Showing items 1 - 20 of 42

Your selections:

The stakeholder interest battle in business rescue and post-commencement finance

- Barnard, Hildegard Margaret

  • Authors: Barnard, Hildegard Margaret
  • Date: 2018
  • Subjects: South Africa. Companies Act, 2008 , Business failures - Law and legislation - South Africa , Corporation law - South Africa , Stockholders - Legal status, laws, etc. - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/270932 , uj:28806
  • Description: LL.M. (Commercial Law) , Abstract: Nearly 6 years following the introduction of the ‘new’ business rescue proceedings under Chapter 6 of the Companies Act 71 of 2008, the time is ripe for thorough reflection on this legislation and its implementation from a stakeholder interest perspective. Analysis of the behaviour driven by Chapter 6 brings forth valuable insights with regards to the conflicting interests of secured pre-commencement creditors, business rescue practitioners as well as post-commencement financiers and the impact thereof on the provision of post-commencement finance. The ranking of claims in business rescue upon conversion to liquidation proceedings must be clarified with specific regard for the impact on the business rescue practitioner’s position as opposed to the rights of secured creditors. It is pertinent that section 135, which is a key provision in Chapter 6, lacks drafting finesse in its current form and does not provide sufficient and express clarity regarding the definition and ranking of post-commencement finance during business rescue or in the event of a subsequent liquidation.
  • Full Text:

Tax aspects of the amalgamation or merger procedure in the Companies Act 71 of 2008

- Chong, Sue Joon

The protection of minority shareholders during a reorganisation of share capital within a company

- Christodoulou, Danielle

Enforcement and dispute resolution mechanisms in terms of the Companies Act 71 of 2008

- Croucamp, Andre

  • Authors: Croucamp, Andre
  • Date: 2019
  • Subjects: South Africa. Companies Act, 2008 , Dispute resolution (Law) - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/421529 , uj:35933
  • Description: LL.M. (Corporate Law) , Abstract: 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.
  • Full Text:

The treatment and recognition of company groups in South African corporate law

- Diale-Ali, Regomoditswe Ursula

Is business rescue the "life jacket" alternative to our "sinking" liquidation proceedings? : A critical analysis of the Business Rescue and Liquidation proceedings compared

- Du Plooy, Shani

  • Authors: Du Plooy, Shani
  • Date: 2015-07-14
  • Subjects: South Africa. Companies Act, 2008
  • Type: Thesis
  • Identifier: uj:13733 , http://hdl.handle.net/10210/13999
  • Description: LL.M. (Commercial Law) , The introduction of Chapter 6 of the Companies Act No 71 of 2008 into the South African corporate insolvency setting had a noteworthy impact on procedures as we knew it and replaced its predecessor, judicial management in terms of the Companies Act no 61 of 1973. Chapter 6 provides for business rescue proceeding, its main function being to assist and rehabilitate financially distressed companies. The significance of this chapter is that it promotes proactive action to be taken by companies in initiating business rescue proceedings when possible financial distress becomes apparent. Business rescue proceedings can commence by making use of S 129 of the Companies Act No 71 of 2008 or of S 130 of the Companies Act No 71 of 2008. S 129 allows for the board of directors of the company to pass a resolution permitting business rescue proceedings to apply to the relevant company. S 130, on the other hand, makes provision for an affected person to apply to the High Court with a query regarding a company and business rescue proceedings. A remarkable number of new provisions were introduced relating to business rescue procedures and with their introduction came the responsibility of our Courts to interpret its rightful place within our law. As a result, the valuable question of when our courts should aim to rescue a company and when to liquidate the company’s assets in order to settle its debts, must be asked. Both proceedings have the same aim; that is helping the financially distressed company pay its debts. However, both also employ vastly different methods to achieve their aims and with different consequences. Business rescue aspires to rescue the company by restructuring its financial arrangements in order to allow for the business of the company to be sold as a going concern. Business rescue further aims to help the company settle all its claims against it in full. Liquidation, on the other hand, aspires to sell all the company’s assets and divide the profit of the sale to settle the claims of the company’s creditors. The company will thereafter be dissolved. This dissertation aims to analyse the suitability of business proceedings compared to liquidation proceedings by purposefully examining the requirements for both proceedings as well as their advantages. Furthermore, this dissertation will provide for a comparative study between the Australian and South African business rescue proceedings respectively.
  • Full Text:

Directors’ liability for reckless trading under the Companies Act 71 of 2008, with reference to the Companies Act 61 of 1973

- Finger, Chana

Is post commencement finance proving to be the thorn in the side for business rescue proceedings under the Companies Act of 2008?

