Section 71(3) of the Companies Act 71 of 2008 has introduced into South African company law a provision which for the first time permits the board of directors to remove another director from office in certain specific instances. A further significant innovation in the Companies Act 71 of 2008 is contained in section 162, which empowers a court to make an order declaring a director delinquent or placing him under probation in specific instances. The effect of section 162 is that a court is empowered to remove a director from the board of directors. The focus of this thesis is the removal of directors from office by the board of directors and by the judiciary. The thesis explores the underpinning philosophy of the statutory provisions relating to the removal of directors from office. It also examines the impact of the power given to the board of directors and to the courts to remove a director from office. The grounds and the procedures for the removal of directors by the board of directors and the judiciary are examined. The fiduciary duties applicable to directors in removing a director from the board of directors are also explored. In addition, this thesis examines the removal of directors holding multiple positions or capacities in relation to a company, such as an employee or a shareholder with loaded voting rights. The remedies which may be relied on by a director who has been removed from office by the board of directors are examined. Recommendations are made to strengthen and improve the provisions in the Companies Act 71 of 2008 relating to the removal of directors from office by the board of directors and the judiciary. Amendments to the Companies Act 71 of 2008 are suggested to remove ambiguities; to guard against the abuse of sections 71(3) and 162; to improve the grounds and procedures for the removal of directors by the board of directors and the judiciary, and to enhance the remedies that may be relied on by a director who has been removed from office by the board of directors. / Artikel 71(3) van die Maatskappywet 71 van 2008 het ’n bepaling tot Suid-Afrikaanse maatskappyreg toegevoeg wat die direksie vir die eerste keer in staat stel om ’n ander direkteur in sekere spesifieke gevalle uit sy of haar amp te verwyder. ’n Verdere belangrike vernuwing in die Maatskappywet 71 van 2008 word in artikel 162 vervat, wat ’n hof magtig om ’n bevel uit te vaardig wat ’n direkteur misdadig verklaar of hom of haar in spesifieke gevalle aan ’n proeftydperk onderwerp. Die effek van artikel 162 is dat ’n hof by magte is om ’n direkteur uit die direksie te verwyder. Die fokus van hierdie tesis is die verwydering van direkteure uit hul ampte deur die direksie en die regbank. Die tesis verken die onderliggende filosofie van die statutêre bepalings wat met die verwydering van direkteure uit hul ampte verband hou. Dit ondersoek ook die impak van die bevoegdheid wat aan die direksie en die howe verleen word om ’n direkteur uit sy of haar amp te verwyder. Die gronde en prosedures vir die verwydering van direkteure deur die direksie en die regbank word ondersoek. Die fidusiêre pligte van toepassing op direkteure by die verwydering van ’n direkteur uit die direksie word ook verken. Daarbenewens ondersoek hierdie tesis die verwydering van direkteure wat veelvuldige posisies of hoedanighede met betrekking tot ’n maatskappy beklee, soos ʼn werknemer of aandeelhouer met gelaaide stemregte. Die regsmiddele waarop ’n direkteur, wat deur die direksie uit sy of haar amp verwyder is, kan steun, word ondersoek. Aanbevelings word gemaak om die bepalings in die Maatskappywet 71 van 2008, wat met die verwydering van direkteure uit hul ampte deur die direksie en regbank verband hou, te versterk en te verbeter. Wysigings aan die Maatskappywet 71 van 2008 word voorgestel om dubbelsinnighede uit te skakel; om teen die misbruik van artikels 71(3) en 162 te waak; om die gronde en prosedures vir die verwydering van direkteure deur die direksie en die regbank te verbeter, en om die regsmiddele waarop ’n direkteur wat deur die direksie uit sy of haar amp verwyder is kan steun, te versterk. / ISigaba 71(3) Somthetho weZinkampani 71 ka 2008 sewuze wangenisa emithethweni yezinkampani zaseNingizimu Afrika, umthetho ongowokuqala ovumela ibhodi labaqondisi ukuthi libe namandla wokugudluza omunye umqondisi esikhundleni sakhe ngaphansi kwezimo ezithile. Olunye ushintsho olusha kuMthetho wama-71 weZinkampani ka 2008 uqukethwe yiSigaba 162, wona ugunyaza inkantolo ukuthi ikhiphe umyalelo owazisa umqondisi ngokuthi unecala noma obeka umqondisi ngaphansi kophenyo, phecelezi “probation” ngesinye isikhathi. Inhloso yeSigaba 162 wukunikeza inkantolo igunya lokugudluza umqondisi kwibhodi labaqondisi. Impokophelo yale thisisi wukugudluzwa kwabaqondisi, bagudluzwe yibhodi labaqondisi kanye nomthetho/nobulungisa. Ithisisi ihlola ifilosofi yemithetho ekhishiwe emayelana nokugudluzwa kwabaqondisi ezikhundleni zabo, Kanti futhi ihlola umthelela wamandla anikezwe ibhodi labaqondisi kanye nezinkantolo ukuthi zigudluze umqondisi esikhundleni. Izizathu kanye nengqubo elandelwayo mayelana nokugudluzwa kwabaqondisi yibhodi labaqondisi kanye nomthetho nazo ziyahlolwa. Imisebenzi emayelana nokuthembeka eyenziwa ngabaqondisi ukugudluza umqondisi kwibhodi labaqondisi nayo iyacwaningwa Ngaphezu kwalokhu, le thisisi .iphenya ukugudluzwa kwabaqondisi abaqokwe ezikhundleni eziningi noma abanegunya elithize ngokwengqubo yenkampani, enjengesisebenzi, phecelezi “employee” noma umabelwa-mashezi onamalungelo amaningi okuvota, phecelezi, “loaded with voting rights”. Izeluleko ezingasetshenziswa wumqondisi ogudluzwe esikhundleni sakhe yibhodi labaqondisi nazo ziyahlolwa. Izincomo nazo ziyenziwa ngenhloso yokuqinisa kanye nokuthuthukiswa kwamandla oMthetho we-71 weZinkampani ka 2008, mayelana nokugudluzwa kwabaqondisi ezikhundleni yibhodi labaqondisi kanye nomthetho. Izinguquko zoMthetho wama-71 weZinkampani ka 2008 ziqonde ukususa izixakaxaka, ukulwa nokudlelezelwa kweSigaba 71(3) kanye no 162, ukuthuthukisa izizathu kanye nezingqubo zokugudluzwa kwabaqondisi yibhodi labaqondisi kanye nomthetho, ukuqinisa izindlela zokulungisa ezingasetshenziswa wumqondisi osegudluziwe esikhundleni yibhodi labaqondisi. / Mercantile Law / LL. D.

