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Common law duties and section 76 of the Companies Act, 71 of 2008 comparedJob, C.O. (Charles) January 2012 (has links)
Recently, the South African Legislature partially codified the common law duties of
directors with the Companies Act, 71 of 2008 (hereafter referred to as „the 2008
Companies Act‟) which came into effect on 1st May 2011. Chapter 2 of the 2008
Companies Act is dedicated to the formation, administration and dissolution of
companies. „Part F‟ thereof elaborately provides for governance of companies, and
section 76 contained therein requires directors and other company office bearers to
meet the standards of directors‟ conduct as prescribed therein. All of these duties are
in accordance with the principles of common law as indicated in section 77
subsection (2) (a) where non-compliance will attract legislated liabilities as provided
for in section 77 of the 2008 Companies Act. While the standards of directors‟
conduct remains within the bounds of common law, what impact will this codification
have on South Africa‟s corporate law? And what are the realities of its enforcement? / Dissertation LLM--University of Pretoria, 2012. / hb2014 / Mercantile Law / unrestricted
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Combating financial misconduct by ensuring the implementation of a financial literacy requirement for directors and audit committee membersGoldberg, Brittany Ann January 2021 (has links)
Magister Legum - LLM / Before the 1990s, corporate governance was a very rarely used term within the business world.1 Corporations over time have become more influential, larger and more complex within the global economy; therefore to ensure that they are operating on an economic and ethical basis, corporate governance has become more defined.2 Corporate governance can be defined as the procedures and methods that are used in order to ensure the functioning, direction and structure of a corporation.3 Not only can its key elements be described as procedures and methods but also a system of principles, policies, procedures, and clearly defined responsibilities and accountabilities. Corporate governance has roots in ethical behavior and business principles, with the goal of creating long-term value and sustainability for all stakeholders, thus including directors.4 This practice of good corporate governance by directors is used to promote equity and deters fraud and other deceptive practices.
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A review of business rescue in South Africa since implementation of the Companies Act (71/2008) / P.T.J. BezuidenhoutBezuidenhout, Pierre Theodorus Johannes January 2012 (has links)
This study examined the new Companies Act (71/2008) with a specific focus on Chapter 6, business rescue. This rather controversial legislation was implemented in South African company law on the 1st of May 2011 and redefines how legislation can possibly save financially distressed companies from distress and ultimately liquidation proceedings.
The literature review has focused on the purpose of business rescue as set out by the new Companies Act. It has gone into much detail on the set processes, revealed the key stakeholders involved and their respective responsibilities set out by the new Act. The study touched on current international trends in saving distressed businesses. A published financial distress model was discussed and a link made about where best to initiate business rescue actions within this four-stage model.
In this study the empirical research adopts content analysis as a research method. An investigation was conducted on all business rescue applications received by the Companies and Intellectual Property Commission (CIPC). Additional analysis of a large creditor’s portfolio of business rescue applications showed some initial success rates of this new legislation.
The mini-dissertation concludes with limitations and challenges faced during the study, followed by recommendations about how to excel in business rescue practice in years to come. / Thesis (MBA)--North-West University, Potchefstroom Campus, 2013.
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A review of business rescue in South Africa since implementation of the Companies Act (71/2008) / P.T.J. BezuidenhoutBezuidenhout, Pierre Theodorus Johannes January 2012 (has links)
This study examined the new Companies Act (71/2008) with a specific focus on Chapter 6, business rescue. This rather controversial legislation was implemented in South African company law on the 1st of May 2011 and redefines how legislation can possibly save financially distressed companies from distress and ultimately liquidation proceedings.
The literature review has focused on the purpose of business rescue as set out by the new Companies Act. It has gone into much detail on the set processes, revealed the key stakeholders involved and their respective responsibilities set out by the new Act. The study touched on current international trends in saving distressed businesses. A published financial distress model was discussed and a link made about where best to initiate business rescue actions within this four-stage model.
In this study the empirical research adopts content analysis as a research method. An investigation was conducted on all business rescue applications received by the Companies and Intellectual Property Commission (CIPC). Additional analysis of a large creditor’s portfolio of business rescue applications showed some initial success rates of this new legislation.
The mini-dissertation concludes with limitations and challenges faced during the study, followed by recommendations about how to excel in business rescue practice in years to come. / Thesis (MBA)--North-West University, Potchefstroom Campus, 2013.
