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1
Sithole, Thembinkosi Muntu. "The meaning of ‘arrangement’ in the Companies Act 71 of 2008". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/46004.
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2
Soobyah, Althea Natashia. "Mergers and Amalgamations Under the Companies Act no. 71 of 2008". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/46005.
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3
Barends, Richard Heinz. "A Critical analysis of section 129 of the companies act 71 of 2008". University of the Western Cape, 2017. http://hdl.handle.net/11394/6180.
Testo completoAbstract (sommario):
Magister Legum - LLM (Mercantile and Labour Law)A company forms an important part of a community in which it conducts business. It, therefore, has a direct impact on the economic and thus the social well-being of that community through its employees, suppliers and distributors. Consequently, the failure of a company has a large effect on society than merely its employees and creditors. In some instances this may lead to companies being liquidated. Granting an order of liquidation, results in the demise of the corporate entity and the attendant loss of jobs. This is further protracted by an unsatisfactory pro rata share in the residue for unsecured creditors, and the abandonment of claims when such are not proved. Having a corporate rescue procedure in place can prevent or even limit the amount of job losses, or provide an alternative measure as opposed to liquidation of companies. Corporate rescue affords a company a second chance, after having once failed, to restructure its financial affairs and once again become a successful concern.
4
Pike, Adam. "A textual analysis of section 164 of the Companies Act 71 of 2008". Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/6048.
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5
Rabuli, Ndivhuo. "Capital Maintenance rule and distribution focusing on sections 46 and 48 of the Companies Act 2008 (Act 71 of 2008)". Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/60085.
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6
Kgarabjang, Tshegofatso Cornelius. "A critical analysis of Sections 44, 45 and 48 of the Companies Act 71 of 2008". Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26661.
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7
Lamola, Ronald Ozzy. "Regulation of public property syndication schemes under the Companies Act 71 of 2008 and the Consumer Protection Act 68 of 2008". Diss., University of Pretoria, 2015. http://hdl.handle.net/2263/45982.
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Job, C. O. (Charles). "Common law duties and section 76 of the Companies Act, 71 of 2008 compared". Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/41220.
Testo completoAbstract (sommario):
Recently, the South African Legislature partially codified the common law duties of
directors with the Companies Act, 71 of 2008 (hereafter referred to as „the 2008
Companies Act‟) which came into effect on 1st May 2011. Chapter 2 of the 2008
Companies Act is dedicated to the formation, administration and dissolution of
companies. „Part F‟ thereof elaborately provides for governance of companies, and
section 76 contained therein requires directors and other company office bearers to
meet the standards of directors‟ conduct as prescribed therein. All of these duties are
in accordance with the principles of common law as indicated in section 77
subsection (2) (a) where non-compliance will attract legislated liabilities as provided
for in section 77 of the 2008 Companies Act. While the standards of directors‟
conduct remains within the bounds of common law, what impact will this codification
have on South Africa‟s corporate law? And what are the realities of its enforcement?Dissertation LLM--University of Pretoria, 2012.
hb2014
Mercantile Law
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Jansen, van Rensburg Heinrich. "Protection against oppressive or unfairly prejudicial conduct under the Companies Act 71 of 2008". Thesis, University of Cape Town, 2011. http://hdl.handle.net/11427/11568.
Testo completoAbstract (sommario):
Includes bibliographical references.The Companies Act 61 of 1973 (the "1973 Act") will be repealed in its entirety when the Companies Act 71 of 2008 (the "2008 Act") comes into operation on a date still to be fixed by the President of the Republic of South Africa, in proclamation. The goal of this dissertation is to investigate what impact, if any, the 2008 Act will have on the remedies afforded to members or shareholders in companies to protect their rights in the event of so-called "oppressive or unfairly prejudicial conduct" by majority decision, or otherwise, in a company.
10
Molefe, Neo Gift. "Acquisition of securities in terms of Section 48 of the Companies Act 71 of 2008". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/45990.
Testo completoAbstract (sommario):
The Companies Amendment Act 37 of 1999 brought about a major change to the South African company law, the Amendment Act introduced share buyback provisions to our company law. The legislature had finally responded to numerous calls for amendments to our company law, particularly amendments that would make share buyback by a company of its own shares and share buyback by subsidiary company of shares in its holding company possible. The Amendment Act operated in a statutory scheme to which the capital maintenance doctrine was applicable, it was thus necessary that the Companies Act 61 of 1973 be overhauled and this was done through the enactment of the Companies Act 71 of 2008.
On 1st May 2011, the Companies Act 71 of 2008 finally came into effect. This study is principally about the provisions governing a company’s acquisition of securities in terms of the new Companies Act. I will first give an exposition of the evolution of our Companies Act from capital maintenance to solvency and liquidity. I will then contrast the share buyback provisions of the 1973 Companies Act with the current Companies Act, I will also discuss and analyse the provision governing distributions in general and those pertaining to acquisition of securities in terms of section 48 of the Companies Act 71 of 2008.Mini Dissertation (LLM)--University of Pretoria, 2014.
tm2015
Mercantile Law
LLM
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11
Van, staden Elrica Gaylon. "The influence of section 78 of the companies act 71 of 2008 on personal Liability insurance taken out by directors of companies". University of the Western Cape, 2021. http://hdl.handle.net/11394/8326.
Testo completoAbstract (sommario):
Magister Legum - LLMIn order to understand the context of the research paper, a brief discussion has to be made as to the important fact that a director has to be appointed in a role to assist with the decision-making in running of a company.1 A director is an officer of a company that is ordinarily appointed in order to make daily business reporting, decisions and to take business risks on behalf of the company.2When taking up a position as a director, duties and responsibilities must be fulfilled. A failure to comply with these duties will result in serious consequences for the company and often for the director himself.3 Director’s fiduciary duties previously developed from our common law and was established through the precedents set by our courts.4 These duties were partially codified in the Companies Act 71 of 2008.5 It can be clearly seen that the Companies Act 61 of 1973, only mentions the duties but does not specify directly the types of duties.6 The standard of conduct expected of directors is provided for in section 76 of the Companies Act 71 of 2008.7 Furthermore, section 77 contains the liability of directors for any breach of their duties.8 This raises the point that a director can incur various type of liability for a breach of their duties. The type of liability that can be incur is personal liability and criminal liability.9
12
Chokuda, Batanai Tirivamwe. "Advancing and protecting the interests of creditors and employees under the Companies Act 71 of 2008". Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/12661.
Testo completoAbstract (sommario):
Includes bibliographical references.This dissertation seeks to assess the impact the new Companies Act will have on the socio-economic transformation of the South African society and point out areas where corporate law can do more to help bring about this transformation. It focuses on creditors and employees as key corporate constituencies whose interests the board of directors have to constantly consider in making decisions. It argues that an expansive approach to corporate governance that includes other corporate constituencies, not only the shareholders, is the best way to harness the impressive wealth generating capacity of the corporate form to bring about socio-economic transformation in South Africa.
