by the act. The Companies Act 71 of 2008 not only grants rights to registered trade unions, as is the case in labour law, but in some cases it grants rights to trade unions representing employees at the workplace. It is argued that rights afforded to trade unions by the act ought to be granted only to trade unions that are registered in terms of the Labour Relations Act 66 of 1995. In addition, it is also argued that the Companies Act 71 of 2008 ought in principle to differentiate between rights that are granted to registered trade unions representing employees at the workplace and rights that are granted to registered majority trade unions, or at the least to sufficiently representative trade unions.
3
Madlela, Vela. "The Appointment of a Proxy "At Any Time" in Terms of Section 58 of the Companies Act 71 of 2008: Richard Du Plessis Barry v Clearwater Estates NPC [2017] ZASCA 11." Potchefstroom Electronic Law Journal 22 (January 31, 2019): 1–27. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4401.
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Section 58(1) of the Companies Act 71 of 2008 gives a shareholder the right to appoint a proxy "at any time" for the purpose of participating in, speaking and voting on behalf of that shareholder at a shareholders′ meeting, or providing or withholding written consent on behalf of the shareholder in terms of section 60. One important issue that arises in regard to the appointment of a proxy relates to the proper interpretation of section 58(1) of the Companies Act 71 of 2008, namely whether this section, as read with section 58(3)(c), constitutes an unalterable provision giving a shareholder an unlimited right to appoint a proxy "at any time" before the proxy exercises the shareholder's rights at the shareholders meeting, or whether the time period within which the instrument of a proxy′s appointment must be delivered to the company may be restricted by the MOI. This issue was considered by the SCA in the Richard Du Plessis Barry case in view of the appellant′s contention that the provisions of the MOI that limited the time period within which the instrument appointing a proxy must be delivered to the company, or other person on behalf of the company, were valid. In this note, I examine the Richard Du Plessis Barry case with a focus on the proper interpretation of the right of a shareholder to appoint a proxy "at any time" as conferred by section 58(1) of the Companies Act 71 of 2008. I provide some critical comments on the main issues that this judgement raises, including the interpretation of section 58(1) in the context of "alterable" and "unalterable" provisions of the Companies Act 71 of 2008, a purposive interpretation of section 58(1), the interaction between section 58(1) and section 58(3)(c), the significance of the difference in the wording of section 58(1) of the Companies Act 71 of 2008 and section 189 of the previous Companies Act 61 of 1973, as well as the practical implications of the court's decision in this matter. This is followed by a brief comparative analysis with selected international jurisdictions and some concluding remarks.
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Phakeng, M. "REGULATION OF MERGERS AND ACQUISITIONS IN TERMS OF THE SOUTH AFRICAN COMPANIES ACT 71 OF 2008: AN OVERVIEW." BRICS Law Journal 7, no. 1 (March 8, 2020): 91–118. http://dx.doi.org/10.21684/2412-2343-2020-7-1-91-118.
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The Companies Act 71 of 2008 (the 2008 Act) replaced the Companies Act No. 61 of 1973, effective 1 May 2011. The 2008 Act was aimed at keeping pace with developments in company law internationally. It is not intended to entirely replace the well-established principles and has largely retained the pre-existing South African company law. The mergers and acquisitions provisions are aimed at creating transparent, efficient, and simple procedures. Different types of mergers and acquisitions are clearly defined as “affected transactions” or “offers” in section 117. Section 118 provides for companies to which the provisions apply. The reasons for regulating these transactions and powers of the regulator – The Takeover Regulation Panel, have been reviewed, clarified, and improved. The previous section on disposal of all or greater part of assets or undertaking of a company has been re-written. The 2008 Act further introduces a new type of affected transaction in section 113, in the form of a “merger” or an “amalgamation.” The 2008 Act has retained the scheme of arrangement in section 114, but has changed its format by removing compulsory court application and approval. The courts get involved under certain prescribed circumstances. The 2008 Act has enhanced shareholder protection for fundamental transactions in the form of section 164 – Appraisal Rights and section 115, dealing with shareholder approval of fundamental transactions. Some scholars and practitioners have criticised certain provisions. However, in general, the provisions have received favourable commentary. They regarded as progressive and comparable with others internationally.
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Cassim, Rehana. "The Device of Weighted Votes in Blocking the Removal of Directors from Office under the South African Companies Act 71 of 2008." Journal of African Law 63, no. 2 (June 2019): 281–302. http://dx.doi.org/10.1017/s0021855319000172.
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AbstractA director may serve a company in more than one capacity. In his capacity as a shareholder, a director may hold voting rights in the company. One consideration regarding the removal of a director from office is their removal by shareholders in circumstances where the directors are themselves shareholders in the company and hold weighted votes. This article appraises whether, under the South African Companies Act 71 of 2008, a shareholding-director who holds shares with weighted votes would validly and lawfully be able to block his removal from office by the company's shareholders. This article makes suggestions regarding the use of weighted votes to block the removal of directors from office, and calls for an important amendment to the South African Companies Act 71 of 2008 to prevent weighted votes being used as a device to block the removal of directors from office.
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Bidie, Simphiwe. "Director's Duty to Act for a Proper Purpose in the Context of Distribution under the Companies Act 71 of 2008." Potchefstroom Electronic Law Journal 22 (September 19, 2019): 1–45. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a4221.
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This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense.
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Cassim, Rehana. "The Suspension and Setting Aside of Delinquency and Probation Orders under the Companies Act 71 of 2008." Potchefstroom Electronic Law Journal 22 (November 5, 2019): 1–30. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a6080.
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A significant innovation of the Companies Act 71 of 2008 is contained in section 162. This provision empowers a court to declare a director delinquent or under probation on various grounds. The effect of a delinquency order is that a person is disqualified from being a director of a company, while being placed under probation means that he or she may not serve as a director except to the extent permitted by the order. A delinquency order may be unconditional and subsist for the director's lifetime, or it may be conditional and be effective for seven years or longer, as determined by the court. A probation order generally subsists for a period not exceeding five years, and may be subject to such conditions as the court considers appropriate. The harsh effects of these orders are alleviated by section 162(11) of the Companies Act. Under this provision, a delinquent director may apply to court after three years have elapsed, to suspend the delinquency order and to substitute it with a probation order, with or without conditions. A person who was placed under a probation order may apply to court after two years for the probation order to be set aside. This article examines the procedure under section 162(11) of the Companies Act for the suspension and setting aside of delinquency and probation orders. The factors that a court must take into account in exercising its discretion whether or not to grant the application, as set out in section 162(12) of the Companies Act, are also examined. This article draws on relevant jurisprudence as decided on the equivalent provisions in the corporate legislation in the United Kingdom and Australia. The method of interpretation used in these jurisdictions provides useful guidance on how best to apply and interpret sections 162(11) and (12) of the Companies Act. Recommendations are made regarding the proper approach to interpreting, applying and enhancing sections 162(11) and (12) of the Companies Act.
8
Kilian, Neels. "A South African–Australian Perspective on the Legal Implications Related to being “Entitled to Serve” as a Director." Potchefstroom Electronic Law Journal 23 (July 23, 2020): 1–27. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a8174.
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This article focuses on an Australian piece of legislation and interesting case law, as well as how the Federal Court of Australia has applied Australia’s Corporations Act 2001, to characterise a person as a de facto director – that is, as a professed director whose appointment as such was defective. In this regard, the decisions of that Court will, as envisaged in the Constitution of the Republic of South Africa 1996, constitute persuasive authority. The Australian decision to be discussed in this article is significant in that the South African Companies Act 71 of 2008 does not contain substantively similar provisions to those of Australia’s Corporations Act 2001. For example, section 66(7) of the Companies Act 2008, contains the phrase “entitled to serve” as a director. This article explains the legal implications relevant to that expression, including whether it imposes a statutory condition precedent. This article also considers the validity of decisions taken by a person who is not “entitled to serve” as a director.
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Rautenbach, Christa, and Brighton M. Mupangavanhu. "Impact of the Constitution's Normative Framework on the Interpretation of Provisions of the Companies Act 71 of 2008." Potchefstroom Electronic Law Journal 22 (November 6, 2019): 1–24. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a7417.
