Where individuals standing outside of the corporation have been harmed by the acts of one of its directors or officers, the question becomes whether they have only a claim against the corporation or whether they may have also a personal claim against the executive inflicting the harm on them. / The issue of how far it should be possible to hold directors and officers personally liable for tort has been a contested one and even courts within one and the same jurisdiction provide different solutions. On the one hand, there is the general basic principle that individuals causing harm to others should be held responsible. On the other hand, the fact that directors and officers act as agents on behalf of the corporation might call for an exception to this basic tort law principle. / This thesis will compare the solutions proposed by Common law (with focus on the law of Ontario) and German law as an example of a Civil law jurisdiction. An attempt will be made to see in how far the proposed solutions are consistent with legal principles like the separate legal entity of the corporation and the concept of limited liability as well as with arguments related to economic efficiency.

Zugl.: Köln, Univ., Diss., 2009

Abstract  Background: Emerging economies, with all their positives and negatives, needs different actors to come together and play their part in order to achieve the economic growth. The concept of growth is inseparably linked to public and private sector, where a MC is formed with a distinctive fusion of private and political actors. However, the governance strategies for MCs in EE are quite different to governance mechanisms in developed economies, including the digital governance. Having said that, every digital implementation process, in the end, will be effected, not only by the political actors but also by the individual managers, CEO and boards, that are part of the governance mechanism. Purpose:      The purpose of this paper is to explore how governance mechanisms are shaped by different factors in a MC of EE, which eventually either impede of enable the process of implementation of digital strategies. Method: To get in-depth understanding of the research phenomenon, an exploratory design, qualitative study was carried out. Semi-structured interviews were conducted to gather empirical data, which included 3 directors and 3 board members from two different MCs of Pakistan. The respondents were chosen through non-probability sampling method. An abductive research approach facilitated in determining a deeper understanding between gathered empirical insights and  available literature on governance mechanisms of MC. Conclusion:  As a result, some internal and external factors were identified that shaped the governance mechanism of a MC. The internal factor included, political affiliations, accountability and digital awareness of individuals. While external factors included political interference, corruption, and digital readiness of public to adapt to digital strategies. More the disablers in the process, poorer the digital strategy implementation process which resulted in poorer and fewer digital services provided to the public of that MC.

Thesis (LLM. (Development and Management Law)) -- University of Limpopo, 2020 / Corporate Governance refers to the manner in which companies are directed and controlled. It is concerned with striking a balance between economic and social goals and between individuals and communal goals. The South African Airways (SAA) has recently become one of the worst underperformers amongst the existing State-Owned Companies (SOCs). It has become evident that there was an extensive meddling in SAA’s day to day operations by its chairlady, who has been placing orders and making contractual commitments on the SAA’s behalf, as well as involving herself in managerial decisions in quite inappropriate ways. The Chief Executive Officers (CEOs) of the SAA were changed within a period of four years. It had at some stage developed eight strategies within six years but implemented none of those strategies. The SAA also experienced board infightings which led to the firing of the entire board by the shareholders. The cause of these challenges, as argued in this paper, is poor interpretation and application of corporate governance principles in the SAA. This paper is intended to interpret the principles regulating corporate governance and the application thereof within the context of the SAA. In addition, the paper discusses the comparative analysis with reference to the corporate governance of South Africa and the United Kingdom (UK).

Company directors, being human, may be tempted to promote their own interests rather than those of the companies on whose boards they serve. Directors are subject to a number of legal duties. A director has a fiduciary duty to act in good faith and in the best interests of the company. A number of other duties flow from this duty such as the duty to avoid a conflict of interests. The duty of a director not to appropriate a corporate opportunity belonging to the company of which he or she is a director, also flows from the duty to avoid a conflict of interests. The common-law duties of directors which have their origins in English law, have developed over a number of years. Because of the difficulty that directors had in establishing what their duties were, a number of jurisdictions embarked on a process of codifying or partially codifying these duties. South Africa, Australia and England are three countries that have promulgated legislation which has resulted in the codification or partial codification of directors’ duties. The purpose of the codification or partial codification of directors’ duties was firstly to clarify the duties of directors, and secondly to make the duties more accessible to those affected by them – the directors of companies. In South Africa the Companies Act 71 of 2008 has partially codified the duties of directors. Because directors’ duties have only been partially codified there is uncertainty regarding their scope. This dissertation will focus on the possible effect of the 2008 Companies Act on the duty of a director not to take a corporate opportunity falling to the company. In this dissertation I address two issues involving the effect of the 2008 Companies Act on the duty of a director not to appropriate a corporate opportunity belonging to the company. Firstly, I consider whether the partially codified directors’ duties are wide enough to cover issues involving the appropriation of corporate opportunities. Secondly, I consider the appropriate common-law test or tests to be applied in determining whether, in the specific circumstances, an opportunity should be classified as a corporate opportunity. In considering whether the partially codified duties of directors are wide enough to include the corporate-opportunity rule, I compare the approach to corporate opportunities and the corporate-opportunity rule in South Africa, Australia and England. / Mercantile Law / LL.M. (Corporation Law)

