Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects

by | Nov 19, 2022 | JCCL, JCCL V8 I1

Co-existence of statutory provisions and common-law rules make the smooth application of the Companies Act of 2008 to be untenable in certain respects

Author: Batool Hayath

ISSN: 2521-2575
Affiliations: Attorney of the High Court of South Africa
Source: Journal of Corporate and Commercial Law & Practice, Volume 8 Issue 2, 2021, p. 35 – 49
https://doi.org/10.47348/JCCL/V8/i1a3

Abstract

The Companies Act 71 of 2008 does not provide a complete codification of company law in South Africa, with the common law still having application. While the Act has done away with certain common-law rules, for instance, the common-law derivative action, it has, in other instances, maintained a co-existence of commonlaw rules and statutory provisions. This article discusses how the coexistence of common-law rules and statutory provisions impacts the smooth application of the Act in the context of the Turquand Rule, pre-incorporation contracts and the common-law stipulatio alteri, and the partial codification of directors’ duties in the Act.

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).

Contentious issues on Value-Added Tax and Sales Tax in Nigeria: A review of conflicting court decisions

by | Oct 30, 2022 | JCCL, JCCL V7 I2

Contentious issues on Value-Added Tax and Sales Tax in Nigeria: A review of conflicting court decisions

Author: Doris Dakda Aaron

ISSN: 2521-2575
Affiliations: Research Fellow, National Institute for Legislative and Democratic Studies, National Assembly, Abuja
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 1 – 15
https://doi.org/10.47348/JCCL/V7/i2a1

Abstract

Taxation is a universal means of revenue generation by governments worldwide. It is the oldest form of revenue generation. Many countries rely on taxes as an avenue for revenue generation to foster development and improve the welfare of their citizens. There are different types of taxes computed in line with the tax policies of individual countries. Nigeria, like many other countries, relies on taxes alongside other sources of revenue for its recurrent and capital expenditure. The various taxes in Nigeria include value-added tax (VAT), sales tax, company income tax and personal income tax. This article looks at contentious issues arising from the implementation of VAT and sales tax in Nigeria. The article adopts doctrinal methodology by reviewing case law and tax legislation, and using a comparative analysis approach. The article considers the provisions of the law and their applicability in the Nigerian federal system of government. The article also considers the powers of the federal and the state governments in respect of VAT and sales tax. The article finds that a major challenge in the implementation of VAT and sales tax in Nigeria is the debate between the states and the federal government of Nigeria about which tier of government has power over VAT and sales tax. The article recommends that states should be allowed to have power over VAT and sales tax alongside the federal government, as occurs in other federal settings. In addition, the end users of most consumable items are domiciled in the various states of Nigeria.

The African Continental Free Trade Area Agreement: Aiding Intra-African trade towards deeper continental integration

by | Oct 30, 2022 | JCCL, JCCL V7 I2

The African Continental Free Trade Area Agreement: Aiding Intra-African trade towards deeper continental integration

Authors: Dennis Zaire & Tapiwa Victor Warikandwa

ISSN: 2521-2575
Affiliations: Senior Programme Manager, Konrad Adenauer, Namibia – PhD Candidate, School of Law, University of Namibia; Senior Lecturer, School of Law, University of Namibia
Source: Journal of Corporate and Commercial Law & Practice, Volume 7 Issue 2, 2021, p. 16 – 44
https://doi.org/10.47348/JCCL/V7/i2a2

Abstract

The signing of the African Continental Free Trade Area Agreement (AfCFTA) reflected many years of hard work by the continent’s forefathers who include Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania, Jomo Kenyatta of Kenya, Kenneth Kaunda of Zambia, Patrice Lumumba of Congo, Robert Mugabe of Zimbabwe and Frantz Fanon of Algeria, but to mention a few. The AfCFTA also depicts the novel work of the Organisation of African Unity (OAU), and later the African Union (AU), towards shaping a vision of continental integration, embedded in the vision of the African Economic Community (AEC), a by-product of the Abuja Treaty. Vision 2030 and the long-term continental vision of Agenda 2063: ‘The Africa We Want’ are also designed to contribute towards deeper and successful continental integration. However, by now the excitement over the AfCFTA signing has subsided. For each member state, the reality of being an AfCFTA party has started to sink in. Some member states have expressed concern and fear over problems such as opening their markets and accepting continental competition, allowing free movement of persons and trade across borders. Others find it too expensive to deal with the internal political fallout from their populace’s scepticism regarding the agreement’s effects on jobs (due to increased competition) and livelihoods. This article examines the AfCFTA to determine its impact and related advantages in respect of continental trade policies. It discusses the advantages of the AfCFTA and its potential challenges.