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Given the intention of section 7(a) of the Companies Act 71 of 2008 (the Act) to promote compliance with the Bill of Rights in the interpretation and application of company law in SA, this article assesses the extent to which the Act actually does this. The article thus seeks to showcase evidence of the Act's intentional alignment with the normative framework of the Constitution of the Republic of South Africa, 1996 (the Constitution). The paper does this by answering the question: what are the implications of the Constitution's normative framework on the interpretation and application of the Act? The term "normative framework" is defined, and a distinction is drawn between the descriptive and explanatory social science research questions and the legal research questions which are evaluative and normative in nature. The article provides examples of the contexts in which the intentional alignment of the Act with the Constitution's normative framework is evident. To this extent, commentary is made on the following selected issues: remedies to facilitate the realisation and enjoyment of rights established by company law; the direct and indirect horizontal application of the Bill of Rights to provisions of the Act; and a discernible court's duty to develop the common law as necessary to improve the realisation of the rights established by the Act. A point is made in the article that judicial decisions involving the application of company law must be justified by reference to a cohesive set of values from the Bill of Rights. This is part of transformative constitutionalism. It demands that even commercial law principles should no longer be blindly accepted simply because precedent says so, or for the reason that it is expedient for the purposes of commercial certainty. The article argues that the Act permits the direct horizontal application of the Bill of Rights on its provisions in two stated ways. It is also argued that the Act permits the indirect application of the Bill of Rights through the development of the common law where it is deficient in promoting the spirit, purport and objects of the Bill of Rights. The development of the common law, it is argued, is vital for producing an incremental and cohesive body of constitutionalised common law in the company law context.
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Boraine, A. "Formal Debt-Relief, Rescue and Liquidation Options for External Companies in South Africa." BRICS Law Journal 7, no. 4 (December 20, 2020): 85–126. http://dx.doi.org/10.21684/2412-2343-2020-7-4-85-126.
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This article discusses how foreign companies doing business in South Africa during periods of financial distress and registered locally as external companies are, as a recent High Court decision confirms, denied the formal debt-relief measures of business rescue and therefore a compromise with creditors because of being excluded by the definition of “company” in the Companies Act 71 of 2008. Nor, for the same reason, may these companies, if solvent, rely on the current liquidation procedures. But they may possibly use the procedure preserved in the otherwise repealed Companies Act 61 of 1973 for liquidation as far as the transitional arrangements in the Companies Act 71 of 2008 allow. The purposive solution suggested in this article for the interplay between the two Acts may need legislative attention. This article surveys other possibilities relevant to these companies such as informal voluntary arrangements, applications for winding-up, ordinary debt collection, and perhaps compulsory sequestration applications. Finally, it raises the policy issue for the legislature to consider why these companies should be denied business rescue and/or a compromise with their creditors when these formal debtrelief measures might help them survive their financial stress and emerge stronger, to the advantage of themselves, their creditors, their stakeholders and communities, and the entire nation. It is submitted that these issues could and should be considered as part of the current law reform process of South African insolvency law.
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Morajane, Tebogo. "The Binding Effect of the Constitutive Documents of Companies: The 1973 and 2008 Companies Acts of South Africa." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 13, no. 1 (June 14, 2017): 170. http://dx.doi.org/10.17159/1727-3781/2010/v13i1a2631.
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This contribution examines the provisions of the constitutive documents of companies under two specific provisions, namely s 65(2) of the Companies Act 61 of 1973 and s 15(6) of the Companies Act 71 of 2008. The aim is to determine who is bound by these provisions, the circumstances which give rise to being bound by them, and the possible effect thereof on various parties. The provisions of the constitutive documents under section 65(2) of the 1973 Companies Act are interpreted by courts and academic writers to amount to a statutory contract between a company and its members and between members inter se. The members are said to be bound by the provisions of these documents only in their capacity as members. It is submitted, however, that the rights and obligations are granted to members in their capacity as such if they are membership rights which are granted by virtue on one’s membership. So far the courts have failed to provide a logical explanation of the concept “capacity of a member as such”. This failure and the “qua membership test” resulted in limitations in the interpretation of section 65(2): for example, the exclusion of persons who are regarded as outsiders. The directors, despite the fact that numerous provisions of the applicable article provides for their rights, have rights that are unenforceable via the articles, for being regarded as outsiders. The company on the other hand can enforce the obligations against the directors on the basis of breach of their fiduciary duties. These limitations called for a redraft of section 65(2). This contribution raises the legal challenges raised by the above. It arrives inter alia at the conclusion that the “qua membership test” may find application under the 2008 Companies Act, since members/shareholders may be allowed to exercise rights that are membership rights granted to them by virtue of their membership, and directors may be allowed to exercise rights that are granted to them in their official capacities as such.
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Maroun, Warren, and Harvey Wainer. "To report or not to report." South African Journal of Economic and Management Sciences 16, no. 1 (February 26, 2013): 13–25. http://dx.doi.org/10.4102/sajems.v16i1.332.
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Whistle-blowing can play an important role in enhancing the effectiveness of corporate governance processes. In particular, legislation mandating that auditors blow the whistle on their clients’ transgressions can assist in overcoming agency-related costs and improve confidence in external audit. This is, however, only the case if regulatory reform enjoys cohesion. The Companies Act No. 71 of 2008, by introducing a definition of ‘reportable irregularities’ different from that in the Auditing Profession Act No. 26 of 2005 (APA); excluding ‘independent reviews’ from the scope of APA; and effectively exempting the majority of South African companies from the requirement either to be audited or reviewed, may materially undermine whistle-blowing by auditors in South Africa. In turn, this begs the question: for how long will South Africa rank first globally for the quality of its auditing practices?
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Subramanien, Darren. "Section 165(5)(b) of the Companies Act 71 of 2008: A discussion of the requirement of good faith." Journal of Corporate and Commercial Law & Practice, The 6, no. 2 (2020): 212–32. http://dx.doi.org/10.47348/jccl/v6/i2a8.
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In terms of s 165(5)(b) of the Companies Act 71 of 2008, ‘the court must be satisfied that the applicant is acting in good faith’; that ‘the proceedings involve the trial of a serious question of material consequence to the company’; and that it is ‘in the best interests of the company’ that the applicant(s) be granted leave. The legislature has chosen to provide guiding criteria that are vague and general rather than detailed legal steps for the exercising of judicial discretion. It would therefore be open to the courts to provide an interpretation of the words found in s 165(5)(b) especially regarding the good faith requirement. This article discusses the requirement of good faith. The interpretation and application of the good faith requirement found in s 165(5)(b) will ultimately determine the success or failure of the new statutory derivative action as an adequate remedy for aggrieved applicants who may seek redress on the company’s behalf, if the company or those in control of it improperly fail or refuse to do so. The comparable sections in the law of the United Kingdom will be evaluated in order to determine whether it is feasible to transplant selected rules and principles into South African law.
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Njotini, Mzukisi. "Securing Shareholder Information in the Digital Age – An Analysis of the Proposed Amendments to Section 26 of the Companies Act." South African Mercantile Law Journal 32, no. 3 (2020): 334–59. http://dx.doi.org/10.47348/samlj/v32/i3a2.
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Amending company legislation has become a common occurrence in South Africa. The legislature has passed a number of statutes to alter the principles regulating corporate entities. It is noteworthy that the Companies Act 71 of 2008 is the most substantial of these amending statutes. This Act harmonised the legal principles governing the operation of companies, and brought companies closer to the developmental needs of society. It sought to promote economic grown, investor confidence and foreign investment, and accelerate the transportation of goods and services globally. Because of the need for companies to continue to promote innovation, the legislature proposed measures to repeal certain provisions of the Companies Act. Clause 4 of the Companies Amendment Bill of 2018 contains the proposed changes. The provision supports one of the cardinal ideals of an information society — to improve the free flow of information. However, the challenge with the section 4 provisions is that they are likely to endanger the sanctity of personal information stored online. Specifically, it is not completely clear to what extent the proposed amendments will enhance the integrity of online information, as opposed to weakening it.
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Luiz, Stephanie M. "Some Comments on the Scheme of Arrangement as an "Affected Transaction" as Defined in the Companies Act 71 of 2008." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 5 (June 1, 2017): 101. http://dx.doi.org/10.17159/1727-3781/2012/v15i5a2521.
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A scheme of arrangement involving a regulated company and its shareholders is defined as an "affected transaction" in the Companies Act 71 of 2008. Although scheme of arrangements, which can be used to achieve a takeover of a company, are a common occurrence, the Act provides no definition of such schemes. The importance of knowing what actually constitutes a scheme of arrangement becomes apparent when it is noted that section 121 of the Actprovides that any person making an offer which if accepted would result in an affected transaction is obliged to comply with all the relevant reporting and approval requirements in the Act, as well as the Takeover Regulations, unless the Takeover Regulation Panel has granted an exemption. Giving effect to an affected transaction is prohibited, unless the Panel has issued a compliance certificate or granted an exemption. The article comments generally on the definition of a scheme of arrangement as an affected transaction, highlighting the elements of a scheme of arrangement. Specific consideration is given to transactions which include a re-acquisition by the company of its own previously issued securities and when such a re-acquisition on its own would be considered to be a scheme of arrangement and an affected transaction. Comment on the obligation to appoint an independent expert to report on the scheme and the relevance, if any, of the solvency and liquidity of the company embarking on a scheme of arrangement is included. Finally, consideration is given to the need to have a scheme of arrangement approved by a special resolution and the potential exclusion of certain voting rights. The article exposes a number of difficulties with the interpretation of the applicable provisions and suggests that these need to be revisited by the legislature for clarification.