The corporate governance set-up in South Africa has undergone fundamental changes during the past decade, with the country today being responsive to most corporate governance issues. South Africa should be complimented for its King Code on Corporate Governance, the Companies Act and Johannesburg Securities Exchange Listing Requirements which have significantly strengthened the country’s corporate governance framework. These legal instruments have been influential in limiting directors’ powers and regulating the way directors are remunerated as a way of achieving good corporate governance. The research discusses the South African corporate governance framework with particular focus on the legal and regulatory framework that seeks to regulate directors’ powers and remuneration. An evaluation of the extent to which the legal and regulatory framework restrains directors’ powers and curbs excessive remuneration is undertaken. Recommendations are then provided on how the existing framework can be improved to adequately and effectively regulate directors’ powers and remuneration so as to achieve good corporate governance. / Mercantile Law / LL.M.

Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2007. / The collapse of Enron, WorldCom and other companies and the worldwide adoption of codes of good corporate governance have highlighted the poor standard of corporate governance systems and brought about big changes in this field. Corporate scandals in Britain and South Africa have contributed to greater local awareness of the failings of traditional company governance. In the Anglo-Saxon system non-executive directors are important watchdogs over powerful executive directors and other managers who are in a position to abuse their powers to the disadvantage of the shareholders. As independent supervisors non-executive directors are in a position to protect the interests of shareholders and prevent the manipulation of power relationships by executive managers. Independent supervision is of the outmost importance to ensure effective corporate governance. It contributes to the objectivity of the decision-making process and also to the appointment of other efficient non-executive directors. Independence of non-executive directors is influenced by the limited candidates in the pool from which they are appointed. This leads to a limited number of non-executive directors serving on multiple boards of directors, which in turn compromises their independent supervision function. The promotion of diversity on company boards, can expand the “limited gene pool” of non-executive directors. The question arises whether black economic empowerment, as a mechanism to promote greater diversity, has in South Africa contributed to a wider gene pool from which non-executive directors are appointed? In this study it is concluded that, instead of widening the gene pool of non-executive directors, black economic empowerment is creating a second “gene pool” of black directors who serve on multiple boards and with potential implications for their independence.

Thesis (MPhil)--University of Stellenbosch, 2003. / ENGLISH ABSTRACT: The historical development of the role of directors in public listed companies contains inherent tensions by reference to the fiduciary responsibility of directors and the method in which directors are remunerated. The nature of incentive based remuneration is such that it will compel directors, in certain circumstances, to weigh their interests against those towards whom they owe a duty of care and a moral responsibility to act with prudence and temperance. The modem day corporate environment is complex and calls for directors with strong ethical views. This assignment endeavours to identify some of the complexities that contribute towards directors finding it difficult to stay on the ethical "straight and narrow" and attempts to weigh the effect of those factors against the effect of incentive remuneration, both as detractors from ethical behaviour. Both the shareholder supremacy business model and the stakeholder approach are analysed to identify those factors present in each that may add to the ethical complexity that directors have to deal with. The advent of the stakeholder approach in particular, adds an enormous amount of complexity. The case studies deal with two South African financial services companies that have both ceased trading as a consequence of unethical behaviour. The incentive remuneration models of both companies have been found to have played a major contributing role in the decision making processes in the companies, and have contributed to the demise of these organisations. Lessons are taken from the case studies and applied against the backdrop of the various principles of ethical behaviour namely rights, utility, justice and the ethics of responsibility. The finding of this study is that there is a role for incentive remuneration of directors, provided that the ethical pitfalls that this causes are recognised and steps taken to address them. Some of these steps are identified. / AFRIKAANSE OPSOMMING: Die historiese ontwikkeling van die direkteursrol, en spesifiek van openbare genoteerde maatskappye bevat inherente teenstrydighede met verwysmg na direkteursvergoeding en die vertrouensverpligtinge wat op direkteure rus. Die aard van direkteursvergoeding met 'n aansporingskomponent is so dat dit 'n direkteur van tyd tot tyd in 'n posisie plaas waar hy tussen sy eie belange en die van die ander belanghebbendes in 'n maatskappy, aan wie hy dit verskuldig is om met verdrag en versigtig op te tree, moet kies. Die hedendaagse maatskappyomgewing is kompleks van aard, en vereis direkteure met sterk etiese oortuigings. Hierdie werkstuk poog om sommige van die komplekse faktore wat afbreuk doen aan 'n direkteur se vermoe om ten alle tye streng eties op te tree, te identifiseer en op te weeg teen die effek wat direkteursvergoeding speel - beide as items wat afbreuk doen aan etiese optrede. Hier word ondersoek ingestel na beide die sogenaamde "aandeelhouersmodel" asook die" belanghebbende" model waarvolgens besigheid bedryf word. Die ontsluimering van die belanghebbende model veroorsaak spesifiek 'n aansienlike hoeveelheid etiese kompleksiteit. Die gevallestudies behandel twee Suid Afrikaanse fmansiele instellings wat hul bedrywighede gestaak het as gevolg van onetiese optrede deur direkteure. Die aansporingskomponent van die vergoedingsrnodelle in daardie maatskappye blyk 'n groot bydraende faktor te wees in die onetiese besluitneming wat plaasgevind het, en wat uiteindelik tot die ondergang van die ondernemings gelei het. Laastens, word die lesse wat geleer is uit die gevallestudies, toegepas in gewysigde format, en getoets aan die hand van die verskillende beginsels wat etiese besluitneming onderhou, naamlik die beginsels van regte, regverdigheid, utiliteit en die beginsel van etiese verantwoordelikheid. Daar word tot die slotsom gekom dat daar wel ruimte vir aansporingskemas vir direkteure is, maar dat dit slegs eties regverdigbaar sal wees mits ag geslaan word op die lesse wat uit die gevallestudie voortspruit, tesame met die impementering van sekere korrektiewe maatstawwe.

