Is directors’ liability under the Companies Act of 2008 a potentially dangerous trap in comparison to other jurisdictions?

by | Nov 19, 2022 | JCCL, JCCL V8 I1

Is directors’ liability under the Companies Act of 2008 a potentially dangerous trap in comparison to other jurisdictions?

Author: Joshua Horney

ISSN: 2521-2575
Affiliations: Candidate Attorney, Macgregor Erasmus Attorneys
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 50 – 66
https://doi.org/10.47348/JCCL/V8/i1a4

Abstract

Company law jurisprudence is still emerging in South Africa, especially with the birth of the comprehensive Companies Act 71 of 2008. Academics have focused on directorial duties, with harsh criticism on the shoulders of the legislature. This piece examines the role of non-executive directors specifically but directors holistically under South African law to potentially illustrate how red tape and compliance are strangling this role. Arriving at this conclusion, directorial duties under the common law and the Act are compared and scrutinised. In addition, directorial protective instruments are tested to analyse whether the Act has sufficiently protected directors enough to allow for entrepreneurship and risk-taking but also to hold overstepping directors accountable for extensive breaches of director duties.

A case for excluding foreign companies from the application of the Companies Act of 2008 is unconvincing

by | Nov 19, 2022 | JCCL, JCCL V8 I1

A case for excluding foreign companies from the application of the Companies Act of 2008 is unconvincing

Author: Iram Hayath

ISSN: 2521-2575
Affiliations: Attorney of the High Court of South Africa and LLM Candidate (Wits University)
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 67 – 85
https://doi.org/10.47348/JCCL/V8/i1a5

Abstract

The approach adopted in the Companies Act 71 of 2008 (2008 Companies Act) is to significantly limit the regulation of foreign companies conducting business (or non-profit activities) in South Africa that meet the registration requirements of the Act. The rationale behind this approach is understood as being s 7(c) of the Act – to promote innovation and investment in South African markets. This article argues that the general exclusion of external companies from the 2008 Companies Act inadvertently impedes the furtherance of several stated purposes of the Act – which, in turn, adversely impacts the ability to achieve innovation and investment in South African markets. This article also argues that external companies are effectively excluded from certain provisions that may benefit them (including corporate governance and business rescue provisions). The current position also results in some uncertainty and unpredictability in relation to the determination of whether a foreign company is required to adhere to the registration requirements in terms of s 23 of the Act, application of certain provisions, and conflict of laws on matters that remain ungoverned by the 2008 Companies Act regarding external companies. The general exclusion of external companies from the Act is a matter that requires future reconsideration (in a manner that ensures that the stated purposes of the Act are met and that the framework within which external companies operate in South Africa is not disregarded).

The killing fields of Matabeleland: An examination of the Gukurahundi genocide in Zimbabwe

by | Nov 19, 2022 | AYIH, AYIH 2021

The killing fields of Matabeleland: An examination of the Gukurahundi genocide in Zimbabwe

Author: Siphosami Malunga

ISSN: 2521-2621
Affiliations: LLB (Zimbabwe) LLM (Oslo) PhD candidate (International Law) (Wits)
Source: African Yearbook on International Humanitarian Law, 2021, p. 1 – 45
https://doi.org/10.47348/AYIH/2021/a1

Abstract

This article examines the Gukurahundi atrocities committed in Matabeleland in the 1980s to determine whether they constitute the international crime of genocide. This article analyses the legal requirements – conventions, jurisprudence and scholarly writings regarding genocide – and assesses the Gukurahundi atrocities against these requirements. The first section is the introduction, which highlights some known genocides in history and provides an outline of the article. The second section comprises an overview of the crime of genocide and its prosecution before the ad hoc tribunals, while the third section unpacks the notion of the four protected membership groups. The fourth and fifth sections evaluates the physical and mental elements of the crime of genocide with the aid of the jurisprudence of the ad hoc tribunals as well as the International Criminal Court. The sixth, seventh and eighth sections apply the legal requirements and jurisprudence to the Gukurahundi atrocities. The ninth section provides some concluding observations, arguing that the Fifth Brigade of the Zimbabwe National Army committed genocide from 1983 to 1987 as envisaged under international law. In each section, the Gukurahundi atrocities are evaluated against legal requirements: conventions, jurisprudence and the work of leading scholars.

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

by | Nov 19, 2022 | AYIH, AYIH 2021

Reparations without reparation: A critique of the Germany–Namibia Accord on colonial genocide

Author: Catherine S. Namakula

ISSN: 2521-2621
Affiliations: LLB (Hons) Post Graduate Diploma in Legal Practice LLM PhD, Senior Lecturer at the University of the Free State, Professor of Human Rights and Criminal Justice with the Global Humanistic University, Curaçao
Source: African Yearbook on International Humanitarian Law, 2021, p. 46 – 66
https://doi.org/10.47348/AYIH/2021/a2

Abstract

Reparation is meant for effect: to make amends. The offer of EUR 1,100 million by the Federal Republic of Germany to the Republic of Namibia, in an agreement of June 2021, for the genocide committed during the colonial-era occupation encourages debate about the categorisation and effect of the payment in the fields of human rights and international criminal justice. The genocide was characterised by the loss of the lives of thousands of people among the Nama and Herero of Namibia between 1904 and 1908. In a pioneering analysis, this article reiterates the principles of reparation in international criminal jurisprudence as a yardstick for this significant gesture of remorse. Reparations must meet both procedural and substantive requirements: they must be proportional, appropriate, prompt and adequate, and they must culminate from a process that ensures the meaningful participation of victims and judicious regard for all relevant factors and circumstances. Reparations for the sake of it, without the remedial effect, make a mockery of justice. An agreement for development aid, however generous, cannot meet the standards of reparation for gross human rights violations. It does not oust the jurisdiction of a competent court on the matter and the pre-emptive clause intended to make the financial component in the Germany–Namibia Accord conclusive is unenforceable. This significant discourse must be guided by clearly set standards to avoid replicating the power dynamics which characterised the commission of the crimes that are intended to be addressed. Furthermore, the distinct treatment of victims on the basis of race and colonial history is repugnant and not defensible. A formidable institutional framework is needed for reparations for the trans-Atlantic trade and trafficking in enslaved Africans and colonial crimes, comprising a United Nations independent mechanism and a specialised committee of the African Union, supported by national committees of the respective countries.