- Freebody, Giles John

  • Authors: Freebody, Giles John
  • Date: 2015-07-14
  • Subjects: South Africa. Companies Act, 2008
  • Type: Thesis
  • Identifier: uj:13739 , http://hdl.handle.net/10210/14004
  • Description: LL.M. (Commercial Law) , With the onset of the new corporate rescue regime in South Africa, the impact of the current post commencement finance culture in the country could have adverse effects on such proceedings. Due to the growing number of financially distressed entities, this topic, and in particular, turnaround funding in developing countries like South Africa is becoming more and more relevant. Due to the juvenility of the current legislation regarding business rescue proceedings, there are still issues that need addressing. One of the major stumbling blocks of these proceedings stems from a lack of post commencement finance. In comparison to other, more established jurisdictions, South Africa seems to be behind in the commercial rescue realm. Thus, an evaluation of post commencement financing in South Africa is critical in order to determine whether the relationship is positive or negative in terms of the actual proceedings themselves. By way of normative methodology this paper will describe the magnitude of post commencement finance in South Africa as well as address the reasons for the situation this country finds itself in. Finally an attempt will be made to show the best way(s) in which to go about creating a culture within the economy that is partial to participation in the rehabilitation of distressed institutions. To this end, it appears from the literature and studies undertaken that the post commencement finance environment is lacking essential components. Through time, the development and refinement of these applicable provisions and influential factors will enable the corporate landscape to evolve into a competent dwelling for companies facing financial woes.
  • Full Text:

Shareholder protection in closely held companies

- Grimbeek, Jessica

The inescapable duty to submit corporate annual returns : alternative enforcement approaches

- Hattingh, Tamra Michelle

  • Authors: Hattingh, Tamra Michelle
  • Date: 2017
  • Subjects: Corporation law , South Africa. Companies Act, 2008
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/237006 , uj:24275
  • Description: LL.M. (Commercial Law) , Abstract: It is important that a companies’ register provides sufficient transparency of information, in order to ensure that the incorporation of a company is not a façade for those persons controlling, managing and owning companies. It has become evident that the most adequate means of ensuring compliance with the provisions of company law relating to the lodging of annual returns is the imposition of some form of punishment or penalty on defaulting companies. Despite companies being subjected to some form of a penalty or punishment for their failure to conform to the obligation to submit annual returns it appears that there is still a certain degree of non-compliance with this obligation in all three of the jurisdictions contemplated. This dissertation considers the duty to file annual returns in South Africa, Singapore and the UK. South Africa has successfully attempted to decriminalise company law in line with the objects of the Companies Act 71 of 2008, by treating criminal prosecution for the failure to submit corporate annual returns as a matter of last resort. Singapore has placed focus on the education of directors and other persons managing or controlling companies in lieu of prosecution where a person is in contravention of the requirements to submit annual returns. Where a company is in default for its failure to file annual returns, the UK prescribes a penalty in accordance with the length of the default. An apparent need for reform is presented in South Africa. The introduction of the confirmation statement in the UK and the education of directors in lieu of prosecution in Singapore can inform this process for reform.
  • Full Text:

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)

- Kekana, Nosisa Bomkazi

The extent and implications of the moratorium in business rescue as discussed in Murray v FirstRand Bank Ltd

- Langa, Jan

The applicability of the business rescue general moratorium to eviction proceedings

- Lund, Robin Simon

Selective repurchases of shares and protection of shareholders in terms of the Companies Act 71 of 2008

- Manganye, Languta Armstrong

  • Authors: Manganye, Languta Armstrong
  • Date: 2016
  • Subjects: Stockholders - Legal status, laws, etc. - South Africa , Corporation law - South Africa , South Africa. Companies Act, 2008 , Stock repurchasing - Law and legislation - South Africa , Stocks - Law and legislation - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90448 , uj:19977
  • Description: Abstract: Section 48 of the Companies Act provides directors with exclusive powers to conduct repurchases either selectively or proportionately and with or without the shareholders’ approval. These exclusive powers, particularly the powers to selectively repurchase shares may prejudice the interest of shareholders in a company. The study is to analyses the provisions of the Companies Act 71 of 2008 to determine whether it adequately protects the interests of shareholders. The analysis will be made in comparison with protective measures contained in the New Zealand Companies Act 1993. The Companies Act 71 of 2008 does not distinguish between selective or proportionate repurchases. Section 48 of the Companies Act 71 of 2008 sets out the requirements to be complied with by a company when repurchasing any of its shares and in addition it set out the requirements for repurchases of shares held by directors or prescribed officers and their related persons or repurchases conducted in terms of a scheme of arrangement. The forms of protection available to shareholders depends on whether a shareholder is a director or whether a selective repurchase is undertaken in terms of a scheme of arrangement. Shareholders will have to rely on protective measures outside section 48 of the Companies Act 71 of 2008, for them to protect themselves, and in particular when a repurchase is not conducted in terms of a scheme of arrangement. The protective measures in repurchases conducted through a scheme of arrangement includes the shareholders’ approval requirement, voting restrictions and appraisal right. The protective measures available to shareholders who are directors for a repurchase which does not constitute a scheme of arrangement is the shareholders’ approval requirement. The New Zealand Companies Act appears to better protect the interest of shareholders by requiring that selective repurchases be approved by all shareholders and if not, repurchases are subject to ideal protective measures such as the disclosure requirement, observance of the best interests of the company and shareholder, and that the price paid for shares must be fair to the company and the remaining shareholders. , LL.M. (Corporate Law)
  • Full Text:

The effect of deregistration of a company: a comparison of the 1973 and the 2008 Companies Act

