Includes bibliographical references / Section 165 of the Companies Act 71 of 2008 introduces the new statutory derivative action. The section confers a pivotal function on the courts as gatekeepers to the derivative action, with an important filtering or screening function to weed out applications for derivative actions that are frivolous, vexatious or without merit. The vital judicial discretion to grant leave to an applicant to bring a derivative action entails a tension between two equally important policy objectives. A proper balance between these two underpinning policy objectives depends on the appropriate judicial interpretation and application of the three vague, general and open-textured criteria or gateways for the grant of leave to institute a derivative action. The courts have been entrusted by s 165 to flesh out the details, the contours, the ambit and the scope of these criteria. This crucially gives the courts a dominant and a decisive role in shaping the effectiveness of the new statutory derivative action. This thesis makes an original contribution to knowledge in three main respects. First, this thesis focuses on the three guiding criteria for leave, and their many nuances, interpretations and applications in certain foreign jurisdictions that have exerted an influence on the provisions of s 165. Based on experience garnered from Australian, Canadian and New Zealand law, as well as the United Kingdom and the USA, guidelines are suggested for the approach that the South African courts should adopt to the three preconditions for a derivative action. Secondly, it is submitted that the real weakness in s 165 lies in the rebuttable presumption in s 165(7) and (8), which contains a fatal flaw that renders the remedy defective and calls for legislative amendment. Pending such amendment, proposals are suggested for the proper judicial approach in the meantime to the troublesome presumption. These proposals are supported by both reasoned argument and original research on experience in certain foreign jurisdictions, particularly the USA. Thirdly, and equally importantly, a framework is suggested in this thesis for the proper exercise of the judicial discretion to make orders of costs, which is known to have plagued minority shareholders wishing to bring derivative proceedings against miscreant directors who have wronged the company.

Includes bibliographical references. / In 1926, the South African Parliament introduced a procedure known as judicial management. It was housed in the Companies Act 46 of 1926 (hereafter Companies Act 1926). The purpose of judicial management was to enable a failing company to restructure thus providing an alternative to liquidation. Companies play an important role in an economy and their demise affects not only creditors but also different groups of people that have a working relationship with the company. These include employees, suppliers, shareholders and other stakeholders. The legislature recognised the need to save this relationship in as far as was possible. They attempted to do so by amongst other things, providing for judicial management. Judicial management provided breathing space to companies on the brink of collapse in order to allow them to re-organise their affairs. It tried to achieve this by providing for a moratorium against creditors, divesting the control of the company from previous management who assumedly had run it aground, and by providing for the appointment of a judicial manager who attempted to turn the company around. Due to several factors, judicial management was not much of a success as will be discussed in this paper. Some of the reasons are related to weaknesses in the legislation, the attitude of the courts and in my view, the lack of local precedents initially, for the courts to follow (seeing that judicial management was the first of its kind in South African law) as well as companies themselves, who might have lacked an idea of how the procedure was to be utilised. In order to address the shortfalls in the legislation, a number of amendments were made through the years. One such shortfall was the fact that many companies that applied for judicial management had no real chance of rehabilitation and only did so to avoid a liquidation that was subject to the winding-up provisions of the 1926 Act. Some notable amendments that were made include those in 1932 under s 196(1) that provided for a moratorium to be placed on all actions against the company while it was undergoing judicial management. Section 197(A) introduced the concept of voidable dispositions as it applied in insolvency law. This provision aimed to ensure that companies did not apply for judicial management because they did not want the company to be wound up subject to the rules of insolvency law.

Includes bibliographical references.

Includes abstract / Includes bibliographical references. / This thesis adds to the body of literature exploring the policy principles of equity and neutrality, as applied in the context of methods relieving international double taxation and in the context of a recently opened and developing economy.

Includes bibliographical references. / This dissertation investigates the way courts have interpreted the limited grounds of review, in particular ‘gross irregularity’, evaluating the test for review, and assessing the extent to which they have been consistent in their approach to review.

This work has examined the implication the proliferation of identical economic groupings portends for the east and southern Africa region. The thrust of the study here has been to interface and interrogate the incidence of the configuration of integration regimes in the east and southern Africa region. The work has investigated the question as to whether the proliferation of trade regimes has prepared a fertile ground for greater and deeper integration in the region. The thesis has also interrogated the proposition that such proliferation is the very antithesis of the desired goal to promote trade harmonization and reach out for deeper integration in the region. Importantly this work has ventured to query the confluence of identical trade regimes in view of the compatibility imperative as enshrined in the WTO legal framework. We have examined the implication this configuration of integration regimes portends for the WTO disciplines. This work commenced with an extensive examination of current works on regional integration regimes in general and integration initiatives within the east and southern Africa region in particular. The interrogation exercise was premised on works, both economic surveys and legal treatises undertaken on the recently concluded EU-SA free trade agreement, the SADC Trade Protocol, the COMESA Treaty and the Cotonou Agreement. The actual texts of these instruments form the bulk of the sources. We note that without exception, significant and to that extent costly restructuring programs will have to be undertaken by States in the east and southern Africa region in response to the disruptive EU-SA trade partnership. We have established that these integration regime scores well on the imperative of WTO compatibility. We gather that the present WTO structures are not malleable enough for the cash strapped sub-Saharan Africa trade regimes to reconfigure themselves in such a way as to deepen the integration agenda. We have urged for more flexibility in the WTO framework on this score to augment integration processes currently crowding the regional landscape.

