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Statutêre beskerming van die voordeeltrekkende aandeelhouer in die Suid-Afrikaanse maatskappyereg / Statutory protection of the beneficial shareholder in terms of South African company lawDe Bruyn, Frederik Anton 11 1900 (has links)
Text in Afrikaans / The Companies Act, 1973 ("the Act") contains no specific provision dealing
with the relationship between a nominee shareholder and its principal, the
beneficial shareholder. The Act merely contains a variety of references to this
unique relationship without specifying the content thereof or elaborating on
the rights of the beneficial shareholder. It is clear from the Act that no legal
connection exists between the company and the beneficial shareholder and a
company is only obliged to recognise its registered members.
It has become apparent that beneficial shareholders need more protection than
is currently afforded to them in terms of our common law. Currently beneficial
shareholders have a common law right to claim return of their shares from any
person (even bona fide third parties) in the event of the misappropriation of
such shares by their nominee shareholders. Beneficial shareholders are
unprotected if their nominee shareholders were to act contrary to their
instructions, for example by not voting at the general meeting in accordance
with the instructions of the beneficial shareholders. Having regard to the fact
that the relationship between the beneficial shareholder and the nominee
shareholder is based on agency or trusteeship, the beneficial shareholder will
be entitle to compel its nominee to transfer the shares to another person. This
may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the
only solution for the beneficial shareholder.
In deciding which section of the Act should be adapted to include the rights of
beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of
prejudice), section 440K (compulsory acquisition of securities of minorities)
and section 344(h) (liquidation on grounds of equity). The only one of these
sections which provides the court with a wide enough discretion to afford the
required protection is section 252.
An important point in this regard is that section 252 cannot effectively be
extended to beneficial shareholders unless they also acquire the right to have
access to the same company information as the members of the company
would receive. In an attempt to create a balance between the needs to greater
protection of beneficial shareholders and the avoidance of unnecessary
cumbersome administrative obligations on companies, it is suggested that a
register of beneficial shareholders be created and that companies be obliged to
inform all beneficial shareholders appearing on such register of the same
company information as is provided to registered members.
The Act must make it clear that :
• a beneficial shareholder can only be recorded in the register with the
assistance of its nominee shareholder;
• the relevant nominee shareholder must satisfy the company secretary that
the person which is recorded in the register is in fact its principal;
• the only two instances where the company secretary will be entitled to
remove the beneficial shareholder is in the first instance where the
beneficia] shareholder consents to such removal and secondly where the
shares held by the registered member is transferred. The latter ground will
avoid continued provision of company information to persons not
involved with the company.
No duty will be placed on companies to ensure that the names and addresses
of beneficial shareholders are correct. This will be the responsibility of
beneficial shareholders.
The improved flow of company information will facilitate the improved
awareness by beneficial shareholders of relevant events and together with the
appropriate extension of section 252, will go a long way in improving the much
needed protection of beneficial shareholders. / Mercantile Law / LL.M. (Handelsreg)
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Statutêre beskerming van die voordeeltrekkende aandeelhouer in die Suid-Afrikaanse maatskappyereg / Statutory protection of the beneficial shareholder in terms of South African company lawDe Bruyn, Frederik Anton 11 1900 (has links)
Text in Afrikaans / The Companies Act, 1973 ("the Act") contains no specific provision dealing
with the relationship between a nominee shareholder and its principal, the
beneficial shareholder. The Act merely contains a variety of references to this
unique relationship without specifying the content thereof or elaborating on
the rights of the beneficial shareholder. It is clear from the Act that no legal
connection exists between the company and the beneficial shareholder and a
company is only obliged to recognise its registered members.
It has become apparent that beneficial shareholders need more protection than
is currently afforded to them in terms of our common law. Currently beneficial
shareholders have a common law right to claim return of their shares from any
person (even bona fide third parties) in the event of the misappropriation of
such shares by their nominee shareholders. Beneficial shareholders are
unprotected if their nominee shareholders were to act contrary to their
instructions, for example by not voting at the general meeting in accordance
with the instructions of the beneficial shareholders. Having regard to the fact
that the relationship between the beneficial shareholder and the nominee
shareholder is based on agency or trusteeship, the beneficial shareholder will
be entitle to compel its nominee to transfer the shares to another person. This
may, however, have stamp duty implications and if the nominee refuses to give its cooperation in respect of such transfer, costly legal action may be the
only solution for the beneficial shareholder.
