Abstract
Section 45 of the 2008 Companies Act is often applicable to various financing transactions as it regulates the provision of financial assistance by a company to both related and inter-related natural and juristic persons. Section 45 contains a list of transactions, but the issue that arose before the court in the case of Constantia Insurance Company Limited v The Master of the High Court, Johannesburg and Others was whether “includes” made the list exhaustive or not.
While the judgment in Constantia is regarded as a landmark one because the court dealt with the ambit of what might constitute financial assistance, the court also examined the requirements of section 45, the validity of the financial assistance where there has been non-compliance and addressed the constitutionality of the regulation of financial assistance. In addition to analysing the judgment, I will analyse all aspects of section 45, as well as the amendments to the Companies Act and thereafter provide my recommendations to the issues that I have identified.