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The legal regulation of the external company auditor in Post-Enron South AfricaDrake, Hannine 03 1900 (has links)
Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2009. / The worldwide increase of corporate failures on the scale of Enron and WorldCom has
sparked a renewed international trend of corporate governance review. With the external
company auditor blamed at least in part for many corporate failures, corporate governance
reform also necessitates a review of the statutory regulation of the company auditor. In
particular, the lack of auditor independence when auditing clients has been under the
legislator’s spotlight. The problems associated with unregulated or poorly regulated auditors
are well illustrated by the activities of auditing giant Arthur Andersen.
In the US, the Sarbanes-Oxley Act has been promulgated in reaction to corporate failures,
imposing many new legislative restrictions on the auditor. The UK has a more tempered, selfregulatory
approach. South Africa, following international trends with its recently
promulgated Auditing Profession Act and Corporate Laws Amendment Act, has also greatly
increased the regulation of auditor independence.
The question is now whether these new restrictions in the wake of corporate failures have
been the right approach with which to prevent future failures and to provide adequate
protection to shareholders. Although the general legislative increase in auditor awareness is
welcomed, the efficacy of several provisions in South African legislation can be questioned.
Widespread reform has taken place in the appointment and remuneration of the auditor,
which now has to be independently determined by the audit committee. In particular, South
Africa’s new regulation of non-audit services, and the lack of refined regulation on
compulsory auditor rotation as well as the cross-employment of auditors by clients, needs a
critical discussion.
It is submitted that the discretion of a well-regulated audit committee, combined with
increased disclosure and transparency, should be enough to regulate most of the key aspects
of auditor independence. Care should be taken to not overlegislate in haste to reform. South
Africa needs a flexible and customised approach in this regard.
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Analysis of the new proposed companies act compared to the old companies act 61 of 1973 and the King II report on corporate governance with specific focus on directors liabilities and responsibilitiesHarvie, Michael Anthonie 03 1900 (has links)
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.
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Aspects of traditional securitisation in South African lawLocke, Natania 11 1900 (has links)
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)
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Some comparative aspects of corporate rescue in South African company lawLoubser, Anneli 02 1900 (has links)
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)
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Regulating the conversion of par value shares into shares without par value : a comparison between the law of Hong Kong and South AfricaTeixeira, Ricardo Da Silva 04 June 2014 (has links)
LL.M. (Commercial Law) / Please refer to full text to view abstract.
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Recognition of various stakeholder interests in company managementEsser, Irene-Marié 30 June 2008 (has links)
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.
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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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Remedies for dissenting shareholders : a comparison of the current option of personal action and the proposed appraisal remedy under the companies bill of 2008Adebanjo, Adetoun Teslimat 11 1900 (has links)
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)
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A company's share capital and the aquisition of its own shares : a critical comparison between the relevant provisions of the companies and act 71 of 1973 and the companies act 71 of 2008Heapy, Stephanie Claire 11 1900 (has links)
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
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Legal aspects of the regulation of mergers and acquisitionsOberholzer, Cornelius Christiaan 11 1900 (has links)
One of the objectives of the Securities Regulation Code on Takeovers and Mergers ("the
Code") was to achieve neutrality of treatment of minority shareholders in takeover situations
irrespective of the method employed to effect the takeover. This objective has not yet been
achieved despite the inclusion of Rule 29 in the Code. Different levels of minority protection
apply depending on the method used to effect a takeover. Asset takeovers are also
excluded from the ambit of the Code. It is suggested that capital reductions and security
conversions be prohibited to effect a takeover unless the Code is applicable to the
transaction. The scheme of arrangement procedure, with certain suggested amendments,
should be retained as a takeover method. It is further suggested that section 228 of the
Companies Act be amended to ensure greater minority shareholder protection but that
asset takeovers not be included within the ambit of the Code at this stage. / Private Law / LL.M.
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