In deciding which section of the Act should be adapted to include the rights of
beneficial shareholders, the following sections have been considered: Section 266 (statutory derivative action), section 252 (statutory remedy in the event of
prejudice), section 440K (compulsory acquisition of securities of minorities)
and section 344(h) (liquidation on grounds of equity). The only one of these
sections which provides the court with a wide enough discretion to afford the
required protection is section 252.
An important point in this regard is that section 252 cannot effectively be
extended to beneficial shareholders unless they also acquire the right to have
access to the same company information as the members of the company
would receive. In an attempt to create a balance between the needs to greater
protection of beneficial shareholders and the avoidance of unnecessary
cumbersome administrative obligations on companies, it is suggested that a
register of beneficial shareholders be created and that companies be obliged to
inform all beneficial shareholders appearing on such register of the same
company information as is provided to registered members.
The Act must make it clear that :
• a beneficial shareholder can only be recorded in the register with the
assistance of its nominee shareholder;
• the relevant nominee shareholder must satisfy the company secretary that
the person which is recorded in the register is in fact its principal;
• the only two instances where the company secretary will be entitled to
remove the beneficial shareholder is in the first instance where the
beneficia] shareholder consents to such removal and secondly where the
shares held by the registered member is transferred. The latter ground will
avoid continued provision of company information to persons not
involved with the company.
No duty will be placed on companies to ensure that the names and addresses
of beneficial shareholders are correct. This will be the responsibility of
beneficial shareholders.
The improved flow of company information will facilitate the improved
awareness by beneficial shareholders of relevant events and together with the
appropriate extension of section 252, will go a long way in improving the much
needed protection of beneficial shareholders. / Mercantile Law / LL.M. (Handelsreg)
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Shareholders' rights and the acquisition of control in a companyBuckland, Jeffrey Lawton 01 1900 (has links)
The shareholders in general meeting and board of directors are the main governing
organs of a company. Control of the general meeting theoretically ensures control of
the composition of the board of directors who are usually empowered by the articles
to manage the day-to-day administration of the company. The company acts by
shareholders and directors voting and passing resolutions in general meeting and
board meetings respectively. Controlling sufficient votes to pass resolutions in general
and board meetings is therefore the essence of corporate control. A shareholder's
right to vote in general meeting is a proprietary legal right, severable from the other
incidents of share ownership. By aggregating voting rights, or limiting the scope of the
voting rights of some shareholders, or restricting ownership of voting rights to certain
specified persons, voting control in the general meeting may be acquired. / LL.M / Private Law
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Shareholders' rights and the acquisition of control in a companyBuckland, Jeffrey Lawton 01 1900 (has links)
The shareholders in general meeting and board of directors are the main governing
organs of a company. Control of the general meeting theoretically ensures control of
the composition of the board of directors who are usually empowered by the articles
to manage the day-to-day administration of the company. The company acts by
shareholders and directors voting and passing resolutions in general meeting and
board meetings respectively. Controlling sufficient votes to pass resolutions in general
and board meetings is therefore the essence of corporate control. A shareholder's
right to vote in general meeting is a proprietary legal right, severable from the other
incidents of share ownership. By aggregating voting rights, or limiting the scope of the
voting rights of some shareholders, or restricting ownership of voting rights to certain
specified persons, voting control in the general meeting may be acquired. / LL.M / Private Law
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Aspekte van statutêre minderheidsbeskerming in die Suid-Afrikaanse maatskappyeregHurter, E. (Estelle), 1955- 07 1900 (has links)
Text in Afrikaans / Daar is 'n toenemende bewuswording van die noodsaaklikheid van effektiewe beskerming vir minderhede. Die rede vir hierdie toenemende erkenning aan die behoefte aan minderheidsbeskerming is waarskynlik toe te skryf aan die beset dat dit nie alleen die minderheidsaandeelhouers is wat skade ly in geval van benadelende optrede nie, maar ook die ekonomie. Maatskappye word ingevolge die beginsel van meerderheidsbewind bestuur, met
die gevolg dat die minderheid onderworpe is aan die wil van die meerderheid. Die minderheid kan hulself hierdeur in 'n onbenydenswaardige posisie bevind, veral indien die meerderheid hul mag aanwend om hul eie belange te bevorder. Gemeenregtelik is die reel in Foss v Harbottle 'n struikelblok vir minderheidsaandeelhouers wat gedingvoering beoog. In 'n poging om die gebrekkige gemeenregtelike beskerming van minderhede te ondervang, is
