Thesis (MBA (Business Management))--University of Stellenbosch, 2009. / ENGLISH ABSTRACT: The King II Report on Corporate Governance reported that the 19th Century saw the foundations laid for modern corporations, this was the century of the entrepreneur. The 20th Century became the century of management and that the 21st Century promises to be a century of governance, as the focus swings to the legitimacy and the effectiveness of the wielding of power over corporate entities worldwide. South Africa has come a long way since the companies reform project was formally launched in 2004 when the Department of Trade and Industry published the guidelines for corporate law reform in South Africa. Most critics believe that the new Companies Act is long overdue and will contribute to South Africa’s economic growth and align us with international standards and practices. The aim of this research report is to educate directors and potential directors on the most significant changes brought by the new Act and the responsibilities and liabilities of directors as set out in The King II Report. / AFRIKAANSE OPSOMMING: Volgens die King II Report is die fondasie vir moderne korporasies gedurende die 19de eeu gelê – die eeu van die entrepreneur. Die 20ste eeu het die eeu van bestuur geword, terwyl die 21ste eeu beloof om ‘n eeu van beheer te wees soos wat die fokus verskuif na die geldigheid en die effektiewe beheer van mag oor korporatiewe entiteite wêreldwyd. Suid-Afrika het ‘n lang pad gestap sedert die Maatskappye-hervormingsprojek formeel geloods is in 2004 met publikasie van die Departement van Handel en Nywerheid se riglyne oor korporatiewe regshervorming in Suid-Afrika. Die nuwe Maatskappye wet is lankverwag en meeste kritici glo dat dit sal bydra tot ekonomiese groei in Suid-Afrika en Suid-Afrika in lyn sal plaas met internasionale standaarde en praktyke. Die doel van hierdie navorsingsverslag is om direkteure en potensiele direkteure in te lig omtrent die mees noemenswaardige veranderinge wat deur die nuwe Maatskappye wet daargestel sal word asook die verantwoordelikhede en aanspreeklikheid van direkteure soos uiteengesit in die King II Report.

University of Macau / Faculty of Law

"October 2008" / Thesis (PhD)--Macquarie University, Division of Society, Culture, Media and Philosophy, Dept. of Sociology 2009. / Bibliography: leaves 273-293. / Introduction -- Patterns of corporate activity as patterns of corporate dominance: legal, organisational, and economic features of corporations -- Representations of corporate dominance in insidious injuries -- The legal basis of corporate dominance: History of the corporation -- Legal individualism and corporate personhood -- Theories of the corporation -- The legal regulation of corporations - corporate liability laws -- Conclusion. / Corporations are no longer simply a type of business structure; they are dominant social institutions. As institutions, corporations are archetypes of contemporary complex social organisation and should, therefore, be a central concern for sociology. Yet with few notable exceptions, sociologists have failed to address their increasingly dominant position in contemporary societies. In this thesis I argue the importance of a renewed sociological interest in corporations. This must acknowledge, but go beyond, the political-economic outcomes of corporations to address the profound consequences of the legal foundations of the corporate form. Corporations are created and regulated by legal doctrine; it is only with a legal mandate that corporations are able to act as employers, suppliers and investors. On this basis, I claim that any understanding of corporate dominance and its effects must commence with an appreciation of the laws that enable the corporation to exist and operate. -- While contributing significantly to wealth creation, corporate dominance also increases the potential for harm to occur to individuals and communities who fall within a corporation's scope. The contemporary proliferation of industrial illnesses is a prime example of this and is examined through a case study of the operations of an Australian asbestos corporation, James Hardie. This case study is timely and unique in its specification of the link between corporate activity and law in contemporary society. -- I argue that corporate activity such as that in the case study is enhanced and legitimated by the legal description of the corporation that assigns to it the capacities of a human individual through corporate legal personhood. Corporate personhood is examined as an example of the legal individualism endorsed in liberal common law countries. By exploring accounts of corporate structure, decision-making and work processes, I explain how the individualised description of the corporation is at odds with its collective realities; the largest and most successful corporations are collectives of human and monetary resources. -- In light of this, I question the extent to which the effective regulation of corporations can be achieved within existing legal frameworks. Building upon research into workplace health and safety in the United Kingdom, the regulation of workplace deaths in Australia is examined to demonstrate the various approaches to regulating corporations and to identify their shortcomings. This is a striking example of the problems law faces in regulating corporations by virtue of its individualistic design. -- The thesis concludes with an affirmation that sociology needs to grapple with issues of corporate activity and that an understanding of the legal basis of the corporation is the foundation of such studies. / Mode of access: World Wide Web. / 295 leaves

