Insolvency systems are fundamental to the functioning of commercial activity. They are essential for the development of credit markets and entrepreneurship, and raise the efficiency level of economies. South Africa’s business rescue regime is an innovative component of its insolvency system because it encompasses more than creditors’ commercial interests; it aims to ensure the equitable treatment of multiple stakeholders such that social, economic and political interests are recognised and optimised as appropriate. However, equitable treatment does not equate to equal treatment. Business rescue organises the claims of stakeholders into a hierarchy. The ranking of tax claims within this hierarchy is controversial because various, divergent social, economic and political interests are implicated by a tax claim against an ailing corporation. This dissertation will assess whether tax claims should be granted some priority in South Africa’s business rescue claims hierarchy. The assessment of the different policy arguments for and against this priority will take place through the lens of corporate reorganisation’s values and policy. This is crucial so that the conclusion is consistent with corporate reorganisation’s objectives rather than being influenced by bias in favour of social or commercial interests.

Aim The overall aim of this dissertation is to consider reform of warranties in the area of insurance law in South Africa. In considering the main aim of this dissertation, the current law relating to insurance warranties in South Africa and other jurisdictions will be analysed in order to demonstrate why the South African position is unsatisfactory in its current form and therefore in need of reform as well as ideas on how the current law can be reformed. Thesis It will be argued that the South African law on insurance warranties is in need of reform to address unsatisfactory aspects of it indicated in recent judgments and by academic commentators and that such reform should, in broad terms, take account of consumerism and eliminate the harsh and unfair effects associated with the interpretation and implementation of warranties.

The paper evaluates how South Africa’s public policy towards the death penalty is protected amidst increased taxpayer information transparency. The People’s Republic of China (China) may, under article 22(4) of the Joint Council of Europe/OECD Convention on Mutual Administrative Assistance in Tax Matters (2010) (Multilateral Convention), use information received from South Africa, for criminal prosecution of a South African taxpayer in a non-tax matter in China, if the South African Revenue Service (the SARS) authorises such use. The Criminal Law of the People’s Republic of China 86 of 1997 sanctions the use of the death penalty for various economic crimes and this law has an unlimited territorial scope. China may therefore impose the death penalty on a South African taxpayer at the hands of information supplied by the SARS. This study will establish what public policy-based remedies are available for a South African taxpayer in this scenario. The SARS is not obliged to exchange information with China’s tax authority, as such an action will be contrary to South Africa’s public policy. Where the South African taxpayer concerned is in South Africa, including at a sea- or airport, then the SARS has a constitutional obligation not to exchange the information. Further, the South African state has an international obligation not to exchange the information where the method of execution in China is cruel, inhuman or degrading. The paper concludes that before exchanging the information and authorising its use for non-tax purposes, the SARS must take reasonable steps to evaluate whether it is foreseeable that the exchange of taxpayer information will be against South Africa’s public policy. The SARS is under a legal duty not to exchange information with China where the SARS foresees that such an action may lead to the imposition of the death penalty on a South African taxpayer in China. A further recommendation is that the public policy protection must be reinforced by amending the wording of the Multilateral Convention and the bilateral income tax treaty between China and South Africa in line with what other countries have done, in order to clarify that South Africa’s public policy specifically prevents the imposition of the death penalty.

This thesis will be conducted by reviewing South African literature that is published in various primary and secondary sources. The research will refer to key South African statutes namely, the South African Companies Act, the Constitution of the Republic of South Africa, 1996 (hereafter referred to as the Constitution) and the Promotion of Access to Information Act 2 of 2000. Parallel statutes of Zimbabwe, Canada, and the United States of America will also be referenced throughout this thesis. Additionally, this thesis will review case law relating to the subject and the ratio of those cases will be analysed. The role of the courts in interpreting certain legal provisions will be important in assessing whether the courts have adopted a liberal or restrictive approach to the issue of protecting minority shareholders. A comparative analysis will be conducted to evaluate how South African company law has dealt with the issue of the protection of minority shareholders. This thesis will therefore compare and contrast South African and Zimbabwean legislation and case law on minority shareholder remedies. This will be achieved by evaluating how the two nations implement and apply legislation providing for the protection of minority shareholders. As part of this analysis, this thesis will review what Zimbabwe can learn from the South African system.

Includes bibliographical references. / As will be discussed in the course of this paper, there are similarities between the South African and the European notions of the SEE. It seems that the European notion of 'undertakings' and the South-African one of 'firm' do not have the same role when these entities form part of a single economic entity; the South African notion of the single economic entity seems to be an exception to the application of the Act whereas the European one seems to enlarge the application of the regulation.

