The Business Judgement Rule stems from the US common law and relates to the directors duty of care and skill. Currently, the Business Judgment Rule is in operation in many countries all over the world. It is a judicial device used to limit the scope of personal liability for directors and officers. The rule consists of a rebuttable presumption that a director or officer, when making a business decision, has acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. It should thus form a safe harbour for rational and informed managerial actions. Courts applied the Business Judgment Rule in numerous courts decisions and established certain standards of a proper decision making process. From the experiences of the massive corruption scandals of ENRON and Worldcom and in the light of the experiences of the global financial crisis, there is a rising public interest in good corporate governance and diligent and reasonable management. Therefore, the rule has been codified in numerous countries all over the world. Among these countries are South Africa and Germany. In South Africa, the rule has been incorporated with the Companies Act, 71 of 2008. Germany has adopted the Business Judgment Rule specifically in the German Stock Corporation Act 1965 (Aktiengesetz). These codifications in modern company law are problematic and the scope of their respective application and the meaning of their prerequisites are somewhat unclear. Therefore, opinions about the rule, its application and its concrete effect diverge and the idea of a codified rule in modern corporation acts in contrast to the historical application by courts has been massively criticized. Despite all differences it is generally acknowledged that the rule and its application are intricate and a deep insight in its complex application is required to avoid a misunderstanding and a misapplication of the rule by the competent courts. The author intended to identify potential problems pertaining to the application of the rule and its prerequisites. By comparing the German and the South African approach, several similarities and differences were found. Based on these findings, five potential problems for the application of the rule in South Africa and its interpretation by the competent courts were presented in more detail. These problems relate to the scope of application in general, the blurred lines between the terms of rationality and reasonableness, the determination of the concrete judicial review, the avoidance of hindsight biases and the unjustified extension of judicial review by over interpreting the term proper purpose. Although it is hardly possible to present practical solutions for all these problems in a minor thesis, reviewing the rule, its prerequisites, and its rationale by considering additional experiences from other countries enhances the awareness of potential problems and risks. The primary guideline for the application of the rule has to be - in any case - the avoidance of the hindsight bias.

In July, 2013 Malawi enacted a new Companies Act [Act No. 15 of 2013] replacing the old Companies Act 19 of 1984. The Companies Act, 1984 was basically an adoption of the English Companies Act, 1948 and in line with the English law, it regulated distributions through the classical capital maintenance rule. In contrast, the new Companies Act, 2013 which came into force in May, 2016 has jettisoned the capital maintenance rule. As an alternative to that rule, the Act has introduced for the first time in Malawian company law edifice, the concept of the solvency test. Jurisdictions that have adopted the solvency test in their company law essentially have done so on the basis that company law should focus on the core risk at stake – company insolvency, and that it is meaningless to state that creditors look to the company's capital as a trust fund out which their debts would be settled. Despite having the same theoretical basis for adopting the solvency test, the manner in which the solvency test is defined and applied in a particular statute has significant effects on whether in its operation, the test affords adequate protection to the interests of creditors. This research examines the definition and application of the solvency test under the Companies Act, 2013 so as to determine whether in its operation as a financial restriction for distributions and other company transactions, it will afford adequate protection to creditors. It follows the approach used by Professor Kathleen Van der Linde in her analysis of the solvency and liquidity approach in the Companies Act, 2008. Thus, it analyses the Malawian law by focusing on the two separate elements of the test (equity solvency and balance sheet solvency) as well as other aspects of the test which are likely to raise legal interpretation issues. The twin solvency test adopted in different jurisdictions ordinarily varies in its balance sheet solvency element. Some jurisdictions such as South Africa and New Zealand utilise the net assets approach in their balance sheet test. Others such as New York and Delaware still emphasise on the trust fund doctrine and thus utilise stated capital in their balance sheet test. Malawi is a stated capital/surplus jurisdiction. Its new solvency based regime still focuses on the meaningless trust fund doctrine. The new solvency test approach in Malawi is incomplete and inadequate to fully protect creditors against opportunistic shareholder behaviour. A number of recommendations are made for an effective solvency test approach that will afford adequate protection to creditors against opportunistic shareholder behaviour.