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Phiri, Siphethile. "Piercing the corporate veil: A critical analysis of section 20(9) of the South African Companies Act 71 of 2008." Corporate & Business Strategy Review 1, no. 1 (2020): 17–26. http://dx.doi.org/10.22495/cbsrv1i1art2.
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When a company is incorporated it becomes a juristic entity with rights and obligations of its own and is distinct from its shareholders and directors. Hence, company liabilities are not those of its shareholders and directors. However, section 20(9) of the Companies Act 71 of 2008 grants the court the discretion to disregard the corporate veil where there is an unconscionable abuse of the juristic personality so as to impose personal liability upon directors or any other person involved in that transaction. However, the section fails to define what constitutes “unconscionable abuse” which is the key to the application of that provision. This research thus seeks to discover what constitutes unconscionable abuse of the juristic personality. Simply put, this research aims to identify the circumstances under which the corporate veil may be pierced. The results from this extensive inquiry are that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this rather legislative innovation remain to be confounding until a specific meaning is assigned to it by the parliament.
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Pretorius, M., and W. Rosslyn-Smith. "Expectations of a business rescue plan: international directives for Chapter 6 implementation." Southern African Business Review 18, no. 2 (January 29, 2019): 108–39. http://dx.doi.org/10.25159/1998-8125/5681.
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Preliminary analysis of business rescue plans suggested that a significant contrast exists between international reorganizational plans and those being published under the newly formed business rescue regime in South Africa. Since the South African regime has emerged from an international insolvency framework, an international benchmark was used to effectively assist in creating an evaluation tool. To better understand the expectations demanded of the plan, principles from comparable international regimes were identified. Data on regimes were obtained scrutinised and reported on; the expectations were extrapolated and aligned with Chapter 6 of the South African Companies Act, No. 71 of 2008, to determine whether the Act complied with a set of expectations based on an international perspective. The proposed framework shows the key principles that govern rescue plans worldwide. The framework could serve as a guideline for the evaluation of rescue plans and help practitioners to enhance what is seen as their key task, namely to compile the rescue plan. Comparison with the five key principles found by the research reveals particular shortcomings in Chapter 6 of the South African Companies Act of 2008. International regimes indicate that the rescue plan should adhere to a broader and more extensive set of expectations than those explicitly provided for by the Act.
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Olivier, Etienne A. "The impact of the capacity provisions in the Companies Act 71 of 2008 on the insolvency-remoteness of limited capacity special purpose vehicles used in securitisation schemes." Journal of Corporate and Commercial Law & Practice, The 6, no. 2 (2020): 82–111. http://dx.doi.org/10.47348/jccl/v6/i2a3.
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The insolvency-remoteness of a special purpose vehicle (SPV) used in a securitisation scheme is of critical importance, because insolvency of the SPV can interrupt the payment streams due to the investors in such schemes. Several contractual methods are implemented to achieve insolvency-remoteness. In this article, it is argued that pacta de non petendo (non-petition clauses), limited recourse provisions, and subordination clauses, all common insolvency-remoteness provisions, do not violate public policy. It is also argued that the capacity provisions in the Companies Act 71 of 2008 (the Act) do not reduce the insolvency risk of a limited capacity SPV used in a securitisation scheme. The fact that ultra vires contracts concluded by limited capacity companies will be provisionally valid under the Act means that provisions in a company’s MOI that limit a company’s capacity will have very little external significance. It is argued that the right to restrain ultra vires contracts in terms of s 20(5) of the Act, in conjunction with the right to ratify such actions in terms of s 20(2), do not provide reliable legal certainty or protection to the investors in assets securitised through a limited capacity SPV.
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Cassim, Rehana. "Notes: Declaring directors of state-owned entities delinquent: Organisation Undoing Tax Abuse v Myeni." South African Law Journal 138, no. 1 (2021): 1–19. http://dx.doi.org/10.47348/salj/v138/i1a1.
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This note discusses and critically analyses the judgment in Organisation Undoing Tax Abuse v Myeni [2020] 3 All SA 578 (GP), in which the court declared a director delinquent for her lifetime in terms of s 162(5) of the Companies Act 71 of 2008. The basis of the application related to the director’s conduct while she was a nonexecutive director and chairperson of South African Airways SOC Ltd. The judgment is commendable for its strict stance against errant directors of state-owned companies. It is the first delinquency application brought by a party acting in the public interest, and the first judgment to impose a lifelong delinquency declaration on a director.
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Maloka, Tumo Charles, and Shandukani Muthugulu-Ugoda. "DEADLOCK PRINCIPLE AS A GROUND FOR JUST AND EQUITABLE WINDING UP OF A SOLVENT COMPANY: THUNDER CATS INVESTMENTS 92 (PTY) LTD V NKONJANE ECONOMIC PROSPECTING INVESTMENT (PTY) LTD 2014 5 SA 1 (SCA)." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 19 (August 15, 2016): 1. http://dx.doi.org/10.17159/1727-3781/2016/v19i0a1153.
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The question addressed by the Supreme Court of Appeal in Thunder Cats Investment 92 (Pty) Ltd v Nkonjane Economic Prospecting & Investments (Pty) Ltd 2014 5 SA 1 (SCA) (hereafter the "Thunder Cats") provides much-needed guidance on the deadlock principle as well as the breadth and scope of the "just and equitable ground for winding up in terms of s 81(1)(d) (iii) of the Companies Act 71 of 2008. The facts, the issues and the contextual authority of Thunder Cats also bring to fore the lacuna in the just and equitable winding up provisions of the current Companies Act which lacuna has so far received no judicial or academic consideration. This Note contends the fact that the just and equitable winding up provisions do not countenance any deviation from the statutory prescriptions once the factual grounds for just and equitable winding up have been established is not in consonance with the spirit, purport and objects of Companies Act, and, in particular those of Chapter Six of the Act which have introduced the innovative business rescue scheme into South African corporate law landscape. The facts, the issues and the contextual authority of Thunder Cats will be reviewed at length in the ensuing discussion.
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Nwafor, Anthony. "Protection of shareholders class rights in company law." International Journal of Law and Management 63, no. 5 (February 4, 2021): 517–34. http://dx.doi.org/10.1108/ijlma-11-2020-0288.
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Purpose A company that is registered with share capital may issue different classes of shares and may confer rights on members, which place them in different classes in the company’s organisational structure. This paper is concerned with the propensity for encroachment on such vested class rights as companies strive to wriggle out of business challenges spawn by the COVID-19 pandemic. The purpose of this study is to ascertain the extent of protection that the law accords to the different classes of shareholders and members in a company especially when the company seeks to vary the vested class rights. Design/methodology/approach A doctrinal methodology, which relies on existing literature, case law and statutory instruments, is adopted to explore the nature of class rights and the adequacies of the remedial measures availed by statute to the aggrieved bearers of class rights in the context of the South African Companies Act 71 of 2008 with inferences drawn from the UK companies statute and case law. Findings The findings indicate that accessing the remedies available to aggrieved shareholders under the relevant statutory provisions are fraught with conditionality, which could make them elusive to those who may seek to rely on such provisions to vindicate any encroachment on their class rights. Practical implications The paper embodies cogent information on the interpretation and application of the relevant statutory provisions geared at the protection of shareholders class rights, which should serve as guides to companies and the courts in dealing with matters that affect the vested class rights of shareholders and members of a company. Originality/value The paper shows that protections offered to classes of shareholders under the law can also be extended to classes of members who are not necessarily shareholders, and that shareholders who seek to vindicate their class rights may conveniently rely on Section 163 that provides for unfair prejudice remedy to avoid the onerous conditions under Section 164 of the South African Companies Act 71 of 2008, which directly deals with class rights.
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Mupangavanhu, Brighton M. "Standard of Conduct or Standard of Review? Examination of an African Business Judgment Rule under South Africa's Companies Act 71 of 2008." Journal of African Law 63, no. 1 (January 18, 2019): 127–50. http://dx.doi.org/10.1017/s002185531800027x.
