The shareholders’ agreement and the memorandum of incorporation: Inconsistencies, efficiencies and the missing nuance in section 15(7) of the Companies Act

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

The shareholders’ agreement and the memorandum of incorporation: Inconsistencies, efficiencies and the missing nuance in section 15(7) of the Companies Act

Author: Serena Kalbskopf

ISSN: 1996-2177
Affiliations: Attorney and Notary of the High Court of South Africa; Solicitor of the High Court of England and Wales
Source: South African Law Journal, Volume 143 Issue 2, p. 283-310
https://doi.org/10.47348/SALJ/v143/i2a4

Abstract

Section 15(7) of the Companies Act 71 of 2008 radically altered the way in which the constitutional documents of a company — the memorandum of incorporation (‘MOI’) and the shareholders’ agreement — interact. Section 15(7) provides inter alia that any provision in the shareholders’ agreement that is inconsistent with a company’s MOI is void to the extent of the inconsistency. This article examines the interplay between the shareholders’ agreement and the MOI and offers recommendations for resolving any conflicts between the two. This article critically evaluates how the courts have interpreted s 15(7). The analysis reveals that our courts do not always interpret s 15(7) consistently or correctly. Where s 15(7) is applied correctly, it can lead to efficiencies in corporate governance, reaffirming the majority-rule doctrine that our corporate law embraces. Even when s 15(7) is not applied correctly, it can lead to absurd outcomes in which the provisions of a shareholders’ agreement are ignored despite all the shareholders consenting to them. Section 15(7) should ideally recognise unanimous shareholders’ agreements over the MOI in certain contexts. Given that legislative reform is not always realistic, I make practical recommendations to legal practitioners about navigating s 15(7).

An analysis of theoretical perspectives on executive remuneration vis-à-vis transformative constitutionalism in South Africa

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

An analysis of theoretical perspectives on executive remuneration vis-à-vis transformative constitutionalism in South Africa

Author: Ophellia Matobobo

ISSN: 1996-2177
Affiliations: Postdoctoral Research Fellow, University of South Africa
Source: South African Law Journal, Volume 143 Issue 2, p. 311-338
https://doi.org/10.47348/SALJ/v143/i2a5

Abstract

This article critically examines dominant theoretical perspectives on executive remuneration in the context of South Africa’s constitutional commitment to substantive equality, human dignity and social justice. Certain theories on executive remuneration are analysed to assess their explanatory power and normative adequacy in light of the country’s deeply entrenched socio-economic inequality. The article argues that while these theories have shaped remuneration practices in the corporate sector, they largely reinforce, rather than challenge, excessive pay disparities and fail to align with the transformative goals enshrined in the Constitution of the Republic of South Africa, 1996. Drawing on the concept of transformative constitutionalism, the article highlights the obligation of private actors, including companies, to respect and advance constitutional values. In response to the limitations of existing remuneration theories, the article proposes the Inclusive Redress Theory (‘IRT’), a normative framework grounded in principles of substantive equality and social redress. The IRT advocates for mechanisms such as maximum pay ratios and redress-linked incentive structures to ensure fairness and accountability in executive remuneration. The article concludes that adopting such a framework could help to focus corporate practices on the constitutional imperative of social transformation in post-apartheid South Africa.

Off-premises cannabis consumption and the workplace: Striking a balance between zero-tolerance policies and employee rights. An analysis of Enever v Barloworld

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

Off-premises cannabis consumption and the workplace: Striking a balance between zero-tolerance policies and employee rights. An analysis of Enever v Barloworld

Authors: Estie Gresse & Werner Gresse

ISSN: 1996-2177
Affiliations: Senior Lecturer, Faculty of Law, North-West University; Senior Lecturer, School for Industrial Psychology and Human Resource Management, North-West University
Source: South African Law Journal, Volume 143 Issue 2, p. 339-372
https://doi.org/10.47348/SALJ/v143/i2a6

