Magister Legum - LLM / In order to understand the context of the research paper, a brief discussion has to be made as to the important fact that a director has to be appointed in a role to assist with the decision-making in running of a company.1 A director is an officer of a company that is ordinarily appointed in order to make daily business reporting, decisions and to take business risks on behalf of the company.2When taking up a position as a director, duties and responsibilities must be fulfilled. A failure to comply with these duties will result in serious consequences for the company and often for the director himself.3 Director’s fiduciary duties previously developed from our common law and was established through the precedents set by our courts.4 These duties were partially codified in the Companies Act 71 of 2008.5 It can be clearly seen that the Companies Act 61 of 1973, only mentions the duties but does not specify directly the types of duties.6 The standard of conduct expected of directors is provided for in section 76 of the Companies Act 71 of 2008.7 Furthermore, section 77 contains the liability of directors for any breach of their duties.8 This raises the point that a director can incur various type of liability for a breach of their duties. The type of liability that can be incur is personal liability and criminal liability.9

Please read the abstract in the dissertation / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

Thesis (M.M. (Finance & Investment))--University of the Witwatersrand, Faculty of Commerce, Law and Management, Graduate School of Business Administration, 2013. / South Africa has recently introduced into law a new Companies Act that has, amongst other changes, a segment dubbed „Chapter 6‟, which specifically focuses on distressed companies and their rescue/resolution. While past Acts in South Africa have had sections on distressed companies, none has positioned financial distress resolution as prominently within the Act as Chapter 6 has done. This hitherto lack of formalized focus of on business rescue in past Acts, made informal loan workouts the de facto mainstay for distressed business resolution in South Africa. It is therefore considered worthwhile that an investigation be undertaken to ascertain whether or not the newly legislated formal processes for rescuing distressed businesses will change the culture and/or overall view on the effectiveness of rescuing distressed businesses in South Africa. An online questionnaire of 17 questions sent to 5 different occupation categories generated 61 responses, which were around four coherent themes. From the analysis of the responses it was found that the inclusion of Chapter 6 (formalized business rescue legislation) in the new Companies Act was a welcome legislation with clear value-additions to company law in South Africa. The results also indicated that there is a level of uncertainty with regard to this legislation; thus, suggesting it is likely that informal loan workouts will remain a real option for some businesses in distress.

No abstract available / Dissertation (LLM)--University of Pretoria, 2013. / Mercantile Law / unrestricted

No abstract available Copyright / Dissertation (LLM)--University of Pretoria, 2010. / Mercantile Law / unrestricted

No abstract available. Copyright / Dissertation (LLM)--University of Pretoria, 2010. / Mercantile Law / unrestricted

Magister Legum - LLM / The global financial crisis resulted in a corporate collapse in different parts of the world. The global financial crisis was caused by poor governance. Consequently many countries, including South Africa, began to place more emphasis on good governance. The framework and guidelines for the development of good governance in South African company law was published by the Department of Trade of Trade and Industry (hereafter DTI) in a document referred to as The South African Company Law for the 21st Century: Guidelines for Corporate Law Reform (hereafter the DTI Policy Document) published by the DTI. The DTI Policy Document recognised the need for a regulatory framework within which enterprises operate to promote growth, employment, innovation, stability, good governance, confidence and international competitiveness. In order to further develop governance, the effectiveness of directors’ standards as well as the liability of directors was also said to have developed. Prior to the development of South African corporate law, liability of directors was to a large extent governed by the common law and the King Codes, despite the existence of the Companies Act 61 of 1973 (as amended). As of the 1st of May 2011, corporate law in South Africa appears to have dramatically changed the duties and liabilities of directors. The 1st of May 2011 marked the implementation of Companies Act 71 of 2008 (hereafter the Act). The Act is written in plain language in an attempt to make it more accessible and align it with international trends. The Act has also theoretically changed the roles and duties of directors as well as the liability that they may face in that it potentially changes the existing common law and alters policies and philosophies of corporate law in general. The Act partially codifies the common law and introduces the business judgement rule to South Africa. The business judgment rule will draw a balance between the directors’ ability to steer a company and the shareholders' right to hold directors accountable for their decisions. It is perceived as a mechanism that can be used to balance the tension between these opposing rights.

Ett av de vanligaste sätten att bedriva näringsverksamhet i Sverige är genom att bilda ett aktiebolag. De svenska aktiebolagen regleras genom ett omfattande regelverk i aktiebolagslagen. Ägarna i ett privat aktiebolag är inte alltid tillfreds med reglerna i aktiebolagslagen, utan vill reglera vissa förhållanden ytterligare mellan sig. Aktieägarna har möjlighet att genom aktieägaravtal reglera vissa förutsättningar för verksamheten. När aktieägarna väljer att reglera vissa förhållanden mellan sig i ett aktieägaravtal kan det uppstå skillnader mellan vad som gäller enligt aktieägaravtalet och vad som gäller enligt aktiebolagslagen. Det råder en självständighet mellan avtalsrätten och aktiebolagsrätten vilken innebär att aktieägarna inte med bindande verkan kan avtala vissa förhållanden sinsemellan samt att avtalet inte ses som aktiebolagsrättsligt gällande i vissa fall. Uppsatsen har som syfte att utreda de rättsverkningar som ett aktieägaravtal kan ge upphov till i två situationer, det handlar dels om när avtalsparterna är aktieägare, dels när avtalsparterna är styrelseledamöterna. I situationen med aktieägarna utreds två scenarier dels om ett partnermöte kan utgöra en bolagsstämma, dels om själva aktieägaravtalet kan utgöra ett protokoll med beslut som får samma rättsverkningar som ett bolagsstämmobeslut. I situationen med styrelseledamöterna utreds huruvida de kan bli bundna av avtal och vilka följder det kan få. Slutsatserna som presenteras i uppsatsen är att den svenska aktiebolagsrätten är mycket försiktig vid tillåtandet av att ge aktieägaravtal rättsverkningar även aktiebolagsrättsligt. Enligt uppsatsförfattaren finns det dock anledning att, under förutsättning att vissa rekvisit är uppfyllda, tillåta verkningar för aktieägaravtal inom aktiebolagsrätten. / One of the most common ways to carry out business activities in Sweden is by establishing a limited liability company, which are regulated by extensive rules in The Swedish Companies Act. The shareholders of such companies are not satisfied at all times with the rules in the Act and therefore want to regulate certain conditions between each other. They have the possibility to regulate such conditions by enter into a shareholder agreement. When the shareholders choose to regulate conditions between each other there might be a difference between what is valid according to the agreement and to the Act. In Sweden there is autonomy between the contract laws and the corporate law, which means that shareholders mutually cannot contract certain conditions and that the contract in some occasions does not become binding according to corporate law. This thesis has as its purpose to investigate the legal effects of a shareholder agreement in two situations; firstly when the parties are the shareholders and secondly when the parties are the members of the board of directors. In the first situation two scenarios are investigated, firstly if a meeting prior to a general meeting can have the same legal effects as a general meeting and secondly if the shareholder agreement can have the same legal effects as the minutes from a general meeting. In the situation with the members of the board it is investigate if they can enter into a contract and the legal effects thereof. The conclusions presented in this thesis are that the corporate law in Sweden is very cautious in giving shareholder agreements legal effects. According to the author of the thesis there are however certain occasions where the shareholder agreement should be given legal effects not just between the parties but also in relation to the corporate law, if certain requirements are fulfilled.

No abstract / Dissertation LLM--University of Pretoria, 2014 / hb2014 / Mercantile Law / unrestricted

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.