A person who suffers loss, damage or some other form of damage as the result of another party’s action, may in these instances invoke the law of the country in order to claim damages. The damages which are claimed are aimed at compensating the person who has suffered a loss and are based on the law of delict and contract. In South Africa, the stakes are a bit higher in so far as the claimant will need to show that the damage was foreseeable, that there was causation and further remoteness which are all listed as the deciding factors in a claim for liability1 . To this end, Maritime Law in South Africa has a primary exclusion which is applied to the shipowners2 right to limit his/her liability based on the causative enquiry into “actual fault or privity”3 . Causative actual fault or privity is thus the primary exclusion for a shipower’s right to limit his liability and is extensively based on the English Law rules. The concept of Limitation of Liability has extensive history in so far as its evolution is concerned and currently acts as a 'basic premise upon which maritime commerce is conducted4 ’. Based on the importance of the concept and the issues around the South African application of the rules and interpretation of legislation in decided cases, the South African Government has published a draft Merchant Shipping Bill (draft MSB)5 for comment. Among other changes it proposes, is that it advocates the replacement of the current dispensation on limitation of shipowners’ liability with that contained in the Convention on Limitation of Liability for Maritime Claims, 1976 (LLMC)6

A company is an integral part of society whose existence impacts the country's economy and community as a whole, thus, the previous global financial crisis has highlighted the need for countries to have effective mechanisms to support and encourage corporate rescue. This is important because companies that encounter financial or economic collapse are able to benefit from corporate rescue mechanisms which may help preserve their on - going viability. In this regard, the turnaround of such companies will enable restoration of production capacity, employment, and the promotion of sustainability of capita l and investments. However, existing legal frameworks on corporate rescue in many countries have been found to be wanting, and this has in turn triggered a new wave of legislative reform proposals. Thus, the aim of this dissertation is to interrogate into the issue of whether there is a need for Botswana to reform its insolvency laws in order to accommodate a modernised corporate rescue regime. This dissertation probes on the shortcomings of judicial management as a corporate rescue regime which is currently operative in Botswana. Furthermore, the study reveals the performance of judicial management as a regime in other countries in order to illustrate its inherent weaknesses. This study makes a comparison of the main components that make up modern corporate rescue regimes in order to be able to identify critical issues to be considered in making recommendations for legislative reform. Overall the study recommends the reform of the judicial management laws in Botswana by integrating the positive aspects of corporate rescue as applied in other countries as illustrated by examples of Australia, the United Kingdom and South Africa, and avoiding the pitfalls so far proving a burden in these jurisdictions. The reform should also make adjustments accordingly as relevant to the existing business environment and the economy as well as develop new provisions to cover social conditions unique to Botswana.

Bibliography: leaves 324-333. / The purpose of this dissertation is to analyse the definitional rules of fiscal jurisdiction as well as the tax consequences resulting from the application of these rules, as implemented in the national tax law of the chosen jurisdictions. In essence, there are two main rules, which give content to the chosen theory of fiscal jurisdiction, mainly source and residence. It is trite that globalisation of the world's economies poses certain problems for international tax policy. Companies and individuals are becoming more mobile and therefore are able to exploit tax differences between states. In consideration of the natural concern of governments that they should get an acceptable share of the profits generated by international businesses, this research study analyses the bases through which a country could claim the right to tax. The plasticity of these two key concepts (source and residence) may well subvert a country's ultimate tax objective because of the potential for exploitation of ambiguity in the search for effective avoidance. The residence tax system and its implications have been analysed mainly from the South African perspective, and where necessary, the analysis has sought reference in other jurisdictions such as the United Kingdom and the United States. The source principle of taxation and its effects have also been studied from the South African context, with a comparative approach from Hong Kong. It has been found that the countries considered in this research have, in various ways, adopted different combinations of subjective factors for tax liability in their domestic tax laws. At the same time, the relentless search of additional tax revenue, has led countries to implement in their tax laws, stringent anti-avoidance measures designed to prevent the deferral of tax, for instance on foreign source income. Factors such as the increasing complexity of modem business and the greater sophistication of tax planning techniques have contributed to this state of affairs. Thus, this dissertation highlights that competition between governments, in the face of international economic integrity, may lead countries to adopt tax rules, which though they follow the usual international standards, are nevertheless very complex in application and administration. This can maintain the problem of international double taxation and lead to excessive or unpredictable compliance burdens. It is shown how countries in the exercise of their fiscal jurisdiction can move towards harmonisation of rules and common interpretation of the tax base in the application of their national tax legislation.