- Marobyane, Sennye Elizabeth

A critical analysis on how the courts have circumvented abuse arising from the shortfalls of legislation in business rescue Yatzee Investments CC v CAPX Finance Pty Ltd (3300/2015) [2015] ZAWCHC 117 (26 August 2015)

- Mashego, Morwesi

The concept of a related person and control in accordance with the oppression remedy as set out in the Companies Act, 2008

- Mdaki, Xolisile

  • Authors: Mdaki, Xolisile
  • Date: 2019
  • Subjects: Remedies (Law) - South Africa , Stockholders' derivative actions - South Africa , South Africa. Companies Act, 2008
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/413609 , uj:34851
  • Description: Abstract: In assuming the role of a shareholder in a company, a person undertakes to be bound by the decisions of the majority for those decisions on the affairs of the company are arrived at in accordance with the law, even where they adversely affect the rights of the shareholders.1 The principle of the supremacy of the majority is essential to the proper function of companies.2 Reliance is placed upon the principle of majority in order to achieve optimum success in the corporate governance of a company by having it function as a uniform entity. At times the effect of such then becomes the minority being prejudiced by the decision undertaken by the majority. Previously the minority had not been offered any protection against such adverse decisions of the majority. Such decisions would tend to adversely affect the interests of the minority shareholder or those of the company. In an effort to provide protection for the interests of the minority shareholder which may be infringed by the decision of the majority, the legislature has sought to develop a statutory mechanism to assist the minority shareholder through the adoption of the oppression remedy into the South African company law. The minority shareholder has available to it now a protection mechanism which seeks to ensure that not only the interests of the shareholder but the interests of the company which may be negatively infringed upon by the decision of the majority are protected from such acts and considered in the decision-making process... , LL.M. (Commercial Law)
  • Full Text:

A comparative study of the provisions regarding the remuneration of directors in terms of the companies act of 1973 and the Companies Act of 2008

- Mdingi, Naledi Dadawele

The impact of the business rescue moratorium on creditors

- Mmbara, Hulisani Kevin

  • 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)
  • Full Text:

A critical analysis of the winding up grounds as set out in section 81(1)(d) of the Companies Act 71 of 2008

- Mohamed, Faheem

  • Authors: Mohamed, Faheem
  • Date: 2013-09-02
  • Subjects: Liquidation - South Africa , South Africa. Companies Act, 2008
  • Type: Thesis
  • Identifier: uj:7723 , http://hdl.handle.net/10210/8593
  • Description: LL.M. (Commercial Law) , Section 81(1)(d) of the Companies Act 71 of 2008 allows a company, one or more of its directors or shareholders to apply to a court of law to wind up a solvent company. In essence, they can do so under three specified circumstances namely, where the directors are deadlocked in the management of the company and the shareholders are unable to break the deadlock, the shareholders are deadlocked in voting power and have failed for a period that includes at least two consecutive annual general meeting dates, to elect successors to directors whose terms have expired, or it is otherwise just and equitable for a company to be wound up. Item 9 schedule 5(1) of the Companies Act 2008 states that chapter 14 of the Companies Act 1973 continues to apply in regard to winding-up and liquidation of companies under the Companies Act 2008 as if the Companies Act 61 of 1973 has not been repealed. By virtue of this schedule, section 347 of the Companies Act 1973 still remains applicable. However, section 347(1) of the Companies Act 1973 still makes reference to section 346 of the Companies Act 1973 which is no longer applicable for winding-up of a solvent company and for that very reason it appears as though the intention is that section 347(1) of the Companies Act 1973 should not apply in such circumstances, I recommended that an amendment be made to the Companies Act 2008 to rectify this discrepancy. In light of the inclusion of section 347(2) of the Companies Act 1973, by virtue of item 9 schedule 5 of the Companies Act 2008, an application brought by shareholders places a definitive onus and an additional burden on the applicants to prove that they have exhausted all remedies available to them and they had no other alternative but to bring a winding-up application as a last resort. The all encompassing provision of section 81(1)(d)(iii) of the Companies Act 2008, I argued, should allow for a winding-up of a company, even in respect of the weaker forms of deadlock, where it does not fit neatly within section 81(1)(d)(i) and section 81(1)(d)(ii) of the Companies Act 2008. The word ‘otherwise’, in my opinion, has been correctly included in section 81(1)(d)(iii) of the Companies Act 2008. The courts will inevitably be 8 | P a g e left to determine the perimeters of section 81(1)(d)(iii) of the Companies Act in relation to the sections 81(1)(d)(i) and 81(1)(d)(ii) of the Companies Act 2008. I discovered striking similarities to the wording of the just and equitable provision and this wording has been consistent in various versions of the companies acts (both current and previous) in various jurisdictions. The ejusdem generis principle, I argued, is not applicable and the just and equitable provision needs to be looked at independently of the other grounds. From the recent case law arising on the interpretation of section 81(1)(d) of the Companies Act 2008, it is clear that the various principles which were developed during the era of the previous companies acts were still applicable and relevant to the Companies Act 2008, unless the Supreme Court of Appeal in South Africa decides otherwise.
  • Full Text:
  • Disclaimer
  • Privacy
  • Copyright
  • Contact