Abstract
This paper seeks to evaluate the proposition of imposing positive obligations upon certain companies in respect of improving access to and realizing fundamental and socio-economic rights. As point of departure, this paper focuses on the role of companies in the South African socio-economic context.
In order to evaluate the proposition, an exploration of the shareholder and stakeholder theories is undertaken. These theories relate to the conduct expected of directors and by extension which interests ought to be considered in the decision-making processes of a company. The purpose of this venture is to illicit an approach that encapsulates the broader interests to be considered in light of the Constitution and section 7 of the Companies Act.
The paper further seeks to conceptualize a reaffirmed social contract that includes companies and supports the imposition of positive obligations in respect of socio-economic rights.
In order to conceptualize a social contract specific to South Africa, it is further needed to have regard to the socio-economic and political situation during apartheid and the role companies had in maintaining apartheid. In relation to the aforementioned role that companies played, the notions of distributive justice are considered.
Moreover, the role of companies as underscored by the Constitution and section 7 of the Companies Act is evaluated. Such evaluation brings to the fore one of the central questions of this paper, has the state discharged it's duty to create reasonable legislative or other measures to best affect socio-economic rights?