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.

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.

Dismissals for Operational Requirements: The Impact of Changing Employment Terms Aimed at Profitability and Market Competitiveness in Khan v Durban University of Technology (2025) 46 ILJ 161 (LC)

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

Dismissals for Operational Requirements: The Impact of Changing Employment Terms Aimed at Profitability and Market Competitiveness in Khan v Durban University of Technology (2025) 46 ILJ 161 (LC)

Authors Asheelia Behari & Judell-Lesha Joseph

ISSN: 2413-9874
Affiliations: Lecturer, Department of Public Management, Law & Economics, Durban University of Technology; LLB LLM PhD (UKZN); Lecturer, Department of Public Management, Law & Economics, Durban University of Technology; LLB LLM PhD (UKZN)
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 62 – 84
https://doi.org/10.47348/ILJ/v47/i1a5

Abstract

Economic transformation requires employers to adapt continually, which may result in dismissals for operational requirements. Such dismissals may extend beyond financial survival to include goals of profitability, competitiveness, and institutional sustainability. In Khan v Durban University of Technology, the applicant was retrenched after failing to meet a new minimum qualification standard, which the Durban University of Technology argued was essential to remain competitive, attractive, and financially sustainable. The Labour Court upheld the dismissal, and confirmed that operational requirements can include not only survival but also competitiveness and profitability. The judgment reinforces that retrenchments can be fair when changes to employment terms are justified by genuine operational needs.

Remote and Hybrid Work(ers): Considerations for Regulating Remote Working Arrangements and a Code of Good Practice for Remote Work

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

Remote and Hybrid Work(Ers): Considerations for Regulating Remote Working Arrangements and a Code of Good Practice for Remote Work

Authors Debbie Collier & Abigail Osiki

ISSN: 2413-9874
Affiliations: Professor/Director, Centre for Transformative Regulation of Work (CENTROW), University of the Western Cape; Research Associate, CENTROW, University of the Western Cape
Source: Industrial Law Journal, Volume 47 Issue 1, 2026, p. 85 – 110
https://doi.org/10.47348/ILJ/v47/i1a6

Abstract

Globally, the COVID-19 pandemic intensified the focus on remote work and raised the need to evaluate the adequacy of labour legislation and workplace policies in the context of hybrid and remote-work arrangements. Remote work is characterised by the use of digital technology to perform tasks outside of the employer’s premises, often at the employee’s home. While it offers flexibility, inclusivity, and environmental benefits, it presents challenges too, for example in regard to enforcing employment standards, maintaining work-life balance, privacy, health and safety, and avoiding the risk of worker invisibility. Similarly, remote work poses difficulties for performance management and access to the workplace for inspection purposes.
Key issues explored in this report include the regulation of working hours, occupational health and safety concerns, and compensation for occupational injuries. The report proposes the development of regulatory mechanisms — regulations and a Code of Good Practice — for remote work to provide certainty to remote workers and safeguard their well-being while balancing this with the interests of employers. The report thus provides guidance on remote-work policies in the workplace. Additionally, it considers legislative developments on flexible working arrangements that respond to the evolving nature of work in the digital era, promote work-life balance, and support gender equality.

Trade-based money laundering through documentary credits: A compliance and legal risk analysis for South African banks

by | Dec 15, 2025 | JCCL, JCCL V10 I1

Trade-based money laundering through documentary credits: A compliance and legal risk analysis for South African banks

Author: Tsanangurai Makuyana

ISSN: 2521-2575
Affiliations: Legal Officer, Manicaland State University of Applied Sciences, Zimbabwe
Source: Journal of Corporate and Commercial Law & Practice, Volume 10 Issue 1, 2024, p. 1 – 29
https://doi.org/10.47348/JCCL/V10/i1a1

Abstract

Trade-based money laundering (TBML) poses a significant risk to the global financial system, with documentary credits being a common yet complex channel for illicit financial flows. This article examines the compliance and legal risks associated with TBML through documentary credits for South African banks, which operate within a dynamic regulatory environment influenced by both domestic and international anti-money laundering (AML) frameworks. The article evaluates the vulnerabilities in trade-finance transactions, including misrepresentation of goods, over- and under-invoicing, and fraudulent documentation. It further assesses the effectiveness of South Africa’s current regulatory and enforcement mechanisms in mitigating these risks, considering the Financial Intelligence Centre Act (FICA) and international standards set by the Financial Action Task Force (FATF). By analysing case studies and compliance challenges faced by banks, the article proposes enhanced due diligence measures, and regulatory reforms to strengthen AML controls. The findings contribute to the broader discourse on combating TBML and offer practical recommendations for banks, regulators, and policymakers in South Africa to improve detection and prevention strategies.