The Binding Effect of the Constitutive Documents of Companies: The 1973 and 2008 Companies Acts of South Africa

This contribution examines the provisions of the constitutive documents of companies under two specific provisions, namely s 65(2) of the Companies Act 61 of 1973 and s 15(6) of the Companies Act 71 of 2008. The aim is to determine who is bound by these provisions, the circumstances which give rise to being bound by them, and the possible effect thereof on various parties. The provisions of the constitutive documents under section 65(2) of the 1973 Companies Act are interpreted by courts and academic writers to amount to a statutory contract between a company and its members and between members inter se. The members are said to be bound by the provisions of these documents only in their capacity as members. It is submitted, however, that the rights and obligations are granted to members in their capacity as such if they are membership rights which are granted by virtue on one’s membership. So far the courts have failed to provide a logical explanation of the concept “capacity of a member as such”. This failure and the “qua membership test” resulted in limitations in the interpretation of section 65(2): for example, the exclusion of persons who are regarded as outsiders. The directors, despite the fact that numerous provisions of the applicable article provides for their rights, have rights that are unenforceable via the articles, for being regarded as outsiders. The company on the other hand can enforce the obligations against the directors on the basis of breach of their fiduciary duties. These limitations called for a redraft of section 65(2). This contribution raises the legal challenges raised by the above. It arrives inter alia at the conclusion that the “qua membership test” may find application under the 2008 Companies Act, since members/shareholders may be allowed to exercise rights that are membership rights granted to them by virtue of their membership, and directors may be allowed to exercise rights that are granted to them in their official capacities as such.

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The impact of the credit legislation on consumers

Risk Governance and Control Financial Markets & Institutions ◽

10.22495/rgcv6i4siart8 ◽

2016 ◽

Vol 6 (4) ◽

pp. 503-509 ◽

Cited By ~ 1

Author(s):

Hlako Choma ◽

Thifulufhelwi Cedric Tshidada ◽

Tshegofatso Kgarabjang

Keyword(s):

South Africa ◽

South African ◽

Consumer Protection ◽

The Other ◽

The South ◽

Other Hand ◽

Credit Agreement ◽

Financial Obligation ◽

The Impact ◽

National Credit Act

The purpose of this paper is to examine two South Africa legislations dealing with over indebtedness of a consumer. It is clear that in terms of the South African law, section 129 (1) and 130 (3) of the National Credit Act provide that a creditor provider who wishes to enforce a debt under a credit agreement must first issue a section 129 (1) (a) notice to the consumer (the purpose of the notice is to notify the consumer of his/her arrears). On the other hand, the South African National Credit Act encourages the consumers to fulfil the financial obligations for which they are responsible. The second legislation to be examined which serve or appear to serve same purpose as the National Credit Act is the Insolvency Act. It therefore, postulated that the compulsory sequestration of a consumer in terms of the Insolvency Act would stand as an alternative remedy for a credit provider before she/he can have recourse mechanisms, such as debt review that are focused on satisfaction of the consumer’s financial obligation , in terms of the provisions of the National Credit Act. The paper determines to what extend these measures comply with the constitutional consumer protection demands. The legislature had been pertinently cognizant of the Insolvency Act when it lately enacted the National Credit Act. This is much apparent from the express amendment of section 84 of the Insolvency Act to the extent set out in schedule 2 of the National Credit Act

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BANKER’S LIABILITY FOR POST-PETITION DISPOSITIONS

The Cambridge Law Journal ◽

10.1017/s0008197301301198 ◽

2001 ◽

Vol 60 (3) ◽

pp. 441-492

Author(s):

Christopher Hare

Keyword(s):

Current Account ◽

The Other ◽

Considerable Difficulty ◽

Competing Interests ◽

Other Hand ◽

Court Orders ◽

The One ◽

A Company ◽

Court Of Appeal ◽

Consistent Approach

Once a petition to wind-up a company has been presented, a balance must be struck between two competing interests. On the one hand, the allegedly insolvent company must be allowed to continue trading until the court has had an opportunity to examine the bien-fondé of the petition; on the other hand, the company’s directors must be prevented from dealing with the corporate assets in a way detrimental to the interests of the general creditors. This balance is struck by the Insolvency Act 1986, s. 127, which provides that, upon the granting of a winding-up order, any “dispositions” of the company’s property in the period following the presentation of the petition are retrospectively avoided, unless the court orders otherwise. The courts have, however, had considerable difficulty in applying this provision to the post-petition operation of a company’s current account and, in particular, have failed to adopt a consistent approach to the potential liability of a bank for continuing to operate such an account. The Court of Appeal addressed this problem in Hollicourt (Contracts) Ltd. v. Bank of Ireland [2001] 2 W.L.R. 290.