bepaalde statutere maatreels ingevoer. Die evaluasie van hierdie maatreels geskied aan die hand van 'n regsvergelykende ondersoek na verskeie buitelandse stelsels, waarvan die van Nieu-Seeland en Kanada uit staan vanwee die innoverende aard van hul statutere beskermingsmaatreels. Die gevolgtrekking is dat die beskerming wat die Suid-Afrikaanse statutere maatreels aan minderhede bied, onbevredigend is om verskeie redes. Eerstens is hierdie maatreels dikwels te eng bewoord wat daartoe lei dat die aanwendingsveld van die maatreels beperk is. Tweedens hou die maatreels nie tred met ontwikkelings elders in die wereld en veranderende omstandighede en behoeftes in die praktyk nie. Derdens ontbreek goed geformuleerde remedies wat aanvullend tot artikel 252 van die Wet sal wees. Daar is verder bevind dat ad hocwysigings van bestaande maatreels nie die gewenste resultaat gaan bereik nie en 'n algehele hervorming van die Suid-Afrikaanse maatskappyereg word aanbeveel. Ten slotte word konkrete voorstelle in die vorm van konsepwetgewing
gemaak en word vergesel van verduidelikende notas. Hierdie wetgewing is hoofsaaklik aan die hand van die Nieu-Seelandse en Kanadese modelle geformuleer. / There is a growing awareness of the need for effective protection of minority shareholders. This can probably be ascribed to the acknowledgement of the fact that prejudicial conduct harms not only minority shareholders, but also the economy at large. Companies are governed by the principle of majority rule; consequently the
minority is subjected to the will of the majority. This often places the minority in an invidious position, especially when the majority use their power to further their own interests. The rule in Foss v Harbottle presents a stumbling block to minority shareholder action. Certain statutory measures have been introduced in an effort to counter defective minority protection. These statutory measures are evaluated in the light of a comparative study of several foreign jurisdictions, the most prominent of which are New Zealand and Canada, because of the innovative nature of the measures which they employ. The conclusion arrived at is that, for various reasons, the protection afforded minorities by the South African statutory measures is unsatisfactory. Firstly, the
wording of these measures is narrowly construed; this in turn results in a narrow field of application. Secondly, these measures are not in step with developments elsewhere in the world and with the changing circumstances and needs in practice. Thirdly, well-formulated remedies needed in order to supplement section 252 of the Act are non-existent. It has also been found that ad hoc amendments of existing measures will not achieve the required result, and consequently a complete reform of South African company law is recommended. Finally, specific
recommendations in the form of draft legislation are made; these are accompanied by explanatory notes. This draft legislation was formulated primarily along the lines of the New Zealand and Canadian models. / Private Law / LL.D.
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Aspekte van statutêre minderheidsbeskerming in die Suid-Afrikaanse maatskappyeregHurter, E. (Estelle), 1955- 07 1900 (has links)
Text in Afrikaans / Daar is 'n toenemende bewuswording van die noodsaaklikheid van effektiewe beskerming vir minderhede. Die rede vir hierdie toenemende erkenning aan die behoefte aan minderheidsbeskerming is waarskynlik toe te skryf aan die beset dat dit nie alleen die minderheidsaandeelhouers is wat skade ly in geval van benadelende optrede nie, maar ook die ekonomie. Maatskappye word ingevolge die beginsel van meerderheidsbewind bestuur, met
die gevolg dat die minderheid onderworpe is aan die wil van die meerderheid. Die minderheid kan hulself hierdeur in 'n onbenydenswaardige posisie bevind, veral indien die meerderheid hul mag aanwend om hul eie belange te bevorder. Gemeenregtelik is die reel in Foss v Harbottle 'n struikelblok vir minderheidsaandeelhouers wat gedingvoering beoog. In 'n poging om die gebrekkige gemeenregtelike beskerming van minderhede te ondervang, is
bepaalde statutere maatreels ingevoer. Die evaluasie van hierdie maatreels geskied aan die hand van 'n regsvergelykende ondersoek na verskeie buitelandse stelsels, waarvan die van Nieu-Seeland en Kanada uit staan vanwee die innoverende aard van hul statutere beskermingsmaatreels. Die gevolgtrekking is dat die beskerming wat die Suid-Afrikaanse statutere maatreels aan minderhede bied, onbevredigend is om verskeie redes. Eerstens is hierdie maatreels dikwels te eng bewoord wat daartoe lei dat die aanwendingsveld van die maatreels beperk is. Tweedens hou die maatreels nie tred met ontwikkelings elders in die wereld en veranderende omstandighede en behoeftes in die praktyk nie. Derdens ontbreek goed geformuleerde remedies wat aanvullend tot artikel 252 van die Wet sal wees. Daar is verder bevind dat ad hocwysigings van bestaande maatreels nie die gewenste resultaat gaan bereik nie en 'n algehele hervorming van die Suid-Afrikaanse maatskappyereg word aanbeveel. Ten slotte word konkrete voorstelle in die vorm van konsepwetgewing
