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Corporate criminal liability : is it time to say goodbye to vicarious liabity and hello to corporate ethos?

  • Authors: Jacobus, Darryn
  • Date: 2016
  • Subjects: Criminal liability of juristic persons - South Africa , Corporation law - South Africa , South Africa. Criminal Procedure Act, 1977
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90084 , uj:19931
  • Description: Abstract: In many countries across the world, the concept of corporate criminal liability has remained a complex term to understand. South Africa follows the nominalist theory to corporate law and as a result, the model adopted by the South African legislature is based on vicarious liability. This dissertation will analyse section 332(1) of the Criminal Procedure Act 51 of 1977 and consider whether or not the aforementioned section will pass constitutional muster. This dissertation will seek to demonstrate that section 332(1) is inconsistent with the supreme law of the Republic and that this infringement cannot be justified in terms of the limitation clause contained in the constitution. It is submitted that section 332(1) should be severed in such a manner in which the corporation will be given an opportunity to raise a defence. Alternatively section 332(1) should be repealed in its entirety and replaced with the organisational model as adopted in Australia. If one of these approaches is adopted, South Africa’s approach to corporate criminal liability will be valid and thus constitutional. , LL.M.
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Interpretation of ‘liquidation proceedings’ in terms of Section 131(6) of the Companies Act : a case analysis of Richter v ABSA Bank Limited

Liability for fraudulent and reckless trading : a critical analysis of Engelbrecht NO and Others NNO v Zuma and Others [2015] 3 All SA 590 (GP)

Comparative study of the incurrence of a debt as a form of distribution, under company law in South Africa, New Zealand and the model business corporation act of the United States of America

  • Authors: Valayathum, Roxanna
  • Date: 2017
  • Subjects: South Africa. Companies Act, 2008 , New Zealand. Companies Act 1993 , Corporation law - South Africa , Corporation law - New Zealand , Corporation law - United States
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/237054 , uj:24282
  • Description: LL.M. (Commercial Law) , Abstract: As a matter of international best practice, the proper regulation of the distribution by a company of its assets to or in favour of its shareholders is central to the protection of the interests of a company’s creditors and minority shareholders. This dissertation analyses whether the delimitation of the “incurrence of a debt or obligation” as a form of distribution under the Companies Act No. 71 of 2008 (SA Companies Act) and the restriction thereof under section 46 adequately safeguards these parties as interested stakeholders of the company. In so doing, it evaluates the relevant sections of the SA Companies Act against the analogous provisions of the New Zealand Companies No. 105 of 1993 and Model Business Corporation Act of the United States of America. Through a comparative study, this dissertation was able to distil key legislative shortcomings under the SA Companies Act that create confusion or irregularities that could potentially undermine the statute’s ability to shield creditors’ rights and keep minority shareholders from being disadvantaged by disproportionate payments within a single class or amongst different classes of shareholders. The identification of statutory frailties will allow this dissertation to, by way of conclusion, propose suitable legislative amendments which the author believes will reform the SA Companies Act to the extent necessary to ensure that a distribution by way of the incurrence of a debt or obligation cannot undermine the interests of either creditors or minority shareholders.
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The appropriateness of business rescue as opposed to liquidation : a critical analysis of the requirements for a successful business rescue order as set out in section 131(4) of the Companies Act 71 of 2008