In June 2004 the Department of Trade and Industry embarked on a corporate law reform process which culminated in the enactment of the Companies Act 71 2008. One of the key objectives of the reform process was to provide flexibility in the formation and management of companies. As part of this goal, and by the use of the concept of alterable and unalterable provisions, the new Act unravelled some shareholder protective mechanisms provided for under the old Companies Act 61 of 1973. At the same time, it conferred increased powers on the board of directors of a company. These changes affect the power dynamic between shareholders and the board of directors within the company. Given the significant role of directors within the company, these changes give rise to concerns about shareholder protection, especially in the light of the conduct of directors in corporate scandals of the recent past. The objective of this thesis is to show where there has been a shift in the balance of power between shareholders and the board of directors and, how this shift affects shareholder protection and, whether the shift of power has been balanced by increased shareholder protection.

This dissertation examines Tanzania’s legal framework in the light of the modern information and communication technologies, especially the Internet and e-commerce. The main goal is to assess the adequacy of the existing law and to provide recommendations for reforms that will reflect the borderless nature of e-contracts. These reforms must ensure the certainty and predictability needed for successful cross-border commerce. Achievement of these aims will build confidence and trust on the part of business entities and consumers, and, in addition, will enhance free trade, strengthen the growing market-based economy, and integrate Tanzania into the global economy.

a) Overview The question to be answered in this dissertation is whether the National Credit Act 34 of 2005 (the NCA), promotes or impedes the sustainable growth of the South African economy. This question will be answered through exploring the importance of the contribution made by small, micro and medium enterprises (SMMEs) to the economy. This research question is premised on the findings in structural change theory of development economics.1 This theory advances the view that for a developing country to obtain sustainable growth of its economy there needs to be a decline in the number of microenterprises over a period of years and an increase in the number small and medium enterprises (SMEs). 2 This dissertation interrogates whether the NCA supports this kind of sustainable growth of the South African economy. The hypothesis proposes that the NCA impedes the sustainable economic development of South Africa. In support of this, I have examined the NCA and the protection that it affords to SMEs in South Africa. Specifically, I have examined the extent to which the NCA permits lending to SMEs by financiers, in contrast to the permission given to financiers to lend to microenterprises. In addition, I have examined the extent to which the NCA protects SME borrowers in cases where the SME qualifies for a loan, so bringing it within the provisions of NCA. This is then contrasted with the protection extended by the provisions of the NCA to microenterprises. In this investigation, I have undertaken a review of case law in South Africa to substantiate my view that the NCA inhibits sustainable growth of the South African economy. The decisions raise some important considerations, including problems caused by the concept of separate legal personality of juristic persons run by an individual in the context of borrowing, the extent to which credit guarantees offered by these individual owners should be legally enforceable and the ambiguity of developmental loans envisaged by the NCA. To address these problems, I have looked to foreign jurisprudence, especially the legal protection offered to SMEs in Australia when taking out a loan. A comparison between South African law and Australian law suggests how access to credit by SMEs and microenterprises can be improved to ensure sustainable economic growth of the economy. b) Research Methodology A doctrinal, desktop-based research method is used. The main documentary data analysed to answer the research question is primary legislation, specifically the NCA and the Usury Act 73 of 1968. Secondary sources, such as commentaries and publications by various researchers will be explored. Further documentary data will include empirical data collected in secondary sources. Other persuasive legal texts will be utilised, such as the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC), The Australian National Consumer Credit Protection Act 2009 (the ACCPA) as well as the Australian Code of Banking Practice (the COBP) c) Limitations to the Study The main limitation to this dissertation has been determining the exact number of SMMEs that exist in South Africa. Studies so far undertaken have used different methodologies and research strategies and their objectives may have differed to the objectives of this paper.3 Despite the growing amount of literature and research that is being conducted regarding SMMEs, there is still very little known about them. This is largely a result of the high number of unregistered SMMEs that exist. A further limitation on the research is that each survey contains different definitions of small, micro and medium business. For example, the South African General Entrepreneurial Monitor (GEM) measures different types of entrepreneurship and not the number of businesses to enable international comparisons. In contrast the department of trade and industry’s (DTI) definition of small business is used to determine the number of small businesses in South Africa; and this is the definition used in the National Small Business Act 102 of 1996 (the Small Business Act).

Includes abstract. / Includes bibliographical references (leaves 288-340). / Mediation is not a novel process in South Africa. It was used as the primary method of dispute resolution in some traditional pre-indusrial societies. Corporate South Africa is beset by conflict and urgently requires processes such as mediation which dignify and empower participants to tackle commercial conflict at source. Statutes, case law, books, journals and numerous other publications were reviewed in order to assess the relevant issues in the development of commercial mediation and investigate how this process could become a viable alternative to arbitration and the court system in South Africa. Empirical research gleaned from interviews conducted in Cape Town and Johannesubrg reflects the experience of those who currently act as commercial mediators. The ultimate aim of this process is to reach agreement. In light of this extensive jurisprudence that has developed in this area in othe jurisdictions, careful drafting of agreements can go a long away in avoiding enforcement complications. The conversion of a settlement agreement into a judgment or award has proved useful on the small number of occasions when compliance with a settlement appears that it may be an issue. A delicate balance is required between supporting mediation, on the one hand, and not freezing litigation or upholding illegiality, on the other. Absolute rules or uniform statutes, while appearing to offer straightforward rules for an informal process, can in practice prove overreaching or inappropriate. A possible middle path could protect mediation confiddentiality and also allow evidence about the mediation to be admitted in limited curcumstances to be specified by the court on a case-by-case basis.