Thesis (MBA)--Stellenbosch University, 2007. / ENGLISH ABSTRACT: This is an introductory research into executive remuneration and its effectiveness as an instrument to generate company growth in South Africa. This research is based on the assumption that there is a direct relationship between company performance and growth, and directors' remuneration. Companies employ directors in an attempt to increase value to shareholders. Remuneration paid to directors is sometimes viewed as excessive. To determine whether executive remuneration is excessive, various elements have to be taken into account. These elements vary, depending on the point of view of the analyst. This research is based on the point of view of the shareholder. A remuneration strategy can be deemed effective when elements important to shareholders have shown a positive change relevant to the change in directors' remuneration. Thirty-eight companies have been sampled. The proxies of the ROA ratio as well as the share price growth have been used. It is apparent that of the companies sampled, the majority has an effective executive remuneration strategy in terms of driving company growth and performance. In 18 instances a change in directors' remuneration (seen in isolation) resulted in an outright benefit to the company. This change was an increase in directors' remuneration in 15 of the companies sampled. In three of the companies sampled, this change was a decrease in directors' remuneration. Interpreting the results of the sample data, within the ambit of the proxies used, the conclusion is that in these instances the executive remuneration strategy has been used as an effective instrument to generate company growth. In eight instances a change in directors' remuneration (seen in isolation) did not result in any benefit to the company. Six of these changes were an increase in directors' remuneration. Two of these changes were a decrease in directors' remuneration. Interpreting the results of the sample data, within the ambit of the proxies used, the conclusion is that in these instances the executive remuneration strategy had not been used as an effective instrument to generate company growth. In 12 instances a change in directors' remuneration (seen in isolation) resulted in some kind of benefit to the company. Ten of these changes were an increase in directors' remuneration . Two of these changes were a decrease in directors' remuneration . Interpreting the results of the sample data, within the ambit of the proxies used, the conclusion is that in these instances the executive remuneration strategy had been used as a partially effective instrument to generate company growth. The proxies of the ROA ratio as well as the growth in a company's share price can therefore be used to determine the effectiveness of a company's executive remuneration strategy in driving company growth and performance. These proxies can be used if the assumption is made that there is a relationship between company growth and performance and executive remuneration. Executive remuneration alone does not drive company growth. There are numerous other factors at playas well. Executive remuneration should, however, be closely scrutinised so that it is optimally used. Executive remuneration should be incentivised in such a way that increased remuneration results in an increase in the ROA ratio as well as in market related growth in the share price over a period of time. / AFRIKAANSE OPSOMMING: Hierdie is inleidende navorsing in uitvoerende bestuur se vergoeding en hul doeltreffendheid as 'n instrument om groei te bewerkstellig vir maatskappye in Suid-Afrika. Hierdie navorsing is gebaseer op die aanname dat daar 'n direkte verwantskap is tussen opbrengste en groei van maatskappye en die direkteursvergoeding. Maatskappye betrek direkteure om waarde vir beleggers te vermeerder. Direkteursvergoeding word soms beskou as oordadig. Om te bepaal of hierdie besoldiging oordadig is, moet verskeie aspekte in berekening gebring word. Hierdie aspekte verskil vanuit die oogpunt van analis tot analis. Hierdie navorsing is gebaseer vanuit die oogpunt van die aandeelhouer. 