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Aspects of Islam in Nineteenth-Century South Africa

Bulletin of the School of Oriental and African Studies ◽

10.1017/s0041977x00068312 ◽

1940 ◽

Vol 10 (1) ◽

pp. 213-221

Author(s):

S. A. Rochlin

Keyword(s):

South Africa ◽

Nineteenth Century ◽

Mother Tongue ◽

The Other ◽

Cape Of Good Hope ◽

Other Hand ◽

Teaching Religion ◽

Holy City

Writing about life in Mecca in 1884–5 Professor C. Snouck Hurgronje made this observation: ”A class of Jâwah who dwell outside the geographical boundaries but who in late years have made regular pilgrimages to Mekka are people from the Cape of Good Hope. They are derived from Malays, formerly brought to the Cape by the Dutch, with a small mixture of Dutch blood. Some words of their Malay speech have passed into the strange, clipped Dutch dialect of the Boers. On the other hand they have exchanged their mother tongue for Cape Dutch, of course retaining many Malay expressions. Taking into consideration the genuinely Dutch names of many of these Ahl Kâf (as they are called in Mekka) one is tempted to believe that degenerated Dutch have been drawn by them into their religion, and many types among them increase the probability of this suggestion. Separated from intercourse with other Moslims they would scarcely have had the moral strength to hold their religion had not eager co-religionists come to them from abroad. When and whence these came is not known to me; however this may be, the mosques in Cape Colony have been more fervently supported in the last twenty years than ever before, more trouble is taken in teaching religion and every year some of the Ahl Kâf fare on pilgrimage to the Holy City.“

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HUBUNGAN PROFITABILITAS DAN DIVIDEN TUNAI DENGAN ICECUKUPAN KAS DAN LIKUIDITAS SEBAGAI MODERATING VARIABLE

Media Riset Akuntansi Auditing & Informasi ◽

10.25105/mraai.v7i2.765 ◽

2007 ◽

Vol 7 (2) ◽

pp. 141

Author(s):

Megawati Olctorina ◽

Michell Suharti

Keyword(s):

Dividend Policy ◽

Stock Exchange ◽

The Other ◽

Cash Dividend ◽

Continuous Growth ◽

Return On Equity ◽

Other Hand ◽

Dividend Distribution ◽

The Relationship ◽

A Company

The objective of this research is to determine the relationship between profitability and the amount of cash dividend policy. However this research examines the influences of cash adequate and liquidity (current ratio)toward the relationship between profitability and cash dividend policy. We call the influence as moderating variables. In general, investors have primarily objective that is to increase their wealth by return as dividend or capital gain. On the other hand, the companyexpects continuous growth and its going concern, also increase its stockholder's wealth. Factor that predicted influencing dividend distribution amount in this research are focused on profitability. Thus, profitabiNy influences cash dividend policy in a company. However cash dividend should be paid only when a company has adequate cash and good liquidity ratio. This research examines financial statement of several companies are listed at Jakarta Stock Exchange for period ended December 31, 2000 until December 31, 2003. Data is collected from Jakarta Stock Exchange and Indonesia Capital Market Directory 2004. This research uses statistical software TViews version 4,1 ''. The result is cash adequate and liquidity moderate relationship between return on investment and cash dividen policy. On the other hand, return on equity has not significant relationship with cash dividend PolicyKeyword : profitability, cash dividend, cash adequate, liquidity

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Investigating the Need to Reintroduce a Ballot Requirement for a Protected Strike in South Africa

Obiter ◽

10.17159/obiter.v40i2.11236 ◽

2019 ◽

Vol 40 (2) ◽

Author(s):

Mlungisi Tenza

Keyword(s):