gemaak en word vergesel van verduidelikende notas. Hierdie wetgewing is hoofsaaklik aan die hand van die Nieu-Seelandse en Kanadese modelle geformuleer. / There is a growing awareness of the need for effective protection of minority shareholders. This can probably be ascribed to the acknowledgement of the fact that prejudicial conduct harms not only minority shareholders, but also the economy at large. Companies are governed by the principle of majority rule; consequently the
minority is subjected to the will of the majority. This often places the minority in an invidious position, especially when the majority use their power to further their own interests. The rule in Foss v Harbottle presents a stumbling block to minority shareholder action. Certain statutory measures have been introduced in an effort to counter defective minority protection. These statutory measures are evaluated in the light of a comparative study of several foreign jurisdictions, the most prominent of which are New Zealand and Canada, because of the innovative nature of the measures which they employ. The conclusion arrived at is that, for various reasons, the protection afforded minorities by the South African statutory measures is unsatisfactory. Firstly, the
wording of these measures is narrowly construed; this in turn results in a narrow field of application. Secondly, these measures are not in step with developments elsewhere in the world and with the changing circumstances and needs in practice. Thirdly, well-formulated remedies needed in order to supplement section 252 of the Act are non-existent. It has also been found that ad hoc amendments of existing measures will not achieve the required result, and consequently a complete reform of South African company law is recommended. Finally, specific
recommendations in the form of draft legislation are made; these are accompanied by explanatory notes. This draft legislation was formulated primarily along the lines of the New Zealand and Canadian models. / Private Law / LL.D.
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Aspects of the regulation of share capital and distributions to shareholdersVan der Linde, Kathleen 30 June 2008 (has links)
It is in the area of the regulation of a company's share capital and distributions to
shareholders that the inherent conflict between creditors and shareholders, and
the fragile balance among shareholders internally, intersect. The share capital of
a company underlies its corporate structure and represents not only its initial own
funds from which creditors can be paid, but also the relative equity interests of
the shareholders.
The balance between shareholders can be disturbed by capital
reorganisations through increase, reduction or variation of share capital or
through disproportionate contributions by, or distributions to, shareholders. Share
repurchases are particularly risky in this regard. Creditor interests are affected
when their prior right to payment is endangered by distributions to shareholders.
This study analyses the South African Law relating to share capital and
distributions against the background of a comparative study of the laws of
England, New Zealand, Delaware and California, as well as the provisions of the
American Model Business Corporations Act.
Two main approaches to creditor protection are evident. The capital
maintenance doctrine, which is followed in England and Delaware, protects
creditors by emphasising the notional share capital of the company as a limit on
distributions. In contrast, the solvency and liquidity approach focuses on the net
assets of the company and on its ability to pay its debts. New Zealand, California
and the Model Business Corporations Act represent this approach.
Regulatory responses to shareholder protection range from insistence on
compliance with procedural requirements to minimal statutory intervention in the
internal affairs of companies, instead relying on general principles of fairness and
good faith. There is little correlation between a particular system's approach to
creditor protection on the one hand, and to shareholder protection on the other.
England, New Zealand and South Africa prescribe specific formalities, while the
American approach is more relaxed.
South Africa is a hybrid system. Its transition from capital maintenance to
solvency and liquidity has been incomplete and its protection of equity interests is
relatively unsophisticated. A number of recommendations are made for an
effective and coherent approach that will safeguard the interests of creditors and
shareholders alike. / School: Law / LL.D.
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A comparison of capital rules governing financial assistance by a company in South African and English company lawAndargie, Abyote Abebe 28 October 2013 (has links)
The Companies Act of 71 of 2008 makes a number of important changes to the rules relating to
capital maintenance. In line with the objectives of the Companies Act of 71 of 2008, section 44
of the Act has removed the prohibition on the provision of financial assistance by a company
which was contained under the previous section 38 of the Companies Act 61 of 1973. Despite the
repeal of the prohibition, a transaction which involves the provision of financial assistance by a
company for the acquisition of or subscription of its own securities still needs to be effected in
accordance with the requirements and conditions that are provided under the Act and
Memorandum of Incorporation. To explore the new developments, within this study, the
provision of financial assistance in terms of section 44 of the Companies Act of 2008 is,
therefore, analysed in detail.