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The application of the business judgment rule in fundamental transactions and insolvent trading in South Africa : foreign precedents and local choicesSmit, Imogan January 2016 (has links)
Magister Legum - LLM
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Alternative dispute resolution : a new tool under the Companies Act 71 of 2008Mokhele, Thato Comfort 29 May 2014 (has links)
LL.M. (Commercial Law) / Please refer to full text to view abstract
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Acquisition of securities : section 48 of the Companies Act 71 of 2008Mohlala, Makgale 23 August 2012 (has links)
The amendment of the Companies Act 61 of 1973 in 1999 by Companies Amendment Act 37 of 1999 made it possible for the first time, in South Africa, for a company to acquire its own shares and for a subsidiary to acquire shares in its holding company. The position introduced by the 1999 amendments was repealed in 2011 with the coming into effect of the Companies Act 71 of 2008. I have compared capital maintenance rule under the Companies Act 61 of 1973, as amended in 1999 with capital maintenance rule under the Companies Act 71 of 2008. I have also examined in detailed the requirements to be complied with when a company acquires its shares as well as the requirements to be complied with when a subsidiary acquires shares in its holding company. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted
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Corporate capacity, special purpose vehicles, and traditional securitisation in South African company LawEtienne, Aubrey Olivier January 2019 (has links)
Doctor Legum - LLD / The ideals of shareholder and creditor protection are affected by legislation pertaining
to the validity of a company’s transactions. Until legislative reforms introduced in the
twentieth century, a company’s capacity and the ultra vires doctrine traditionally limited
the company’s ability to contract. Therefore, the legal framework regulating corporate
capacity influences a company’s interactions with outsiders. The goal of the law in this
regard should be to facilitate commerce while providing adequate protection to all
affected stakeholders. South Africa’s Companies Act 71 of 2008 (the Act) contains
several novel provisions regarding a company’s capacity, the desirability of which is
questionable.
Special purpose vehicles (SPVs) are used for various purposes in commerce, from
asset holding in the financial services sector to concluding complex financial functions
in corporate finance. For instance, traditional securitisation is a financial engineering
technique that makes use of corporate SPVs. Traditional securitisation is a valuable
risk management, earnings management, and corporate financing tool. Incorporators
of securitisation SPVs often include capacity restrictions in the constitutions of such
entities as a means of reducing the likelihood that the SPV will be subject to liquidation
proceedings.This thesis analyses the capacity provisions in the Act to determine
whether they provide a commercially desirable framework to facilitate the activities of
SPVs used in traditional securitisation schemes.
The thesis argues that the capacity provisions in the Act in their current form are
undesirable because they place third parties at too great a risk in exchange for
inconsistent and unreliable shareholder protection. Executory ultra vires contracts
concluded by limited capacity companies are at the same time valid and capable of
being restrained by a single shareholder, director or prescribed officer of the company.
It is argued that the Act’s approach to corporate capacity is detrimental to commercial
certainty and creditor protection, and that capacity restrictions under the current
framework do not provide any more shareholder protection than ordinary authority
limitations would. Consequently, it is argued that the capacity provisions in the Act do
not make a positive contribution to the “insolvency-remoteness” of SPVs used in
traditional securitisation schemes. It is recommended that the capacity provisions in
the Act should be substantially amended, or deleted.
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Relief from oppressive or prejudicial conduct in terms of the South African Companies Act 71 of 2008Swart, Willem Jacobus Christiaan 25 August 2020 (has links)
This thesis critically examines the statutory unfair prejudice remedy provided for in section 163 of the Companies Act 71 of 2008 (‘the Act’). Section 163 is evaluated against its equivalents in England, Australia and Canada. Section 163 is considered against its predecessors to determine whether problems associated with the formulation and application of its predecessors have now been eradicated. It is argued that although it is important to ensure that company legislation is able to provide protection of an international standard to shareholders to be able to attract capital investment in a competitive market, one has to be cautious of slavishly following legislative trends in foreign jurisdictions. The South African legislature indiscriminately incorporated only parts of the Canadian unfair prejudice remedy in section 163. This approach also resulted, amongst others, in the introduction of foreign concepts. The legislature further failed to take cognisance of the unique historical developments relating to the unfair prejudice remedy in South Africa. This has led to the reintroduction of problems experienced with previous formulations of the statutory unfair prejudice remedy in South Africa and left certain problems relating to the interpretation and application of the statutory unfair prejudice remedy unresolved. Consideration is also given to the interrelationship between section 163 and some of the statutory remedies in the Act. Section 163 is also assessed in the context of the Constitution of the Republic of South Africa, 1996. In conclusion, recommendations for possible legislative amendments are made and an interpretational framework for the interpretation and application of the statutory unfair prejudice remedy in section 163 is provided. / Mercantile Law / LL. D. (Mercantile Law)
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