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AbstractThis article highlights that section 76(4)(a) of South Africa's Companies Act, which reflects the business judgment rule (BJR) concept, is a standard of review, providing a means of determining whether a director has met his or her undertakings under section 76(3). The article suggests that section 76 should be titled “Standards of conduct and review” instead of referring only to standards of conduct. It draws a clear distinction between standards of conduct (including the personal financial interests disclosure requirements) on one hand, and a standard of review on the other. After tracing the traditional international requirements of BJR, the article analyses the decision-making requirements under section 76(4)(a). It concludes that, while section 76(4)(a) compares favourably with US and Australian laws, the omission of a good faith requirement is unfortunate since that is a critical component of decision-making. The article proposes that good faith and proper purpose under section 76(3)(a) should form part of the section 76(4)(a) requirements.
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Jijana, Cawekazi, Nishika Chetty, and Anis Mahomed Karodia. "Investigating the Nature , Purpose and Effectiveness of Business Rescue in South Africa : Chapter 6 of Companies Act 71 of 2008 as Amended." Singaporean Journal of Business Economics and Management Studies 4, no. 11 (2016): 37–75. http://dx.doi.org/10.12816/0027222.
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Chetty, Nishika, Cawekazi Jijana, and Anis Mahomed Karodia. "Investigating the Nature , Purpose and Effectiveness of Business Rescue in South Africa : Chapter 6 of Companies Act 71 of 2008 as Amended." Kuwait Chapter of Arabian Journal of Business and Management Review 5, no. 3 (2015): 70–110. http://dx.doi.org/10.12816/0019019.
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Stevens, Richard Arno. "The Legal Nature of the Duty of Care and Skill." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (January 3, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1202.
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Section 77(2)(b) of the Companies Act 71 of 2008 (“the Act”) provides that a director of a company may be held liable based on the common law principles relating to delict for any losses or damages which the company suffer due to a breach of the duty of care in skill in terms of s76(3)(c), losses due to a breach of a provision of the Act not mentioned in section 77 and losses due to the contravention of any provisions of the memorandum of incorporation (“MoI”) of the company. This article poses the question whether the legislature was correct in formulating the legal nature of the duty of care and skill as well as the liability of directors for losses flowing forth from any breach of the company’s MoI as delictual. The article will attempt to show that basis for liability is not necessarily delictual in nature but it could be argued that the basis could also be contractual.
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Pillay, Dr Surendran, Dr Rajendra Rajaram, and Kajal Ramnanun. "Ascertaining the Impact of Post-Commencement Finance on Business Rescue in Kwazulu-Natal, South Africa." Journal of Social Sciences Research, no. 63 (March 24, 2020): 236–44. http://dx.doi.org/10.32861/jssr.63.236.244.
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Corporate rescue in South Africa has been bedevilled by many challenges. The new South African Companies Act 71 of 2008 (hereafter referred to as “the Act”), which came into effect in May 2011 contains a new chapter titled “Business rescue and Compromise with Creditors”. Post commencement finance (PCF) is finance or credit approved for a company in business rescue, which is regulated by section 135 of the South African Companies Act. The Act provides for companies to secure PCF as turnaround investment to secure its financial well-being. However, it is difficult for a distressed business to access PCF as it is challenging to operate on a cash basis when they face the likelihood of insolvency or forced sale of their assets to remain sustainable. This was evident during the recent global financial crises when obstacles to accessing PCF were identified as the chief deterrent for businesses that require rescue or reorganization (Pretorius and Du Preez, 2013). A review was performed to assess what the impact was, of a distress company obtaining PCF in KZN. Empirical research includes a qualitative research design engaged to explore the impact of PCF on the success of business rescue efforts for distressed companies in KZN. Insights and understandings were drawn from the participation of business rescue practitioners in Kwa Zulu Natal. This included addressing the challenges of obtaining PCF and what finance is available. The findings from the literature review confirm that the barriers to obtaining PCF are the most limiting factors in rescuing businesses in distress in KZN and the challenges include the time frame within the business rescue plan and that financial institutions are not prepared to support a business rescue without collateral.
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Rosslyn-Smith, Wesley, and Marius Pretorius. "Stakeholder expectations of the Business Rescue Plan from a South African perspective." Southern African Journal of Entrepreneurship and Small Business Management 7, no. 1 (June 23, 2015): 1. http://dx.doi.org/10.4102/sajesbm.v7i1.4.
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<p><strong>Background:</strong> A business rescue plan has to comply with a new and vague set of obligations regulated by South African legislation. Expectations of the plan are largely unknown, yet crucial in determining compliance. Establishing an effective benchmark for the plan is essential for the growth and success of the industry.</p><p><strong>Purpose:</strong> The study set out to answer these questions: What are the most crucial elements needed to fill the gap between the specifics of the Companies Act (2008) and the further elements needed to meet the plan’s primary objective of providing adequate information to stakeholders? What are the international principles applicable to rehabilitation plans and what elements underpin them?</p><p><strong>Method:</strong> Thirteen industry experts were selected and interviewed to identify the most crucial elements of the business rescue plan. Sampling was a combination of convenience and purposive sampling. Data collection obtained data on subjects’ opinions, rankings, agreement and ratings.</p><p><strong>Results:</strong> The study was able to confirm that there is indeed a gap between the mandatory elements prescribed in section 150(2) and the provision of sufficient information required by section 150(1) of the Companies Act No. 71 of 2008. The survey revealed that in the subjects’ expert opinion, the international principles are applicable to the business rescue plan.</p><p><strong>Conclusion:</strong> The crucial elements of the rehabilitation plan selected by the experts offer insight and clarity in terms of what is expected of the plan.</p><p> </p><p><strong>Key words:</strong> Business Rescue, Companies Act, Business Plans, Measurement, Insolvency, Turnaround, Reorganisation</p>
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Le Roux, Ingrid, and Kelly Duncan. "The naked truth: creditor understanding of Business Rescue: A Small Business perspective." Southern African Journal of Entrepreneurship and Small Business Management 6, no. 1 (December 31, 2013): 57. http://dx.doi.org/10.4102/sajesbm.v6i1.33.
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<p><strong>Purpose:</strong> to study the level of knowledge and awareness of business rescue of entrepreneurs who are potential creditors of businesses filing for rescue, and to identify the major issues and concerns from the creditors’ point of view.</p><p><strong>Methodology:</strong> the design of the study was a survey to examine the level of knowledge, awareness and experience of Chapter 6 of The South African Companies Act No. 71 of 2008 and to seek to describe the status from a creditor’s perspective.</p><p><strong>Findings:</strong> The literature revealed the role that creditors have to play in the business rescue process. It indicated the potential for creditors to emerge with a better return than the one that liquidation would offer. The primary data demonstrated that the respondents’ level of knowledge and awareness of and about rescue and the roles and powers associated with the Companies Act is extremely low and of grave concern to the industry.</p><p><strong>Practical Implications:</strong> there is a large gap between the level of knowledge available and what is actually known. The result is entrepreneurs who do not comprehend the significance of this legislation and its potential consequences for their business.</p><p><strong>Originality:</strong> this paper addresses the limited research available on business rescue issues. Due to the newness of the Act, sparse case law exists and little scientific research data is available.</p><p><strong>Key words:</strong> Companies Act, business rescue, creditors, knowledge, awareness</p>
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Biggs, A. K., C. B. Scheepers, and M. M. Botha. "The influence of post-2008 legislation on an acquisition that turned hostile: A South African case study." South African Journal of Business Management 48, no. 3 (September 29, 2017): 47–62. http://dx.doi.org/10.4102/sajbm.v48i3.35.
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Hostile acquisitions have a significant impact on managers and employees. The possibility of an acquisition creates uncertainty and when the acquisition turns hostile it is even more disruptive to the target organisation. Also, negative perceptions are often created in the media about the acquirer that influence employees’ attitudes in the target organisation. Processes to successfully integrate the acquirer and target organisations are impacted by these antagonistic pre-acquisition circumstances. The Companies Act (no.71 of 2008) created opportunities for shareholders to hold an acquired company’s management accountable for financial performance and the researchers set out to investigate how the intent of the new legislation played out in practice, by studying an acquisition that turned hostile. The single case study research methodology revealed the manoeuvring of both the acquiring and acquired companies which utilised the mechanisms available to them through the new legislative, regulatory and corporate governance landscapes. The researchers provide an extensive review of the relevant mergers and acquisitions’ literature, as well as influence of the international legislative environment on the current local regulations. These regulations in turn, inform corporate governance and ultimately board behaviours. The researchers conducted qualitative interviews with key role players as well as legal and financial experts. The findings of the thematic analysis and triangulation process, informed a conceptual frame of three episodes.
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Mongalo, Tshepo H. "Notes: The unlamented demise of the common-law derivative action: A note remembering Michael Larkin." South African Law Journal 138, no. 3 (2021): 508–21. http://dx.doi.org/10.47348/salj/v138/i3a3.
