In a recent judgment by the Free State Provincial Division of the High Court of South Africa it was decided that a trustee who resigns is only relieved from his duties when his name is removed from the letter of authority by the Master of the High Court. This judgment has caused many questions to be raised regarding the implications of the resignation by a trustee. This judgment and the current legal position of the resigning trustee are investigated in this dissertation. The legal position of the resigning trustee seems to be uncertain, and the mentioned judgment should not be unreservedly accepted as correct. The role and responsibility of the Master of the High Court in this process is considered, as well as the legal position of the resigning trustee, the remaining trustees and third parties contracting with the trust. Certain conclusions are drawn and recommendations are made regarding this aspect of South African trust law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2009.

In a recent judgment by the Free State Provincial Division of the High Court of South Africa it was decided that a trustee who resigns is only relieved from his duties when his name is removed from the letter of authority by the Master of the High Court. This judgment has caused many questions to be raised regarding the implications of the resignation by a trustee. This judgment and the current legal position of the resigning trustee are investigated in this dissertation. The legal position of the resigning trustee seems to be uncertain, and the mentioned judgment should not be unreservedly accepted as correct. The role and responsibility of the Master of the High Court in this process is considered, as well as the legal position of the resigning trustee, the remaining trustees and third parties contracting with the trust. Certain conclusions are drawn and recommendations are made regarding this aspect of South African trust law. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2009.

LLM / Department of Mercantile Law / This research examined the mechanisms that were employed by the Companies Act 71 of 2008 in order to protect the interests of creditors in company affairs. At the preamble of the aforementioned Act lies an undertaking from legislature to provide appropriate redress to investors and third parties/creditors. It was on that basis that the researcher sought to establish whether legislature had indeed fulfilled its commitment to provide appropriate redress to creditors. Traditionally, companies have been run to promote the interests of shareholders with little attention given to the interests of other stakeholders such as creditors. It is this research`s findings that South African company law has moved from the traditional view, that is the shareholder value approach, to the enlightened shareholder value approach: a model of corporate governance which permits directors to have regard, where appropriate, to the interests of other stakeholders but with shareholders’ interests retaining primacy. It is thus found that creditors cannot be protected by contract laws alone but that their protection should be enhanced by mandatory corporate laws which regulates the manner and conduct of company controllers in a way that ensures that the interests of all stakeholders, including creditors, are given due regard. Finally, it has been found that much work has been done by legislature in developing the re-enacted creditor protective mechanisms and also in statutorily adopting new mechanisms which are aimed at advancing creditor interests. Recommendations have thus been made to legislature for possible amendments to refine its corporate laws. / NRF

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.