The use of temporary employment services as a means to achieve flexibility in die labour market led to various complications due to a lack of proper regulation. The atypical formation of the triangular employment relationship, limited rights and less favourable employment conditions of the temporary employees, multiple authority figures and their liabilities under various circumstances and the impact thereof on such employee’ collective bargaining rights caused legal uncertainty in the absence of sufficient legislation to govern it. Temporary employment agencies developed certain methods in order to evade the restrictive labour legislation and employer duties imposed on them, namely by making use of automatic termination clauses (resolutive conditions) and by categorising the temporary employee as an independent contractor. Last mentioned would effectively exclude the temporary employee from labour legislation and the protection it provides. In reaction to abovementioned problems, trade unions have been objecting to the use of temporary employment agencies and went as far as demanding the total ban thereof. This raised the question in the South African Government whether said agencies should indeed be banned. The other option is a less restrictive approach and entails the attempt to regulate these agencies by amending the current labour legislation in order to accommodate temporary employment services. In light of the fact that various proposals to amend the current South African labour legislation (especially with regard to temporary employment services) have been published in the Government Gazette, it can be deduced that the social partners ultimately chose to regulate temporary employment agencies rather than ban them altogether. From an early stage the International Labour Organisation (ILO) provided rules and regulations for the management of employment agencies in general by way of conventions and recommendations. In 1997, in order to give effect to the labour standards identified by it, the ILO brought the Private Employment Agencies Convention into existence. This document could be applied to all temporary employment agencies on an international level. This document provides for administrative regulations, the duties of the agency and the client as well as the rights of the temporary employees concerned. The ILO recommends that all of its member states incorporate the principles contained within this document in their own legislation. Temporary employment services are also used in other legal systems. For purposes of this study, the English law (United Kingdom (UK)) and the Namibian law will be scrutinised. Similar issues to those recognised in the South African law have been identified in these countries. However, each has approached said problems in different ways. The Namibian Government banned the conducting and provision of these services by way of legislation in 2007. The constitutionality of the ban has however been questioned by the Supreme Court of Namibia, after which it had been found to infringe upon the fundamental freedom to carry on any business, trade or occupation. The ban was struck down as unconstitutional. The Namibian Government has since promulgated new legislation in which it removed the ban and replaced it with numerous amendments providing for the regulation of temporary employment services. Since 1973 the UK has been promulgating various instruments for the thorough regulation of temporary employment agencies. These instruments provide for the management of temporary employment agencies and the rights of the employees involved. The relevant legislative instruments have been updated regularly with the purpose of ensuring that the needs of all the parties concerned are met. The UK, as a member state of the European Union (EU), (which has also been providing for the regulation of temporary employment services in various directives), promulgated legislation specifically with the aim to give effect to the principles in the mentioned directives. By way of doctrines and the creation of a third category ―worker‖ the UK has been attempting to prevent any loopholes in their legal system with regard to temporary employment services and the rights of the employees involved. The aim of this study is to investigate all the important complications experienced with temporary employment agencies in order to indicate the impact the atypical circumstances have on the rights of the temporary employees. The degree to which, if at all, the South African law complies with the preferred labour standards identified by the ILO will be pointed out. A comparative study will be conducted, first by ascertaining in detail how the comparable issues in the UK and Namibian law are dealt with, and second by identifying which aspects in these legal systems could be of value to the South African law. Finally the potential effectiveness of the proposed amendments to the South African labour legislation will be analysed, during which recommendations for the unresolved issues will be provided. The recommendations are mainly aimed at achieving sufficient rights and legal certainty for the temporary employees associated with temporary employment agencies. / Thesis (PhD (Law))--North-West University, Potchefstroom Campus, 2013.