'n Besoldigingstrategie kan as suksesvol beskou word as die aspekte wat belangrik is vir die aandeelhouer positief verander het, teenoor die verandering in die direkteursvergoeding. Die resultate van 38 maatskappye is gebruik. Die opbrengs op bates verhouding en die groei in aandeleprys is as maalstaf gebruik. Oil blyk dal die meerderheid van maatskappye waarvan inligting gebruik is, wei 'n effektiewe uitvoerende besoldigingstrategie het in terme van maatskappygroei en opbrengste vir aandeelhouers. In 18 gevalle was die verandering in direkteursbesoldiging (in isolasie beskou) 'n direkte voordeel vir die maatskappy. Hierdie verandering was 'n vermeerdering van besoldiging in 15 gevalle. In drie gevalle was die verandering in besoldiging 'n vermindering . Interpretasie van die navorsing, met verwysing na die maatstawwe wat gebruik is, dui daarop dat (in hierdie gevalle) die uitvoerende besoldigingsstrategie as 'n effektiewe instrument gebruik is om maatskappygroei teweeg te bring. In agt gevalle was die resultaat van 'n verandering in direkteursbesoldiging (in isolasie beskou) nie tot voordeel van die maatskappy nie. In ses gevalle was die verandering in direkteursbesoldiging 'n vermeerdering. Twee van die veranderinge in direkteursbesoldiging was 'n vermindering. Interpretasie van die navorsing, met verwysing na die maatstawwe wat gebruik is, dui daarop dat (in hierdie gevalle) die uitvoerende besoldigingstrategie onsuksesvol as 'n effektiewe instrument gebruik is om maatskappygroei teweeg te bring. In 12 gevalle was die resultaat van 'n verandering in direkteursbesoldiging (in isolasie beskou) tot die een of ander voordeel van die maatskappy. In 10 gevalle was die verandering in direkteursbesoldiging 'n vermeerdering. In twee gevalle was die verandering in direkteursbesoldiging 'n vermindering. Interpretasie van die navorsing, met verwysing na die maatstawwe wat gebruik is, dui daarop dat (in hierdie gevalle) die uitvoerende besoldigingstrategie gedeeltelik suksesvol as 'n effektiewe instrument gebruik is om maatskappygroei teweeg te bring. Die maatstawwe van die opbrengste op bates verhouding en die van groei in aandeleprys kan dus aangewend word om die doeltreffendheid te bepaal van die uitvoerende besoldigingstrategie om maatskappygroei en opbrengste teweeg te bring. Hierdie maatstawwe kan gebruik word indien die aanname gemaak word dat daar 'n verwantskap is tussen maatskappygroei en opbrengste sowel as die uitvoerende besoldiging wat betaal word. Die uitvoerende besoldiging is nie die enigste faktor verantwoordelik vir maatskappygroei nie. Daar moet noukeurig gelet word op uitvoerende besoldiging sodat dit optimaal aangewend word. Uitvoerende besoldiging moet tot aansporing dien sodat meer besoldiging aanleiding gee tot 'n vermeerdering van die opbrengste op bates verhouding sowel as markverwante groei in aandeleprys oor 'n periode van tyd.

The corporate governance set-up in South Africa has undergone fundamental changes during the past decade, with the country today being responsive to most corporate governance issues. South Africa should be complimented for its King Code on Corporate Governance, the Companies Act and Johannesburg Securities Exchange Listing Requirements which have significantly strengthened the country’s corporate governance framework. These legal instruments have been influential in limiting directors’ powers and regulating the way directors are remunerated as a way of achieving good corporate governance. The research discusses the South African corporate governance framework with particular focus on the legal and regulatory framework that seeks to regulate directors’ powers and remuneration. An evaluation of the extent to which the legal and regulatory framework restrains directors’ powers and curbs excessive remuneration is undertaken. Recommendations are then provided on how the existing framework can be improved to adequately and effectively regulate directors’ powers and remuneration so as to achieve good corporate governance. / Mercantile Law / LL.M.