  • Authors: Sher, Lara-Jade
  • Date: 2014-05-26
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Bankruptcy - South Africa , Business failures - Law and legislation - South Africa
  • Type: Thesis
  • Identifier: http://ujcontent.uj.ac.za8080/10210/379145 , uj:11169 , http://hdl.handle.net/10210/10763
  • Description: LL.M. (Commercial Law) , The Companies Act 71 of 2008 (hereinafter referred to as the Act) was passed by Parliament on 19 November 2008 and assented to by the President on 8 April 2009. The Act came into force on 1 May 2011 and contains the provisions regulating the new business rescue proceedings that replace judicial management under the Companies Act 61 of 1973. However, since the introduction of Chapter 6 of the Act, the courts South Africa still appear to be finding their feet with regard to many of the Act’s provisions. In spite of this, the new business rescue practice has become an important part of the South African corporate framework. The outbreak of recent case law has started to shape the direction, which business rescue, as interpreted by the Courts, is taking. An important debate among the courts is whether the courts should rescue a business entity or liquidating the businesses assets in order to settle claims against it. While a liquidation aims to divide the profit from the sale of assets amongst creditors and to dissolve the company, business rescue legislation provides for a restructuring of the financial structure of a distressed debtor to save the business as a going concern and to assist the settlement of claims against the business in full. The business rescue proceedings have been provided for by legislation in the Act, however, the result of the vast recent court decisions show that the Act may not be relied upon unconditionally without proper regard to the circumstances of each case. This research analyses the appropriateness of business rescue as opposed to liquidation by specifically looking at the requirements for a successful business rescue order. This research further analyses whether the decisions of the courts in present case law are on the correct path when interpreting the business recuse provisions in terms of the Act.
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Regulating the conversion of par value shares into shares without par value : a comparison between the law of Hong Kong and South Africa

A critical enquiry into the need for avoidance provisions in business rescue proceedings

  • Authors: Wright, Christopher John
  • Date: 2014-06-04
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Bankruptcy - South Africa , Business failures - Law and legislation - South Africa
  • Type: Thesis
  • Identifier: uj:11388 , http://hdl.handle.net/10210/11026
  • Description: LL.M. (Corporate Law) , This dissertation firstly looks at the need for avoidance provisions over the course of insolvency proceedings and the attaching considerations in the development of same. Mention is also made of the difference between corporate rescue proceedings compared to liquidation. This brief comparative is essential as the different avoidance powers that are afforded to “rescue practitioners” when compared to “liquidators” is a common thread running through each of the following chapters. I will then shift the focus of my discussion to South Africa, briefly describing the avoidance powers that were afforded to a judicial manager under the Companies Act 61 of 1973. Thereafter, I will discuss the extent of any avoidance powers that have been afforded to a business rescue practitioner in terms of section 141(2)(c)(i) of the Companies Act 71 of 2008. This will involve consideration of the latest case law and other practical factors which will seek to build-on and/or enhance our judiciary’s decisions as to the extent of the avoidance powers that have been afforded to a business rescue practitioner. Once I have clearly set out the position in South Africa, I will consider the avoidance powers that have been afforded to an administrator in terms of Australia’s comparative corporate rescue mechanism, known as the administration of a company’s affairs with a view to executing a deed of company arrangement. Last, I will shift my focus to England, once again discussing and comparing the range of avoidance powers that are available to what they also term an administrator, when a distressed company enters Administration. At the end of each of the chapters setting out the powers that have been afforded to the business rescue practitioner and the administrators in both Australia and England, the position in South Africa will be analysed, with any and all uncertainties and/or inadequacies relating to our section 141(2)(c)(i) being identified. Finally, I will conclude my discussion by way of setting out my proposed recommendations that could assist in making South Africa’s business rescue regime both more effective and attractive to creditors – hopefully ensuring its continued effectiveness.
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A South African perspective on the advantages and disadvantages of codification of directors’ duties.

  • Authors: Nkomo, Fanuel
  • Date: 2016
  • Subjects: Directors of corporations - Legal status, laws, etc. - South Africa , Corporation law - South Africa , Corporate governance - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/87789 , uj:19626
  • Description: Abstract: Directors play an important role in a company. A company will succeed or collapse through directors depending on how well they carry out their duties. In order to protect companies many jurisdictions have adopted the approach of codification of the director’s duties. Some countries have adopted complete codification of directors’ duties and others have adopted what is said to be partial codification of directors’ duties. The Companies Act has partially codified some of the directors’ duties in South Africa. Codifications have got advantages and disadvantages, this research will provide a brief comparison of United Kingdom approach with the South African approach. It will conclude by exposing that a partial codification approach is suitable to follow in terms of South African company law. , LL.M. (Commercial Law)
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The protection of minority shareholders during a reorganisation of share capital within a company