Abstract

South African labour law recognises both employers’ rights to discipline and employees’ rights to fair labour practices. While the Labour Relations Act (‘LRA’), the Constitution and the Employment Equity Act prohibit unfair discrimination and guarantee fair dismissals, employers may implement workplace safety rules, including zero-tolerance drug policies. Following Prince v Minister of Justice (2018), which decriminalised private cannabis use, disputes have arisen over employees’ dismissal for positive tests. In Enever v Barloworld (2024), a category analyst was dismissed under her employer’s zero-tolerance policy after repeatedly testing positive for cannabis used privately for health and religious reasons. The Labour Court upheld the dismissal, emphasising workplace safety. However, the Labour Appeal Court overturned it, finding the dismissal to be automatically unfair and discriminatory under s 187(1)(f ) of the LRA, as it impaired the employee’s dignity and failed to distinguish between workplace safety risks and private use. This article argues that employers must reassess zero-tolerance cannabis policies to account for job requirements, fairness and constitutional rights, to balance workplace discipline with employee rights in an appropriate way.

Navigating intestate inheritance rights: The case for platonic partners in South Africa’s Intestate Succession Act

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

Navigating intestate inheritance rights: The case for platonic partners in South Africa’s Intestate Succession Act

Author: Fatima Osman

ISSN: 1996-2177
Affiliations: Associate Professor, Faculty of Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 2, p. 373-396
https://doi.org/10.47348/SALJ/v143/i2a7

Abstract

South Africa’s Intestate Succession Act 81 of 1987 privileges the nuclear family and, in particular, marriage and marriage-like relationships in intestate inheritance. This article examines the exclusion of platonic relationships from intestate inheritance, situating the problem within South Africa’s evolving family structures and jurisprudence. The article discusses how legal reform (through jurisprudence and the Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of 2009) has kept intestate inheritance tethered to a narrow marriage-centric model. It draws on comparative law to demonstrate both the possibilities and limitations of extending benefits usually reserved for marriage to other relationships. The article argues for an amendment to the Intestate Succession Act that would empower the Master of the High Court to consider the totality of the circumstances and relationships of dependency in making an order for the devolution of an intestate estate. This discretionary remedy may provide relief to vulnerable dependants pending broader legislative reform. By decentring marriage in intestate inheritance, the article contributes to the broader project of aligning family law with social reality and fostering inclusive protections for diverse South African households.

Aspects of cancellation clauses for breach of contract: The impact of consumer legislation, and whether cancellation clauses should apply to partial repudiation or very minor breaches

by | Jun 6, 2026 | SALJ, SALJ V143 I2 2026

ARTICLE

Aspects of cancellation clauses for breach of contract: The impact of consumer legislation, and whether cancellation clauses should apply to partial repudiation or very minor breaches

Author: Tjakie Naude

ISSN: 1996-2177
Affiliations: Professor of Law, University of Cape Town
Source: South African Law Journal, Volume 143 Issue 2, p. 397-420
https://doi.org/10.47348/SALJ/v143/i2a8

Abstract

Consumer legislation impacts upon suppliers’ freedom to draft cancellation clauses. The view that it is not necessary in the case of repudiation to follow a procedure for cancellation prescribed in an agreed cancellation clause should apply where the breaching party repudiated the entire agreement or all outstanding obligations. By contrast, it should not generally apply where the breaching party repudiated only a part of the agreement, because the argument that the breaching party repudiated the whole of the agreement, including the cancellation clause, does not apply to partial repudiation. An exception would be where the breaching party persists in the partial repudiation despite repeated demands to retract the repudiation. A cancellation clause that allows the aggrieved party to cancel the contract immediately, without requiring the breaching party to issue an ultimatum, should not apply to an insignificant breach. Whether a breach is insignificant should depend on whether it is non-culpable and has little impact on the aggrieved party. If this rule is not regarded as acceptable for contracts generally, it should at least apply in the case of lease, as the tenant’s possessory rights are affected, with serious consequences for the tenant. There is support for these rules in foreign law.