This thesis considers the typical structure and requirements of a traditional securitisation scheme in South Africa. The models used in other jurisdictions cannot be applied unchanged in South Africa. South African securitisation structures make use of a security special purpose vehicle (SPV), because of uncertainties about the provisions of the Companies Act 61 of 1973 relating to the trustee for debenture-holders. An evaluation of the functioning of a security SPV leads to the conclusion that a trustee for debenture-holders should still be appointed within the security SPV structure to represent the interests of the investors. The trust for debenture-holders can be a true trust. The use of general notarial bonds over claims, pledges of claims and fiduciary security cession is examined to determine the effectiveness of each one during securitisation. Aspects of several Acts, Notices and other regulatory measures are considered where they are relevant to securitisation. Of specific importance is the Exemption Notice Relating to Securitisation Schemes, 2008. The Notice requires that both rights and obligations of the originator must be transferred to the SPV. The requirement that the obligations of the originator must be transferred leads to the conclusion that the Notice requires a transfer of claims by means of cession and a transfer of duties by means of delegation. For several reasons, delegation is not a suitable method of transfer during securitisation. Foremost among these reasons is that delegation is a form of novation, which means that the claims cease to exist and are replaced with new claims between the debtors and the SPV. Security rights that were accessory to these claims will then also cease to exist. The amendment to the Notice is recommended so that transfer of claims by means of cession will suffice for compliance with the Notice. The South African courts‘ approach to simulated transactions is evaluated to determine the possibility that the sale of the assets to the SPV may be viewed as a simulated transaction. This thesis evaluates the provisions in insolvency law that could be raised to impeach the sale of the assets in the event of the originator‘s insolvency. The risk of avoidance of the transaction on either ground is small. / Mercentile Law / L.L.D. (Mercentile Law)

South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime. / Mercentile Law / LLD (Mercentile Law)

South African company law is currently the object of comprehensive review. One o f the areas under scrutiny is that of corporate governance. Control over management is vital in the interests of the company itself, its shareholders and its creditors. Effective accountability should be balanced against the need to allow those who manage a certain measure of freedom and discretion in the exercise of their function. Company directors are subject to various duties. This thesis concentrates on their fiduciary obligation. It is suggested that this sui generis obligation is owed to the company as a separate entity. Interests of other groups may sometimes merit con­ sideration. Against the background o f a com parative investigation, a "corporate opportunity" is defined as any property or economic opportunity to which the com­ pany has a claim. South African law protects a company’s claim to an opportunity if it is in the company’s line of business and if the company has justifiably been relying upon the director(s) to acquire it or to assist in its acquisition for the company. The application of established fiduciary principles suffice to resolve corporate opportunity matters. Essentially the application o f these rules amount to a determination whether the director has complied with his fundamental duty to act in the company’s best interests. There seems to be no need for a separate doctrine of corporate opportunities.' A director should only be absolved from liability on account of the company’s inability to pursue an opportunity or its rejection by the company if there was no real conflict of interest. The appropriation of corporate opportunities should not be ratifiable, both because the ratification constitutes a fraud on the minority, and because the decision to ratify cannot be regarded as being in the interests of the company. The relationship between the appropriation of corporate opportunities, misuse of confidential information and competition is investigated. These aspects fre­ quently overlap, but should be distinguished because their bases, and accordingly their appropriate remedies, may differ. Effective control may benefit by a restatement of directors’ fiduciary duties in the Companies Act. To this end certain amendments to the Act are recommended. / Mercantile Law / LLD

As a company is a juristic person it can only act through human agency. A question that arises because of this fact is under what circumstances a company can be held to a contract by a third party where its representative was unauthorised to enter into such contract. There should be a careful weighing and balancing of the interests of the shareholders and the company on the one hand and the contracting third party on the other. It is further important to have legal certainty on the validity and enforceability of contracts concluded by and with companies as the absence of certainty can hamper business dealings with companies which would have an impact on the economy. The common-law principles of agency form the foundation upon which representation within the context of company law takes place. The law of agency has been adapted in the context of company law to satisfy the unique needs that have originated in this regard. One such adaptation is the creation of the Turquand rule by the English courts which rule was taken over by the South African courts. One of the primary reasons for creating the Turquand rule was due to the harsh effect that the common-law doctrine of constructive notice had on third parties dealing with a company. In this study an examination of the current legal position regarding representation of a company in South Africa was undertaken. The history and development of the common-law principles of agency and doctrines that are unique to representation in a company law context are analysed and the relevant sections of the Companies Act 71 of 2008 are discussed. The integration of the common-law principles with the relevant provisions of the Companies Act 71 of 2008 is considered and recommendations are made in respect thereof. In support of the analysis, a comparative study was undertaken of the history and development of this subject matter in England. It was concluded that South African company law, with all its shortcomings and uncertainties is still to be preferred above the position in England. / Aangesien ‘n maatskappy ‘n regspersoon is, kan dit slegs deur middel van natuurlike persone as agente optree. ‘n Vraag wat as gevolg van hierdie feit ontstaan is onder watter omstandighede ‘n maatskappy deur ‘n derde party gebonde gehou kan word aan ‘n kontrak waar die maatskappy se verteenwoordiger nie gemagtig was om die kontrak aan te gaan nie. Daar behoort ‘n versigtige afweging te wees tussen die belange van die maatskappy en sy aandeelhouers aan die een kant en ‘n derde party wat met die maatskappy kontrakteer aan die ander kant. Dit is verder belangrik om regsekerheid te hê oor die geldigheid en afdwingbaarheid van kontrakte wat met maatskappye aangegaan word aangesien die afwesigheid daarvan besigheidsverkeer met maatskappye kan kortwiek wat ‘n impak op die ekonomie tot gevolg sal hê. Die gemeenregtelike beginsels van verteenwoordiging vorm die basis waarop verteenwoordiging binne die konteks van maatskappyereg plaasvind. Verteenwoordigingsreg is aangepas binne die konteks van maatskappye om voorsiening te maak vir die unieke behoeftes wat in hierdie verband ontstaan het. Een sodanige aanpassing is die skepping van die Turquand reël deur die Engelse howe, welke reël deur die Suid-Afrikaanse howe oorgeneem is. Een van die hoofredes vir die skepping van die Turquand reël is die onregverdige uitwerking wat die gemeenregtelike leerstuk van toegerekende kennis op derde partye gehad het wat met ‘n maatskappy onderhandel. ‘n Studie van die huidige regsposisie rakende verteenwoordiging van ‘n maatskappy in Suid-Afrika is hierin gedoen. Die geskiedenis en ontwikkeling van die gemeenregtelike beginsels van verteenwoordiging en leerstukke eie aan verteenwoordiging in die konteks van maatskappyereg is geanaliseer. Die betrokke artikels van die Maatskappywet 71 van 2008 word bespreek. Die integrasie van hierdie gemeenregtelike beginsels met die betrokke bepalings van die Maatskappywet 71 van 2008 is oorweeg en aanbevelings in verband daarmee gemaak. Ter ondersteuning van die analise is ‘n vergelykende studie van die gekiedenis en ontwikkeling van hierdie onderwerp in Engeland onderneem. Daar is tot die slotsom gekom dat die Suid-Afrikaanse maatskappyereg, met al sy tekortkominge en onsekerhede nogsteeds bo die posisie in Engeland te verkies is. / Mercantile Law / LL. M.

