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Item Open Access The admission and enrolment of foreign legal practitioners in SACU countries as an international trade services issue(2022-11-10) Mambure, Yolanda Nyasha; Ndlovu, Lonias; Van Der Walt, TharienWhen WTO members make GATS commitments, it is imperative to do follow-up studies to establish how each member adheres to her international obligations and the laws they profess to uphold. To this end, the dissertation calibrated each SACU country's GATS commitments in the background of the laws underpinning those commitments as a way to see if they uphold international ratifications. Data were collected from information available in the public domain and published online. The study established that legal services are the most restricted in all SACU countries except Lesotho. For example, foreign legal practitioners are not admitted or enrolled in the Republic of South Africa and Namibia unless they become ordinary residents or citizens. In BOLESWA countries, namely Botswana, Lesotho and Eswatini, law graduates from sister universities are given preferential treatment. Graduates with qualifications from outside BOLESWA, irrespective of nationality, must sit for local Bar examinations and satisfy some local laws. For these reasons, the measures put in place are viewed as a wanton infringement of each respective country's constitution and the key tenets of GATS. Using Lesotho, one of the SACU members who has completely liberalised legal services, as a model, the study, through recommendations, demonstrates how these countries could best comply with the GATS to enhance regional integration, cooperation, and development.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 Corporate opportunity doctrine: A South African company law perspective(2021-06-23) Lavhengwa, Livhuwani SosanahThe corporate opportunity doctrine is a legal principle that demands that directors, officers and controlling shareholders of a company must not take for themselves any business opportunity that could benefit the company. However, this restriction does not apply to every member of a corporation. It is rather limited to those who could be said to stand in a fiduciary relationship with the company. The common law duties of directors are fiduciary duties of good faith, loyalty, and honesty. Every director owes to the company a duty to act in good faith and to serve in the best interests of the company. There are various responsibilities which stem from the duty of loyalty and honesty, that a director must show towards their company. These responsibilities include the duty to avoid conflict of interest, the duty of care, skill, and diligence, as well as the duty to disclose personal financial interests. These principles, which evolved at common law, are now statutorily recognised in South Africa. The Companies Act 71 of 2008 codifies the fiduciary duties of directors and makes them mandatory, prescriptive, and unalterable and applies to all companies. According to this Act, directors are not allowed to contract out of these duties. The aim of these duties is to raise the standard of corporate governance and directorial behaviour. It is the board of directors that has the full authority to exercise all the powers and perform the functions of the company to the extent that the Companies Act or company’s Memorandum of Incorporation does not provide otherwise. The broad nature of these powers demands close statutory and judicial monitoring. This is to avoid abuses that could occur in dealing with corporate opportunities. In addition, the law dictates that opportunities available to the company must not be diverted by a director to personal use. This dissertation, through a doctrinal approach, explores this legal prescription in the South African law. It is aimed at ensuring probity in corporategovernance.Item Open Access A critical appraisal of the creditor protective mechanisms under the South African Companies Act 71 of 2008(2019-05-18) Sibanda, Mandlaenkosi; Nwafor, A. O.; Letuka, P.This research examined the mechanisms that were employed by the Companies Act 71 of 2008 in order to protect the interests of creditors in company affairs. At the preamble of the aforementioned Act lies an undertaking from legislature to provide appropriate redress to investors and third parties/creditors. It was on that basis that the researcher sought to establish whether legislature had indeed fulfilled its commitment to provide appropriate redress to creditors. Traditionally, companies have been run to promote the interests of shareholders with little attention given to the interests of other stakeholders such as creditors. It is this research`s findings that South African company law has moved from the traditional view, that is the shareholder value approach, to the enlightened shareholder value approach: a model of corporate governance which permits directors to have regard, where appropriate, to the interests of other stakeholders but with shareholders’ interests retaining primacy. It is thus found that creditors cannot be protected by contract laws alone but that their protection should be enhanced by mandatory corporate laws which regulates the manner and conduct of company controllers in a way that ensures that the interests of all stakeholders, including creditors, are given due regard. Finally, it has been found that much work has been done by legislature in developing the re-enacted creditor protective mechanisms and also in statutorily adopting new mechanisms which are aimed at advancing creditor interests. Recommendations have thus been made to legislature for possible amendments to refine its corporate laws.Item Open Access The making of right choices between shareholders and stakeholders in corporate operations in South Africa(2019-05-18) Kimbini, Ophellia; Nwafor, A. O.; Simbo, C.For a considerable period of time the primary goal of corporations was seen as being to increase the wealth of the investors (shareholders). Priority was given to shareholders’ profit maximisation at the very expense of stakeholders` interests in corporate governance. Stakeholders` interests were seen to be falling outside the range of the needs and objectives of the corporate world. However, in contemporary times, schools of thought have emerged which proposed that the corporations should not solely focus on maximising profit for the benefit of shareholders but should consider the interests of stakeholders in the management of their affairs. This issue has attracted enormous debate and arguments have been brought forward to support the view that those in management positions should consider stakeholders` interests in the corporate governance. However, there is no unanimity among scholars on what should be the right approach. It is against this backdrop that the study therefore assesses how companies are practically run in order to determine whether the interests of stakeholders are considered in corporate governance as much as they should. This dissertation explores, through doctrinal and empirical methods, the conflicting theories and existing debates on corporate governance and to show that it is for the good of the company as an entity that there be equal recognition and treatment of the two groups of the competing interests in corporate operations. The research employed the doctrinal research approach in order to evaluate the positions advocated by the different schools of thought as well as to give a comparative analysis of the position of the law in cognate jurisdictions on this matter. The empirical research approach, through questionnaires, was used to collect qualitative data from different stakeholders of different categories of chosen companies in order to ascertain from the perspective and actual experiences of stakeholders the extent to which companies consider the interests of stakeholders. The research established that, in the main, companies do not consider the interests of stakeholders and in cases where they do, the interests of shareholders are still dominant to those of stakeholders. Recommendations are made from inferences drawn from the study on how to guarantee an enhanced protection of the stakeholders’ interests in the corporate scheme.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 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.Item Open Access Piercing the corporate veil: A critical analysis of section 20(9) of the Companies Act 71 Of 2008(2017-02) Phiri, SiphethileSee the attached abstract belowItem Open Access 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.Item Open Access The effect of mining operations in Chiadzwa, Zimbabwe and Mogalakwena, Limpopo, South Africa, on the environmental human rights of local community(2015-07-16) Masekesa, Liberty Kudzai; Vukor-Quarshie, George; Hagenmeier, Cornelies; Letuka, Puleng