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.

The characterisation principle in South African competition law from a German law perspective

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The characterisation principle in South African competition law from a German law perspective

Author: Damian Schmidt

ISSN: 1996-2185
Affiliations: Attorney at law in Stuttgart (Germany)
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 153 – 180
https://doi.org/10.47348/SAMLJ/v34/i2a1

Abstract

The characterisation principle — or the concept of characterisation —  is a modern achievement of the South African competition law, with its  roots in United States jurisdiction from which it was originally  transferred into the South African legal system. Several far-reaching  South African court decisions refer to the characterisation principle  and make it an essential part. However, the positioning of the  characterisation principle in South African competition law is  complex. This is shown by the fact that, for example, the concept of  characterisation obviously conflicts with the rationale of the per se  prohibitions implemented in the South African Competition Act 89 of  1998. This article attempts to analyse the characterisation principle  from a German law perspective in order to define its relevance, impact  and limitation more precisely in the South African legal system. 

The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

by | Nov 19, 2022 | AYIH, AYIH 2021

The use of universal jurisdiction to ensure accountability for international crimes committed in Liberia in the periods 1989 to 1997 and 1999 to 2003

Author: Shannon Bosch

ISSN: 2521-2621
Affiliations: BA (Hons) LLB LLM PhD, Attorney of the High Court of South Africa, Associate Professor of Law at University of Kwa-Zulu Natal
Source: African Yearbook on International Humanitarian Law, 2021, p. 67 – 92
https://doi.org/10.47348/AYIH/2021/a3

Abstract

This article investigates the potential for using the principle of universal jurisdiction to prescribe and then prosecute international crimes committed in Liberia during the two civil conflict periods: 1989 to 1997 and 1999 to 2003. More particularly, the article unpacks the concept of universal jurisdiction and explores the benefits that it offers in ending impunity for heinous international crimes. The article explores some of the controversies that have prevented the effective use of the principle of universal jurisdiction and highlights why it remains relevant, given the current response by the African Union to international prosecutions. The article highlights the reason why cases such as Kosiah and Massaquoi are especially significant in ending impunity in the case of Liberia, and how the success or failure of such cases can have a ripple effect, creating the necessary pressure for the establishment of an Extraordinary Criminal Court for Liberia on Liberian soil.

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

Private international law in the Labour Court: Re-visiting jurisdiction and choice of law in a cross-border employment dispute

Author: Elisa Rinaldi

ISSN: 1996-2185
Affiliations: Assistant Lecturer, Faculty of Law, University of Pretoria
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 181 – 211
https://doi.org/10.47348/SAMLJ/v34/i2a2

Abstract

With a growth in cross-border employment, the territorial limitations  placed on the adjudication of cross-border employment disputes is  incongruent to the development of employment and the subsequent  employment relationship. The question of adjudication in the Labour  Court rests predominantly on the territorial scope of South Africa’s  employment statutes. Accordingly, this article exposes the uncertainty  employees, who work outside their countries of residence, face when  trying to utilise the Labour Court as a channel of legal relief. Reasons  for this inconsistency lies in the approach the Labour Court has taken  in determining the territorial reach of South Africa’s employment  statutes. Where the Labour Court has utilised methods of statutory  interpretation and strictly imposed the presumption against extraterritoriality,  the court has established a practice that, in light of the  growing global nature of employment, deviates from the realities of the  de-territorialised flow of labour. Important in this article is thus the  endorsement of private international law principles and methods in  establishing jurisdiction and choice of law in the adjudication of a  cross-border employment dispute. 

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

by | Nov 19, 2022 | AYIH, AYIH 2021

International humanitarian law in the African Commission’s General Comment No 3 on the Right to Life: A critical and comparative analysis

Author: Brian Sang YK

ISSN: 2521-2621
Affiliations: LLB LLM PhD MCIArb, Lecturer, Faculty of Law, Egerton University
Source: African Yearbook on International Humanitarian Law, 2021, p. 93 – 133
https://doi.org/10.47348/AYIH/2021/a4

Abstract

The African Commission on Human and Peoples’ Rights, which is the treaty body established to monitor the States Parties’ compliance with the African Charter on Human and Peoples’ Rights, adopted General Comment No 3 on the Right to Life in 2015. The African Commission’s General Comment No 3 provides authoritative normative guidance for interpreting and implementing the right to life under Article 4 of the African Charter in armed conflict situations. Specifically, it outlines the African Commission’s perspective on the right to life by elaborating on its scope and content, and also by clarifying the protections for individuals and the concomitant obligations of states. This article systematically discusses how and to what extent international humanitarian law (IHL) norms are integrated into the African Commission’s General Comment No 3, and what the likely effects of such integration are. Using a critical and comparative approach, this article analyses General Comment No 3’s interpretive approach to arbitrary deprivation of life in armed conflict; the constraints on lethal force during the conduct of hostilities; and states’ extraterritorial legal obligations. The article demonstrates that, although it is a creditable advance in elaborating the right to life during armed conflict and other situations of violence, General Comment No 3 leaves key aspects of the IHL–human rights law interface either laconically addressed or ineffectually articulated. Those aspects will have to be clarified in the African Commission’s future jurisprudence.

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

by | Nov 19, 2022 | SAMLJ, SAMLJ V34 I2

The influence of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others in shaping South African Tax Administration

Author: Moseki Maleka

ISSN: 1996-2185
Affiliations: Senior Lecturer, Department of Mercantile Law, University of South Africa
Source: South African Mercantile Law Journal, Volume 34 Issue 2, 2021, p. 212 – 228
https://doi.org/10.47348/SAMLJ/v34/i2a3

Abstract

Before the commencement of the constitutional state era (due to the  promulgation of the Constitution of the Republic South Africa, 1996  (‘the Constitution’)) in South Africa, taxpayers’ rights were not protected  when taxpayers engaged with the revenue office, now known as  the South African Revenue Service (SARS). Taxpayers had no right to  just administrative action and could not challenge the exercise of SARS’  powers on administrative grounds.  Croome and Olivier argue correctly that during the pre-constitutional  era, taxpayers were entitled to expect that SARS would comply  with the general principles of administrative law, comprising the  principles of audi alteram partem (‘hear the other side’), nemo iudex in  sua propria (‘no one may be a judge in his own cause’) and the commonlaw  principles of judicial review of administrative acts (see Croome &  Olivier, Tax Administration (Juta 2010) 21).  Further, SARS was not obliged to provide reasons to taxpayers for  decisions taken by them as long as the decisions were reached in  accordance with its wide legislative powers (see Croome & Olivier, (Juta  2010) 21). This means that taxpayers did not have any ammunition to  challenge the exercise of SARS’ powers on administrative grounds prior  to the commencement of the constitutional era, where no reasons were  provided.  The position mentioned above has changed and SARS’ actions can  now be measured against the fundamental rights entrenched in Chapter  2 of the Constitution and the administrative principles laid down in the case of Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and  Tourism and Others 2004 (4) SA 490 (CC) (‘Bato Star Fishing’).