13
Olaofe, Adenkunle Rotimi. "Appraisal right and fair value determination under the Companies Act no 71 2008: a critical analysis". Master's thesis, University of Cape Town, 2013. http://hdl.handle.net/11427/4526.
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Bezuidenhout, Pierre Theodorus Johannes. "A review of business rescue in South Africa since implementation of the Companies Act (71/2008) / P.T.J. Bezuidenhout". Thesis, North-West University, 2012. http://hdl.handle.net/10394/8822.
Testo completoAbstract (sommario):
This study examined the new Companies Act (71/2008) with a specific focus on Chapter 6, business rescue. This rather controversial legislation was implemented in South African company law on the 1st of May 2011 and redefines how legislation can possibly save financially distressed companies from distress and ultimately liquidation proceedings.
The literature review has focused on the purpose of business rescue as set out by the new Companies Act. It has gone into much detail on the set processes, revealed the key stakeholders involved and their respective responsibilities set out by the new Act. The study touched on current international trends in saving distressed businesses. A published financial distress model was discussed and a link made about where best to initiate business rescue actions within this four-stage model.
In this study the empirical research adopts content analysis as a research method. An investigation was conducted on all business rescue applications received by the Companies and Intellectual Property Commission (CIPC). Additional analysis of a large creditor’s portfolio of business rescue applications showed some initial success rates of this new legislation.
The mini-dissertation concludes with limitations and challenges faced during the study, followed by recommendations about how to excel in business rescue practice in years to come.Thesis (MBA)--North-West University, Potchefstroom Campus, 2013.
15
Stylianou, Alexandra. "Evolution of the derivative action as an enforcement of rights mechanism under the Companies Act 71 of 2008". Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/60099.
Testo completoAbstract (sommario):
The purpose of this dissertation a focus on derivative actions as a method a minority
shareholder can employ as an enforcement of rights mechanism. In so doing I will be
examining the derivative action procedure from its inception in the common law
through to the current dispensation. This dissertation describes and explains the rights,
interests and obligations of shareholders and will explore the pitfalls for shareholders
in the implementation of the derivative action as a protective measure. I submit that the
derivative action found under the common law and the previous statutory regime
provided the stepping stone in molding the statutory derivative action evidenced by
section 165 of the Companies Act.
In Chapter 1, I explore the derivative action under the common law as a conceptual
framework and as a movement that initially arose in the renowned case of Foss v
Harbottle. Whose core principles were subsequently embraced by the South African
judiciary.
In Chapter 2 I discuss the availability of the statutory derivative action and the
limitations of section 266. Further, I make a comparative study between the common
law and the statutory derivative action. The comparison is essential in an attempt to
portray that the statutory derivative action refined the common law to a certain extent
in its attempts to provide a minority shareholder protective measure.
In chapter 3 I examine section 165 of the Companies Act to evaluate to what degree the
derivative action has transformed against the backdrop of its statutory predecessor and
the common law. This chapter breaks down the constituent principles of section 165
and examines the requirements necessary to implement the measure.
Finally, in Chapter 4 I make a comparative study with foreign jurisdictions to determine
the extent, if any, section 165 relates to the principles laid down in other jurisdictions.Mini Dissertation (LLM)--University of Pretoria, 2016.
Mercantile Law
LLM
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Siebritz, Kim-Leigh. "Piercing the corporate veil : a critical analysis of section 20(9) of the Companies Act 71 of 2008". Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5522.
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Grove, Alewyn Petrus. "Company directors : fiduciary duties and the duty of care and skill". Diss., University of Pretoria, 2012. http://hdl.handle.net/2263/26667.
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Beck, Genèlee Jadean. "Creditor preferences in Chapter 6 of the Companies Act 71 of 2008 : the position of SARS – a comparative study". Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77416.
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Duvenhage, Arno. "Personal liability of company directors towards company creditors under the Companies Act 71 of 2008 : much ado about nothing?" Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/75046.
Testo completoAbstract (sommario):
The legal fiction known as separate legal personality is the foundation of company law and attracts natural persons to incorporate companies, appoint a board of directors and raise capital. In terms of s 66 of the Companies Act, 71 of 2008 (“the 2008 Act”), directors can now be regarded as the heart of a company and represent the body through which the company takes all actions within the economic sphere. As a default position, directors owe fiduciary duties and a duty of care and skill to the company itself and not its creditors. However, on its face, this default position is placed under threat by s 218(2) of the 2008 Act. This section potentially constitutes a general remedy for any interested person, including company creditors, to hold liable any person, including company directors, for any loss or damage suffered as a result of a contravention of any provision in the 2008 Act. The potential threat posed by s 218(2) becomes heightened if one considers the prohibition on reckless trading as codified in s 22(1) of the 2008 Act. This statutory prohibition against reckless trading, considered in light of a stringent solvency and liquidity test prescribed by s 4 of the 2008 Act, places a microscope on the conduct of a debtor company vis-à-vis its creditors. The question then arises, whether or not s 218(2) read with s 22(1), and any other interrelated provisions of the 2008 Act, represent a novel and effective remedy for creditors to pursue company directors personally as a result of reckless trading? Or is s 218(2) rather, in the words of the renowned playwright Shakespeare, much ado about nothing? In order to interpret the potential operation of s 218(2), it is important to consider existing remedies available to creditors for the purpose of holding directors personally liable under South African common law and in terms of s 424 of the Companies Act, 61 of 1973 (“the 1973 Act”). This study primarily focuses on s 218(2) and its interplay with s 22(1) and other interrelated provisions of the 2008 Act and whether it creates a legal remedy for creditors to hold company directors personally liable for the reckless trading of a debtor company. It is concluded that whilst s 218(2) is a novel general remedy, the ability of creditors to enforce s 218(2) for the purpose of holding directors personally liable is hamstrung by interpretive difficulties and adverse policy considerations. In the circumstances, the existing and recognised remedies available to creditors, appear to be better calibrated for the purpose of holding directors personally liable for the reckless trading of a debtor company.Mini Dissertation (LLM)--University of Pretoria, 2020.
Mercantile Law
LLM
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Masondo, Prince. "The protection of shareholders and creditors in the context of takeovers and reorganisations under the Companies Act 71 of 2008". Diss., University of Pretoria, 2009. http://hdl.handle.net/2263/67798.
Testo completoAbstract (sommario):
Empirical research in the previous years has shown the history and the evolution of takeovers and mergers in South Africa. Many theories have emerged to show the advancement in the Companies Act 71 of 2008 (the new Act) from the old Companies Act 61 of 1973 especially on issues relating to takeovers and reorganisations. These include measures in the new Act that are designed to protect shareholders and creditors in the context of takeovers.
