Corruption, misuse of state resources, compliance and ethics: Is the law retreating?

by | Oct 7, 2019 | JCCL, JCCL V4 I1

Corruption, misuse of state resources, compliance and ethics: Is the law retreating?

Authors Abdulkarim Abubakar Kana

ISSN: 2521-2575
Affiliations: Associate Professor, the Honourable Attorney General, Commissioner for Justice, Nasarawa State, Dean Emeritus of the Faculty of Law, Nasarawa State University
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 1, 2018, p. 47 – 81

Abstract

Like ignorance, poverty, terrorism and environmental degradation, corruption is a great enemy of development. The past few years have seen growing public discussion of the problem; today, terrorism, climate change and corruption are successfully competing for the attention of both the media and policymakers. Corruption and business are strange bedfellows, but always remain travel mates. This is because the ultimate aim of every business is to maximise profit while adopting any means possible to defeat competitors, including unethical options, to secure advantage. The same applies to the public sector in the utilisation of state resources, where weak policy frameworks and compliance mechanisms are the prominent vectors of corruption. But, the question whether law and punishment are enough to curb corruption in both the public and private sectors remains unresolved. This paper sets the stage for discussion and further research emphasising internal control and compliance mechanisms synchronised with social welfare elements, while the penological approach remains the final and ultimate option. The paper proposes a more acceptable definition of corruption, its possible causes and negative impacts and an integrated solution to curtailing corruption, misuse of state resources, unethical practices and the enhancement of compliance capabilities of institutions.

‘Knowledge’ as a mechanism to hold directors personally liable for adverse distributive decisions under the Companies Act 71 of 2008

by | Oct 7, 2019 | JCCL, JCCL V4 I1

‘Knowledge’ as a mechanism to hold directors personally liable for adverse distributive decisions under the Companies Act 71 of 2008

Authors Simphiwe S Bidie

ISSN: 2521-2575
Affiliations: Lecturer, Nelson R Mandela School of Law, University of Fort Hare
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 1, 2018, p. 1 – 46

Abstract

It has been almost a decade since the Companies Act 71 of 2008 became operational. However, the veracity of some of its provisions remains untested. As such, its purpose with regard to those provisions remains unravelled. In this regard, ss 46(6) and 77(3)(e)(vi) are a case in point. The intention in this paper is to analyse these provisions. In engaging with these provisions the aim of the 2008 Act seems to be to encourage directors to make decisions which contribute to social stability and enhance economic development. To achieve its purpose, the 2008 Act has entrusted boards of directors with the responsibility to make proper decisions informed by that which the Act seeks to achieve. The wording of the Act suggests that directors are expected to assist to achieve the purpose of the Act by undertaking this duty voluntarily without necessarily being compelled by legislative provisions. However, if looked at through the lens of the many corporate failures to date, this task is proving to be idealistic. It is even more so where corporate failure is caused by directors’ deliberate conduct. Because of the important role which courts occupy within our legal system, they naturally become the vanguard to drive the interpretative objective envisaged by the Act. It is this interpretative objective which forms the basis of this paper to critically engage with the above provisions which are among many aimed at instilling accountability in directors.

The rights of affected persons as stakeholders during business rescue proceedings in South Africa

by | Oct 6, 2019 | JCCL, JCCL V4 I2

The rights of affected persons as stakeholders during business rescue proceedings in South Africa

Authors Clement Marumoagae

ISSN: 2521-2575
Affiliations: Senior Lecturer, School of Law, University of the Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 117 – 139

Abstract

In South Africa, the Companies Act 71 of 2008 introduced the concept of business rescue, which has created a legal framework with which attempts can be made to save failing companies when there is a chance of saving them. This Act has also shifted the balance of power in the manner in which companies are managed, and has created space for various stakeholders to participate in the affairs of companies. This paper illustrates that in the 2008 Act the legislature somehow managed to limit the number of persons who can legislatively participate in business rescue proceedings as stakeholders, by specifically prescribing such stakeholders and referring to them as ‘affected persons’. This paper critically reviews the rights of these affected persons and the remedies available to them to assert their rights during the business rescue proceedings.

The potential implications of introducing a carbon tax in South Africa

by | Oct 6, 2019 | JCCL, JCCL V4 I2

The potential implications of introducing a carbon tax in South Africa

Authors Robyn De Jager

ISSN: 2521-2575
Affiliations: None
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 88 – 116

Abstract

This report analyses the potential implications of the proposed carbon tax for South Africa from an environmental and an economic perspective. A review of all the relevant literature on the topic was undertaken and a synthesis of the information available created, with the aim of objectively reviewing the implications of the carbon tax for the country. It looks at implications carbon tax would have on the country’s emissions, economic growth and employment;arguments by various stakeholders; and the interactions between the carbon tax and other proposed climate change mitigation measures proposed by the government. It also concludes that carbon tax holds negligible potential, from an emissions reduction perspective, and that the tax could have an unsustainable negative economic impact. The REIPPPP alone holds immense potential as an instrument for emissions reduction. Further, this article avers that a carbon tax is unnecessary and would be ineffective, and should therefore not be implemented.

