Company law in South Africa has recently been subject to an extensive review which culminated in the passing of a new act, being the Companies Act No. 71 of 2008 (hereinafter 'the new companies Act or 'new Act'). The new Act has not yet come into effect but officials at the Companies and Intellectual Property Office remain optimistic that the new legislation will become effective before the end of the year. The new Act takes South African company law away from its English law roots and brings it into line with international trends. Indeed the South Africanisation of company law was one of the stated objectives of the review process; it being held to be important that the unique characteristics of the South African context and especially the promotion of equity as envisaged under the Constitution be taken into account in the drafting our laws. This research paper is primarily concerned with the legislature's efforts to protect company creditors' interests via mechanisms designed to maintain the economic or capital base of a company. Historically this found expression in the capital maintenance rule but problems with this rule resulted in it being shelved in favour of a regime based on solvency and liquidity. The concept of imposing solvency and liquidity requirements on companies in certain instances was introduced into South African company law in amendments to the existing Companies Acts promulgated in 1999. This resulted in the fragmented approach to the maintenance of an economic or capital base of a company that we currently face: certain areas being subject to the newly imposed solvency and liquidity requirements while at the same time other provisions built around capital maintenance remaining in force.

Corporate heresy 1 or legislative oversight: is there room for the common law remedy of disgorgement under section 77 (2)(a) of the Companies Act2 or has the remedy been relegated to the past? This controversial enquiry frames the groundwork for discussion upon which this dissertation is based. Section 77(2)(a) reads as follows: "(2) A director of a company may be held liable - (a) in accordance with the principles of the common law relating to breach of a fiduciary duty, for any loss, damages or costs sustained by the company as a consequence of any breach by the director of a duty contemplated in section 75, 76 (2) or 76 (3)(a) or (b). ,o This dissertation seeks to shed light on the apparent legislative omission of the common law remedy of disgorgement from the ambit of section 77(2)(a). The effects and consequences of such a significant omission has come under the microscope given South Africa's recently reformed corporate law jurisprudence. The impact of such an omission on the interpretation and application of directors' duties and liabilities will be specifically examined and analysed. The topic of this dissertation remains especially relevant to any discussion involving directors' duties and liabilities in the context of the new Companies Act ("the Act"). The Act has drastically reshaped the South African corporate law landscape and as such, each provision of the Act requires careful consideration in its interpretation and application. Implementation of the Act, in 2011, brought about partial codification of directors' duties and liabilities. Partial codification has resulted in mandatory, unalterable and prescriptive provisions relating to directors' duties and liabilities which are applicable to all companies registered in the Republic.• Since its inception, critics have intimated that certain provisions of the Act hinder, as opposed to facilitate, the objective of clarifying directors' duties and liabilities.5 Fear of statutory liability gives further credence to the importance of clear, concise and uniform interpretation and application of the statutory duties. The statutory duties and liabilities do not replace their common law equivalents. Interpretation, application and development of the statutory duties and liabilities must align with those embedded in the common law.6 Alignment becomes increasingly difficult, however, when inconsistencies and contradictions between these two primary sources of law run rampant. The provisions of section 77(2)(a), conceivably, showcase such a misalignment between the common law and the Act.

Foreign Direct Investment (FDI) constitutes an important tool regarding the generation of capital inflow and economic growth and development, particularly for developing countires. Bilateral Investment Treaties (BITs) constitute the prevalent global mechanism in respect of the protection of FDI. Following the Apartheid era and its economic isolation, South Africa concluded numerous BITs with capital exporting countries, especially European countries, in order to show its desire to reengage with the international community especially by the provision of long-term protection regarding foreign investments made within the Republic. However, in 2008 the South African government conducted a review of its BITs as a reaction to the ICSID case Piero Foresti et al. v Republic of South Africa. This review process was concluded by the decision to terminate or not to renew numerous BITs, particularly with European countries, whilst establishing a national investment policy framework. Subsequently, in December 2015 the Protection of Investment Act No. 22 of 2015 was promulgated. The replacement of BITs with national legislation was widely criticised by members of the international investment community asserting that the scope of protection regarding FDIs within the South African territory was significantly lower than under the previous BITs and the enactment of the Investment Act sent a negative signal to foreign investors. The South African Department of Trade and Industry, on the contrary alleged that an overhaul of the current investment framework was necessary due to unacceptably limited policy space and neglect of the specific socio-economic challenges found in South Africa in regards to BITs. Generally, BITs inhibited the promulgation of vital national legislations, which sought to rectify the abhorrent racial discrimination and injustice experienced by the majority of South Africans during Apartheid. Furthermore, the investor-state dispute settlement provisions allowed mere commercial interests to influence crucial national concerns in an intolerable way. This dissertation assesses the Protection of Investment Act No. 22 of 2015 against the background of these opposing assertions. By outlining the protection mechanisms ordinarily provided by BITs and the customary international minimum standard and the examination of the provisions entailed by the Protection of Investment Act No. 22 of 2015, this dissertation shows that certain stipulations of the Investment Act provide a considerably lower scope of protection regarding foreign investments in comparison to the previous BITs. Particularly in terms of crucial elements such as fair and equitable treatment, most-favoured nation treatment and investor-state dispute settlement, the protection of foreign investments is reduced. Moreover, the Investment Act and the Constitution of the Republic of South Africa No. 108 of 1996 determine a significantly narrower concept of expropriation, whilst lacking provisions regarding compulsory payment of compensation in terms of indirect measures, and a limited concept of full protection and security. These stipulations are essentially incompatible with the requirements of the customary international minimum standard. Therefore, the Protection of Investment Act No. 22 of 2015 is likely to create uncertainty and unpredictability regarding the protection of investments, and is likely to decrease investor confidence in South Africa as an investment venue. The thesis concludes that the manner of utilisation of the preserved policy space, and the application not only of the Investment Act, but of the entirety of the foreign investment related legislation, will be decisive in order to achieve a harmonious balance between the domestic public interest, policy space and foreign investors' need for predictable and reliable investment protection. It will be necessary for the government to show its dedication and commitment towards the establishment of a balanced regime, equally taking into account the respective needs and interests whilst preventing arbitrariness and discrimination, in order to maintain South Africa's status as a foreign investment-friendly venue and to convince foreign investors of the continued long-term protection of investments in South Africa.

