‘Be safe not sorry’: CMA launches new campaign targeting cartels and encouraging whistleblowing

‘Be safe not sorry’: CMA launches new campaign targeting cartels and encouraging whistleblowing

Authors Philippe Chappatte, John Boyce, Natalie Yeung

ISSN: 2521-2575
Affiliations: Partner, Slaughter and May, London; Partner, Slaughter and May, London; Partner, Slaughter and May, London
Source: Journal of Corporate and Commercial Law & Practice, The, Volume 4 Issue 1, 2018, p. 162 – 165

Abstract

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

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

‘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

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.