On the other hand, the UK Companies Act of 2006 repealed the prohibition on the giving of
financial assistance by private companies in most circumstances. It, however, retained the
prohibition to public companies only because of the requirements of the Second Company Law
Directive (77/91/EEC). This study also explores the rules of financial assistance by a company
under the UK Companies Acts in detail.
Though the source of financial assistance by a company both in South Africa and in English
Company laws is rooted in the English decision of the Trevor v Whitworth case, currently these
countries have adopted what is deemed appropriate and significant in their own countries. This
study, therefore, examines and compares the rules governing the provision of financial assistance
by a company in the company laws of these two countries. / Mercantile Law / LL.M. (Commercial law)
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Aspects of the regulation of share capital and distributions to shareholdersVan der Linde, Kathleen 30 June 2008 (has links)
It is in the area of the regulation of a company's share capital and distributions to
shareholders that the inherent conflict between creditors and shareholders, and
the fragile balance among shareholders internally, intersect. The share capital of
a company underlies its corporate structure and represents not only its initial own
funds from which creditors can be paid, but also the relative equity interests of
the shareholders.
The balance between shareholders can be disturbed by capital
reorganisations through increase, reduction or variation of share capital or
through disproportionate contributions by, or distributions to, shareholders. Share
repurchases are particularly risky in this regard. Creditor interests are affected
when their prior right to payment is endangered by distributions to shareholders.
This study analyses the South African Law relating to share capital and
distributions against the background of a comparative study of the laws of
England, New Zealand, Delaware and California, as well as the provisions of the
American Model Business Corporations Act.
Two main approaches to creditor protection are evident. The capital
maintenance doctrine, which is followed in England and Delaware, protects
creditors by emphasising the notional share capital of the company as a limit on
distributions. In contrast, the solvency and liquidity approach focuses on the net
assets of the company and on its ability to pay its debts. New Zealand, California
and the Model Business Corporations Act represent this approach.
Regulatory responses to shareholder protection range from insistence on
compliance with procedural requirements to minimal statutory intervention in the
internal affairs of companies, instead relying on general principles of fairness and
good faith. There is little correlation between a particular system's approach to
creditor protection on the one hand, and to shareholder protection on the other.
England, New Zealand and South Africa prescribe specific formalities, while the
American approach is more relaxed.
South Africa is a hybrid system. Its transition from capital maintenance to
solvency and liquidity has been incomplete and its protection of equity interests is
relatively unsophisticated. A number of recommendations are made for an
effective and coherent approach that will safeguard the interests of creditors and
shareholders alike. / School: Law / LL.D.
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A comparison of capital rules governing financial assistance by a company in South African and English company lawAndargie, Abyote Abebe 28 October 2013 (has links)
The Companies Act of 71 of 2008 makes a number of important changes to the rules relating to
capital maintenance. In line with the objectives of the Companies Act of 71 of 2008, section 44
of the Act has removed the prohibition on the provision of financial assistance by a company
which was contained under the previous section 38 of the Companies Act 61 of 1973. Despite the
repeal of the prohibition, a transaction which involves the provision of financial assistance by a
company for the acquisition of or subscription of its own securities still needs to be effected in
accordance with the requirements and conditions that are provided under the Act and
Memorandum of Incorporation. To explore the new developments, within this study, the
provision of financial assistance in terms of section 44 of the Companies Act of 2008 is,
therefore, analysed in detail.
On the other hand, the UK Companies Act of 2006 repealed the prohibition on the giving of
financial assistance by private companies in most circumstances. It, however, retained the
prohibition to public companies only because of the requirements of the Second Company Law
Directive (77/91/EEC). This study also explores the rules of financial assistance by a company
under the UK Companies Acts in detail.
Though the source of financial assistance by a company both in South Africa and in English
Company laws is rooted in the English decision of the Trevor v Whitworth case, currently these
countries have adopted what is deemed appropriate and significant in their own countries. This
study, therefore, examines and compares the rules governing the provision of financial assistance
by a company in the company laws of these two countries. / Mercantile Law / LL.M. (Commercial law)
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