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.

Vodacom (Pty) Ltd v Makate & another [2025] ZACC 13: Implications for the Review of Awards of the Commission for Conciliation, Mediation and Arbitration

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

Vodacom (Pty) Ltd v Makate & another [2025] ZACC 13: Implications for the Review of Awards of the Commission for Conciliation, Mediation and Arbitration

Author Anton Myburgh SC

ISSN: 2413-9874
Affiliations: Senior Counsel, Johannesburg Bar (Sandton); Adjunct Professor of Law, Nelson Mandela University
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 38 – 47
https://doi.org/10.47348/ILJ/v47/i1a3

Abstract

In this case, the Constitutional Court found that an integral component of the s 34 fair hearing right is ‘the duty of proper consideration’ and that the malperformance of the duty will result in a court’s judgment being overturned on appeal without any consideration of the merits. Given that arbitration before the Commission for Conciliation, Mediation and Arbitration (CCMA) is regulated by s 34 of the Constitution, the duty of proper consideration also applies to commissioners. This note considers the implications for the review of CCMA awards. It concludes that where commissioners breach their duty of proper consideration by, for example, failing to consider materially relevant facts, this constitutes a gross irregularity as per Ngcobo J’s gross irregularity dictum in Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC), which was founded on s 34. While it appears likely that the Labour Court will be confronted (perhaps inundated) with ‘reviews for want of proper consideration’, it remains to be seen how they will be dealt with.

The Shoe Doesn’t Fit: BATA and the Rights in Sections 198A, 198B and 198C of the Labour Relations Act

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

The Shoe Doesn’t Fit: BATA and the Rights in Sections 198A, 198B and 198C of the Labour Relations Act

Author Craig Bosch

ISSN: 2413-9874
Affiliations: Advocate at the Cape Bar; Research Associate, Nelson Mandela University
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 47 – 62
https://doi.org/10.47348/ILJ/v47/i1a4

Abstract

In 2014 the legislature introduced a suite of provisions providing additional protections for three categories of vulnerable employees: temporary employment service employees, employees on fixed term contracts and part-time employees. This note analyses Bata SA (Pty) Ltd v SA Clothing & Textile Workers Union obo Members & others where the Labour Appeal Court had to grapple with interpreting s 198D of the Labour Relations Act. It is argued that the court unnecessarily adopted a problematic interpretation which has the effect of undermining the purpose and efficacy of the provisions referred to above and proposals are made regarding how the current difficulty might be addressed.