The Definition of Member / Shareholder in the South African Companies Act: A Brief Comparison with Australian Legislation

2020 ◽  
pp. 1-18
Author(s):  
Neels Kilian
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Company Law ◽  
Court Case ◽  
The South ◽  
Appeal Court ◽  
Locus Standi ◽  
Australian Case ◽  
Definition Of

Abstract This article discusses relevant Australian case law with reference to the oppressive remedy in company law. In South Africa, only shareholders who are entered in the shareholders’ register can make use of the remedy, contrary to the Australian application. The Australian case law explains the locus standi of shareholders who are not entered in the register. Reference is also made to South Africa's previous Companies Act 1973 due to the Smyth v Investec appeal court case, where the court applied the principles, relevant to an oppressive remedy under the 1973 act. In this regard, the appeal court's reasoning is compared to that of the Australian court; possible new perspectives relevant to South Africa's new Companies Act 2008 are also discussed. The Australian perspective is included to facilitate investigation of a South African court's approach to oppressive conduct concerning the narrow interpretation of “shareholder”. It is concluded that “shareholder” should also be interpreted to include a beneficial shareholder.

Update to the South African Stratigraphic Code and Guidelines for Standardised Lithostratigraphic/Lithodemic Descriptions

2019 ◽  
Vol 122 (2) ◽  
pp. 257-266
Author(s):  
C.H. de Beer
Keyword(s):  
South Africa ◽  
South African ◽  
High Grade ◽  
The South ◽  
Consensus Opinion ◽  
Definition Of ◽  
Robust Framework

Summary The South African Committee for Stratigraphy (SACS) is the official body in South Africa which regulates the nomenclature and definition of lithostratigraphic and lithodemic rock units, unconsolidated deposits and soils. The robust framework set in the existing stratigraphic code and guide for publication by the Council for Geoscience (CGS) have for many years provided leadership in this field, but there are a number of aspects in need of reconsideration. One example is the non-compliance of our nomenclature for high-grade supracrustal rocks with international (and South African) stratigraphic codes and another is manuscript format changes necessitated by publishing SACS descriptions in the SAJG. Any stratigraphic code is a living document that should be able to accommodate changing views and circumstances. This review provides a consensus opinion from experts on how to deal with changing needs.

Modified Road Traffic Signs in the South African Linguistic Landscape

2020 ◽  
Vol 4 (1) ◽  
pp. 1-18
Author(s):  
Lorato Mokwena
Keyword(s):  
South Africa ◽  
South African ◽  
Road Traffic ◽  
Linguistic Landscape ◽  
The South ◽  
Traffic Signs ◽  
Road Signs ◽  
Definition Of ◽  
Fluid Interpretation

Drawing on the linguistic landscape material of modified road traffic signs in different areas of South Africa, the article illustrates how modified traffic road signs continue to have situated contextual meanings regardless of altered physical placement or content. Drawing on semiotic repurposing this article argues for an extended definition of situated semiotics that takes into account repurposed signs. A fluid interpretation of ‘situatedness' will broaden the scope of what is perceived as situated semiotics and discourage the use of delinquent categories such as ‘transgressive' semiotics for ‘out of place' semiotics.

Protection of shareholders class rights in company law

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Anthony Nwafor
Keyword(s):  
South African ◽  
Case Law ◽  
Company Law ◽  
The South ◽  
Content Type ◽  
The Law ◽  
The Uk ◽  
Class Rights ◽  
A Company ◽  
Business Challenges

Purpose A company that is registered with share capital may issue different classes of shares and may confer rights on members, which place them in different classes in the company’s organisational structure. This paper is concerned with the propensity for encroachment on such vested class rights as companies strive to wriggle out of business challenges spawn by the COVID-19 pandemic. The purpose of this study is to ascertain the extent of protection that the law accords to the different classes of shareholders and members in a company especially when the company seeks to vary the vested class rights. Design/methodology/approach A doctrinal methodology, which relies on existing literature, case law and statutory instruments, is adopted to explore the nature of class rights and the adequacies of the remedial measures availed by statute to the aggrieved bearers of class rights in the context of the South African Companies Act 71 of 2008 with inferences drawn from the UK companies statute and case law. Findings The findings indicate that accessing the remedies available to aggrieved shareholders under the relevant statutory provisions are fraught with conditionality, which could make them elusive to those who may seek to rely on such provisions to vindicate any encroachment on their class rights. Practical implications The paper embodies cogent information on the interpretation and application of the relevant statutory provisions geared at the protection of shareholders class rights, which should serve as guides to companies and the courts in dealing with matters that affect the vested class rights of shareholders and members of a company. Originality/value The paper shows that protections offered to classes of shareholders under the law can also be extended to classes of members who are not necessarily shareholders, and that shareholders who seek to vindicate their class rights may conveniently rely on Section 163 that provides for unfair prejudice remedy to avoid the onerous conditions under Section 164 of the South African Companies Act 71 of 2008, which directly deals with class rights.