Critical analysis of Section 71 of the Companies Act 71 of 2008

The Richter judgment : an analysis of section 131(6) of the Companies Act

  • Authors: Motsai, Tebogo
  • Date: 2016
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Liquidation - South Africa , Bankruptcy - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90494 , uj:19986
  • Description: Abstract: The initiation of the Companies Act 71 of 2008 (the Act) has fundamentally changed South African company law and consequently there is still a there is a lot of grey areas and uncertainty which is yet to be cleared up by the courts in their interpretation of the current law by interpreting the law. The Act in chapter 6 introduces the concept of business rescue which provides for the rescue and rehabilitation of financially distressed companies from distress and ultimately liquidation proceedings. Prior to the adoption of the business rescue regime, financially distressed companies in South Africa had limited alternatives to their disposal. Companies now have the option to adopt and follow a rescue proceedings plan if the company is in financial distress and needs assistance in saving it from insolvency and ultimately liquidation proceedings. This mini-dissertation looks at the decision of the Supreme Court of Appeal in Richter v Absa Bank Limited, the application for business rescue during liquidation proceedings, inter alia the provisions of section 131(6) of the Act, and the abuse of business rescue by entities in an effort to starve liquidation and frustrate creditors. The Act does not define the concept liquidation proceedings and/or what it entails and court decisions that grappled with its meaning in this context have reached divergent conclusions. The mini-dissertation concludes that the ambiguity created by the confusing use of the terminology in section 131 is a cause for concern and consequently a judicial amendment and/or an explanatory note is long overdue. , LL.M. (Corporate Law)
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A critical analysis of the business rescue requirements according to Newcity Group v Allan David Pellow and section 131(4) of the Companies Act of 2008

Is the current regulatory environment sufficient to ensure that companies take into account more than just their profits? a look into the corporate social responsibility of companies in South Africa

  • Authors: Mndebele, Nontokozo
  • Date: 2016
  • Subjects: Corporation law - South Africa , Social responsibility of business - South Africa , Organizational behavior - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/236336 , uj:24187
  • Description: LL.M. (Commercial Law) , Abstract: Corporate Social Responsibility (CSR) has evolved and has become a significant part of public policy in South Africa and has become a globally recognised principle. Although there is no universal definition of CSR, a brief summary of the primary accepted definition is that, CSR is a principle which comprises the notion that companies are responsible not only towards their shareholders, but also to a broader set of stakeholders and to society at large. These stakeholders comprise of the so called triple bottom line, namely (the people, the planet and the company’s profits). In essence companies do not only have the responsibility to make profits for their shareholders but CSR shifts the ideology of a business from primarily focusing on shareholder value and the owner’s satisfaction. It further encompasses the notion that a company should focus on all its stakeholders, including employees, customers, suppliers, the environment and the community at large. This dissertation will focus on the question that has not only stirred up great debates and controversies but is also not clearly answered in law. The question is, is the current regulatory environment sufficient to ensure that companies take into account more than just their profits? The answer to this question will be found through the study of the CSR of companies in South Africa. This dissertation tackles the concept and the meaning of the CSR of companies. A brief historical overview will be tendered. This will include the origins and the historical overview of the concept together with the Constitution of South Africa which is the corner stone of our law, binding any legislation that is enacted in the country. The legal duties of companies, implications and the application of CSR towards the employees, society and the environment will also be discussed. The characteristics derived from the concept of CSR will be discussed further by looking into some of the existing regulations in the regulatory environment of companies in South Africa. A brief comparative study of the application of CSR policies in Indonesia will be undertaken. Indonesia has gone through great political and regulatory reform particularly in the natural resources industry and thus comparing the laws of South...
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Alternative dispute resolution : a new tool under the Companies Act 71 of 2008