Cassim and several other writers have provided insight into the changes brought about by the new Act with regards to the protection of shareholders and creditors. This research identifies the strengths and weaknesses of the measures introduced in the new Companies Act 71 of 2008 which protect the shareholders and creditors in the context of mergers and takeovers. This will be done through a critical analysis of the shareholder and creditor protective measures contained in the new Act and a comparative analysis of the takeover regulations in South Africa, the United States of America and the United Kingdom.Mini Dissertation (LLM)--University of Pretoria, 2018.
Mercantile Law
LLM
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21
Oosthuizen, Schoeman. "The normative value system underpinning the Companies Act 71 of 2008 with specific reference to the protection of creditors and employees". Thesis, University of Pretoria, 2017. http://hdl.handle.net/2263/64634.
Testo completoAbstract (sommario):
The company developed through an evolutionary process. Our conceptualization of the company
and its position in law is determined by our philosophical approach to justice (our underlying system
of belief), the resultant theory of law that we adopt and the underlying economic, political and social
environment in which the company operates.
Three broad philosophical approaches to justice are identified in this study. The first revolves
around the idea of maximizing welfare, the second around the idea of respecting freedom and the
third approach sees justice as bound up with virtue and the good life. It is argued in this thesis that
we cannot detach arguments about justice and rights from arguments about virtue and the good life.
It is not possible to devise a grand theory of the nature of the company. But from a normative
perspective the communitarian theory and arguably the concession theory (more particularly the
dual concession theory of Dine) is the most acceptable theory of the nature of the company. The
real entity theory, as articulated by Dodd, is the preferred theory of the corporate personhood of the
company. A company, especially a large company, is a public or quasi-public entity and a corporate citizen that should have the same legal, social and moral rights and responsibilities as a natural
person.
From a normative perspective the entity maximization and sustainability model (EMS model) and
the stakeholder model are the most attractive models of corporate governance. It is generally
accepted that the ultimate purpose of the company must be to serve society. Subject to this ultimate
and supreme objective, the corporate objective on a narrower level must be to maximize and sustain
the company as a separate legal entity.
The aforesaid conceptualization of the company corresponds with the normative value system that
underpins the Constitution of the Republic of South Africa, 1996 (the Constitution), and therefore
also the Companies Act 71 of 2008 (the Companies Act of 2008). The Constitution encompasses a
social democratic vision for South Africa in which commercial autonomy must be tempered by
virtue, dignity and social and economic equality. The Companies Act of 2008 gives express
recognition to bring company law within our constitutional framework.
There has been a fundamental paradigm shift in the normative value system that underpins our
company law since liberalism and laissez-faire reigned supreme in the eighteenth and nineteenth
century Great Britain, from which country our company law originates. The underlying philosophy
and approach of our company law is now more aligned with that of Canada. This also has an
important effect on the rights, protections and remedies of creditors and employees of the company.Thesis (LLD)--University of Pretoria, 2017.
Centre for Human Rights
LLD
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22
Mnisi, Happiness Xolile. "The effects of sections 135 and 136 of the Companies Act 71 of 2008 on business rescue proceedings : a critical analysis". Diss., University of Pretoria, 2017. http://hdl.handle.net/2263/65690.
Testo completoAbstract (sommario):
South African company law has had provisions for the rescue of financially distressed companies, through the Companies Act 1926 and 1973. These pieces of legislation provided for the rescue of financially distressed entities through a process of judicial management. Judicial management inadequately provided any relief for financially distressed companies and resultantly, it was under utilised. The critics of this rescue mechanism advanced many reasons for its outright failure. South Africa has welcomed a new rescue mechanism for financially distressed companies, called business rescue which is housed in Chapter 6 of the Companies Act 71 of 2008. This study analyses sections 135 and 136 of the Companies Act. The aim is to examine the vast participation rights bestowed upon employees in these two sections, and their effect on the success rate of business rescue as a mechanism of relief for financially distressed companies. Several loopholes are identified in the legislation, which, if uncorrected will pose a great hindrance to the operation of the whole of the rescue procedure as envisaged by Chapter 6. Recommendations are made to enhance the feasibility of the new business rescue provisions, if any success can be expected from the new legislation.Mini Dissertation (LLM)--University of Pretoria, 2017.
Mercantile Law
LLM
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Bain, Roxanne Cheryl. "The role of the independent expert in schemes of arrangement and share repurchase transactions under the Companies Act 71 of 2008". Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77405.
Testo completoAbstract (sommario):
This mini-dissertation constitutes a critical analysis of the requirements relating to independent experts in the context of schemes of arrangement and share repurchase transactions under the Companies Act 71 of 2008. In particular, the historical development of the expert requirement, its purpose and its intended beneficiaries, is explored. Furthermore, a selection of material issues and considerations relating to the expert requirement are critically analysed, including: (i) the meaning of s 114(3) of the Act and the overlap between the expert report required by ss 114(2) and (3) of the Act and the expert opinion required by the Companies Regulations, 2011; (ii) the meaning of ‘fairness and reasonableness’ under reg 90(6) of the Companies Regulations; (iii) the timing of the distribution of the expert report; (iv) the role of the expert report in facilitating other remedies under the Act; (v) the extent to which the expert may make recommendations in the report and the opinion; and (vi) the role of the board of directors in relation to the expert report and opinion. Finally, the extent to which compliance with the expert requirement may be validly avoided is considered. In this regard, the particular question of whether the expert requirement is capable of being validly waived is critically analysed.Mini Dissertation (LLM)--University of Pretoria, 2019.
Mercantile Law
LLM
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Cavanagh, Donovan James. "A comparative analysis of the correlations between section 12 of the Competition Act 89 of 1998 and section 2 of the Companies Act 71 of 2008". Diss., University of Pretoria, 2016. http://hdl.handle.net/2263/60115.
Testo completoAbstract (sommario):
This dissertation undertakes an investigation into the correlations between the provisions of the Competition Act 89 of 1998 and that of the Companies Act 71 of 2008 with regards to what each of the aforementioned Acts defines as ?control?.
There is a symbiotic relationship between the domains of corporate law and competition law. The latter depends significantly on the provisions of the former when interpreting the scope and application of certain of its provisions, notably in the context of mergers. This relationship has been extensively complicated by the repeal of the Companies Act 61 of 1973 and the inception of the Companies Act 71 of 2008.
This dissertation embarks on a discussion of the most prevailing similarities between section 2 of the Companies Act 71 of 2008 and section 12 of the Competition Act 89 of 1998. While discussing these similarities, the implications which the repealed Act has on competition law will also be canvassed and the author will attempt to reach clarity on the best manner forward.Mini Dissertation (LLM)--University of Pretoria, 2016.
