The obligation imposed on the board of directors of a company in respect of the solvency and liquidity test under section 4 of the companies act 71 of 2008

by | May 12, 2020 | JCCL, JCCL V5 I1

The obligation imposed on the board of directors of a company in respect of the solvency and liquidity test under section 4 of 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, Volume 5 Issue 1, 2019, p. 59– 102

Abstract

The solvency and liquidity test in section 4 of the 2008 Companies Act of South Africa is the foundation upon which the entire Act is structured. It sets the threshold against which the ability of a company to distribute its money or property to its shareholders should be assessed. The introduction of the test places the 2008 Act among some of the most progressive and liberal legislative frameworks in the world. The test caters for various interests rather than the orthodox approach of the capital protection principle. The inclusion of the test into South African company law signifies a shift away from the traditional capital maintenance doctrine and recognises other factors that play a role in the economy of the country. From a policy perspective, replacing the capital protection rules with the solvency and liquidity test was a commendable step. The nature and extent of the obligation imposed on directors as a result of the incorporation of the test into the 2008 Act is enormous. The solvency and liquidity test is assessed alongside the duties to which directors must adhere. The discussion of the test and its constituent elements indicates the appropriate standard expected, and the interpretation and application of the test as contemplated in the Act.

The inevitable need for continuous corporate law improvements

by | May 12, 2020 | JCCL, JCCL V5 I1

The inevitable need for continuous corporate law improvements

Authors James J Hanks, JR

ISSN: 2521-2575
Affiliations: Partner: Venable LLP, Baltimore, USA; Distinguished Visiting Professor from Practice, University of Maryland School of Law; Former Member of the International Reference Team for Corporate Law Reform in South Africa
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 103 – 114

Abstract

None

The national treatment rule and the regulation of public procurement under the east african community common market protocol

by | May 12, 2020 | JCCL, JCCL V5 I1

The national treatment rule and the regulation of public procurement under the east african community common market protocol

Authors Joseph Agutu Omolo, Eurallyah J Akinyi

ISSN: 2521-2575
Affiliations: Lecturer, Kabarak University School of Law; LLM Candidate, University of Pretoria
Source: Journal of Corporate and Commercial Law & Practice, Volume 5 Issue 1, 2019, p. 115 – 139

Abstract

Public procurement constitutes a significant socio-political and economic tool in the hands of governments as regulators and major consumers. Through it, a government may achieve both national and international goals. Governments, therefore, tend to have a strong incentive to adopt inward-looking policies on public procurement for the benefit of local suppliers, products and services. To mitigate this, the East African Community (EAC) Common Market Protocol makes provision for non-discrimination by prohibiting discrimination against suppliers, products or services from other partner states in public procurement. This article looks at the law and practice in the East African Community and among the partner states relating to the application of the non-discrimination rule in public procurement under article 35 of the EAC Common Market Protocol. From the discussion, it is apparent that both the EAC and the partner states are yet to eliminate discrimination in public procurement through their laws and policies.

Proxy statements under Maryland Law – 2015

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Proxy statements under Maryland Law – 2015

Authors James J Hanks Jr, Michael A Leber

ISSN: 2521-2575
Affiliations: Partner, Venable LLP, Baltimore, MD; Partner, Venable LLP and a member of the firm’s corporate group
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 95 – 109

Abstract

None

Domestic employees to be furnished with a copy of an application for sequestration of the employer’s estate. Will it always be possible? Stratford v Investec 2015 (3) SA 1 (CC)

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Domestic employees to be furnished with a copy of an application for sequestration of the employer’s estate. Will it always be possible? Stratford v Investec 2015 (3) SA 1 (CC)

Authors Tshegofatso Kgarabjang

ISSN: 2521-2575
Affiliations: Senior Lecturer, College of Law, Unisa
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 82 – 94

Abstract

None

Are shareholders exclusive beneficiaries of fiduciary obligations in South Africa? The role of fiduciary obligations in the 21st Century

by | Oct 8, 2019 | JCCL, JCCL V1 I2

Are shareholders exclusive beneficiaries of fiduciary obligations in South Africa? The role of fiduciary obligations in the 21st Century

Authors Brian Peter Lee Jennings

ISSN: 2521-2575
Affiliations: Director at ENSafrica
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 1 Issue 2, 2015, p. 54 – 81

Abstract

This paper investigates and evaluates the existing South African common law position of to whom directors owe their duties, in light of the transformative requirements of the Constitution. Unsurprisingly, the South African legal position largely mirrors the position found within Anglo-American jurisdictions, on which our company law is based. But whether this is justified, or warranted, in a post-constitutional South Africa, which values equality, dignity and freedom as being paramount, is the subject of this paper. This paper will attempt to address the question whether South Africa’s Constitution, and the recently promulgated 2008 Companies Act, appropriately balances the competing ideological tensions found within South African society. In undertaking this balancing act, one will consider whether the Companies Act gives effect to the most appropriate ideology in the most appropriate circumstances, to give effect to the constitutional values of dignity, equality and freedom. The hypothesis at the forefront of this paper is that the legal interpretation of the beneficiary of the duties owed by directors in South Africa must be revisited in a post-constitutional environment, in the very least. That revisiting must be dependent on the company to whom the rule is being applied, and its position in society. This will, in turn, determine the most appropriate theory (from a legal, socio-economic and philosophical point of view) to apply to determine to whom such company’s directors owe their duties.