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This contribution presents an exposition of how the common-law rules relevant to the common-law derivative action would have clashed with the current statutory derivative action remedy had the common law not been repealed by s 165(1) of the Companies Act 71 of 2008. The analysis of the possible impact of the common law is a relevant and timely one — irrespective of the fact that a statutory derivative action and remedy has been introduced in s 165(2) of the Companies Act — as it provides lessons to policy-makers on how to deal effectively with common-law rules whose time has passed and must be eradicated, particularly in corporate law. This is so since the Supreme Court of Appeal judgment in Hlumisa Investment Holdings (RF) Ltd & another v Kirkinis & others 2020 (5) SA 419 (SCA) has recently endorsed previous Constitutional Court judgments which confirmed the continued validity of the common-law principle of statutory interpretation that a statute should not be taken to alter the common law unless it is clear that that is what was intended. The contribution arrives at the conclusion that the limiting effect of English judgments, particularly Edwards v Halliwell [1950] 2 All ER 1064 and Prudential Assurance v Newman Industries (CA) [1982] Ch D 204 would have still been applicable in South Africa, even though they allow for a conservative exception to the rule in Foss v Harbottle in providing for derivative action claims at common law.
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Mpofu, Kudzai, Anthony O. Nwafor, and Koboro J. Selala. "Exploring the role of the business rescue practitioner in rescuing a financially distressed company." Corporate Board role duties and composition 14, no. 2 (2018): 20–26. http://dx.doi.org/10.22495/cbv14i2art2.
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The emphasis on corporate sustainability as against liquidation in the South African Companies Act 71 of 2008 creates an important figure in the person of the business rescue practitioner. The practitioner in that capacity supplants the board and is insulated from the relevant elements of shareholder control in the discharge of the task of rescuing the financially distressed company. The article interrogates, through doctrinal approach, the efficacy of the statutory provisions relating to the role of the business rescue practitioner in the business rescue process and argues against the disqualification of juristic persons from appointment as business rescue practitioners. While respecting the subjective decision of the practitioner in the preparation of the rescue plan, the paper considers that such subjective decision should withstand some level of objective assessment to enjoy credibility, just as the practitioner should conform to a high level of judicial scrutiny as an officer of the court to be absolved from any liability arising from a breach of duty.
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Mupangavanhu, Brighton M. "Evolving Statutory Derivative Action Principles in South Africa: The Good Faith Criterion and Other Legal Grounds." Journal of African Law 65, no. 2 (March 26, 2021): 293–311. http://dx.doi.org/10.1017/s0021855321000115.
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AbstractThe recent Supreme Court of Appeal (SCA) judgment in Lazarus Mbethe v United Manganese of Kalahari raises jurisprudential questions regarding statutory derivative actions in South Africa. For example, the SCA did not agree with the court a quo's ruling that the discretion to be exercised by the court is limited by provisions of section 165(5). The SCA also questioned whether it is necessary for South African courts to follow the good faith criterion in the Australian case of Swansson v Pratt as adopted into South African law through Mouritzen v Greystones Enterprises (Pty) Ltd & Another. This article contributes to these questions, and proposes possible criteria for other requirements in section 165(5)(b) of the Companies Act 71 of 2008. These other requirements are that the statutory derivative action proceedings must involve “a trial of a serious question of material consequence to a company” and that proceedings be “in the best interests of the company”.
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Nwafor, Anthony O. "Moratorium in business rescue scheme and the protection of company’s creditors." Corporate Board role duties and composition 13, no. 1 (2017): 59–67. http://dx.doi.org/10.22495/cbv13i1p6.
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The concept of business rescue has been acknowledged as one of the innovative paths towed by the South African Companies Act 71 of 2008. The primary purpose of business rescue, as set down by the law, is to facilitate the rehabilitation of a company that is in financial distress. Attaining that purpose could, however, come at a price to the company’s creditors. The law imposes a temporary restriction on legal proceedings, enforcement actions and the property rights of creditors. Unless the written consent of the business rescue practitioner or the leave of the court is first sought and obtained, the creditors cannot have any recourse against the company. The paper argues that the statutory moratorium could constitute an affront on the constitutional right of property, and further contends that while the business rescue practitioner whose governance role naturally supplants that of the board, would not ordinarily grant such consent, the courts are seemingly more neutrally disposed for recourse by the creditors who seek to exercise their rights against the company. In weighing the competing interests, greater consideration should be accorded to the creditors, the protection of whose interests are generally more compelling whenever the company is in financial distress.
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Pretorius, Marius, and Wanya Du Preez. "Constraints on decision making regarding post-commencement finance in Business rescue." Southern African Journal of Entrepreneurship and Small Business Management 6, no. 1 (December 31, 2013): 168. http://dx.doi.org/10.4102/sajesbm.v6i1.39.
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<p>Since its introduction, business rescue has become a critical consideration in business strategy decision making. One of the critical components of business rescue, which appears largely unsuccessful to date, involves securing post-commencement finance (PCF) to restore the company’s financial health. Despite extensive theory in the literature on failure, there is a void regarding post-commencement finance. Specialist practitioners and financiers with extensive experience in rescue and turnaround were interviewed in this study. Findings showed that many critical factors and reasons for lack of interest are due to the newness of the South African Companies Act 71 of 2008 (introduced May 2011). These include business rescue filing being left too late; the poor financial state of the business that files for rescue; and the significant impact on the outcome by some of the key players (especially the financiers and business rescue practitioners). Better understanding of this aspect would be beneficial for creditors, rescue practitioners, shareholders, government regulators, court officials and educators alike.</p><p><strong>Key words:</strong> business rescue, post-commencement finance, turnaround, decision making</p>
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Botha, Monray Marsellus. "The Different Worlds of Labour and Company Law: Truth or Myth?" Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 5 (April 10, 2017): 2103. http://dx.doi.org/10.17159/1727-3781/2014/v17i5a2157.
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Recently the South African company law landscape underwent a dramatic overhaul with the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance. It is clear that companies are no longer accountable just to their shareholders but also to society at large. Leaders should, for example, direct company strategies and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and should thus also manage the business in a sustainable manner. An important question in company law still today is in whose interest the company should be managed. Different stakeholders of importance to companies include shareholders, managers, employees, creditors etcetera. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies, and it encourages the efficient and responsible management of companies. When considering the role of employees in corporations it must be noted that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political changes were evident after South Africa's re-entering the world stage in the 1990s. Changes in socio-economic conditions within a developing country were also evident. These changes had a major influence on the South African labour law dispensation. Like company law, labour law is to a large extent also codified. Like company law, no precise definition of labour law exists. It is clear from the various definitions of labour law that it covers both the individual and collective labour law and that various role-players are involved. Some of these role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties are ultimately what will guide a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed with the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and transformation of the workplace are central issues in South African labour law. This is due to the constitutional changes that have taken place in South Africa, where the protection of human rights and the democratisation of the workplace are advanced. Before the enactment of the LRA, employee participation and voice was a much-debated topic not only locally but also internationally. It is therefore essential when considering employee participation to take due cognisance of both the labour and company law principles that may be pertinent, as well as the need for workers to have a voice in the workplace and for employers to manage their corporations. This article will attempt to indicate how the different functions, theories and models of labour and company law accommodate and promote the interests of employees in corporations and will also attempt to reconcile these differences.
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Kloppers, Henk J. "Driving Corporate Social Responsibility (CSR) through the Companies Act: an Overview of the Role of the Social and Ethics Committee." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 1 (April 26, 2017): 165. http://dx.doi.org/10.17159/1727-3781/2013/v16i1a2307.