Judicial construction of the requirement of good faith in section 165(5)(b) of the Companies Act 71 of 2008: Mbethe v United Manganese of Kalahari

by | Oct 6, 2019 | JCCL, JCCL V4 I2

Judicial construction of the requirement of good faith in section 165(5)(b) of the Companies Act 71 of 2008: Mbethe v United Manganese of Kalahari

Authors Friedrich Hamadziripi

ISSN: 2521-2575
Affiliations: LLD (Candidate) University of Fort Hare
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 74 – 87

Abstract

None

Corporate restructuring and reforms for ease of doing business in Nigeria

by | Oct 6, 2019 | JCCL, JCCL V4 I2

Corporate restructuring and reforms for ease of doing business in Nigeria

Authors Grace Emmanuel Kaka, Folmi Yohanna

ISSN: 2521-2575
Affiliations: Lecturer, Bauchi State University, Gadau, Bauchi State; Nigerian-based Legal Practitioner
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 51 – 73

Abstract

In the latest World Bank annual ratings for 2018, Nigeria is ranked 145th among 190 economies in the Ease of Doing Business Index. This is an improvement from the 169th position it occupied in the 2017 ranking. This is due to reforms initiated by the Nigerian government aimed at creating an enabling environment for doing business in Nigeria. However, more needs to be done to sustain the momentum of creating the desired environment for entrepreneurs. Lack of political will to aggressively pursue reforms in the areas of electricity procurement, tackling corruption, taxes, enforcing contracts, permits for foreigners and dispute resolutions have been cited as affecting ease of doing business in Nigeria. This article seeks to propose reforms that could improve the ease of doing business in Nigeria.

Business rescue as a mechanism for addressing bank failures: Possible lessons from the American approach

by | Oct 6, 2019 | JCCL, JCCL V4 I2

Business rescue as a mechanism for addressing bank failures: Possible lessons from the American approach

Authors Tinashe Chipatiso, Herbert Kawadza

ISSN: 2521-2575
Affiliations: Legal Consultant, Corporate Law; Senior Lecturer, Banking and Finance Law, University of the Witwatersrand
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 37 – 50

Abstract

The significant role played by banks in a modern economy is crucial and explains why banks are subjected to extensive regulatory frameworks. Despite such regulation and oversight, banks are nevertheless prone to failure. They too can be susceptible to financial distress and insolvency. Resolution mechanisms such as curatorship have been implemented to address such financial problems. The application and efficiency of that strategy has, however, been subjected to criticism, particularly in South Africa. This article proposes a regulatory change in the form of business rescue to rehabilitate failing banks. More specifically, it argues that business rescue is more efficient and preferred in achieving this purpose. It draws lessons from other jurisdictions such as the United States which implements, or has previously employed, business rescue as a bank resolution mechanism.

Annual board self-evaluations: A valuable aid to board effectiveness

by | Oct 6, 2019 | JCCL, JCCL V4 I2

Annual board self-evaluations: A valuable aid to board effectiveness

Authors James J Hanks Jr, Sharon Kroupa, Chris Pate, Jeff Keehn, Hirsh Ament

ISSN: 2521-2575
Affiliations: Partner, Venable LLP, USA; Partner, Venable LLP, USA; Partner, Venable LLP, USA; Partner, Venable LLP, USA; Counsel, Venable LLP, USA
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 2, 2018, p. 31 – 36

Abstract

None

Case Note: Incapacity or disability? The implications for jurisdiction Ernstzen v Reliance Group Trading (Pty) Ltd (C717/13) [2015] ZALCCT 42

by | Oct 6, 2019 | ILJ, ILJ V36 I4

Case Note: Incapacity or disability? The implications for jurisdiction Ernstzen v Reliance Group Trading (Pty) Ltd (C717/13) [2015] ZALCCT 42

Authors Kershwyn Bassuday, Alan Rycroft

ISSN: 2413-9874
Affiliations: Lecturer, Commercial Law Department, University of Cape Town; Professor, Commercial Law Department, University of Cape Town
Source: Industrial Law Journal, Volume 36 Issue 4, 2015, p. 2516 – 2521

Abstract

None