This paper analyses the need for multinationals to adopt and fully implement the UN Global Compact principles in their operations by influencing sustainability down their international supply chains. This analysis is premised on the various theories supporting the adoption of sustainable business practices by businesses in terms of labour, human rights, environmental responsibility and anti-corruption. The objective of the analysis is to propose the applicable law of contract tools that the multinationals can use to implement their sustainability commitments down international supply chains. Since the supply chain partners of these multinationals are distinct entities operating independently and only dealing with the multinationals through contracts, the paper proposes that sustainability can be influenced through the use of such contracts. In this, the paper appraises conditions precedent and express contractual terms as the law of contract tools that can best be utilized by multinationals in influencing supply chain sustainability. The paper shows that these tools can be utilized to guarantee that supply chain partners operate sustainably and in a manner that implements the sustainability commitments of the focal firm - the multinational. Against the background of the already existing systems, this study illustrates that the proposed tools can be used to strengthen the existing systems and especially the use of supplier codes of conduct. It also demonstrates that the effective use of these tools guarantees the adoption of sustainable practices and systems that eventually make the entire supply chain sustainable. The paper concludes that the use of these tools will guarantee the implementation of sustainability commitments, as based on the UN Global Compact, in international supply chains.

Insolvency systems are fundamental to the functioning of commercial activity. They are essential for the development of credit markets and entrepreneurship, and raise the efficiency level of economies. South Africa’s business rescue regime is an innovative component of its insolvency system because it encompasses more than creditors’ commercial interests; it aims to ensure the equitable treatment of multiple stakeholders such that social, economic and political interests are recognised and optimised as appropriate. However, equitable treatment does not equate to equal treatment. Business rescue organises the claims of stakeholders into a hierarchy. The ranking of tax claims within this hierarchy is controversial because various, divergent social, economic and political interests are implicated by a tax claim against an ailing corporation. This dissertation will assess whether tax claims should be granted some priority in South Africa’s business rescue claims hierarchy. The assessment of the different policy arguments for and against this priority will take place through the lens of corporate reorganisation’s values and policy. This is crucial so that the conclusion is consistent with corporate reorganisation’s objectives rather than being influenced by bias in favour of social or commercial interests.

Aim The overall aim of this dissertation is to consider reform of warranties in the area of insurance law in South Africa. In considering the main aim of this dissertation, the current law relating to insurance warranties in South Africa and other jurisdictions will be analysed in order to demonstrate why the South African position is unsatisfactory in its current form and therefore in need of reform as well as ideas on how the current law can be reformed. Thesis It will be argued that the South African law on insurance warranties is in need of reform to address unsatisfactory aspects of it indicated in recent judgments and by academic commentators and that such reform should, in broad terms, take account of consumerism and eliminate the harsh and unfair effects associated with the interpretation and implementation of warranties.

The paper evaluates how South Africa’s public policy towards the death penalty is protected amidst increased taxpayer information transparency. The People’s Republic of China (China) may, under article 22(4) of the Joint Council of Europe/OECD Convention on Mutual Administrative Assistance in Tax Matters (2010) (Multilateral Convention), use information received from South Africa, for criminal prosecution of a South African taxpayer in a non-tax matter in China, if the South African Revenue Service (the SARS) authorises such use. The Criminal Law of the People’s Republic of China 86 of 1997 sanctions the use of the death penalty for various economic crimes and this law has an unlimited territorial scope. China may therefore impose the death penalty on a South African taxpayer at the hands of information supplied by the SARS. This study will establish what public policy-based remedies are available for a South African taxpayer in this scenario. The SARS is not obliged to exchange information with China’s tax authority, as such an action will be contrary to South Africa’s public policy. Where the South African taxpayer concerned is in South Africa, including at a sea- or airport, then the SARS has a constitutional obligation not to exchange the information. Further, the South African state has an international obligation not to exchange the information where the method of execution in China is cruel, inhuman or degrading. The paper concludes that before exchanging the information and authorising its use for non-tax purposes, the SARS must take reasonable steps to evaluate whether it is foreseeable that the exchange of taxpayer information will be against South Africa’s public policy. The SARS is under a legal duty not to exchange information with China where the SARS foresees that such an action may lead to the imposition of the death penalty on a South African taxpayer in China. A further recommendation is that the public policy protection must be reinforced by amending the wording of the Multilateral Convention and the bilateral income tax treaty between China and South Africa in line with what other countries have done, in order to clarify that South Africa’s public policy specifically prevents the imposition of the death penalty.