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The corporate social responsibility (CSR) movement can be described as a bundle of trends comprising regulatory frameworks aimed at improving corporate practices and leading to changes in these practices, the mobilisation of corporate role players to support the development of states, and a management trend the purpose of which is to enhance the legitimacy of a business. Government is regarded as one of the most important driving forces behind the CSR agenda and it has a particularly important role to play in the creation of an enabling CSR environment. In general, advocates of legislative involvement in framing the CSR policy highlight the failure of existing voluntary systems as one of the main reasons why the state should play a more important role in the facilitation of CSR. Although governments realise the importance of encouraging socially responsible business, it should be noted that CSR should not replace regulation or legislation concerning social rights. Furthermore CSR should not be seen as shifting (or outsourcing) the state's responsibility for the provision of basic services (such as education or the provision of health services) to the private sector and thus "privatising" the state's responsibilities. However, the legacies of apartheid remain firmly entrenched in the social problems facing South Africa and it seems as if the Government is unable to deliver the social and physical infrastructure required to effect the desired transformation, thus necessitating the engagement of the private sector. The role of Government in establishing a CSR policy framework and driving CSR has become increasingly important. The (perceived) failure of the welfare state has given further impetus to the move of governments toward tapping into the resources of the private sector (through their CSR) in order to address socio-economic challenges. A purely voluntary approach to CSR without any legislative intervention will not succeed – a clear public policy requiring the implementation of socially responsible practices by the entire private sector is a necessity. Governments in general are increasingly beginning to view CSR as cost-effective means to enhance their sustainable development strategies, and as a part of their national competitiveness strategies to attract foreign direct investment. Given South Africa's history, legislation should be viewed as one of the main instruments enabling the Government to address the private sector's social, environmental and economic outreach activities.Against this background, this contribution identifies the regulations released in terms of the Companies Act 71 of 2008 in which the issue of the social and ethics committee is dealt with, as an important measure taken by Government to create a possible CSR platform. This contribution argues that the requirements regarding the creation of a social and ethics committee have the potential to embed the CSR notion in the corporate conscience. The aim of the contribution is to provide an overview of the role of the social and ethics committee, as envisaged by the Companies Regulations, 2011, as a potential driver of CSR.
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Lu, Zhiqiang, Zaina Parvez Qureshi, Brian Chen, Sudha Xirasagar, Paul Ray, Gowtham Rao, Isaac Lopez, et al. "Why Is Cancer Care So Expensive: Potential Implications of Fraud and Abuse." Blood 120, no. 21 (November 16, 2012): 4275. http://dx.doi.org/10.1182/blood.v120.21.4275.4275.
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Abstract Abstract 4275 Introduction: Annually, $82 billion to $272 billion is reportedly lost to federal health care fraud. Between 1996 and 2005, 379 federal health care fraud cases initiated by qui tam relators (“whistle blowers”) concluded, resulting in $9.3 billion in recoveries. Of these, pharmaceutical companies accounted for 13 cases (False Claims Act (FCA) cases, the primary statute invoked in health care fraud and abuse), but $3.9 billion of recoveries (4% of the cases and 39% of the financial recoveries). We report concluded FCA cases involving pharmaceutical manufacturers between 2006 and 2011. Oncology accounts for the largest per cent of total pharmaceutical expenditures. Over 90% of all new cancer pharmaceuticals cost > $20,000 for 12-weeks of treatment. Methods: Websites for the Department of Justice (DOJ), Taxpayers Against Fraud, Health and Human Services Inspector General's Office, Health Care Fraud and Abuse Control Project, and Lexis/Nexis were queried for pharmaceutical FCA cases (2006 to 2011). Results: Between 2006 and 2011, the DOJ closed 54 cases with pharmaceutical FCA violations, 38 with and 16 without qui tam relators, accounting for recoveries of $11.3 billion (mean $296 million) and $2.6 billion (mean, $165 million), respectively. Illegal marketing is the most common fraud allegations invoked against pharmaceutical manufacturers (19 cases). Pharmaceutical manufacturers accounted for 31% of total FCA cases, and 71.5% of total FCA recoveries (Table 1). Conclusion: Since the DOJ's shift of focus to pharmaceutical corporations in 2001, the trend has intensified, with virtually every large pharmaceutical corporation settling at least one FCA case. Pharmaceutical cases now account for 31% of the federal fraud cases and 71% of the financial recoveries. Fraud and abuse may be an important component of the high costs of cancer care in the United States. Moreover, unless fundamental changes occur, the pharmaceutical industry will continue to be the main FCA investigative target as this sector has the deepest pockets and is the health care sector most resistant to deterrence. Disclosures: No relevant conflicts of interest to declare.
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Tshipa, Jonty, Leon Brummer, Hendrik Wolmarans, and Elda Du Toit. "The impact of flexible corporate governance disclosures on value relevance. Empirical evidence from South Africa." Corporate Governance: The International Journal of Business in Society 18, no. 3 (June 4, 2018): 369–85. http://dx.doi.org/10.1108/cg-05-2017-0106.
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PurposeConsidering that the Johannesburg Stock Exchange (JSE) has enacted in its Listings Requirements, compliance of listed firms to International Financial Reporting Standards (IFRS) and King Code of Good Corporate Governance, this study aims to investigate the impact of internal corporate governance attributes on the value relevance of accounting information in South Africa.Design/methodology/approachThe fixed effect generalised least squares regression is used for the period from 2002 to 2014. Proxies for internal corporate governance are the size of the board, leadership structure, board activity, staggered board, boardroom independence, presence of key committees and board gender diversity. Value relevance is measured using the adjustedR2derived from a regression of stock price on earnings and equity book values by following Ohlson’s accounting-based valuation framework.FindingsThe findings suggest that the net asset value per share is value-relevant in South African listed firms and also when the boardroom is largely independent. The value of earnings per share (EPS) is more robust when corporate governance structures, such as separating the roles of chief executive officer and chairperson, proportion of board-independent board members and presence of board committees, are in place. This suggests that EPS favours agency and resource dependence theories.Practical implicationsThe value relevance of accounting information in the South African financial market underscores the importance of requisite rules and supervision regarding financial reporting to allow asset owners and managers in the allocation of capital decisions. This study supports the view that corporate governance plays a key role in ensuring, amongst others, credible financial reporting. The outcome of this study could inform the JSE to enforce, even stricter, compliance with IFRS and corporate governance to improve the value relevance of financial information.Social implicationsSignificant corporate governance reforms around the world suggest that regulators and policy makers consider corporate governance as a pertinent tonic in ensuring, amongst others, credible financial reporting. The implications of the study might assure users of financial information of how compliance to corporate governance practices may influence the value of the firm. This paper provides empirical evidence in the South African context that EPS, unlike net asset value per share, is driven by corporate governance structures.Originality/valueThe period of this study is unique, because it covers a relatively stable economic period before the financial crisis, a challenging and unstable period of time when the financial crisis materialised, and the aftermath of the financial crisis. In addition, the examination period of the study also covers the two corporate governance reforms in South Africa, King II in 2002 and King III in 2009, as well as the new Companies Act No. 71 of 2008. These exogenous factors may influence the results.
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Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 16, no. 1 (April 26, 2017): 0. http://dx.doi.org/10.17159/1727-3781/2013/v16i1a2330.
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The first issue of 2013 contains fifteen contributions dealing with a potpourri of themes. The first contribution is an oratio presented by the retired Dean of the Faculty of Law of the NWU and former editor of PER, Francois Venter, during his exodus in October 2012. He gave his presentation in his mother tongue, Afrikaans, and asks the question if one may assume that being a professor entails belonging to a profession, in other words, an academic profession. The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rdHuman Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue. The first one is by Babatunde Fagbayibo, who gives an analytical overview of the common problems affecting supranational attempts in Africa. He argues that Africa's efforts to solidify its unity should be geared towards building on the experiences of past and present experiments at the sub-regional level. Samantha Goosen discusses the very thorny issue of battered women and the elements of self-defence if she has to stand trial for killing her husband. Recent developments in the area of pro bono legal services are the heart of Dave Holness' article. He focuses on legal service delivery for the indigent by attorneys in private practice acting pro bono in civil rather than criminal matters. Henk Kloppers discusses the very topical issue of corporate social responsibility. He gives an overview of the social and ethics committee created in terms of the Companies Act 71 of 2008 as a potential driver of corporate social responsibility. The always newsworthy theme of HIV/AIDS and the question of whether to disclose or not to disclose one's status forms the focal point of Andra le Roux-Kemp's contribution. Chucks Okpaluba gives an overview of South African and Commonwealth decisions dealing with the issue of reasonable and probable cause in the law of malicious prosecution. The never-ending problem of language diversity once again comes to the fore in the article by Loot Pretorius. He asks the question if the recently adopted Use of Official Languages Act 12 of 2012 complies with the normative instructions of the Constitution of the Republic of South Africa, 1996. In his second essay on the Child Justice Act 75 of 2008, Stephan Terblanche deals with a number of procedural issues related to the sentencing of child offenders. The last article, which is by Bonnie Venter, deals with the ethical question of whether the payment of kidney donors could be regarded as constitutionally acceptable or not. In the first of five notes, Nqobizwe Ngema asks if the African custom of theleka (the withholding of a wife by her father or guardian from her husband to coerce him to pay the outstanding lobolo) has an impact on the custody of children in the context of the best interest of the child. The central question Phazha Ngandwe asks is how states can discharge their duties and obligations vis-à-vis their nationals without perpetuating the bottlenecks to and the stigma that attaches to migration and thereby upsetting the international and regional integration objectives of the free movement of people. Mzukisi Njotini's note discusses the adequacy of South Africa's measures designed to protect critical information infrastructures. In the second last note, Anthea Wagener considers the practice of South African motor-vehicle insurers of using gender as a rating variable to classify risks into certain classes, thereby determining insurance premiums, and asks if this practice boils down to unfair discrimination. The final note by Anri Botes deals with the history of labour hire in our neighbouring country, Namibia.