Mercantile Law
LLM
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Mohiudeen, Safia. "The effect of the partial codification of the common law duties of directors in the companies Act 71 of 2008 on the liability of directors". University of the Western Cape, 2018. http://hdl.handle.net/11394/6824.
Testo completoAbstract (sommario):
Magister Legum - LLMThe global financial crisis resulted in a corporate collapse in different parts of the world. The global financial crisis was caused by poor governance. Consequently many countries, including South Africa, began to place more emphasis on good governance. The framework and guidelines for the development of good governance in South African company law was published by the Department of Trade of Trade and Industry (hereafter DTI) in a document referred to as The South African Company Law for the 21st Century: Guidelines for Corporate Law Reform (hereafter the DTI Policy Document) published by the DTI. The DTI Policy Document recognised the need for a regulatory framework within which enterprises operate to promote growth, employment, innovation, stability, good governance, confidence and international competitiveness. In order to further develop governance, the effectiveness of directors’ standards as well as the liability of directors was also said to have developed. Prior to the development of South African corporate law, liability of directors was to a large extent governed by the common law and the King Codes, despite the existence of the Companies Act 61 of 1973 (as amended). As of the 1st of May 2011, corporate law in South Africa appears to have dramatically changed the duties and liabilities of directors. The 1st of May 2011 marked the implementation of Companies Act 71 of 2008 (hereafter the Act). The Act is written in plain language in an attempt to make it more accessible and align it with international trends. The Act has also theoretically changed the roles and duties of directors as well as the liability that they may face in that it potentially changes the existing common law and alters policies and philosophies of corporate law in general. The Act partially codifies the common law and introduces the business judgement rule to South Africa. The business judgment rule will draw a balance between the directors’ ability to steer a company and the shareholders' right to hold directors accountable for their decisions. It is perceived as a mechanism that can be used to balance the tension between these opposing rights.
26
Leach, James. "The correct understanding of the Business Judgment Rule in Section 76(4) of the Companies Act 71 of 2008: avoiding the American mistakes". Master's thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/9615.
Testo completoAbstract (sommario):
Includes bibliographical references.The South African law concerning directors' duties is intricate under both the common law and the Companies Act. This is an area of corporate law which allows for a wealth of practical and theoretical difficulty. I aim to deconstruct the intricacy of the American experience of the business judgment rule, with particular reference to the rule in Delaware, so as to present what I perceive to be the correct practical application of the rule in South African corporate law. This dissertation does not address the wisdom of the decision to transplant and codify the American business judgment rule within the Companies Act.
27
Le, Roux Lu. "In the name of the company : an analysis of the provision and effect of section 21 of the Companies Act 71 of 2008". Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/77305.
Testo completoAbstract (sommario):
A company acquires a legal personality upon incorporation and registration, before which it does not have the required capacity to enter into a valid contract. However, the promoter of a company may have to enter into an agreement on behalf of, or for the benefit of the company to be formed, either for the incorporation or for the future business of the company. Such a pre-incorporation contract often becomes a source of trouble and causes dispute over the validity or the legal consequences of the contract.
Laws in common law jurisdictions and civil law jurisdictions make various provisions for pre-incorporation contracts. Ratification by the company, once formed, of the pre-incorporation contract made by the promoter, is possible in some jurisdictions but not in the others. Third parties that enter into the pre-incorporation contract also face different scenarios in different jurisdictions.
This mini dissertation analyses the South African law that governs the pre-incorporation contracts, and compares it with the laws of a few common law and civil law jurisdictions, particularly that of China. The purpose of the study is to examine the effect and legal consequence of the pre-incorporation contract in South Africa and China, and to evaluate whether the law of South Africa provides sufficient certainty and protection to the parties involved in the pre-incorporation contract compared with that of China.Mini Dissertation (LLM)--University of Pretoria, 2020.
Mercantile Law
LLM
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Olivier, Etienne Aubrey. "The impact of the Companies Act 71 of 2008 on the doctrines of ultra vires and constructive notice as it relates to unauthorised contracts". Thesis, University of the Western Cape, 2015. http://hdl.handle.net/11394/5149.
Testo completoAbstract (sommario):
Magister Legum - LLMAn agent acting in excess of his authority creates several legal problems, particularly in company law. In South African law, like in many other legal systems around the world, the interplay between the doctrines of ultra vires and constructive notice has, historically, played a profound role in governing the relationship between a company, its representatives, and outsiders. For decades, the contractual capacity and consequent liability of companies have been guided by thorny and intricate legal principles. This issue has become especially intriguing in light of the changes to the company law regime introduced by the new legislation. The relevant sections of the Companies Act 71 of 2008 (the 2008 Act) that allow for the restriction of a company's powers, require close scrutiny and thoughtful consideration. To that end, this thesis shall examine some of the legal consequences arising from the conclusion by a company's agent of an "unauthorised contract".
29
Mupangavanhu, Brighton Murisa. "Standards of care, skill, diligence, and the business judgment rule in view of South Africa's Companies Act 71 of 2008: future implications for corporate governance". Doctoral thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/25428.
Testo completoAbstract (sommario):
Decision-making is the most critical role that company directors have to play in the life of a company that they are appointed to manage. South African law (in s66 of the Companies Act 71 of 2008, the Act) has now followed the global trend of recognising that directors have original authority/mandate to manage or direct company affairs or business. A director is accorded (by law) powers to exercise to enable him or her to fulfil the functions of that office. Decision-making, which is not an easy task, is critical to enterprise efficiency and advancement of the national economy. Directors have to make business decisions, at times under imperfect circumstances and while confronting tensions inherent in the corporate form. Not least of these tensions is the pressure to balance the profit maximisation drive from shareholders and accountability for how the directors exercise the powers at their disposal. Despite pressures involved in decision-making, the law requires that directors should exercise their powers in the best interests of the corporation. Thus the Act has attempted to put mechanisms in place to ensure that directors' freedom to manage corporations has to be necessarily constrained and balanced by the need for them to be accountable. The thesis focuses on the duty of care, skill and diligence on one hand (standard of conduct), and the business judgment rule (BJR- standard of review) on the other. These are two mechanisms put in place by the Act to ensure a balance between directors' freedom to manage and accountability. The thesis seeks to answer the key question whether the Act has made standards of care, skill and diligence clearer, more accessible and enforceable than before in light of the Act's adoption of BJR. The thesis analyses the duty of care, skill under s76(3)(c) and BJR under s76(4) in light of the context of law reform (that is the purposes of law reform) and international experiences. In this thesis, an appraisal of the positives brought about by the codification of the duty of care and the adoption of BJR into statute for the first time in SA is given. It is argued that while some purposes of law reform have been achieved, the Act has not achieved the purpose of clarity of standards. For example, the analysis reveals unfortunate omissions and worrying ambiguities in the formulation of standards of care, skill and diligence in s76(3)(c). While giving in-depth analysis of the scope and policy rationale of BJR under the Act, the thesis further notes that the characterisation of BJR in s76(4)(a) as a standard of conduct as opposed to standard of review is problematic. It has also been argued that the BJR is not properly aligned to international standards. Clear amendments to the Act have been suggested to improve clarity of standards and the law in s76(3)(c) and s76(4)(a).
