Theses and Dissertations
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Browsing Theses and Dissertations by Author "Selala, K. J."
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Item Open Access A critical analysis of the concurrent enforceability of restraint of trade agreements and garden leave in South African Labour Law(2019-05-18) Mahangwahaya, Musiiwa; Ndlovu, L.; Selala, K. J.The study critically analyses the concurrent enforceability of restraint of trade and garden leave in South African Labour law. The study seeks to answer the question of whether or not the simultaneous enforceability of restraint of trade agreements and garden leave is reasonable. Designed within a qualitative paradigm primarily based on a critical literature review, the study employs a doctrinal approach to establish the contemporary legal position in respect of the simultaneous enforceability of restraint of trade agreements and garden leave in South African Labour law. The objectives pursued by the study are to mitigate the controversies and clear the confusion relating to the enforceability of restraint of trade agreements; to justify the doctrine of restraint of trade; assess the reasonableness of the simultaneous enforceability of garden leave and restraint of trade; examine the onus of proof in matters dealing with the enforceability of restraint of trade agreements; test the constitutionality of restraint of trade agreements; evaluate the relationship between restraint of trade agreements and garden leave; and propose practical recommendations that can be employed to address identified legal flaws in the context of the topic. Structurally, the study begins with unpacking the background to the research topic, the history, origin and rationality of restraint of trade agreements together with an assessment of their enforceability. It further examines the effect of garden leave on restraint of trade agreements, outlines comparative perspectives on restraint of trade, including aspects relating to garden leave and highlights lessons South Africa may learn from the selected jurisdictions. Finally, the study recommends that South African jurisprudence should be developed to shift the burden of proof to employers to prove reasonableness of garden leave and restraint of trade agreements, to impose an obligation on employers to pay former employees for rendering them jobless and to set a maximum period that an employee can be prevented to compete or be employed by employer’s competitors.Item Open Access Exploring The Concept of Unfairly Prejudicial Conduct as A Minority Shareholder Remedy Under the South African Company Law(2021-04) Mathabi, Livhuwani; Nwafor, A. O.; Selala, K. J.The South African Constitution recognises freedom of association. Generally, persons associate to form a company, but not all those that form a company are involved in the management of a company. Instead, management decisions are taken by the board of directors, and in some cases by the majority shareholders. It is a well-known principle that when one intends to be a shareholder in a company, he/she agrees to be bound by the decisions of the board or the majority of the members. In the corporate world, the directors of a company are faced with decision-making on a daily basis. Some of these decisions may not be favourable to the interests of the minority shareholders and the company. However, the law insists that only the company, through the board or the majority shareholders, can seek relief. That is the stringent common law rule in Foss v Harbottle. The quest to mitigate the burden placed on the minority shareholders by the application of that rule has led to the evolution of the remedy against oppression, which is now codified in section 163 of the Companies Act 71 of 2008. This research examines the efficiency of section 163 of the Companies Act 71 of 2008 in ensuring the protection of minority shareholders’ interests with regards to unfair and oppressive conducts of the majority in the conduct of a company’s affairs. The researcher adopted a doctrinal approach in this work, which requires a focus on existing literature to discover the extent to which the interests of the minority shareholders are protected in a company’s affairs. A comparison is made between the South African Companies Act provision in section 163 and that of the other countries as well as judicial pronouncements in these jurisdictions, to determine the advances which the South African law has made in affording protection to minority shareholders beyond the common law precept.Item Open Access Exploring the novel concept of business rescue under the South African Companies Act 71 of 2008(2018-05-18) Mpofu, Kudzai; Nwafor, A.; Selala, K. J.Business rescue provisions are meant to assist a financially distressed company. It seems that the success of business rescue rests on three factors, namely a competent business rescue practitioner and a practicable business rescue plan; the consent and cooperation of shareholders and creditors. However, academics and case law point out concerns as to the regulation of the aforementioned essential ingredients. The purpose of this study is to ascertain the level of the efficacy of the Companies Act provisions on business rescue as contained in Chapter 6. The researcher compares the current business rescue regime and the previous judicial management procedure to find out how the current regime can be improved. Since the business rescue regime was adopted from other jurisdictions the researcher also compares the practices in some of those jurisdictions with that of South Africa to establish the goals and expectations of business rescue in modern corporate operations.