Law, Race and Color in South Africa

1974 ◽  
Vol 4 (3) ◽  
pp. 6-11
Author(s):  
Neville Rubin
Keyword(s):  
South Africa ◽  
South African ◽  
Significant Proportion ◽  
Case Law ◽  
Major Constituent ◽  
The South ◽  
Party Government ◽  
The Law ◽  
Keen Observer ◽  
Entire Apparatus

The word "apartheid" does not appear anywhere in the South African statute book, and a keen observer would be hard put to discover its existence anywhere in the formal texts which make up the law. Yet apartheid is deeply embedded in the law of South Africa.In a country in which neither the content nor the administration of the law has ever been free from racial overtones, twenty-five years of continuous rule by the National Party Government have seen to it that the ideology of segregation has been translated into a formidable pattern of legalized racial discrimination. This pattern is to be observed throughout the entire apparatus of the South African legal system. It is written into the constitution and reflected in the legislature. It is a major constituent of the statute law of the country, and decisions as to the manner in which legislation is to be implemented make up a significant proportion of the case law. Apartheid has involved and influenced both the composition and the conduct of the courts, just as it has affected the legal profession and the teaching of law.

scholarly journals A life in human rights: a conversation with Dennis Davis

2021 ◽  
Author(s):  
Tor Krever
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Cape Town ◽  
The South ◽  
High Court ◽  
Appeal Court ◽  
Leading Position ◽  
University Of Cape Town ◽  
The University

Abstract Dennis Davis is Judge of the High Court of South Africa, Judge President of the Competition Appeal Court, and Honorary Professor of Law at the University of Cape Town. In this wide-ranging conversation with Tor Krever, he reflects on his political and intellectual trajectory—from early encounters with Marx to anti-apartheid activism to a leading position in the South African judiciary—and his lifelong commitment to a radical left politics.

scholarly journals Enhancing the Value of Patents as Corporate Assets in South Africa: How can Artificial Intelligence (AI) Assist?

2021 ◽  
Vol 24 ◽  
pp. 1-38
Author(s):  
Lonias Ndlovu
Keyword(s):  
Artificial Intelligence ◽  
South African ◽  
Language Processing ◽  
Case Law ◽  
Patent Law ◽  
Company Law ◽  
High Quality ◽  
Asset Value ◽  
Definition Of ◽  
The Internet Of Things

Although the accounting definition of assets contemplates intangible, abstract assets such as those embodied in intellectual property (IP), South African company law largely views IP as a legal and not a business asset. This paper tentatively suggests an approach that uses artificial intelligence (AI) to mitigate weaknesses in the South African patent law relating to the absence of patent searches and examinations. It is hoped that using AI will enable the filing of quality patents that satisfy the prescribed patentability criteria. High-quality patents will allow companies to accumulate patents as corporate assets. The approach is based on the algorithmic use of AI technologies such as machine learning, natural language processing, deep learning alongside the Internet of Things, and IP analytics to strengthen South Africa’s IP system and create asset value for corporations. The paper recommends using the proposed AI technologies by companies and the Patents Office to enable the filing of high-quality patents, which will lead to the accumulation of corporate assets in the form of patents. The methodology is doctrinal, and the paper relies on recent literature on IP and AI, South African law, case law and examples drawn from studies conducted in other countries.

MODERN FREEDOM OF TESTATION IN SOUTH AFRICA: ITS APPLICATION BY THE COURTS

2015 ◽  
Vol 2 (1) ◽  
Author(s):  
Patrick Matsemela
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Bill Of Rights ◽  
The South ◽  
Central Thesis ◽  
Locus Standi ◽  
Statutory Law ◽  
The Law

Freedom of testation is considered to be one of the founding principles of the South African law of testate succession. Testators are given freedom to direct how their estate should devolve and free rein to dispose of their assets as they deem fit. As a result, effect must be given to the expressed wishes of the testator. Prior to 1994, such freedom could be limited only by common law or statutory law; more recently, such freedom has been tested against the Constitution of South Africa. This means that a provision in a will cannot be enforced by the courts if it is contra bonos mores, impossible or too vague, in conflict with the law, or is deemed to be unconstitutional.Having regard to the unfair discrimination provisions of section 9(3) of the Final Constitution, can a court enforce a will or a trust deed which discriminates against potential beneficiaries on account of their race, gender, religion or disability? Will such clause pass the test of constitutionality, be justified or considered to achieve a legitimate objective? Can potential beneficiaries or anyone who has locus standi challenge the freedom of testation by relying on the freedoms and rights entrenched in the Bill of Rights? It is against this background that the paper attempts to answer these questions and explore the extent to which the Constitution has an impact on freedom of testation. The central thesis of the article is to determine whether clauses in wills or trust instruments which differentiate between different classes of beneficiary can be deemed to be valid. This is done by looking at several more recent cases that have appeared before our courts.