30
Weyers, Marius. "The acquisition of a business - is a statutory merger in terms of section 113 of the Companies Act 71 of 2008 preferable to a common law sale?" Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/15189.
Testo completoAbstract (sommario):
Two or more companies may decide that their businesses should be combined for a number of reasons. This may, for example, be done in order for the companies to have access to new markets, to increase their market share, to increase their profitability by reducing the inefficiencies involved in the running of two or more companies in the same business area or to acquire technology, infrastructure, expertise and/or skill in new practice areas. Before the advent of the Companies Act 71 of 2008 South African law did not make provision for 'mergers' as that term is understood in many other jurisdictions. South African law did not recognise any mechanism by which one entity could be combined with another in terms of a statutory process, also referred to as a 'consolidation' in certain jurisdictions. One of the most significant changes proposed for the Companies Act was to make provision for a legal process by which companies could be combined. The concept of the amalgamation or merger of companies was accordingly introduced into our law, so as to enhance the efficiency of business combinations and to promote flexibility in this regard. It is significant that the statutory process of amalgamating or merging companies was adopted in addition to the existing forms of business combinations and/or acquisitions, such as the sale of a business as a going concern, the common law scheme of arrangement and offers to acquire the shares and/or other securities in a company. Companies therefore now have at their disposal an additional mechanism by which to engage in business combinations and/or acquisitions, and are required to consider in each proposed transaction the relevant circumstances to determine which mechanism will be most effective in giving effect to that transaction. This is in line with the move in the Companies Act towards self-regulation and the object of the Companies Act to encourage entrepreneurship. The main purpose of this work is to compare the requirements for, manner of implementation and consequences of an amalgamation or merger as contemplated in the Companies Act, referred to herein as a 'statutory merger', with that of the common law sale of a business.
31
Tlhapi, Onkabetse Matlhogonolo. "Rescuing creditors from business rescue : dissecting the detrimental effects of business rescue on creditors". Diss., University of Pretoria, 2020. http://hdl.handle.net/2263/75318.
Testo completoAbstract (sommario):
This dissertation critically analyses the business rescue regime, with a specific focus on those attributes of the regime which detrimentally affect creditors. The main aspects which will be critically analysed include, the moratorium, the effect of business rescue on suretyships and the costs of business rescue. Examples will be used to illustrate the ways in which the business rescue regime is disproportionately slanted in favour of debtor companies as opposed to their creditors. Proposals as to how the regime can be developed to balance the competing interests of debtor companies and their creditors will also be made.Mini Dissertation (LLM (Corporate Law))--University of Pretoria, 2020.
Mercantile Law
LLM (Corporate Law)
Unrestricted
32
Kaudeer, Ashirah Bibi. "Does the role and duties of the business rescue practitioner as conferred by the South African Companies Act 71 of 2008 give rise to conflicts with respect to the powers and duties of directors during business rescue proceedings?" Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20859.
Testo completoAbstract (sommario):
The objective of this thesis is to research to what extent do the duties and powers conferred to the business rescue practitioner conflict with that of the directors during the business rescue proceedings since both of them form part of the management of the financially distressed company. In so doing, an analysis of the South African statutory provisions will be undertaken, followed by a probe into how those provisions can lead to the probable conflicts to be encountered between management and the practitioner, which can in turn considerably affect the effectiveness and success of the corporate reorganisation. In order to be able to find solutions to reduce possible conflicts, a juxtaposed analysis will be made with similarly statutory provisions in Australia, United Kingdom and United States of America.
33
Marx, Amy Joy. "The deregistration of company for failing to submit annual returns in terms of Section 82(3) of the Companies Act 71 of 2008, and the restoration of the company to the companies register in terms of Section 82(4) and Section 83(4) by a creditor". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/45987.
Testo completo
34
Havenga, Kelsey. "How comparative laws of foreign jurisdictions may be used by South African courts to find the fair value of shares when shareholders use the appraisal remedy provided for in s 164 of the South African Companies Act 71 of 2008". Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/19739.
Testo completoAbstract (sommario):
A set method of determination of the fair value of shares is omitted from s164 of the South African Companies Act 71 of 2008 (the South African Act), which deals with the appraisal remedies of dissenting shareholders. This dissertation will consider how courts in the United Kingdom and the United States have dealt with the question of what is fair value in the context of oppression remedies and appraisal rights
35
Etienne, Aubrey Olivier. "Corporate capacity, special purpose vehicles, and traditional securitisation in South African company Law". University of the Western Cape, 2019. http://hdl.handle.net/11394/7635.
Testo completoAbstract (sommario):
Doctor Legum - LLDThe ideals of shareholder and creditor protection are affected by legislation pertaining to the validity of a company’s transactions. Until legislative reforms introduced in the twentieth century, a company’s capacity and the ultra vires doctrine traditionally limited the company’s ability to contract. Therefore, the legal framework regulating corporate capacity influences a company’s interactions with outsiders. The goal of the law in this regard should be to facilitate commerce while providing adequate protection to all affected stakeholders. South Africa’s Companies Act 71 of 2008 (the Act) contains several novel provisions regarding a company’s capacity, the desirability of which is questionable. Special purpose vehicles (SPVs) are used for various purposes in commerce, from asset holding in the financial services sector to concluding complex financial functions in corporate finance. For instance, traditional securitisation is a financial engineering technique that makes use of corporate SPVs. Traditional securitisation is a valuable risk management, earnings management, and corporate financing tool. Incorporators of securitisation SPVs often include capacity restrictions in the constitutions of such entities as a means of reducing the likelihood that the SPV will be subject to liquidation proceedings.This thesis analyses the capacity provisions in the Act to determine whether they provide a commercially desirable framework to facilitate the activities of SPVs used in traditional securitisation schemes. The thesis argues that the capacity provisions in the Act in their current form are undesirable because they place third parties at too great a risk in exchange for inconsistent and unreliable shareholder protection. Executory ultra vires contracts concluded by limited capacity companies are at the same time valid and capable of being restrained by a single shareholder, director or prescribed officer of the company. It is argued that the Act’s approach to corporate capacity is detrimental to commercial certainty and creditor protection, and that capacity restrictions under the current framework do not provide any more shareholder protection than ordinary authority limitations would. Consequently, it is argued that the capacity provisions in the Act do not make a positive contribution to the “insolvency-remoteness” of SPVs used in traditional securitisation schemes. It is recommended that the capacity provisions in the Act should be substantially amended, or deleted.