This thesis will be conducted by reviewing South African literature that is published in various primary and secondary sources. The research will refer to key South African statutes namely, the South African Companies Act, the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution) and the Promotion of Access to Information Act 2 of 2000. Parallel statutes of Zimbabwe, Canada, and the United States of America will also be referenced throughout this thesis. Additionally, this thesis will review case law relating to the subject and the ratio of those cases will be analysed. The role of the courts in interpreting certain legal provisions will be important in assessing whether the courts have adopted a liberal or restrictive approach to the issue of protecting minority shareholders. A comparative analysis will be conducted to evaluate how South African company law has dealt with the issue of the protection of minority shareholders. This thesis will therefore compare and contrast South African and Zimbabwean legislation and case law on minority shareholder remedies. This will be achieved by evaluating how the two nations implement and apply legislation providing for the protection of minority shareholders. As part of this analysis, this thesis will review what Zimbabwe can learn from the South African system.

Includes bibliographical references. / As will be discussed in the course of this paper, there are similarities between the South African and the European notions of the SEE. It seems that the European notion of 'undertakings' and the South-African one of 'firm' do not have the same role when these entities form part of a single economic entity; the South African notion of the single economic entity seems to be an exception to the application of the Act whereas the European one seems to enlarge the application of the regulation.

A person who suffers loss, damage or some other form of damage as the result of another party’s action, may in these instances invoke the law of the country in order to claim damages. The damages which are claimed are aimed at compensating the person who has suffered a loss and are based on the law of delict and contract. In South Africa, the stakes are a bit higher in so far as the claimant will need to show that the damage was foreseeable, that there was causation and further remoteness which are all listed as the deciding factors in a claim for liability1 . To this end, Maritime Law in South Africa has a primary exclusion which is applied to the shipowners2 right to limit his/her liability based on the causative enquiry into “actual fault or privity”3 . Causative actual fault or privity is thus the primary exclusion for a shipower’s right to limit his liability and is extensively based on the English Law rules. The concept of Limitation of Liability has extensive history in so far as its evolution is concerned and currently acts as a 'basic premise upon which maritime commerce is conducted4 ’. Based on the importance of the concept and the issues around the South African application of the rules and interpretation of legislation in decided cases, the South African Government has published a draft Merchant Shipping Bill (draft MSB)5 for comment. Among other changes it proposes, is that it advocates the replacement of the current dispensation on limitation of shipowners’ liability with that contained in the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC)6

A company is an integral part of society whose existence impacts the country's economy and community as a whole, thus, the previous global financial crisis has highlighted the need for countries to have effective mechanisms to support and encourage corporate rescue. This is important because companies that encounter financial or economic collapse are able to benefit from corporate rescue mechanisms which may help preserve their on - going viability. In this regard, the turnaround of such companies will enable restoration of production capacity, employment, and the promotion of sustainability of capita l and investments. However, existing legal frameworks on corporate rescue in many countries have been found to be wanting, and this has in turn triggered a new wave of legislative reform proposals. Thus, the aim of this dissertation is to interrogate into the issue of whether there is a need for Botswana to reform its insolvency laws in order to accommodate a modernised corporate rescue regime. This dissertation probes on the shortcomings of judicial management as a corporate rescue regime which is currently operative in Botswana. Furthermore, the study reveals the performance of judicial management as a regime in other countries in order to illustrate its inherent weaknesses. This study makes a comparison of the main components that make up modern corporate rescue regimes in order to be able to identify critical issues to be considered in making recommendations for legislative reform. Overall the study recommends the reform of the judicial management laws in Botswana by integrating the positive aspects of corporate rescue as applied in other countries as illustrated by examples of Australia, the United Kingdom and South Africa, and avoiding the pitfalls so far proving a burden in these jurisdictions. The reform should also make adjustments accordingly as relevant to the existing business environment and the economy as well as develop new provisions to cover social conditions unique to Botswana.