- Title
- The protection of Company Capital in Contemporary Company Law: South Africa and Selected Commonwealth Jurisdictions
- Creator
- Bidie, Simphiwe Sincere https://orcid.org/0000-0002-5022-2715
- Subject
- Corporation law -- South Africa
- Subject
- Stock repurchasing -- Law and legislation
- Subject
- Commonwealth countries
- Date Issued
- 2016-12
- Date
- 2016-12
- Type
- Doctoral theses
- Type
- text
- Identifier
- http://hdl.handle.net/10353/29141
- Identifier
- vital:77057
- Description
- Rules regulating how the affairs of a company are expected to be conducted have existed since time immemorial changing from one form to another with the advent of time. Common law as espoused by courts played the leading role. In recent years legislation has taken the centre stage informed by a desire for fundamental policy change. The policy change expressed in such legislation suggests that some commonwealth nations are prepared to embrace progressive contemporary measures which may better cater for the relationship of all stakeholders interested in the affairs of the company. The statutory regulation of distributions of company money or property became firmly entrenched in South Africa since 2011. In that year the Companies Act 71 of 2008 formally replaced the Companies Act 61 of 1973. Specifically the Act set out an elaborate list of rules which companies are required to comply with when they wish to distribute some of their money or property. Historically the challenge with the practical application of the capital maintenance principle was that it favoured the interests of creditors above other stakeholders. Even so this principle was not a completely secure mechanism for the protection of creditor interests as the funds they looked to for the satisfaction of their claims continued to be used for the operational requirements of the company or could be far less than the credit they would provide to companies. From that context its replacement by a more secure mechanism was inevitable. The solvency and liquidity test has become the preferred mechanism adopted by many countries across the world to replace the capital maintenance principle. This is the test which must now be observed by companies before directors distribute the company’s capital. In addition a number of prescribed procedural requirements must also be observed. For the purposes of this study the 2008 Companies Act defines distribution of company money or property in four ways. The purpose of this thesis is to critically examine these forms of distributing company money or property. It also seeks to examine the procedural rules by which these forms of distribution may be carried out. Subsequently, rules pertaining to non-compliance with distribution requirements will be analysed to determine when directors may be held personally liable for corporate contraventions or individual misconduct.
- Description
- Thesis (LLD) -- Faculty of Law, 2016
- Format
- computer
- Format
- online resource
- Format
- application/pdf
- Format
- 1 online resource (x, 361 pages)
- Format
- Publisher
- University of Fort Hare
- Publisher
- Faculty of Law
- Language
- English
- Rights
- rights holder
- Rights
- All Rights Reserved
- Rights
- Open Access
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Collections
UFH Nelson R Mandela School of Law
| Thumbnail | File | Description | Size | Format | |||
|---|---|---|---|---|---|---|---|
| View Details Download | SOURCE1 | VERSION TO BE PRINTED 8 - From External.pdf | 2 MB | Adobe Acrobat PDF | View Details Download |