36
Smit, Imogan. "The application of the business judgment rule in fundamental transactions and insolvent trading in South Africa : foreign precedents and local choices". Thesis, University of the Western Cape, 2016. http://hdl.handle.net/11394/5523.
Testo completo
37
Labuschagne, Frederik J. "Chapter 4 offer regulation under the 2008 Companies Act". Thesis, University of Pretoria, 2014. http://hdl.handle.net/2263/45981.
Testo completoAbstract (sommario):
Chapter 4 of the Companies Act of 2008 aims to regulate offers to the public of securities and is reviewed against the principles which underscore the regulation of offerings. An overview of the historical development of the company which is parallel to the regulation of securities shows the crystallized principles which are compared against the development and enactment of the current regulatory regime. The concept of “complete law” as key element to effective regulation is discussed and applied in the review of Chapter 4 determining the effectiveness of the dispensation. The three determining concepts of regulation: the “offer,” “securities” and “public” are studied against the definitions which determine regulation and the inclusion of secondary market regulation of unlisted securities. Serious shortcomings in the process are identified. These errors, together with the practical problems of defining and regulating the secondary market in Chapter 4 read with the remainder of the delineating definitions, concludes that the current system is not in line with the principles of regulation and the Grundnorm of fraud prevention, resulting in Chapter 4 falling under the concept of “incomplete law” resulting in a high probability of enforcement failure and inefficiency. A comparative overview related to the jurisdictions of the United Kingdom and the United States follows with recommendations aimed at amending Chapter 4 relating to the regulatory regime in toto as well as the regulation of unlisted securities in the secondary market.Thesis (LLD)--University of Pretoria, 2014.
tm2015
Mercantile Law
LLD
Unrestricted
38
Mota, Maroe Martin. "Analyses of Chapter IV of the Companies Act of 2008". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/45992.
Testo completo
39
Ngcobo, Blossom. "A comparative analysis of the derivative action under the Companies Act of 2008 with the Companies Act of 1973". Diss., University of Pretoria, 2019. http://hdl.handle.net/2263/77425.
Testo completo
40
Nortje, Denise. "A comparative study between Section 163 of the 2008 Companies Act and Section 252 of the 1973 Companies Act". Diss., University of Pretoria, 2014. http://hdl.handle.net/2263/45998.
Testo completo
41
Buba, Zolani P. "The balancing of creditor interests in business rescue provisions of the Companies Act 2008". Doctoral thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/26884.
Testo completoAbstract (sommario):
The integrated global economy has presented challenges as well as opportunities for companies and their surrounding communities. This has resulted in many jurisdictions having to re-evaluate the question of company failure and how best to deal with it. The South African context has seen the enactment of a new Companies Act, ushering in a rescue regime which evidences a significant departure from its predecessor; judicial management. Contained within Chapter 6 of the Companies Act of 2008, business rescue adopts a fresh approach to company resuscitation. With relatively easy access to the procedure, business rescue caters for the restructure of the business, debt or its equity to ensure either a return to solvency or a better return to creditors than in liquidation. The new regime is further underpinned by the 2008 Act purpose provision, which envisages an efficient business rescue procedure and further mandates that the resolution of financial distress be conducted in a manner that balances the rights and interests of all relevant stakeholders. It is in this light, that this study explores the interplay between section 7(k) and Chapter 6 of the new Act. Specifically, the work sets out to critique the manner in which our new business rescue regime balances competing stakeholder interests in its provisions and investigates whether current provisions provide an adequate framework for this to be done in a manner that enhances the regime's ability to return a financially distressed company to a position of solvency, as a primary objective. After discussing the previous judicial management regime and exploring the mechanics of Chapter 6, a comparative study of similar procedures in the United Kingdom and the United States is undertaken. The study further identifies a number of weaknesses and makes recommendation for improvement.
42
Cassim, Maleka Femida. "The statutory derivative action under the Companies Act of 2008: guidelines for the exercise of the judicial discretion". Doctoral thesis, University of Cape Town, 2014. http://hdl.handle.net/11427/12762.
Testo completoAbstract (sommario):
Includes bibliographical referencesSection 165 of the Companies Act 71 of 2008 introduces the new statutory derivative action. The section confers a pivotal function on the courts as gatekeepers to the derivative action, with an important filtering or screening function to weed out applications for derivative actions that are frivolous, vexatious or without merit. The vital judicial discretion to grant leave to an applicant to bring a derivative action entails a tension between two equally important policy objectives. A proper balance between these two underpinning policy objectives depends on the appropriate judicial interpretation and application of the three vague, general and open-textured criteria or gateways for the grant of leave to institute a derivative action. The courts have been entrusted by s 165 to flesh out the details, the contours, the ambit and the scope of these criteria. This crucially gives the courts a dominant and a decisive role in shaping the effectiveness of the new statutory derivative action. This thesis makes an original contribution to knowledge in three main respects. First, this thesis focuses on the three guiding criteria for leave, and their many nuances, interpretations and applications in certain foreign jurisdictions that have exerted an influence on the provisions of s 165. Based on experience garnered from Australian, Canadian and New Zealand law, as well as the United Kingdom and the USA, guidelines are suggested for the approach that the South African courts should adopt to the three preconditions for a derivative action. Secondly, it is submitted that the real weakness in s 165 lies in the rebuttable presumption in s 165(7) and (8), which contains a fatal flaw that renders the remedy defective and calls for legislative amendment. Pending such amendment, proposals are suggested for the proper judicial approach in the meantime to the troublesome presumption. These proposals are supported by both reasoned argument and original research on experience in certain foreign jurisdictions, particularly the USA. Thirdly, and equally importantly, a framework is suggested in this thesis for the proper exercise of the judicial discretion to make orders of costs, which is known to have plagued minority shareholders wishing to bring derivative proceedings against miscreant directors who have wronged the company.
43
Zindoga, Washington Tawanda. "Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008". Master's thesis, University of Cape Town, 2015. http://hdl.handle.net/11427/16923.