Good corporate governance should be the cornerstone of all company management. Directors ought to know in whose interests the company should be managed. This thesis attempts to answer the following question: whose interests must be granted primacy in the management of a company? In chapter 1 it is stated that shareholders' interests are traditionally granted primacy in the management of a company. There has, however, been a shift in public opinion towards recognition of a wider variety of interests that should be considered than only those of the shareholders. These interests include, inter alia, environmental interests and those of the investors, employees and consumers. This thesis thus focuses on the primary stakeholders, namely individual shareholders, creditors, employees, consumers and suppliers. In chapter 2 a theoretical foundation is provided on the nature of a company. The different theories on the nature of a company, emphasising either shareholder primacy or stakeholder protection, are discussed. A combined new theory is proposed. It is suggested that the confusion relating to the meaning of "the company" needs to be eliminated. Chapters 3, 4 and 5 provide an international comparison of the company law in Botswana, Australia, New Zealand and the United Kingdom. The focus falls, firstly, on directors' duties, secondly, on the question in whose interests directors should manage a company and, thirdly, on the codification of their duties. In chapter 6 the South African position is evaluated. First, the possible stakeholders are identified and the protection currently afforded them is explained. The reports of the King Committee on Corporate Governance, the Policy Document on company law reform as well as the Companies Bill of 2007 are discussed. Draft clauses are recommended to be incorporated in new company legislation to provide directors with clarity on what is expected of them. It is the aim of this thesis to provide clarity on whose interests should receive primacy when directors manage a company. The outcome of this research should provide a clear indication to South African directors of what is expected of them and who the beneficiaries of their fiduciary duties are. / Law / LL.D.

Thesis / The Companies Bill B61-2008 proposes to introduce appraisal rights into South African law. Appraisal entitles a shareholder to demand payment from the corporate issuer of his shares at a fair cash value in certain instances where major transactions which would change the company's direction have been proposed. It allows a cash exit rather than being coerced into supporting the majority's decision. Arriving at a fair share value is a challenge to appraisal. Presently, under the Personal action, a shareholder who opines that the company's act or omission is unfairly prejudicial or that its affairs are conducted in an unfairly prejudicial manner, may apply to court for an appropriate order. It enables the minority to challenge the majority's decision. Both remedies will be available to dissenting shareholders under the new dispensation and a shareholder must decide which remedy best suits his purposes. Appraisal should be seen as a last resort. / Law / LL.M. (Corporate Law)

The Companies Act 71 of 2008 (“2008 Companies Act”) will have far reaching effects on the manner in which a company is formed and operated under South African company law and in particular entrenches the procedure that must be followed by a company when acquiring its own shares. The radical amendment of the capital maintenance rules by the introduction of the solvency and liquidity tests to the Companies Act 61 of 1973 has been carried forward under the 2008 Companies Act. These tests impose an obligation on a company to ensure that the company is both solvent and liquid at the time of the acquisition of its own shares and for a stated period thereafter. The 2008 Companies Act further brings the duties and liabilities of the directors in line with their current fiduciary duties in terms of common law. / Mercantile Law / LLM