Section 15(7) of the Companies Act, 2008: Acta Non Sunt Servanda – How Far Does It Go?

by | Jan 10, 2026 | BTCLQ, BTCLQ V16 I4

Section 15(7) of the Companies Act, 2008: Acta Non Sunt Servanda – How Far Does It Go?

Authors: Matthew Blumberg SC and Tumelo Ntsewa

ISSN: 2219-1585
Affiliations: Member, Cape Bar
Source: Business Tax & Company Law Quarterly, Volume 16 Issue 4, 2025, p. 1 – 9

Abstract

Shareholders’ agreements are a common feature of limited liability trading and investing. That was the case under the Companies Act, 1973, and it remains the case under its successor, the Companies Act, 2008. Under the former, shareholders’ agreements generally took precedence over the company’s articles of association in cases of conflict. Under the latter, the position is different. This is captured in section 15(7) of the Companies Act, 2008 which provides that a shareholders’ agreement that is inconsistent with the company’s Memorandum of Incorporation is void to the extent of the inconsistency. A recent Western Cape High Court judgment dealing with section 15(7) provides an opportunity to take stock of the jurisprudence. An analysis of the case law and academic writing reveals the ambit and operation of section 15(7) to be more nuanced and complex than may at first blush appear to be the case. The exact extent to which section 15(7) marks a departure from the previous regime remains, in important respects, yet to be decided on an authoritative basis.

Reversing Leave to Appeal: Navigating Procedural Uncertainty in South African Tax Dispute Resolution

by | Jan 10, 2026 | BTCLQ, BTCLQ V16 I4

Reversing Leave to Appeal: Navigating Procedural Uncertainty in South African Tax Dispute Resolution

Authors: Bradely Khethwa and Des Kruger

ISSN: 2219-1585
Affiliations: Associate, Webber Wentzel Attorneys
Source: Business Tax & Company Law Quarterly, Volume 16 Issue 4, 2025, p. 10 – 15

Abstract

It is well established that the Tax Administration Act 28 of 2011 provides several avenues through which an aggrieved taxpayer may seek recourse before the tax court. However, a complex jurisdictional dilemma arises when SARS, having initially granted a taxpayer leave to appeal, subsequently contends that the Tax Court lacks jurisdiction to adjudicate the matter. This reversal not only undermines procedural certainty but also raises critical questions about the scope of the tax court’s authority and the integrity of the dispute resolution process under the Tax Administration Act. This article explores this legal uncertainty, examining its implications for taxpayers and the broader tax adjudication framework. This question will be explored in detail with a specific focus on the recent judgment delivered by the Supreme Court of Appeal in Commissioner for the South African Revenue Service v African Bank Limited (242/2024) [2025] ZASCA 101.

The Commercial Realities of Financial Assistance

by | Jan 10, 2026 | BTCLQ, BTCLQ V16 I4

The Commercial Realities of Financial Assistance

Author: Joseph R Tettey

ISSN: 2219-1585
Affiliations: LLB (Wits), LLM (Wits), MM (Wits); MCom (Taxation) and LLM (UJ); Principal Lead Counsel, ABSA Bank
Source: Business Tax & Company Law Quarterly, Volume 16 Issue 4, 2025, p. 16 – 30

Abstract

This article explores the concept of financial assistance under the Companies Act, focusing on sections 44 and 45, which aim to prevent abuse of control and protect minority shareholders and creditors. It traces the historical rationale for these provisions, rooted in public policy concerns, and examines their evolution from strict prohibitions to a more permissive framework subject to solvency, liquidity, and fairness requirements. The article incorporates economic principles such as information asymmetry and moral hazard, analyses judicial interpretations including the impoverishment test, and highlights recent legislative developments such as the carve-out for subsidiaries. The article concludes that determining whether financial assistance has been provided is a substantive legal inquiry guided by commercial realities, legislative intent, and case law, with non-compliance rendering transactions void and exposing directors to personal liability.

Designated Employers, People with Disabilities and Sectoral Targets: An Analysis of the Amendments Promulgated in terms of the Employment Equity Amendment Act 4 of 2022

by | Jan 9, 2026 | ILJ, ILJ V47 I1

Designated Employers, People with Disabilities and Sectoral Targets: An Analysis of the Amendments Promulgated in terms of the Employment Equity Amendment Act 4 of 2022

Author Jeannine van de Rheede

ISSN: 2413-9874
Affiliations: Senior Lecturer, University of the Western Cape, PhD (Western Cape)
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 1 – 23
https://doi.org/10.47348/ILJ/v47/i1a1

Abstract

Employment equity is implemented in South Africa (SA) to redress the workplace injustices caused by apartheid. SA embraces substantive equality that acknowledges that remedial measures should be implemented to eradicate the negative effects of past and present unfair discrimination. The Employment Equity Act 55 of 1998 (EEA) was promulgated inter alia to promote the constitutional right to equality, by ensuring that employment equity is implemented and achieves a diverse workforce broadly representative of SA’s people. In terms of the Employment Equity Amendment Act 4 of 2022 the definition of a ‘designated employer’ and ‘people with disabilities’ has been amended. It provides, inter alia, that the Minister of the Department of Employment and Labour is empowered to set numerical targets to ensure the equitable representation of people from designated groups at the different occupational levels. This article determines whether inter alia this amendment is in line with the objectives that the EEA aims to achieve. While the government continues to emphasise its commitment to rectifying the historical imbalances in workplaces and promoting employment equity, the article illustrates that some of these amendments, when assessed through the lens of substantive equality, fall short of the Act’s objectives.

Some Thoughts on Collective Autonomy: SA Local Government Bargaining Council & others v Municipal Workers Retirement Fund & others (2025) 46 ILJ 2361 (SCA)

by | Jan 9, 2026 | ILJ, ILJ V47 I1

Some Thoughts on Collective Autonomy: SA Local Government Bargaining Council & others v Municipal Workers Retirement Fund & others (2025) 46 ILJ 2361 (SCA)

Authors PAK le Roux & André van Niekerk JA

ISSN: 2413-9874
Affiliations: Executive Consultant, ENS Africa; Attorney of the High Court of South Africa; Judge of the Labour Appeal Court
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 24 – 37
https://doi.org/10.47348/ILJ/v47/i1a2

Abstract

The principle of collective autonomy is an element inherent in the rights to freedom of association and to bargain collectively. The principle requires that public authorities, including the courts, respect the autonomy of the collective bargaining process and its outcomes. International labour standards recognise that the scope for intervention, especially in the substance of a collective agreement voluntarily concluded by the bargaining partners, is extremely limited. Although the nature and form of a collective agreement are prescribed by the statutory definition of a ‘collective agreement’ in s 213 of the Labour Relations Act 66 of 1995 and thus constitute an infringement on collective autonomy, these limitations do not offend international standards. The prospect of a right of review of a collective agreement in the hands of third parties raises the spectre of an unjustifiable encroachment on collective autonomy, whether by way of a review of what is contended to be administrative action, but especially a review on the principle of legality. The principle of collective autonomy requires courts to approach attempts by third parties to review and set aside collective agreements with caution and restraint.