The use of temporary employment services as a means to achieve flexibility in die labour market led to various complications due to a lack of proper regulation. The atypical formation of the triangular employment relationship, limited rights and less favourable employment conditions of the temporary employees, multiple authority figures and their liabilities under various circumstances and the impact thereof on such employee’ collective bargaining rights caused legal uncertainty in the absence of sufficient legislation to govern it. Temporary employment agencies developed certain methods in order to evade the restrictive labour legislation and employer duties imposed on them, namely by making use of automatic termination clauses (resolutive conditions) and by categorising the temporary employee as an independent contractor. Last mentioned would effectively exclude the temporary employee from labour legislation and the protection it provides. In reaction to abovementioned problems, trade unions have been objecting to the use of temporary employment agencies and went as far as demanding the total ban thereof. This raised the question in the South African Government whether said agencies should indeed be banned. The other option is a less restrictive approach and entails the attempt to regulate these agencies by amending the current labour legislation in order to accommodate temporary employment services. In light of the fact that various proposals to amend the current South African labour legislation (especially with regard to temporary employment services) have been published in the Government Gazette, it can be deduced that the social partners ultimately chose to regulate temporary employment agencies rather than ban them altogether. From an early stage the International Labour Organisation (ILO) provided rules and regulations for the management of employment agencies in general by way of conventions and recommendations. In 1997, in order to give effect to the labour standards identified by it, the ILO brought the Private Employment Agencies Convention into existence. This document could be applied to all temporary employment agencies on an international level. This document provides for administrative regulations, the duties of the agency and the client as well as the rights of the temporary employees concerned. The ILO recommends that all of its member states incorporate the principles contained within this document in their own legislation. Temporary employment services are also used in other legal systems. For purposes of this study, the English law (United Kingdom (UK)) and the Namibian law will be scrutinised. Similar issues to those recognised in the South African law have been identified in these countries. However, each has approached said problems in different ways. The Namibian Government banned the conducting and provision of these services by way of legislation in 2007. The constitutionality of the ban has however been questioned by the Supreme Court of Namibia, after which it had been found to infringe upon the fundamental freedom to carry on any business, trade or occupation. The ban was struck down as unconstitutional. The Namibian Government has since promulgated new legislation in which it removed the ban and replaced it with numerous amendments providing for the regulation of temporary employment services. Since 1973 the UK has been promulgating various instruments for the thorough regulation of temporary employment agencies. These instruments provide for the management of temporary employment agencies and the rights of the employees involved. The relevant legislative instruments have been updated regularly with the purpose of ensuring that the needs of all the parties concerned are met. The UK, as a member state of the European Union (EU), (which has also been providing for the regulation of temporary employment services in various directives), promulgated legislation specifically with the aim to give effect to the principles in the mentioned directives. By way of doctrines and the creation of a third category ―worker‖ the UK has been attempting to prevent any loopholes in their legal system with regard to temporary employment services and the rights of the employees involved. The aim of this study is to investigate all the important complications experienced with temporary employment agencies in order to indicate the impact the atypical circumstances have on the rights of the temporary employees. The degree to which, if at all, the South African law complies with the preferred labour standards identified by the ILO will be pointed out. A comparative study will be conducted, first by ascertaining in detail how the comparable issues in the UK and Namibian law are dealt with, and second by identifying which aspects in these legal systems could be of value to the South African law. Finally the potential effectiveness of the proposed amendments to the South African labour legislation will be analysed, during which recommendations for the unresolved issues will be provided. The recommendations are mainly aimed at achieving sufficient rights and legal certainty for the temporary employees associated with temporary employment agencies. / Thesis (PhD (Law))--North-West University, Potchefstroom Campus, 2013.