Abstract
LL.M. (Corporate Law)
The objective of our company law reform was to align our company laws with its international counterparts with an emphasis on the enforcement of the act, corporate governance and alternative dispute resolution mechanisms which enables parties to resolve disputes effectively but in a more informal and speedily manner. The act introduced the following regulators, The Companies and Intellectual Property Commission, the Take Over Regulation Panel and the only new regulator, the Companies Tribunal. The commission and panel’s core function is to enforce the act. The commission and panel have at their disposal the newly introduced administrative measures and civil sanction penalties to enable them to enforce the act. The criminal sanctions have been retained to focus on the specific and general contraventions of the act. The class action is a new introduction in South Africa’s company law. The parties have easier access through the mechanism to enforce a right or resolve a dispute through public or private enforcement. The tribunal’s primary function is in the area of dispute resolution. The tribunal not only adjudicates disputes but facilitates the alternative dispute resolution process as contemplated in the act. The alternative measures, the dispute resolution and the alternative dispute resolution mechanisms in the act enable parties’ easier access to redress mechanisms to enforce an individual right or resolve a dispute through public or private enforcement. The study will analyse the enforcement and dispute resolution mechanisms in the act. It will focus on and analyse the functions and jurisdiction of the regulators and their individual jurisdiction in enforcement, dispute resolution and alternative dispute resolution. The newly established Commercial High Court and its functions will also be considered. The study will through an analysis of the act consider whether the enforcement mechanisms provide for the effective enforcement of the act, the rights of parties and whether the dispute resolution and alternative dispute resolution mechanisms (ADR) provide stakeholders with proper redress. An analysis of the provisions in the act will also identify whether there are areas of improvement in the enforcement and dispute resolution that may be considered by the Legislature. Selected provisions in the act which deal with enforcement, dispute resolution and alternative resolution will be analysed to determine whether they are in line with the Constitution.