Business rescue proceedings have been introduced into South African company law under chapter 6 of the Companies Act 71 of 2008. The United States Chapter 11 bankruptcy model was closely consulted by the legislature when drafting chapter 6. Further to this and although business rescue has been generally well received, there have been legal issues which have arisen in the interpretation of chapter 6. In particular, the issue of creditors' rights against third party sureties of financially distressed companies continues to fall under the spotlight which, in tum, has caused a ripple of commercial uncertainty to filter through to creditors. This issue will be investigated with comparative reference to the position in the United States. In doing so, a critical analysis will be undertaken of the procedures and processes in both of these jurisdictions, whereafter a comparative analysis will be presented. It will be advocated that although the essential difference between the two jurisdictions is the United States' legislative regulation on this issue, South African courts have correctly decided on creditors' rights against third party sureties. Unlike in the United States where conflicting decisions have been delivered, commercial certainty on this issue does in fact exist in South Africa notwithstanding the lack of statutory regulation under the Companies Act. It will be further advocated that although there is potential for this issue to be development under the South African common law when having regard to the decisions in the United States, caution is to be exercised as such development may generate commercial uncertainty.

This thesis presents human flourishment as the theoretical foundation from which to pursue social policy in the post-colony. Accepting this theoretical foundation, the purpose of this thesis is to reflect on the role and potential of small, micro and medium enterprises (SMMEs) in South Africa. Further, this thesis will consider in what manner the law can support the realisation of the potential of South African SMMEs. The main value of this thesis is to illustrate the positive distributional impact that a human flourishment approach to legal intervention can have for a property system, which has the objective of supporting the realisation of the capabilities of persons in society. This value is illustrated in this thesis by analysing the relationship between the South African SMME and retail banking sectors. This thesis has chosen to focus on the SMME sector because of the role identified for SMMEs in South Africa's growth strategy, the National Development Plan (NDP). This role includes recognising SMMEs as being an entry point for previously excluded persons into the mainstream economy. A recent report by the Small Enterprise Development Agency (SEDA) highlights that the potential of SMMEs in South Africa remain unrealised. The report identifies key barriers to SMME flourishment in South Africa. This thesis focuses on the following identified barriers in the report: (i) the existing legal framework with respect to SMMEs; (ii) existing government agency support available to SMMEs; and (iii) the ability of SMMEs to access finance and credit. A primary finding in this thesis is existing credit structures in the retail banking sector are negatively biased towards the black population group. This has an adverse impact on black entrepreneurs. It is suggested in this thesis that this negative bias is a consequence of apartheid. Apartheid had the effect of regulating the access that black people had to the mainstream economy and their ability to acquire and accumulate property. Recognising that SMMEs have an identified role to play in South Africa's growth strategy, this thesis finds that legislative intervention in the retail banking sector is needed in order to overcome this negative bias and to support increased SMME access to finance and credit. This thesis interprets the preamble to the Constitution, as well as the concept of transformative constitutionalism, as mandating a capabilities-approach to human development. It is for this reason that a property system with a distributional outcome that supports the realisation of the capabilities of persons in society is preferred by this thesis. It is only once there is a real commitment of moving the majority of South Africans into the mainstream economy will inroads to tackling inequality and poverty be made.

