Includes bibliographical references. / The primary focus of this paper is on the cross-border supply of electronic services into South Africa by non-resident e-commerce businesses. This paper will discuss the nature of electronic commerce (e-commerce) and electronic services; the impact that e-commerce has on indirect taxes such as value-added tax; the previous legislation and its shortfalls; the nature of the new legislated VAT amendments; the problems that were faced by the tax authorities in its efforts to enact the new tax VAT amendments; the problems that the South African Revenue Services (SARS) may face in enforcing compliance with the new tax legislation; the guidelines that have been put forward by the Organisation for Economic Co-operation and Development (OECD) with regard to international trade over the internet; and the measures that have been put in place in other jurisdictions that directly deal with e-commerce.

The advent of our constitution necessitated a drastic re-evaluation of our aspirations as a young democratic state. Formal equality had to be accompanied by substantive equality. Substantive equality could only be achieved by a total revamp of our economic policy and framework, which was designed to benefit the white minority. The government quickly realized the fact that our competition jurisprudence had a significant role to play in bringing about economic and social reform. The challenge however was that the economy inherited, was littered with monopolies. As a result in 1995, the South African government embarked on a project to review competition policy and the process was concluded in September 1998 when Parliament passed the Act into law. The Act introduced new provisions, including the consideration of public interest in merger regulation. The inclusion of public interest in the Act was motivated by the need to address the socio-economic inequalities arising in society. Competitiveness and development was seeing as mutually supporting objectives. It was recognised that a small economy like South Africa, may be concentrated and therefore any merger and acquisition activity can create further concentration and social disparities if left unchecked. Mergers may lead to the shedding of jobs, especially where they are driven by cost saving and efficiency goals. Hence, it was recognised as being important that merger regulation consider the preservation of jobs where these arise as a result of the merger. In an economy with high unemployment rates, it would not serve the public interest to encourage or allow further job losses. Hence the inclusion of section 12 A 3 of the Competition Act which made it mandatory to consider public interest considerations in merger proceedings. This paper seeks to evaluate if competition authorities have carried out their mandate of addressing socio economic issue in merger processing through section 12 A (3).

One of the paradoxes in company law is the phenomenon of treasury shares. Their complex nature coupled with the risks attached to their use has rendered them problematic and unnecessary in modern company law. Refuting arguments stated against the use of treasury shares, this paper aims to build a case for the introduction of treasury shares into South African company law. In order to achieve this, the paper will firstly examine the nature and complexity of treasury shares. Thereafter, it will discuss their importance in modern company law by highlighting their commercial value. A study of their incorporation into a few jurisdictions will also be discussed in an attempt to propose a manner in which South Africa can introduce treasury shares into its law. It is a suggestion of this contribution that the recent company law reform was a missed opportunity to adopt treasury shares. The adoption of treasury shares would have been an indication of a complete breakup from traditional straitjacket concept of capital maintenance. However, as they were not adopted when the new Companies Act 71 of 2008 this paper will propose, in conclusion, that treasury shares ought to be adopted.

Two or more companies may decide that their businesses should be combined for a number of reasons. This may, for example, be done in order for the companies to have access to new markets, to increase their market share, to increase their profitability by reducing the inefficiencies involved in the running of two or more companies in the same business area or to acquire technology, infrastructure, expertise and/or skill in new practice areas. Before the advent of the Companies Act 71 of 2008 South African law did not make provision for 'mergers' as that term is understood in many other jurisdictions. South African law did not recognise any mechanism by which one entity could be combined with another in terms of a statutory process, also referred to as a 'consolidation' in certain jurisdictions. One of the most significant changes proposed for the Companies Act was to make provision for a legal process by which companies could be combined. The concept of the amalgamation or merger of companies was accordingly introduced into our law, so as to enhance the efficiency of business combinations and to promote flexibility in this regard. It is significant that the statutory process of amalgamating or merging companies was adopted in addition to the existing forms of business combinations and/or acquisitions, such as the sale of a business as a going concern, the common law scheme of arrangement and offers to acquire the shares and/or other securities in a company. Companies therefore now have at their disposal an additional mechanism by which to engage in business combinations and/or acquisitions, and are required to consider in each proposed transaction the relevant circumstances to determine which mechanism will be most effective in giving effect to that transaction. This is in line with the move in the Companies Act towards self-regulation and the object of the Companies Act to encourage entrepreneurship. The main purpose of this work is to compare the requirements for, manner of implementation and consequences of an amalgamation or merger as contemplated in the Companies Act, referred to herein as a 'statutory merger', with that of the common law sale of a business.

