Director's duties under the Companies Act 71 of 2008
- Authors: van Tonder, Jan-Louis
- Date: 2014
- Subjects: South Africa -- Companies Act, 2008 Corporation law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47892 , vital:40397
- Description: This research focuses on an analysis of the prescribed standards of directors’ conduct provision. The thesis of the dissertation is to analyse what this provision introduces into statute. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004 the Department of Trade and Industry released a policy document entitled South African Company Law for the 21st Century Guidelines for Corporate Law Reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill and introduces the business judgment rule into South African company law. The research establishes what the standards of conduct are that are expected of directors and analyses the meaning of these duties in the standards of directors’ conduct provision. The research examines whether the duties introduced in the standards of conduct provision are aligned to the common law principles. It will consider whether the standards of conduct provision amends the common law principles, adds anything new or narrows the common law duties in its statutory format.
- Full Text:
- Date Issued: 2014
- Authors: van Tonder, Jan-Louis
- Date: 2014
- Subjects: South Africa -- Companies Act, 2008 Corporation law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: http://hdl.handle.net/10948/47892 , vital:40397
- Description: This research focuses on an analysis of the prescribed standards of directors’ conduct provision. The thesis of the dissertation is to analyse what this provision introduces into statute. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004 the Department of Trade and Industry released a policy document entitled South African Company Law for the 21st Century Guidelines for Corporate Law Reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill and introduces the business judgment rule into South African company law. The research establishes what the standards of conduct are that are expected of directors and analyses the meaning of these duties in the standards of directors’ conduct provision. The research examines whether the duties introduced in the standards of conduct provision are aligned to the common law principles. It will consider whether the standards of conduct provision amends the common law principles, adds anything new or narrows the common law duties in its statutory format.
- Full Text:
- Date Issued: 2014
Regulating franchise operations in South Africa : a study of the existing legal framework with suggestions for reform.
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
- Authors: Woker, Tanya Ann
- Date: 2009
- Subjects: Franchise Association of Southern Africa , Franchises (Retail trade) -- Law and legislation -- South Africa , South Africa. Dept. of Trade and Industry , Common law -- South Africa , Commercial law -- South Africa
- Language: English
- Type: Thesis , Doctoral , PhD
- Identifier: vital:3721 , http://hdl.handle.net/10962/d1015719
- Description: This thesis analyses the existing legal framework that applies to franchising in South Africa today. The study begins with an examination of the history and nature of the franchise contract, focusing particularly on the nature of the franchise relationship. This study is undertaken in order to substantiate the argument that franchising is a unique method of doing business. There is a need therefore to recognise that the franchise contract is a special contract in its own right, just like contracts of sale, lease, insurance and suretyship. The study then goes on to examine the problems which are experienced in the sector, as well as the law which must provide solutions to these problems. The research will show that in a modern commercial world the existing legal framework, especially the common law, cannot adequately deal with many of these problems. The complex relationship between franchising and competition law is also explored. A common thread that emerges from franchise disputes is the lack of protection afforded to the interests of franchisees. Franchisees tend to be at the mercy of economically stronger franchisors, hence the belief that there is a need for a stronger regulatory framework. The study then shifts to proposals for reform. In 2000 the Department of Trade and Industry (DTI) established the Franchise Steering Committee in conjunction with the Franchise Association of South Africa (FASA) to review the regulatory environment. This Committee drafted franchise legislation which aimed to bring the regulation of the sector under the control of the DTI. This legislation has not been implemented and the DTI has changed its strategy. Instead of dealing with franchising independently, franchising will fall within the scope of consumer protection legislation. Both the consumer protection legislation and the legislation proposed by the Franchise Steering Committee are thoroughly examined and explained. Shortcomings in the proposals are highlighted and an alternative approach is recommended. It is proposed that franchise-specific legislation should be introduced but that this legislation should establish a system of co-regulation between the government and the franchise sector.
- Full Text:
- Date Issued: 2009
Rights, duties and remedies under the United Nations Convention on Contracts for the International Sale of Goods: an investigation into the CISG's compatibility with South African law
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
- Authors: Oosthuizen, Beverley-Claire
- Date: 2009
- Subjects: United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Language: English
- Type: Thesis , Masters , LLM
- Identifier: vital:3691 , http://hdl.handle.net/10962/d1003206 , United Nations Convention on Contracts for the International Sale of Goods (1980) , Sales -- South Africa , Commercial law -- South Africa , South Africa -- Law and legislation
- Description: This thesis analyses the compatibility of the United Nations Convention on Contracts for the International Sale of Goods (CISG) with the South African law of sale. An initial examination of the historical development of the CISG reveals its ambitions of becoming the primary source of law governing international contracts of sale. The goal of this research is to determine whether South Africa should ratify the CISG. The CISG has been ratified by most of the leading trading States in the world. In order to gain a better understanding of the advantages and disadvantages of ratification, a comparative study has been undertaken. The stance taken toward the CISG by the United Kingdom and Germany has been examined. The United Kingdom has staunchly avoided ratifying the CISG, despite having agreed thereto a number of years ago. Germany however has taken a different approach and has welcomed the CISG. The experiences of these foreign States serve as a useful guide when assessing the specific challenges that exist in South Africa concerning the adoption of the CISG. The most important aspect of this study is the direct comparison between the legal provisions housed in the CISG and their counterparts under South African law. A careful investigation has been conducted into the rights, duties, and remedies under the CISG. This investigation is followed by an examination of the corresponding rights, duties, and remedies under the South African domestic law of sale. It is evident from these explorations that the rights and duties under the CISG strongly resemble those under South African law. The direct comparison revealed however that certain remedies found in the CISG do not have a counterpart under South African law. Despite this discrepancy, there are no legal principles in the CISG that are completely unknown in South African law. While certain remedies housed in the CISG cannot be found in an identical form under South African law, sufficiently similar legal principles can be found, which frequently lead to the same results as those under the CISG. This study is concluded with a recommendation concerning South Africa’s adoption of the CISG.
- Full Text:
- Date Issued: 2009
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