AFRIKAANS: Die doel van hierdie verhandeling is om die proses van kapitaalverkryging deur die maatskappy te ondersoek en om veral op die begrip “aanbod van aandele aan die publiek” en verbandhoudende aangeleenthede klem te lê. Om hierdie doel te bereik was dit nodig gewees om op die verskillende kapitaalvorme te let soos wat dit ten opsigte van aandelekapitaal en leningskapitaal voorkom. Daar is in hierdie verband ook op enkele faktore gewys wat die maatskappy in ag moet neem in die keuse tussen die kapitaalvorme. Die regsreëls wat die aanbod van aandele aan die publiek reguleer is geskiedkundig nagespoor om sodoende die doel daarvan vas te stel en ook om te bepaal of daar nog aan hierdie doel voldoen word. Daar is ook ‘n regsvergelykende studie gedoen om sodoende perspektief ten opsigte van die effektiwiteit en wenslikheid van hierdie reëls te verkry. Die drie elemente wat die openbaarmakingsvereistes van die Maatskappywet 61 van 1973 in werking stel is in besonderhede ontleed om sodoende te bepaal of daar enige moontlike leemtes bestaan. Oplossings vir hierdie leemtes is dan ook in gepaste gevalle aan die hand gedoen, met die uitgangspunt steeds in gedagte dat die verkryging van aandelekapitaal deur middel van die aanbod van aandele aan die publiek sover moontlik vereenvoudig moet word om sekerheid ten opsigte van die maatskappy daar te stel. Die teenkant hiervan is egter ook in gedagte gehou, naamlik dat die belegger in aandele die mees effektiewe beskerming moet geniet. Dit het veral duidelik geblyk dat die onderskeid tussen die begrippe “inskrywing op” en “koop van” aandele vir sover dit die Suid-Afrikaanse situasie betref, uitgedien is en dat daar slegs voorsiening gemaak moet word vir die koop van aandele op die primêre sowel as op die sekondêre mark. As gevolg van die eng omskrywing van “aandeel” in die Maatskappywet blyk dit dat daar ‘n aantal prosedures van kapitaalverkrying is wat nie deur openbaarmaking gereguleer word nie en die benadeling van die betrokke beleggers tot gevolg het. Die laaste element wat die openbaarmakingsvereistes van die Maatskappywet in werking stel, naamlik die begrip “publiek”, is in wese ondefinieerbaar as gevolg van die vaagheid daarvan en gevolglik die element van sekerhied by kapitaalverkryging benadeel. Die verband tussen die prospektus en die voornoteringsverklaring is onduidelik en verwarrend veral ten opsigte van die dualistiese benadering wat ten opsigte van aanspreeklikheid vir onware verklarings in hierdie dokumente gevolg word en behoort opgeklaar te word ten behoewe van die belegger. ENGLISH: The purpose of this thesis is to investigate the process of the acquisition of capital by a company and in particular emphasis will be placed on the concept “an offer of shares to the public” and matters incidental thereto. In order to achieve this purpose it was necessary to distinguish the different forms of capital as manifested in share and loan capital. The different factors which the company should take into account in the exercise of the choice regarding the various forms of capital are also analyzed. The legal rules regulating the offer of shares to the public are historically investigated in order to establish their purpose and also to determine whether they still achieve this purpose. A comparative study was also done in order to place the desirability and efficacy of these rules in perspective. The three elements which make the disclosure requirements of the Companies Act 61 of 1973 operative are analyzed in detail in order to ascertain whether any shortcomings exist. Solutions for these shortcomings are suggested in appropriate cases but against the background of the concept that the acquisition of share capital by the offer of shares to the public must be simplified as far as possible in order to promote certainty from the viewpoint of the company. Against this however, the principle that the investor in shares should enjoy the most effective protection was also highlighted. It especially became apparent that the distinction between the concepts “subscription for” and “sale of” shares have become redundant in so far as they are applied in the South African experience and that provision should be made for the sale of shares on the primary as well as the secondary market. As a result of the narrow definition of “share” in the Companies Act it is apparent that there are a number of procedures for the acquisition of capital which are not regulated by disclosure and consequently have the effect of prejudicing the investors. The last element which makes the disclosure requirements in the Companies Act operative, namely the concept “public”, is in essence indefineable because of its uncertainty, with the effect that the element of certainty in the acquisition of capital is detracted from. The relationship between the prospectus and the prelisting statement is uncertain and confusing especially in respect of the dualistic approach with regards to untrue statements in these documents and should be clarified on behalf of the investor. / Thesis (LLD)--University of Pretoria, 1987. / Mercantile Law / unrestricted

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from informationsharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa. / LLD, North-West University, Potchefstroom Campus, 2015