One of the most important issues that arise under the statutory oppression remedy is the manner in which a court will use its wide powers to order relief once oppression has been found. Guidelines according to which courts will exercise their discretion become even more desirable where a remedy may impact on the governance structures of the corporation. There is an extensive body of case law under the oppression remedy, most of which tends to relegate the exercise of the remedy to the facts of a case. / However, from a study of the case law, two principles appear with varying frequency depending on the size of the corporation. These are principles which may be asserted under the oppression remedy. The first principle states that the majority may not exercise its electoral rights to the prejudice of the minority. It flows from the relationship between members of a corporation and arises most frequently at closely held corporations. The second principle is against abuse of fiduciary position, which entails a duty on directors and senior management to protect the interests of all shareholders. Abuse of fiduciary position may also involve instances where there is a breach of fiduciary duties to the corporation. This second principle is more prevalent at widely held corporations. The remedy will be tailored according to the principle under which liability was found.

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This thesis examines creditors' use of the oppression remedy under the Canada Business Corporations Act and its provincial equivalents from historical and critical perspectives, assesses the consequences of the increasing willingness of Canadian courts to make the remedy available to creditors and concludes by offering some solutions to the problems that are identified. Part I traces the historical development of the oppression remedy, first in the United Kingdom and then in common law Canada. Next, the current state of the law relating to the oppression remedy is briefly examined, followed by a review of recent developments with respect to the use of the oppression remedy by creditors. Part II is a critical review of the evolving law with respect to creditors' use of the oppression remedy. This part of the thesis focuses on: (i) the relationship and potential conflict between the oppression remedy and other available remedies; and (ii) the impact of creditors' uses of the oppression remedy on the relationship between the corporation and its other stakeholders, including issues of shareholders' and directors' liability. In Part III, it is argued that the present use of the oppression remedy by creditors is not being developed in a coherent and principled manner. Certain guidelines are offered to provide the courts with reasonable controls on and principles to guide the use of the oppression remedy by creditors. In particular, it is argued that the oppression remedy should not be available to creditors when there are, either under corporate legislation or other, general legislation, appropriate remedies already available. The result would be that the oppression remedy should be available to creditors only in the limited category of cases where the creditor has no other effective remedy and the conditions for the use of the oppression remedy are met.

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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)