scholarly journals Die definiëring van persoonlike besparing: Die Suid-Afrikaanse situasie 1965.1 tot 1984.4

1987 ◽  
Vol 18 (1) ◽  
pp. 29-34
Author(s):  
P. Styger ◽  
J. H.P. Van Heerden
Keyword(s):  
South Africa ◽  
Time Series ◽  
South African ◽  
The South ◽  
Good Definition ◽  
Reserve Bank ◽  
Term Insurance ◽  
The Sixties ◽  
Personal Savings ◽  
Definition Of

The definition of personal savings: The South African situation 1965.1 to 1984.4 The personal savings definition and through that also the time series of personal savings in South Africa in common use, can be described as personal savings as published, amongst others, by the South African Reserve Bank. In the computation of the above time series there are certain deficiencies and the time series has been queried since the sixties. The objective of this study was to undertake an empirical study of the definition of personal savings in South Africa and through that also the time series of personal savings, and possibly to improve on these. It was indicated that the published personal savings cannot be regarded as a good definition of personal savings in South Africa. Various alternative personal savings definitions were studied critically and it was indicated that it would seem that long-term insurance premiums plus pension fund contributions (i.e. contractual personal savings) should constitute the personal savings definition for South Africa.

scholarly journals Emergence of Illegality in the Underlying Contract as an Exception to the Independence Principle of Demand Guarantees

2021 ◽  
Vol 53 (3) ◽  
Author(s):  
Michelle Kelly-Louw ◽  
Cayle Lupton
Keyword(s):  
South Africa ◽  
South African ◽  
Case Law ◽  
Willingness To Accept ◽  
Court Cases ◽  
The South ◽  
The Past ◽  
Independence Principle ◽  
English Law ◽  
General Guidance

It is questionable whether illegality in the underlying contract of a demand guarantee can or should constitute a valid exception to this instrument’s independence (autonomy) principle. From earlier English case law and scholarly discussions it appears that the acceptance of such an exception is contentious and, even if it is recognised, its extent remains uncertain. The English courts have previously indicated that they are open to accepting illegality in the underlying contract as an exception to the principle of independence of demand guarantees, but have not developed the exact parameters of such an exception. In the past, there were no South African court cases where illegality in the underlying contract was accepted, or even considered, as a possible exception to the independence principle of a demand guarantee. In a recent South African case, Mattress House (Proprietary) Ltd v Investec Property Fund Ltd, we find the first evidence of a South African High Court’s willingness to accept the possibility of illegality in the underlying contract as constituting a valid exception. In this article we discuss this South African case, which provides general guidance on the possibility of accepting such an exception under the South African law. South Africa is always persuasively influenced by English law in relation to demand guarantees.  Therefore, we also discuss the English law.  

scholarly journals MARITAL RAPE: A TALE OF TWO LEGAL SYSTEMS

Obiter ◽  
2017 ◽  
Vol 38 (3) ◽  
Author(s):  
Oyebanke Yebisi ◽  
Victoria Balogun
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Common Law ◽  
Case Law ◽  
Criminal Code ◽  
Marital Rape ◽  
The South ◽  
Sexual Offences ◽  
The Common

Marital rape is a form of sexual violence, which is often downplayed due to the common law position that a man cannot rape his wife. While certain jurisdictions have enacted laws criminalising it, other jurisdictions have yet to criminalise it. This paper focuses on the criminal aspects of marital rape and examines the laws regarding marital rape in South Africa and the general rape provisions in Nigeria. While marital rape is punishable under South African criminal law, it is not in Nigeria. In this paper, the provisions of the South African Criminal Law (Sexual Offences and Other Related Matters) Act of 2007, the Criminal Code Act, and the Penal Code Act – Nigeria in relation to rape and marital rape – are analysed. This paper also discusses the South African Sexual Offences Court, sentencing for rape in the selected countries, and relevant case law. It concludes that South Africa (SA) has a generally good framework with respect to rape and marital rape, but the country should work more on the strict application of the laws in place. It also suggests that Nigeria should establish a sexual offences court using the South African model and should amend the Criminal Law to expressly criminalise marital rape.

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