A critical analysis of the criminal liability of a parent company for the human rights violations of its subsidiary

  • Authors: Chitima, Gloria Chipo
  • Subjects: South Africa. Constitution of the Republic of South Africa, 1996 , Constitutional law - South Africa , Criminal law - South Africa , South Africa. Bill of Rights , Corporation law - South Africa , Criminal liability of juristic persons - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90191 , uj:19944
  • Description: Abstract:Whilst corporate activities have many advantages, the fact that there may be adverse violations of human rights associated with it cannot be ignored. The Constitution of South Africa of 1996 has enshrined human rights in the Bill of rights and every natural and juristic person must respect those rights. However a significant question arises concerning the responsibility parent companies have for their subsidiaries. Our Criminal Procedure Act 51 of 1977 which does not recognise parent and subsidiary relationships has contributed greatly to parent companies being able to be absolved from responsibility for the actions of their subsidiaries. The main aim of this dissertation is to come up with solutions to fill the gap of corporate criminal liability that has been created by our legislatures. Contributing to this gap has been the principles of limited liability and separate personality which have led to a situation where the parent companies have become difficult to hold accountable. However this dissertation will demonstrate that there are approaches that could be developed to circumvent the principles and hold the parent company criminally liable. , LL.M.(Corporate Law)
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The management of banks in South Africa : legal and governance principles

  • Authors: De Jager, Johannes Jurgens
  • Date: 2012-08-14
  • Subjects: Corporate governance - Law and legislation - South Africa , Corporation law - South Africa , Banks and banking - South Africa
  • Type: Thesis
  • Identifier: uj:9205 , http://hdl.handle.net/10210/5655
  • Description: LL.D. , Banks are important institutional mechanisms in local and international markets. In general a bank is required to fulfil the important function, inter a/ia, of collecting the general public's savings and channelling it into productive investments in the economy. As part of this process a bank subjects mainly depositors' funds to various types of risk in an endeavour to generate profits. It results in the level of risk exposure assumed by the bank normally being much higher than the actual level of the bank's capital. This gearing effect may unfortunately act as an incentive for directors and management ("management") of a bank to subject depositors' funds to outrageous risks in a quest to earn extraordinary profits. Under such circumstances the chances of gain may be unreasonably small in comparison with the high probability of loss of the depositors' funds and the (possible) failure of the bank. In addition, the danger exists that the failure of a bank may cause the demise of other banks or may even result in the failure of whole financial systems. Therefore, in view of the worldwide expansion of banks, the Bank for International Settlements (together with other international bodies) is involved in developing and maintaining uniform international minimum standards of supervision on a global scale. Regulators worldwide are required to adhere to these standards if the banks in their jurisdictions are to participate in the international financial markets. In South Africa, the Banks Act, 1990 (Act No. 94 of 1990), provides for the regulation and supervision of banks, which banks (other than branches of foreign banks and mutual banks) are required to be public companies. This company structure offers persons who are equipped with special managerial abilities and skills the opportunity to manage and control the company's business. Accordingly, the worldwide phenomenon of the separation between the shareholders and management of the company (concomitant with virtually unlimited managerial freedom) extant in large public companies exacerbates the risk of the loss of deposits occasioned by negligence or misdemeanour on the part of management of banks. Moreover, market forces and principles of South Africa's statutory and common law pertaining to the duties of management fail to provide the necessary system of countermeasures to guard against the exploitation by management of the business of a bank and to reduce the risk of loss to depositors. Consequently, considerations of public interest dictate that the principles of a free-market economy be supplanted by legislation that introduces prescriptive rules with regard to the regulation and governance of the management of banks. The purpose of such legislation should be to rectify market failures and to protect the interests of depositors. It must also provide the Registrar of Banks with an adequate structure to oversee compliance with international minimum standards of regulation and governance pertaining to the management of banks. In this vein, the study undertaken in this thesis has resulted in draft pro forma legislation aimed at addressing the designated needs and standards. Should legislation of this nature be introduced and applied to the management of banks in South Africa, it would not only ensure compliance with internationally recognised regulatory and governance standards, but should also protect the interests of depositors. The proposed legislation ought to minimise the risk of the loss of deposits and should contribute towards maintaining/restoring the confidence of the general public in the financial system of South Africa. It would also enhance the process of ensuring that only fit and proper persons are appointed as managers, and continue to manage a bank and/or bank controlling company. The pro forma legislation is designed to be enacted as amendments to the current provisions of the Banks Act.
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The impact of the business rescue moratorium on creditors