Testo completoAbstract (sommario):
Includes bibliographical referencesThe first part of this minor dissertation will examine the historical development of the common law doctrine of piercing the corporate veil, its status and the concerns raised against the rule. In light of the fact that veil piercing erodes the limited liability of a company, it is necessary to appreciate both the relevance and the significance of separate legal personality and the historical development of the doctrine that carves out exceptions to limited liability in this context. The concept of separate legal personality goes hand in hand with the doctrine of veil piercing. This part will further illustrate the various approaches that courts have taken in deciding whether or not to pierce the corporate veil. A criticism of the doctrine is that it comes with no clear guidelines directing courts to the appropriate circumstances for piercing the corporate veil. It will be argued that the courts have relied invariably on a number of discrete, unrelated categories of conduct upon which to base decisions to disregard the corporate personality of a company, but this approach in the end is unsatisfactory. The concept of corporate personality will be discussed in this part in order to achieve a better understanding of the concept itself and to shed some light on the legal nature of the corporate personality. Furthermore, this part will examine recent trends in foreign law in regard to the doctrine of piercing the corporate veil that may serve as guidelines to the interpretation and the application of the doctrine in South African law. Particularly, the English judicial approach to piercing the corporate veil will be discussed. This in turn will lead to a consideration of the question whether further development is necessary, and if so, which direction is best suited for South African company law. The second part of this dissertation will discuss the rules of interpretation, the basic approaches to statutory interpretation followed by our courts and which approach has enjoyed preference in recent judgments. These approaches will assist in the discussion on the interpretation of section 20 (9) of the Companies Act. Section 20(9) will be examined, and the concerns that writers have raised will be discussed. This part will further examine the judgment delivered in Gore with specific reference to the theories of statutory interpretation used, and the final interpretation applied by the court and what effect this has on the existing rules of piercing the corporate veil. It will be contended that courts must interpret and apply section 20(9) in a way that gives effect to the purport and spirit of the Constitution and results in clarity and simplicity in the statutory doctrine of piercing the corporate veil. The fourth and final part of this research will summarize the discussion, where the research will be considered and recommendations made as to how section 20 (9) should be best interpreted. Given the lack of a unified approach to the scope and conditions of application of the doctrine of veil piercing, which allegedly leads to confusion and frequent misuse, this study aims at clarifying the scope of the doctrine and conditions under which it can be applied. It will attempt to clear up some of the mist enveloping the concept of corporate veil piercing.
44
Eisele, Stefan. "Codification of the Business Judgment Rule in Section 76 (4) Companies Act 2008: comparing the South African with the German approach". Master's thesis, University of Cape Town, 2017. http://hdl.handle.net/11427/25021.
Testo completoAbstract (sommario):
The Business Judgement Rule stems from the US common law and relates to the directors duty of care and skill. Currently, the Business Judgment Rule is in operation in many countries all over the world. It is a judicial device used to limit the scope of personal liability for directors and officers. The rule consists of a rebuttable presumption that a director or officer, when making a business decision, has acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. It should thus form a safe harbour for rational and informed managerial actions. Courts applied the Business Judgment Rule in numerous courts decisions and established certain standards of a proper decision making process. From the experiences of the massive corruption scandals of ENRON and Worldcom and in the light of the experiences of the global financial crisis, there is a rising public interest in good corporate governance and diligent and reasonable management. Therefore, the rule has been codified in numerous countries all over the world. Among these countries are South Africa and Germany. In South Africa, the rule has been incorporated with the Companies Act, 71 of 2008. Germany has adopted the Business Judgment Rule specifically in the German Stock Corporation Act 1965 (Aktiengesetz). These codifications in modern company law are problematic and the scope of their respective application and the meaning of their prerequisites are somewhat unclear. Therefore, opinions about the rule, its application and its concrete effect diverge and the idea of a codified rule in modern corporation acts in contrast to the historical application by courts has been massively criticized. Despite all differences it is generally acknowledged that the rule and its application are intricate and a deep insight in its complex application is required to avoid a misunderstanding and a misapplication of the rule by the competent courts. The author intended to identify potential problems pertaining to the application of the rule and its prerequisites. By comparing the German and the South African approach, several similarities and differences were found. Based on these findings, five potential problems for the application of the rule in South Africa and its interpretation by the competent courts were presented in more detail. These problems relate to the scope of application in general, the blurred lines between the terms of rationality and reasonableness, the determination of the concrete judicial review, the avoidance of hindsight biases and the unjustified extension of judicial review by over interpreting the term proper purpose. Although it is hardly possible to present practical solutions for all these problems in a minor thesis, reviewing the rule, its prerequisites, and its rationale by considering additional experiences from other countries enhances the awareness of potential problems and risks. The primary guideline for the application of the rule has to be - in any case - the avoidance of the hindsight bias.
45
Gitonga, Anthony. "Is the 'little man' finally protected? : an exploration of minority shareholder protection in South Africa under the Companies Act of 2008". Master's thesis, University of Cape Town, 2009. http://hdl.handle.net/11427/4621.
Testo completo
46
Van, Der Merwe Constant Pieter. "Reconsidering Distributions: A Critical Analysis of the Regulation of Distributions to Shareholders in the Companies Act of 2008, with Special Reference to the Solvency and Liquidity Requirement". Thesis, Stellenbosch : Stellenbosch University, 2015. http://hdl.handle.net/10019.1/97133.
Testo completoAbstract (sommario):
Thesis (LLM)--Stellenbosch University, 2015ENGLISH ABSTRACT : The Companies Act 71 of 2008 introduces a completely new system for the regulation of distributions by a company to its shareholders. The preferred method for protecting the interests of creditors in distributions is now based on a solvency and liquidity test. Regrettably, the provisions setting out the requirements for distributions on the one hand and the solvency and liquidity test on the other have been poorly drafted. This thesis first explains and then applies an innovative interpretation theory to these provisions with a view to piecing together coherent content. The thesis finds that creative interpretations will not suffice in various places, meaning that substantive revision is required. The thesis concludes with brief amendment proposals and accompanying commentary.
AFRIKAANSE OPSOMMING : Die Maatskappywet 71 van 2008 bied ‘n radikaal nuwe sisteem vir die regulering van uitkerings van 'n maatskappy aan sy aandeelhouers. Die voorkeur metode om die belange van skuldeisers in uitkerings te beskerm, is nou op ‘n solvensie- en likwiditeittoets gebaseer. Ongelukkig is die wetlike bepalings wat die vereistes vir uitkerings aan die een kant uiteensit, en die solvensie en likwiditeit toets aan die ander kant, swak opgestel. Hierdie tesis verduidelik eerstens die bepalings, en pas dan 'n innoverende interpretasie teorie op hierdie bepalings toe, met die doel om 'n samehangende inhoud daar te stel. Die tesis bevind dat kreatiewe interpretasies op verskeie plekke nie voldoende sal wees nie. Dit beteken dat substantiewe hersiening noodsaaklik is. Ten slotte bied die tesis kortliks wysigings-voorstelle met meegaande kommentaar.
47
Stevens, Angela Gail. "Room or relegation? : a critical analysis of section 77(2)(a) of the Companies Act, 2008, in light of the common law remedy of disgorgement". Master's thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20793.