Includes bibliographical references / The status of a creditor has always been vitally important in South African law. Our law contains numerous provisions - amongst others in the law of insolvency - to protect creditor's rights, that is, the ability of creditors to collect from debtor s what they are owed. Traditionally secured creditors - that is, creditors who hold some form of real security for their claim - rank higher in priority when it comes to repayment of their claims by a defaulting debtor, both in individual and collective debt enforcement procedures, and as such are, in the vast majority of cases, able to recover full or at least partial repayment of their claims. Business rescue was introduced into South African l aw with the commencement of the Companies Act 71 of 2008, which became effective on 1 May 201 1. Business rescue is a relatively new collective debt enforcement mechanism applicable to corporate debtors. There has been considerable uncertainty with regards to the interpretation of some of its provisions, mainly due to important concepts and terms not being defined. This uncertainty has extended to the provisions dealing with the extension of finance to a corporate debtor after commencement of the business rescue proceedings (so-called 'post-commencement finance') and the ranking of priority of creditors of such corporate debtor during the business rescue proceedings. The dissertation firstly seeks to explain the concept of business rescue, with specific emphasis on post-commencement finance. The relevant provisions relating to post-commencement finance are interpreted along the lines of recent principles governing statutory interpretation. An apparent conflict in the interpretation of these provisions is identified through specific reference to the limited number of judicial pronouncements on this subject matter to date. In attempting to resolve the apparent conflict in the interpretation of the relevant provisions, the dissertation then briefly considers the background to business rescue in South Africa. The Companies Act itself is considered, with specific reference to its stated purpose and objects, along with a look at the historical development of the specific provisions in question. A brief review is then undertaken of the role and f unction of real security in a collectively debt enforcement procedure such as business rescue under South African law, with specific reference to the existing distribution rules in insolvency la w. A comparative review of relevant foreign jurisdictions is then carried out. The dissertation concludes with a suggested approach to the interpretation of the ranking of priorities under business rescue.

Includes bibliographical references / This study examined the challenges confronting private equity funds. These funds face governance challenges, including a lack of transparency and disclosure to investors. Investor protection in leading jurisdictions ranges from voluntary self-regulation, to minimal regulatory measures and an exhaustive regulatory approach. These approaches have, however, proven limited with regard to both application and their effectiveness in promoting investor protection, and market efficiency. Two methods have been identified to address governance challenges. The legal tools include facilitating transparency, the disclosure of information and the promotion of investor protection. These tools include:1) A negotiated structural approach, with side letters that provide individual investors with information and the establishment of an advisory board with limited control over the fund's operations; and 2) A co-regulatory approach, which combines contractual, self-regulation, and financial regulations to address governance challenges efficiently and effectively. Both methods have potential to address the governance challenges and increased investor concerns that have arisen as a result of the manner in which private equity funds operate. The approach suggested by this study is based on an understanding of private equity as an asset class. The approach is effective and efficient. It encourage sand promotes investor protection, while at the same time promoting the South African private equity industry as a flexible and lucrative market. There has been limited critical legal assessment of governance mechanisms in the context of private equity. This study thus contributes to the body of knowledge on the legal assessment of private equity funds.

The Constitution of Botswana under section 3 read in conjunction with section 15, guarantees all Batswana equal enjoyment of fundamental rights and freedoms irrespective of one's race, colour, sex, tribe, status etc. Section 15 (3) further qualifies what conduct will be deemed discriminatory. Section 9 also ensures that every person's right to privacy is protected except where the person has given consent to have their right violated. Notwithstanding, the same Constitution permits limitations to the full enjoyment of these fundamental rights and freedoms on matters of public interest, public morality or for protecting the interests and rights of others. However, limitations in order to pass the constitutional scrutiny, must take place in terms of the authority of the law and have to be reasonably justifiable in a democratic society. Criminalisation of same sex conduct which is provided for under the Penal Code is a prima facie violation of the above constitutional provisions, which is, as it will be argued here, not capable of justification. The Penal Code violates section 3 of the Constitution, which aims at promoting equality of all citizens. It does so by criminalising certain sexual conducts committed by a certain group of persons (those involved in same-sex relationships), and not extending the same treatment to heterosexuals−thereby creating a discriminatory act. A prima facie violation of the right to privacy under section 9 is also established by this criminalisation. It will be argued that permitting the law to traverse into the sexual life of grown up people and regulate their sexual behavior, is not only a violation of their privacy but also dignity. Prescribing who people should fall in love with and who they should engage in sexual conduct with, violates individual autonomy―freedom of choice, which freedom should be inherent in every individual. Section 15 of the Constitution is also violated in the sense that, although its objective is to eradicate any form of discrimination, permitting discrimination on the basis of sexual orientation through criminalising same sex sexual conduct between consenting adults, defeats the very purpose that the provision is aimed at achieving. This paper acknowledges the existence of the rights to religious beliefs and practices as well as the culture and morals of the majority in Botswana. Notwithstanding, it will be argued that, taking these rights into consideration, it still does not justify the violations that the Penal Code establishes through criminalisation. This paper will recommend that, because courts are vested with the powers to declare any law or policy which it finds unconstitutional, they should thus declare those provisions of the Penal Code null and void to the extent of their unconstitutionality.