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Paulo, S. "The South African Companies Act of 2008 (SACA2008), and the Sarbanes‐Oxley Act of 2002." International Journal of Law and Management 53, no. 5 (September 13, 2011): 340–54. http://dx.doi.org/10.1108/17542431111166331.
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Oliveira, Edson Marques. "RESPONSABILIDADE SOCIAL EMPRESARIAL, EMPREENDEDORISMO SOCIAL E ECONOMIA SOLIDÁRIA: similitudes, ambivalências e possíveis conexões." Revista Observatório 5, no. 5 (August 1, 2019): 697–750. http://dx.doi.org/10.20873/uft.2447-4266.2019v5n5p697.
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A crise mundial deflagrada em 2008, pela especulação financeira, serviu para acentuou nos países ricos o que os países pobres já vêm enfrentando a muitas décadas, recessão, inflação, desemprego, desigualdade, exclusão social, violência, entre outras mazelas sociais. E no epicentro das grandes demandas surgem alternativas de enfrentamento, sejam oriundas dos governos, das organizações empresariais ou da sociedade civil organizada, a essa tríade tem se denominado de primeiro setor (governo) segundo setor (empresas privadas) e terceiro setor (sociedade civil). Vive-se sem dúvida num momento hibrido de ações interventivas no campo social, campo esse que via de regra sempre foi renegado a caridade, filantropia e ao bel prazer dos poderosos. Ao se analisar a atual conjuntura, é possível constatar que em alguns aspectos isso não mudou, mas não é essa questão que quero abordar. Ressaltando o fato de que na prática esses setores estão se encontrado, e em alguns momentos até gerando certa conexão. No entanto, ao analisar as questões conceituais e as dimensões políticas, práticas postas e que permeiam essas organizações e seus respectivos sujeitos, é possível encontrar diferenças significativas. Principalmente no campo ideológico, notadamente no caso da economia solidária. No entanto, na prática, será que existem muitas diferenças? Pois, seja no uso de instrumentos, estratégias e ações de intervenção, principalmente quando se trata de ações de geração de trabalho e renda de populações em risco e vulnerabilidade social, encontramos muitas diferenças? É sobre isso que o presente artigo trata. De uma análise a partir de dados empíricos de uma pesquisa referente ao perfil de organizações empresarias da região Oeste do Paraná, Brasil, da prática de um projeto de extensão e da participação de organizações da sociedade civil, e empresarial na criação e desenvolvimento de ações de intervenção no campo da responsabilidade social empresarial, do Empreendedorismo Social, e mais recentemente no viés da economia solidaria. E com isso apontar as possíveis conexões, ambivalências e inflexões necessárias para melhor compreensão desse momento e processo.
Palavras-chave: responsabilidade social, empreendedorismo social, economia solidária.
ABSTRACT
The global crisis triggered in 2008 by financial speculation, served to accented in rich countries, poor countries are already facing many decades, recession, inflation, unemployment, inequality, social exclusion, violence, among other social ills. And at the epicenter of the major demands arise coping alternatives are coming from the governments, business organizations or organized civil society, this triad has been called the first sector (government) second sector (private companies) and third sector (civil society) . We live in a hybrid undoubtedly moment of intervening actions in the social field this that a rule has always renegade charity, philanthropy and the whim of the powerful. When analyzing the current situation, it is clear that in some ways it has not changed, but not the issue I want to address. Highlighting the fact that in practice these sectors are found, and at times even generating some connection. However, when analyzing the conceptual issues and the political dimensions, and put practices that permeate these organizations and their subject, you can find significant differences. Especially in the ideological field, especially in the case of solidarity economy. However, in practice, are there many differences? Therefore, is the use of tools, intervention strategies and actions, especially when it comes to job generation of shares and income populations at risk and social vulnerability, we find many differences? That's what this article is about. An analysis from empirical data from a related research profile of business organizations of western Paraná, Brazil, the practice of a civil society outreach project and the participation of organizations and business in the creation and development of actions intervention in the field of corporate social responsibility, Social Entrepreneurship, and most recently in the bias of the solidarity economy. And with that point out the possible connections, ambivalence and inflections necessary for better understanding of this time and process.
Keywords: social responsibility, social entrepreneurship, solidarity economy.
RESUMEN
La crisis mundial desencadenada en 2008 por la especulación financiera, sirvió para acentuado en los países ricos, los países pobres ya enfrentan muchas décadas, la recesión, la inflación, el desempleo, la desigualdad, la exclusión social, la violencia, entre otros males sociales. Y en el epicentro de las principales demandas surgen alternativas vienen de los gobiernos, las organizaciones empresariales o de la sociedad civil organizada para hacer frente, esta tríada se ha llamado el primer sector (gobierno) segundo sector (empresas privadas) y el tercer sector (la sociedad civil). Vivimos en un híbrido, sin duda, momento de las acciones que intervienen en el ámbito social que esta regla tiene caridad siempre renegado, la filantropía y el capricho de los poderosos. Al analizar la situación actual, es evidente que en algunos aspectos no ha cambiado, pero no el tema que quiero tratar. Destacando el hecho de que en la práctica se encuentran estos sectores, ya veces incluso generar algún tipo de conexión. Sin embargo, al analizar las cuestiones conceptuales y las dimensiones políticas y prácticas puestas que impregnan estas organizaciones y su tema, usted puede encontrar diferencias significativas. Especialmente en el campo ideológico, especialmente en el caso de la economía solidaria. Sin embargo, en la práctica, ¿hay muchas diferencias? Por lo tanto, es el uso de herramientas, estrategias de intervención y acciones, sobre todo cuando se trata de la generación de empleo de las acciones y de las poblaciones de ingresos en situación de riesgo y vulnerabilidad social, encontramos muchas diferencias? Eso es lo que este artículo se trata. Un análisis de los datos empíricos de un perfil de investigación relacionados con las organizaciones empresariales del oeste de Paraná, Brasil, la práctica de un proyecto de extensión de la sociedad civil y la participación de las organizaciones y las empresas en la creación y desarrollo de acciones intervención en el ámbito de la responsabilidad social corporativa, Emprendimiento Social, y más recientemente en el sesgo de la economía solidaria. Y con ese punto las posibles conexiones, la ambivalencia y las inflexiones necesarias para una mejor comprensión de este tiempo y proceso.
Palavras-clave: responsabilidad social, emprendimiento social, economía solidaria.
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Nwafor, Anthony O. "The goal(s) of corporate rescue in company law: A comparative analysis." Corporate Board role duties and composition 13, no. 2 (2017): 20–31. http://dx.doi.org/10.22495/cbv13i2art2.
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The concept of corporate rescue lays emphasis on corporate sustainability than liquidation. This trend in corporate legislation which featured in the United Kingdom Insolvency Act of 1986, Australian Corporations Act 2001, Indian Sick Industrial Companies (Special Provisions) Act of 1985 (as replaced by Companies Act, 2013 and supplanted by the Insolvency and Bankruptcy Code, 2016) has been adopted in the South African Companies Act of 2008. The goal(s) of corporate rescue in some of these jurisdictions are not clearly defined. The paper examines, through a comparative analysis, the relevant statutory provisions in the United Kingdom, India, Australia and South Africa and the attendant judicial interpretations of those provisions with a view to discovering the goal(s) of corporate rescue in those jurisdictions. It is argued that while under the United Kingdom and Australian statutory provisions, the administrator could pursue alternative goals of either rescuing the company or achieving better results for the creditors; the South African and Indian statutory provisions do not provide such alternatives. The seeming ancillary purpose of crafting a fair deal for the stakeholders under the South African Companies Act’s provision is not sustainable if the company as an entity cannot be rescued.
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Lu, Ziyi, Indroneil Ganguly, and Ivan Eastin. "Changes in Chinese wood-based exports to the U.S.: Post Lacey Act amendment." Forestry Chronicle 90, no. 05 (October 2014): 660–65. http://dx.doi.org/10.5558/tfc2014-131.