  • Authors: Mmbara, Hulisani Kevin
  • Date: 2016
  • Subjects: South Africa. Companies Act, 2008 , Business failures - Law and legislation - South Africa , Bankruptcy - South Africa , Corporation law - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90470 , uj:19984
  • Description: Abstract: A temporary moratorium on the rights of claimants against a company during business rescue proceedings is a universally acknowledged measure to facilitate the rehabilitation of a financially distressed company. In this regard, section 133(1) of the Companies Act 71 of 2008 provides for a general moratorium on legal proceedings against a company or property lawfully in its possession. This short dissertation critically analyses the impact of the section 133(1) moratorium on creditors. The moratorium is effective automatically, upon commencement of business rescue proceedings. The legal effect of the moratorium is that the right of creditors to enforce their claims against the company is suspended for the duration of business rescue proceedings. However, the moratorium may be lifted upon the written consent of the business rescue practitioner or the leave of the court. Further, certain proceedings or actions are automatically excluded from the operation of the moratorium. This research analyses the objectives of business rescue, the rationale, scope, and duration of the moratorium, in order to ascertain the possible impact of the moratorium on the creditors. In conclusion, the research analyses measures to mitigate unwarranted prejudice to the interests of creditors within the current legislative scheme of Chapter 6 of the Companies Act 2008 and proposes alternatives thereto, where appropriate. , LL.M. (Commercial Law)
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The meaning of “arrangement” in the Companies Act 71 of 2008

The delinquent director – no room for errant directors in the new Companies Act

Disregarding the separate legal personality of corporate entities used by directors to breach fiduciary duties and escape contractual obligations

  • Authors: Mbangi, Lelethu
  • Date: 2016
  • Subjects: Corporation law - South Africa , Directors of corporations - South Africa , Executives - Legal status, laws, etc. - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90456 , uj:19981
  • Description: Abstract: This dissertation analyses the reasoning and verdicts of local and foreign Courts in cases where a complaint is made that the separate legal personality of a company is abused by a director in order to breach fiduciary duties or escape contractual obligations. In this dissertation contractual obligations are discussed in the context of contracts in restraint of trade on directors. The facts, law and the judgment of the Court shall be stated in each of the cases analysed. This analysis of the cases shall be confined to instances where a director of company A incorporates company B to use it to breach fiduciary duties he/she owes to company A and where a director has a contractual undertaking to company C but incorporates company D and trades though it thereby escaping restraint of trade obligations owed to company C. The separate legal personality of a company principle is not absolute in law but a general rule hence the exception of piercing of the corporate veil is discussed. The discussion on piercing of the corporate veil commences by first discussing what piercing of the veil actually means and thereafter proceeds to explain the principles applicable in piercing the corporate veil and finally the application of the piercing principles to the various cases discussed. In the analysis of cases where the Courts (local and foreign) adjudicated matters of abuse of separate legal personality of a company by directors, the Courts at times find it unnecessary to disregard the separate existence of a company’s personality but rather elect to identify the company with the director. Notwithstanding the known common law guidelines in English and South African jurisprudence for piercing the corporate veil such as façade, sham, fraud and alter ego, the United Kingdom Supreme Court in a recent case of Prest v Petrodel Resources Ltd1has streamlined the guidelines into two main principles being the evasion and concealment principles... , LL.M. (Corporate Law)
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