The Business Judgement Rule stems from the US common law and relates to the directors duty of care and skill. Currently, the Business Judgment Rule is in operation in many countries all over the world. It is a judicial device used to limit the scope of personal liability for directors and officers. The rule consists of a rebuttable presumption that a director or officer, when making a business decision, has acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company. It should thus form a safe harbour for rational and informed managerial actions. Courts applied the Business Judgment Rule in numerous courts decisions and established certain standards of a proper decision making process. From the experiences of the massive corruption scandals of ENRON and Worldcom and in the light of the experiences of the global financial crisis, there is a rising public interest in good corporate governance and diligent and reasonable management. Therefore, the rule has been codified in numerous countries all over the world. Among these countries are South Africa and Germany. In South Africa, the rule has been incorporated with the Companies Act, 71 of 2008. Germany has adopted the Business Judgment Rule specifically in the German Stock Corporation Act 1965 (Aktiengesetz). These codifications in modern company law are problematic and the scope of their respective application and the meaning of their prerequisites are somewhat unclear. Therefore, opinions about the rule, its application and its concrete effect diverge and the idea of a codified rule in modern corporation acts in contrast to the historical application by courts has been massively criticized. Despite all differences it is generally acknowledged that the rule and its application are intricate and a deep insight in its complex application is required to avoid a misunderstanding and a misapplication of the rule by the competent courts. The author intended to identify potential problems pertaining to the application of the rule and its prerequisites. By comparing the German and the South African approach, several similarities and differences were found. Based on these findings, five potential problems for the application of the rule in South Africa and its interpretation by the competent courts were presented in more detail. These problems relate to the scope of application in general, the blurred lines between the terms of rationality and reasonableness, the determination of the concrete judicial review, the avoidance of hindsight biases and the unjustified extension of judicial review by over interpreting the term proper purpose. Although it is hardly possible to present practical solutions for all these problems in a minor thesis, reviewing the rule, its prerequisites, and its rationale by considering additional experiences from other countries enhances the awareness of potential problems and risks. The primary guideline for the application of the rule has to be - in any case - the avoidance of the hindsight bias.

In July, 2013 Malawi enacted a new Companies Act [Act No. 15 of 2013] replacing the old Companies Act 19 of 1984. The Companies Act, 1984 was basically an adoption of the English Companies Act, 1948 and in line with the English law, it regulated distributions through the classical capital maintenance rule. In contrast, the new Companies Act, 2013 which came into force in May, 2016 has jettisoned the capital maintenance rule. As an alternative to that rule, the Act has introduced for the first time in Malawian company law edifice, the concept of the solvency test. Jurisdictions that have adopted the solvency test in their company law essentially have done so on the basis that company law should focus on the core risk at stake – company insolvency, and that it is meaningless to state that creditors look to the company's capital as a trust fund out which their debts would be settled. Despite having the same theoretical basis for adopting the solvency test, the manner in which the solvency test is defined and applied in a particular statute has significant effects on whether in its operation, the test affords adequate protection to the interests of creditors. This research examines the definition and application of the solvency test under the Companies Act, 2013 so as to determine whether in its operation as a financial restriction for distributions and other company transactions, it will afford adequate protection to creditors. It follows the approach used by Professor Kathleen Van der Linde in her analysis of the solvency and liquidity approach in the Companies Act, 2008. Thus, it analyses the Malawian law by focusing on the two separate elements of the test (equity solvency and balance sheet solvency) as well as other aspects of the test which are likely to raise legal interpretation issues. The twin solvency test adopted in different jurisdictions ordinarily varies in its balance sheet solvency element. Some jurisdictions such as South Africa and New Zealand utilise the net assets approach in their balance sheet test. Others such as New York and Delaware still emphasise on the trust fund doctrine and thus utilise stated capital in their balance sheet test. Malawi is a stated capital/surplus jurisdiction. Its new solvency based regime still focuses on the meaningless trust fund doctrine. The new solvency test approach in Malawi is incomplete and inadequate to fully protect creditors against opportunistic shareholder behaviour. A number of recommendations are made for an effective solvency test approach that will afford adequate protection to creditors against opportunistic shareholder behaviour.

This paper analyses the need for multinationals to adopt and fully implement the UN Global Compact principles in their operations by influencing sustainability down their international supply chains. This analysis is premised on the various theories supporting the adoption of sustainable business practices by businesses in terms of labour, human rights, environmental responsibility and anti-corruption. The objective of the analysis is to propose the applicable law of contract tools that the multinationals can use to implement their sustainability commitments down international supply chains. Since the supply chain partners of these multinationals are distinct entities operating independently and only dealing with the multinationals through contracts, the paper proposes that sustainability can be influenced through the use of such contracts. In this, the paper appraises conditions precedent and express contractual terms as the law of contract tools that can best be utilized by multinationals in influencing supply chain sustainability. The paper shows that these tools can be utilized to guarantee that supply chain partners operate sustainably and in a manner that implements the sustainability commitments of the focal firm - the multinational. Against the background of the already existing systems, this study illustrates that the proposed tools can be used to strengthen the existing systems and especially the use of supplier codes of conduct. It also demonstrates that the effective use of these tools guarantees the adoption of sustainable practices and systems that eventually make the entire supply chain sustainable. The paper concludes that the use of these tools will guarantee the implementation of sustainability commitments, as based on the UN Global Compact, in international supply chains.