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The recent adoption of timber legality legislation in the U.S. (the Lacey Act 2008 amendment) requiring timber imports be sourced from legally harvested wood could have profound impacts on China's re-exports of manufactured wood products to the U.S. This study examines empirically how Chinese wood manufacturers’ sales to the U.S. have changed in response to the Lacey Act. A sample of 225 Chinese wood manufacturers was drawn from two trade shows in Shanghai, China in 2013. The results reveal that Chinese companies’ awareness of the Lacey Act has played an important role in their decision to export to the U.S. over the last five years. The companies who are less familiar with the Lacey Act tend to withdraw from the U.S. market and focus on domestic market. Also the smaller Chinese companies were more likely to withdraw from the U.S. market in the aftermath of the Lacey Act as compared to their larger counterparts. Finally, the Chinese companies that have increased their imports of raw materials from the U.S. were found to have increased their sales to the U.S. market over the last five years.
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Venugopalan, T. "Corporate Governance and Agency Problems During Pre-And Post-Indian Companies Act 2013 Regimes." Archives of Business Research 9, no. 4 (May 13, 2021): 180–97. http://dx.doi.org/10.14738/abr.94.10042.
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This research paper makes a comparative analysis of the effectiveness of governance mechanisms in mitigating the agency problems in the Indian corporate sector during the pre and post-Indian Companies Act 2013 periods, using the panel OLS regression methodology on a sample of 315 companies drawn from the BSE 500 index of the Bombay Stock Exchange (BSE) for 10 years spanning from 2008-2018. Based on the review of literature, this paper has utilized proxy Operating Ratio for measuring the agency cost as the dependent variable. It also has identified ten governance mechanisms as independent variables; board size, independent directors, CEO-chairperson separation, audit committee, stakeholders’ relationship committee, nomination and remuneration committee, promotors’ holdings, leverage, bank debt, and firm size. The descriptive statistics, Pearson’s correlation coefficients, and multivariate regression analysis have been performed for evaluating the effectiveness of the governance mechanism in mitigating agency problems. The descriptive statistics reveal that agency problems in Indian companies have drastically increased during the post-companies Act 2013 period. The findings also disclose that Indian firms have by and large adopted the provisions of the Indian Companies Act 2013 on internal corporate governance mechanisms. However, the multivariate regression results prove that the internal governance mechanisms are not effective in mitigating agency problems during the post-companies Act 2013 regime.
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Cassim, Maleka Femida. "The Contours of Profit-Making Activities of Non-Profit Companies: An Analysis of the New South African Companies Act." Journal of African Law 56, no. 2 (August 23, 2012): 243–67. http://dx.doi.org/10.1017/s0021855312000046.
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AbstractWhile for-profit companies regularly embark on non-profit activities, the converse issue has recently come to attention, namely whether non-profit companies may embark on profit-making activities. This has given rise to a confusing conundrum of practical importance, not only in South Africa but also in other jurisdictions. This article discusses whether non-profit companies, under the South African Companies Act of 2008, may have purely commercial objects. It also addresses the intertwined question of the contours of permissible profit-making activities. Since the non-profit company is the modern successor to the section 21 company under the previous Companies Act of 1973, this article considers the recent case of Cuninghame v First Ready Development 249, in which the Supreme Court of Appeal was faced with the problem of a section 21 company with a commercial object. The article also explores the administration of rental pool agreements by non-profit companies, which arose in the Cuninghame case.
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Mynkin, D. "Big Companies of ASEAN-5 Countries: Competitiveness under Conditions of Crisis." World Economy and International Relations, no. 9 (2011): 61–71. http://dx.doi.org/10.20542/0131-2227-2011-9-61-71.
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The crisis of 2008-2009 hit East Asia to a lesser degree than many developed countries of the West. The purpose of the article is to examine the competitiveness of specific companies from ASEAN-5 in this crisis and to assess the situation during this period and during the Asian crisis.
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Kusumawardani, Saskia, Sinta Dewi Rosadi, and Elisatris Gultom. "GOOD CORPORATE GOVERNANCE PRINCIPLES ON INTERNET INTERMEDIARY COMPANIES IN PROTECTING THE PRIVACY OF PERSONAL DATA IN INDONESIA." Yustisia Jurnal Hukum 9, no. 1 (May 6, 2020): 65. http://dx.doi.org/10.20961/yustisia.v9i1.39683.
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<em>The implementation of good corporate governance (GCG) is the main foundation of companies that needs to run their business activities for a long period. Along with the development of technology and information, the implementation of GCG is increasingly needed for internet intermediary platform providers in carrying out their business activities. The implementation of GCG principles can also reduce the risk of failure in protecting privacy of personal data on the platform. The related principles are transparency, accountability, and responsibility principle by taking into account a number of laws and regulations such as Law No. 11 of 2008 as amended by Law No. of 2016 concerning Amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions (ITE Law), Government Regulation No. 71 of 2019 (GR 71/2019), and Ministry of Communication and Information Regulation No. 20 of 2016. This research will use a normative juridical research method that takes into account the provisions of the legislation and other relevant documents. As a result, the implementation of GCG is not fully implemented in the case of failure in protecting privacy of personal data in internet intermediary company (PT Bukalapak), thus the legal attempt that can be applied to manifest the company’s liability refers back to ITE Law, GR 71/2019, and Ministry of Communication and Information Regulation 20/2016 which are compensation and administrative sanctions. </em>
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Benjamin, Lisa. "The Responsibilities of Carbon Major Companies: Are They (and Is the Law) Doing Enough?" Transnational Environmental Law 5, no. 2 (October 2016): 353–78. http://dx.doi.org/10.1017/s2047102516000194.
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AbstractTransnational carbon major companies are responsible for over 30% of global industrial greenhouse gas emissions and exert tremendous influence over future global climate trajectories. Yet, they are not governed through top-down, stringent emissions limits, but are instead regulated largely by disclosure-only domestic requirements and market-based or voluntary corporate social responsibility mechanisms. Through an examination of the requirements of domestic laws such as the United Kingdom (UK) Climate Change Act 2008 and the UK Energy Act 2013, as well as the environmental and sustainability reports produced under the UK Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, this article analyzes the regulatory requirements placed on carbon majors, and the climate change pledges and emissions of five UK-based carbon majors: BP, Royal Dutch Shell, BG Group, National Grid, and Centrica. The article concludes that the efforts to curb emissions in these carbon major entities are being subverted by company law, company theory and commercial norms such as shareholder wealth maximization.
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Maryati, Ulfi, Armel Yentifa, and Wiwik Andriani. "Implementasi Akuntansi Berbasis Akrual Pada Pemerintah Daerah (Studi Pada Pemerintah Kota Semarang dan Pemerintah Kota Bandar Lampung)." Akuntansi dan Manajemen 10, no. 2 (December 1, 2015): 1–10. http://dx.doi.org/10.30630/jam.v10i2.100.
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The aim of this research is to evaluate implementation of Accrual based accounting of local government in Kota Semarang and Kota Bandar Lampung. The research finds that Government Act (PP) No. 71 Year 2010 as amendment of Section 36 ayat (1) Regulation No 17-2003 and Pasal 70 section (2) Regulation No.1-2004 has instructed government to apply Accrual accounting by the year 2008. However, the regulation for implementing this Accrual based accounting has just established since 2010 in PP 71-2010. The establishment of this governmental act, all governments both local and central, must apply Accrual based accounting by the year of 2015. The years from 2010 until 2014 can be identified as the transition from cash based accounting to Accrual based accounting. In December 2013, Central government has set Regulation of Internal Affairs Ministry (Permendagri) No. 64 in 2013 which can be identified as the regulation for controlling the implementation of PP 71 in 2010 at local governments. Local government of Kota Semarang is the only region in Indonesia which has applied Accrual based accounting since 2008. In 2013, government of Bandar Lampung start implementing this financial policy informally, but actually they still use PP 24-2005. This research was conducted using qualitative research methods with library research technique. The result of implementation accrual accounting in two public governments is appropriated to conceptual framework.
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Gorlach, Igor, and Genevieve Pham-Kanter. "Brightening Up: The Effect of the Physician Payment Sunshine Act on Existing Regulation of Pharmaceutical Marketing." Journal of Law, Medicine & Ethics 41, no. 1 (2013): 315–22. http://dx.doi.org/10.1111/jlme.12022.
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In 2008 pharmaceutical companies spent over $12 billion on product promotion and detailing aimed at U.S. health care practitioners. Drug and device manufacturers rely on a workforce of detailers and physician speakers to reach health care practitioners and nudge their prescribing habits. To prevent undue influence and protect the public fisc, a number of states began regulating these marketing practices, requiring companies to disclose all gifts to practitioners, prohibiting the commercialized sale of prescription data, and prohibiting certain gifts altogether. The 2010 enactment of the Physician Payment Sunshine Act (PPSA) marks the first Congressional involvement in the regulation of disclosure related to pharmaceutical marketing. Overall, the Act improves transparency in pharmaceutical marketing to physicians and expands the regulation of disclosure of pharmaceutical marketing activities in important substantive ways.