Department of Mercantile and Private Law

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Browsing Department of Mercantile and Private Law by Author "Letuka, P. P."

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    Philanthropic corporate social responsibility as a tool for achieving socio-economic rights in South Africa
    (2017-05-18) Obisanya, Temitope Ayomikum; Jegede, A. O.; Letuka, P. P.
    Scholarship on the subject of Corporate Social Responsibility (CSR) highlights its four components: economic, legal, ethical and philanthropic responsibility. In South Africa, while the economic, legal and ethical components of CSR are regulated and attract punitive measures for erring corporations who fail to adhere to such demands, the application of the philanthropic aspect of CSR is problematic. The application of philanthropic responsibility suffers normative, institutional and accountability deficiencies in South Africa. Hence, corporations do not conscientiously direct philanthropic responsibility towards achieving core socio-economic needs of their host communities. In the light of international human rights standards relevant to CSR, this research attempts to examine domestic laws which regulate the practice of CSR in South Africa and advance how the philanthropic aspect of CSR can be developed to achieve the realisation of socio-economic rights, in particular, the rights to access to health care, water and social security, education, housing and clean environment. The argument is made that through the formulation and application of an appropriate legal framework, philanthropic CSR can play a contributory role to the realisation of socio-economic rights recognised under the 1996 South African constitution. The implications are that in appropriate cases socio-economic rights do not only bind the state and consequently apply to the "vertical" relationship between individuals and the state, but could also apply "horizontally", in respect of the relationship between private entities. This is a controversial issue and its full implications have not yet been resolved.
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    Piercing the corporate veil: a critical analysis of Section 20(9) of the Companies Act 71 of 2008
    (2017-05-18) Phiri, Siphethile; Nwafor, A. O.; Letuka, P. P.
    Once a company is incorporated it becomes a juristic entity, distinct and separate from its incorporators. Thus, the company bears its own liabilities. However, section 20(9) of the Companies Act 71 of 2008 grants the courts the discretion to disregard the separate legal personality of a company where there is unconscionable abuse of the juristic personality of the company. However, the challenge is that the section fails to define what constitutes ‘‘unconscionable abuse’’. This research thus investigated what constitutes unconscionable abuse of the juristic personality of the company as the ground for piercing the corporate veil. Simply put, this research identified the circumstances under which the corporate veil may be pierced, given the confounding provisions of section 20(9). In unravelling the problems posed by the said section, the researcher employed a combination of doctrinal legal research methodology and comparative research methodology which involve the scrutiny of ‘black letter of the law’ and the laws of other jurisdictions. The result from this extensive inquiry is that the term ‘unconscionable abuse’ is a legislative derivate from the various terms used by the courts at common law to justify the disregarding of the separate legal personality of the corporate entity. Therefore, the inescapable conclusion reached is that just as those terms used at common law are confounding, so shall this legislative innovation. Therefore, in order to resolve this problem each matter should be dealt with based on its peculiar facts.