The purpose of the minor dissertation is to explore the effectiveness of the rights that are provided to affected persons of a company that is under business rescue, and how these rights can be used by the affected persons to ensure that the company is rescue in terms of section 128 (1)(b)(iii) of the Companies Act No.71 of 2008 ("the Companies Act"). Affected persons derive their rights to be involved in the business rescue proceedings from the Companies Act. However, some of the rights provided to the affected persons afford them with protection, arguably, to such an extent that it can be detrimental to the financial status of a company in business rescue As a result, some affected persons end up suffering irreparable financial loss because of the language of the provisions in the Act. In other instances, the Act gives too much protection to affected persons, such as the employees of the company to the detriment of the company. The minor dissertation explores the manner in which an equilibrium can be reached between the protection afforded by the rights given to the affected persons for their benefit in the company while simultaneously using those rights to ensure that the objectives of business rescue are upheld at all times. Research problem: The minor dissertation examines the importance of the rights that are provided to affected persons in business rescue and how these rights can be used by the affected persons to ensure that both the debtor-company and the relevant stakeholders are able to survive the proceedings. It appears from the provisions of Chapter 6 of the Companies Act that although there are three categories of people that are mentioned under the definition of affected persons, there are in fact more people who are negatively affected by the conduct of the company under business rescue. The additional person that is negatively affected in this regard is the surety who has stood to make repayment of the debts of the company should it fail to do so when called up by the creditors. The question of the minor research then turns on whether the current definition of 'affected persons' as mentioned in section 128 of the Companies Act should be expanded to include sureties, and whether the rights of the current affected persons should be amended Must the term 'affected persons' be amended so as to ensure that the persons who are financially linked to the company are included in the business rescue proceedings? This question will be answered by examining the role that current affected persons play in a company that is under business rescue proceedings. The minor dissertation will further examine the extent to which the rights of the affected persons assist or hinder the progress of a company undergoing business rescue proceedings. The need to examine the effectiveness of the rights of the affected person arises as a result of the judicial interpretation of section 154, wherein courts held different views regarding the position of persons who have stood as sureties for the companies that have subsequently been placed under business rescue. The idea to criticise the statutory definition of affected persons came as a result of the conflicting judgments regarding the interpretation of section 154 of the Act which is the provision that has been interpreted by the Supreme Court of Appeal to exclude the sureties from receiving a benefit of the discharge of claims of creditors as concluded between the debtor-company and its creditors. The rights that are provided for the affected persons are critical in ensuring that the business rescue process is managed successfully and that the interests of the relevant stakeholders are considered fully. And the provisions relating to these affected persons should be interpreted in accordance with the rules of interpretation so as to avoid giving legislation meaningless interpretation. Research aim: The aim of the research project is to attempt to criticise and analyse the approaches that has been adopted by the courts in interpreting the rights of the affected persons and their relationship with the company under business rescue proceedings. The research will also provide some suitable alternatives that can be adopted into chapter 6 of the Act so as to curb the harshness currently set by the precedent of our courts when it comes to the company and its relationship with the affected persons. It is argued that the current interpretation of section 154 fails to acknowledge that where the debtor and the creditor agree to discharge a part of the claim of the creditor, the effect of that discharge is that it changes the initial agreement between the creditor and debtor, and the suretyship which is ancillary to that debt should also be reduced in accordance thereof. The interpretation of section 154 has relied upon the wording of the section wherein it provides for the discharge to be conducted in accordance with a business rescue plan has been approved by the relevant stakeholders.

Company law notions of control are not always harmonious with those of competition law, and thus the former may need to create its own jurisprudence informed by an appreciation of the purpose of merger notification under the Competition Act 89 of 1998. My research in this study will examine the definitions of control under the Competition Act (the "Act"),in terms of section 12(1) and section 12(2) comparatively to that of a company law notion of control as set out by the Companies Act, in terms of section 2, section 3, and section 123. In addition to sections 13A(3), 14A(1), 16(2) and 17, setting out merger notification and implementation, compulsory notification necessitated by large concentrations that require commission approval, as well as transactions that require tribunal approval after referral from the commission, and lastly the Competition Appeal Court merger proceedings in order to set aside a Tribunal decision to set conditions on a merger or to prohibit it. A further subtopic for examination in this study being, when parties to a merger have failed to notify the authorities, how should the administrative penalty be calculated, as well as considering the potential for criminal sanctions for failure to notify.