ISSN: 2521-2575
Affiliations: Partner, Venable LLP, Baltimore, MD; Partner, Venable LLP and a member of the firm’s corporate group
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 95 – 109
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ISSN: 2521-2575
Affiliations: Senior Lecturer, College of Law, Unisa
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 82 – 94
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ISSN: 2521-2575
Affiliations: Director at ENSafrica
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 54 – 81
This paper investigates and evaluates the existing South African common law position of to whom directors owe their duties, in light of the transformative requirements of the Constitution. Unsurprisingly, the South African legal position largely mirrors the position found within Anglo-American jurisdictions, on which our company law is based. But whether this is justified, or warranted, in a post-constitutional South Africa, which values equality, dignity and freedom as being paramount, is the subject of this paper. This paper will attempt to address the question whether South Africa’s Constitution, and the recently promulgated 2008 Companies Act, appropriately balances the competing ideological tensions found within South African society. In undertaking this balancing act, one will consider whether the Companies Act gives effect to the most appropriate ideology in the most appropriate circumstances, to give effect to the constitutional values of dignity, equality and freedom. The hypothesis at the forefront of this paper is that the legal interpretation of the beneficiary of the duties owed by directors in South Africa must be revisited in a post-constitutional environment, in the very least. That revisiting must be dependent on the company to whom the rule is being applied, and its position in society. This will, in turn, determine the most appropriate theory (from a legal, socio-economic and philosophical point of view) to apply to determine to whom such company’s directors owe their duties.
ISSN: 2521-2575
Affiliations: Associate Professor of Law, Faculty of Law, University of the Western Cape
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 42 – 53
The 2002 Mauritian Prevention of Corruption Act [fn1] (POCA or the Act) provides for different offences. Section 5 of POCA provides for the offence of bribery and states that ‘any person guilty shall be liable to penal servitude’. This means that POCA does not provide an appropriate sentence for juristic persons because juristic persons cannot be sentenced to imprisonment or penal servitude. This is what one of the courts in Mauritius found when it convicted two foreign companies of bribery but could not sentence them to prison. In this article the author argues that Mauritian legislators should amend POCA to provide for sentences that may be imposed on companies convicted of offences under the Act. The author also argues that, in addition to prosecution, Mauritius may find it useful to adopt the deferred prosecution agreements approach as one of the ways to ensure that companies are deterred from committing corruption and also to ensure that they put effective measures in place to combat corruption. footnote 1: Prevention of Corruption Act 5 of 2002, proclaimed by Proc 18 of 2002 wef 1 April 2002.
ISSN: 2521-2575
Affiliations: Senior Lecturer in Commercial Law, University of Cape Town; Professor of Business Strategy, University of Pretoria; Partner at Wachtell, Lipton, Rosen & Katz, New York
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 1 – 41
The American Chapter 11 has inspired the reform of many legal systems globally to embrace the notion of reorganisation rather than administration. The recent corporate law reform in South Africa is an example of such an attempt to de-emphasise the right of creditors to liquidate a company, and develop a culture of reorganisation. The new South African procedure, called ‘business rescue’, enables a company to restructure its affairs more informally and with less judicial oversight than was previously possible. An independent third party then develops a formal plan to rescue the company, which must be approved by the body of creditors, while a moratorium prevents them from enforcing their existing claims. The authors analyse the problems that have arisen in business rescues in practice during the first four years of the procedure’s existence and, drawing from the experience of the United States, propose possible solutions to the shortfalls of business rescue that may also assist in developing a true reorganisation culture in South Africa.