The recent years have seen the recognition of Multilateral Trading Facilities and Alternative Trading avenues in the American and European stock markets. This was required as the markets had grown and regulators were left perpetually behind their needs. This paper looks at whether South Africa has any such facilities/avenues and whether they are adequately regulated. These facilities/avenues allow investors to trade in equity securities away from the exchange on which they are listed. With their increased use however, there are policy concerns that arise that revolve around; price discovery, investor protection, market fragmentation, fair competition and access. It is these concerns that regulators aim to address. The law in South Africa is clear that there are no other legally recognised avenues to trade listed equity securities other than on the exchange on which they are listed. The equities market in South Africa is also comparatively smaller compared to its international counterparts, therefore it is difficult to assess whether there are persons in the business of providing an infrastructure for trading listed securities away from the exchange. Furthermore, they would be doing so illegally thus making monitoring it harder. This paper analyses the laws in the United States and the United Kingdom and uses the work of various authors to examine the policy concerns that arise with the increased use of these trading avenues and how these concerns were addressed. Finally, the paper proposes that the South African regulators should make changes in line with the international counterparts as the market grows.

Business rescue is a process through which a financially distressed company can be rehabilitated by providing for the temporary supervision of the company, the management of its affairs, business and property. Focused research indicates that one of the main reasons that business rescues in South Africa have failed is due to the lack of post-commencement rescue finance. This dissertation puts forward a researched and suggested financial structure solution that combines two comparatively new concepts in South African corporate law, being business rescue from the Companies Act 71 of 2008 and the financing of venture capital companies in the Income Tax Act 58 of 1962. The outcome of the suggested post-commencement finance structure is that the investors investing in this structured solution would receive an immediate benefit in the form of a tax deduction and a reduction in the financial risk exposure of the investment. In turn, the company in business rescue receiving the investment funds from this finance structure would also benefit from fewer cost burdens associated with traditional debt financing (i.e. servicing of the debt) and thereby increase the probability of a successful business rescue, concomitantly resulting in the improvement in economic activity and importantly, the retention of jobs in South Africa that it so desperately needs.

Uganda is in the process of enacting a competition law. Like most developing countries, it faces a unique adoption process, local circumstances and concerns that makes the competition law and enforcement practices distinguishable from other jurisdictions. This research will analyse the need for development of a successful competition regime in Uganda by highlighting the factors that should inform the law and policy. The study will analyse the adequacy of the current competition bill 2004 in comparison with the competition laws of Kenya, Tanzania and South Africa and propose that Uganda needs to develop a competition regime that is suited to its local development needs. The East African Community (EAC) aimed at enhancing trade liberalisation and development, among other sectors adopted the East African Competition Policy in 2004 and subsequently the East African Legislative Assembly enacted the East African Competition Act in 2006. However to date an East African Community Competition Authority has not been established and the law is not yet operational. The study will further appraise the challenges to the operationalisation and implementation of the East African Community Competition Act and suggest that apart from the fact that Uganda has not enacted a competition law as required by the East African community Protocol, there are other significant challenges hindering the operationalisation and implementation of the East African Community Competition Act.

In this dissertation I shall highlight the shortcomings of the microcredit regulations in the NCA to develop proposals that ensure that the microfinance regulatory framework is not only made sensible on paper but in practice. Furthermore, it is hoped that these proposals will reflect a prosperous reality for South Africa’s socio-economic context, at present and in the future. Through analysing South Africa’s unique context, and drawing on experiences of the microcredit industry in Bangladesh (a similar developing country), I shall contribute to South Africa’s policy framework in making recommendations on amendments. These recommendations will support the objective of giving effect to the aims of the NCA relating to equally accessible and responsible credit and in ensuring that the social and economic welfare of South African citizens are advanced. Research into this topic is essential for two reasons: The first reason is that it is a necessary contribution to the literature on microfinance in South Africa. Not only will this dissertation focus on highlighting all the main aspects of microcredit regulation in South Africa, but it will also tell a cohesive story from the introduction of microcredit regulation to present-day recommendations on the improvements of such. The second reason is that this dissertation will contribute to policy reform in South Africa, intended to be a feed for further research and action on creating amendments to the microcredit policy framework. In sum, this dissertation will have both theoretical and practical significance.

Includes abstract. / Includes bibliographical references. / Outsourcing is a growing modern method of conducting business. The reach of s 197 of the Labour Relations Act in outsourcing has sparked debate and controversy in the legal community. Albeit settled that s 197 may apply to initial outsourcing transactions, a lengthy litigation battle resulted in the recent seminal Constitutional Court judgment of Aviation Union of South Africa and other v South African Airways (Pty) Ltd. The Constitutional Court pronounced on the application of s 197 to second generation outsourcing.