The impact of regulatory pluralism and complexity on the governance of state-owned companies in South Africa
Author: Tebello Thabane
Affiliations: Senior Lecturer, Commercial Law Department, University of Cape Town
Source: South African Mercantile Law Journal, Volume 35 Issue 1, 2023, p. 49 – 73
This article outlines and critiques the regulatory universe applicable to state-owned companies (SOCs) in South Africa. It argues that the governance of SOCs occurs within a plural regulatory universe characterised by an intricate system of norms, principles, and practices that are engendered, monitored, and enforced by state and non-state actors. The article further argues that the complexity of the regulatory universe is one of the main causes of weak governance in SOCs. This argument is premised on the realisation that a coherent, predictable, efficient, and accessible regulatory universe enables compliance and sound corporate governance. In evaluating the regulatory universe, this article follows two lines of inquiry: the first is a doctrinal and principled approach, and the second is an instrumental, policy orientated, and forward-looking analysis. The article concludes that the regulatory universe of SOCs is not only plural and complex but also incoherent and fragmented, resulting in onerous over-regulation, regulatory quandary, and uncertainty, which collectively negatively impact the quality of governance.