Testo completoAbstract (sommario):
Corporate heresy 1 or legislative oversight: is there room for the common law remedy of disgorgement under section 77 (2)(a) of the Companies Act2 or has the remedy been relegated to the past? This controversial enquiry frames the groundwork for discussion upon which this dissertation is based. Section 77(2)(a) reads as follows: "(2) A director of a company may be held liable - (a) in accordance with the principles of the common law relating to breach of a fiduciary duty, for any loss, damages or costs sustained by the company as a consequence of any breach by the director of a duty contemplated in section 75, 76 (2) or 76 (3)(a) or (b). ,o This dissertation seeks to shed light on the apparent legislative omission of the common law remedy of disgorgement from the ambit of section 77(2)(a). The effects and consequences of such a significant omission has come under the microscope given South Africa's recently reformed corporate law jurisprudence. The impact of such an omission on the interpretation and application of directors' duties and liabilities will be specifically examined and analysed. The topic of this dissertation remains especially relevant to any discussion involving directors' duties and liabilities in the context of the new Companies Act ("the Act"). The Act has drastically reshaped the South African corporate law landscape and as such, each provision of the Act requires careful consideration in its interpretation and application. Implementation of the Act, in 2011, brought about partial codification of directors' duties and liabilities. Partial codification has resulted in mandatory, unalterable and prescriptive provisions relating to directors' duties and liabilities which are applicable to all companies registered in the Republic.• Since its inception, critics have intimated that certain provisions of the Act hinder, as opposed to facilitate, the objective of clarifying directors' duties and liabilities.5 Fear of statutory liability gives further credence to the importance of clear, concise and uniform interpretation and application of the statutory duties. The statutory duties and liabilities do not replace their common law equivalents. Interpretation, application and development of the statutory duties and liabilities must align with those embedded in the common law.6 Alignment becomes increasingly difficult, however, when inconsistencies and contradictions between these two primary sources of law run rampant. The provisions of section 77(2)(a), conceivably, showcase such a misalignment between the common law and the Act.
48
Yeats, Jacqueline. "The effective and proper exercise of appraisal rights under the South African Companies Act, 2008 : developing a strategic approach through a study of comparable foreign law". Doctoral thesis, University of Cape Town, 2016. http://hdl.handle.net/11427/20301.
Testo completoAbstract (sommario):
This thesis seeks to identify how the appraisal rights remedy, which was introduced into South African company law for the first time by section 164 of the Companies Act 71 of 2008 ('the South African Act'), should be interpreted and applied in order to facilitate its effective and proper exercise. When the draft version of the South African Act was initially published for public comment, critics raised concerns that the inclusion of the appraisal remedy was undesirable and unnecessary. These concerns were largely motivated by the fact that at the time appraisal rights were a novel concept and thus a completely unknown quantity in South African law. As a result there was much uncertainty in the legal and commercial sector as to how these rights would be interpreted, how they would function and how frequently they would be used. However, since the commencement date of the South African Act (being 1 May 2011) to date no appraisal rights matter has come before our courts and it could therefore be argued that the initial concerns of the critics regarding the impact that the inclusion of appraisal rights would have on South African company law were unfounded. This 'lack of use' phenomenon is in line with the general trend experienced in foreign jurisdictions where the appraisal remedy has been on the statute books for decades, such as the United States of America ('USA' or 'US'), Canada and New Zealand. Due to the fact that appraisal rights are notoriously underutilised they have often been dismissed as an ineffective remedy for minority shareholders. Clearly it could not have been the intention of the drafters of the South African Act to include an ineffective or useless remedy. My research indicates that the lack of use of the appraisal remedy in comparable jurisdictions is due to a number of factors but can be broadly attributed to the complexity, uncertainty and expense associated with the exercise of appraisal rights. The thesis therefore seeks to identify the various causes of the lack of effectiveness apparent in the USA, Canada and New Zealand, to examine the relevance of these in the South African context and to consider possible ways of addressing these challenges. The ultimate objective of the thesis is to devise measures which may be taken so that the appraisal remedy can function more effectively, or at least as effectively as possible, in South Africa.
49
Myers, Jonathan. "Changing the tune : conceptualising the effects of the global financial crisis on stakeholder perceptions of corporate value". Thesis, University of Hertfordshire, 2019. http://hdl.handle.net/2299/21101.
Testo completoAbstract (sommario):
Could shareholder primacy, with its assumed short-termist practices, have had its day when it comes to managerial activity centered on creating corporate value? Many business and opinion leaders appear to take this position, not least Jack Welch who famously declared 'shareholder primacy is the dumbest idea in the world!' Indeed, in a post-Crash economy has a wider stakeholder focus with a longer-term outlook superseded any business notions of shareholder primacy and wealth maximization? This research examines these possibilities through a consideration of the narrative companies produce, such as annual reports. From this corpus material, an assessment is made of whether UK managers' perceptions about corporate value generation changed over the period covering the worldwide financial crisis, with respect to their relative favouring of shareholders and stakeholders. The corpus of narrative material used is visualized as a conceptual space in which a conversation reflecting perceptual bias to the generation of corporate value occurs. To explore such corpuses, in order to compare narratives at points either side of the 2008 Crash, a new methodology was devised called narrative staining. Hence, a detection and visual mapping over the period was made possible of managers' changing perceptions concerning primacy (shareholder or stakeholder orientation) with its mediation by termism (a short or long-term bias). Termism is also originally conceived as part of a larger temporal category, which includes a sense of urgency to act (urgent versus non-urgent) that is similarly examined. The investigation reveals that over time perceptual change about value creation happened, though in unanticipated ways. Companies pre-Crash were often short-term stakeholder oriented then moved post-Crash to a long-term shareholder orientation. A focus for this study was the corporate domain, consisting of a selection of FT250 companies. However, managerial perceptions about corporate value creation are influenced not simply by the conversation of the corporate domain but rather by a multi-actor conversation taking place throughout the business environment. To comprehend this effect, the research mines further corpuses that comprise the UK's regulatory domain (hard and soft law), the press (Financial Times and other newspapers), and relevant peripheral stakeholder organizations (including the Confederation of British Industry, the Institute of Directors, and the Trades Union Congress). These organizations demonstrated more complex, unforeseen, perceptual effects as the financial crisis proceeded with many aligning according to their political or business agenda, which also impacted any sense of urgency to act they had. There appears to be no previous attempt at an extensive and multivariate analysis of this nature. And the findings challenge prevalent characterizations of shareholder and stakeholder behaviour. Moreover, the research shows that utilizing a wide set of stakeholder corpuses acts a viable proxy for broader financial perspectives amongst UK organizations. The technique of narrative staining therefore provides insights, hitherto inaccessible, for assessing and consolidating large-scale perceptual bias regarding value creation across the economy. The technique also has significant potential for other applications.
50
Matseke, Mmataka Patricia. "Capital rules in the Companies Act 71 of 2008". Diss., 2010. http://hdl.handle.net/2263/28321.
Testo completo