South Africa ◽

The Other ◽

Bill Of Rights ◽

Labour Relations ◽

Other Hand ◽

Long Run ◽

Meaningful Role ◽

Counter Argument

The issue of violent and protracted strikes has been a source of debate on many labour platforms in South Africa. Unions believe that if a ballot is introduced as one of the requirements for a protected strike in South Africa, it will be abused by employers and manipulated as was the case under the old Labour Relations Act. A counter- argument is that no one can take away a right in the Bill of Rights unless the prescribed procedure in the Constitution is followed. A right in the Bill of Rights can also not be limited unless the limitation is in terms of section 36 of the Constitution. Of particular importance to this issue is not the number of strikes in South Africa but their nature (which has been violent) and their duration (which has been unreasonably long). The violent nature of strikes is a major concern for employers, society and non-striking employees. Violent and lengthy strikes are dangerous to both employers and employees. The employer suffers loss of profit and loss of clients with the possibility of reducing its workforce or closing its business. Employees, on the other hand, face retrenchments if the business is not making a profit. The article argues that the reintroduction of a ballot requirement will play a meaningful role in reducing the number of strikes and their duration. Balloting employees prior and during the course of a strike will help test whether employees have the appetite for the strike. The article further argues that if long strikes can be reduced through ballots, dismissal on the basis of operational requirements could be avoided. In the long run, poverty arising from high levels of unemployment could be avoided.

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Nationalist representations of the Mughal state: The views of Tilak and Gandhi

Studies in People’s History ◽

10.1177/2348448919834791 ◽

2019 ◽

Vol 6 (1) ◽

pp. 52-62

Author(s):

Farhat Hasan

Keyword(s):

South Africa ◽

The Other ◽

Colonial Power ◽

Mughal Empire ◽

Other Hand ◽

National Hero ◽

Jawaharlal Nehru

The Mughal Empire as the major polity in India preceding the colonial regime was seen by British historians as a Muslim regime, imposed over a Hindu majority, and this fitted into their picture of two irreconcilable religious camps, existing within India, whose mutual conflict was kept at bay only because of the intervention of the colonial power. Tilak accepted this picture and saw Shivaji as the leader of Hindu resistance against foreign, Muslim domination. His early views were, however, modified in later years when he realised that overtures should be made to Muslims in order to strengthen the national struggle. The tag of ‘foreign’ was removed from the Mughals. It was argued that because Akbar’s successors no longer followed his enlightened policy, Shivaji rose against the Mughals and so must be treated as a national hero. On the other hand, Gandhi from his South Africa days was not prepared to denounce Muslim rulers, including the Mughals, as foreigners or as evil. While not prepared to concede to any religion’s superiority over another, he was critical of what he thought to be Akbar’s attempt to unite all religions into one. On the other hand, he praised Mughal rulers for their tolerance and even defended Aurangzeb though on the basis only of what Mohammad Ali, for long his political associate, told him! Unlike Jawaharlal Nehru, Gandhi did not explicitly extol composite culture possibly because while he wished that all religions tolerate each other, he did not want them to get mixed up.

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Rind Stippling on Valencia Oranges by Copper Fungicides Used for Control of Citrus Black Spot in South Africa

Plant Disease ◽

10.1094/pdis.1997.81.8.851 ◽

1997 ◽

Vol 81 (8) ◽

pp. 851-854 ◽

Cited By ~ 40

Author(s):

G. C. Schutte ◽

K. V. Beeton ◽

J. M. Kotzé

Keyword(s):

South Africa ◽

Black Spot ◽

The Other ◽

Copper Oxychloride ◽

Copper Fungicides ◽

Citrus Black Spot ◽

Other Hand ◽

Wettable Powder ◽

Cupric Hydroxide ◽

Protection Period

Four copper sprays and copper mixtures with dithiocarbamates aggravated stippling of the fruit rind of Valencia oranges if sprayed in succession at registered rates during the recommended protection period from October to January for control of citrus black spot in South Africa. Copper stippling was more severe on treatments in which copper oxychloride was sprayed in succession, individually, or in combination with mancozeb or maneb/ZnO. On the other hand, less copper stippling was observed on treatments in which three mancozeb applications were altered with a single copper oxychloride as tank mixtures with or without mancozeb, which was sprayed during midsummer (December and January). Cupric hydroxide resulted in more general copper stippling lesions than any other copper oxychloride spray program. Four successive applications of the wettable powder copper oxychloride formulation resulted in more copper stippling when compared with the suspension concentrate formulation. Stippling was calculated to be more severe with late applications of copper fungicides during December and January. In another experiment, all contact fungicides tested were effective in controlling citrus black spot.

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Outlining the Case for a Common Law Duty of Care of Business to Exercise Human Rights Due Diligence

Business and Human Rights Journal ◽

10.1017/bhj.2016.15 ◽

2016 ◽

Vol 1 (2) ◽

pp. 179-202 ◽

Cited By ~ 7

Author(s):

Doug CASSEL

Keyword(s):

Human Rights ◽

Common Law ◽

The Other ◽

Duty Of Care ◽

Human Rights Violations ◽

Due Diligence ◽

Business And Human Rights ◽

Other Hand ◽

A Company ◽

Human Rights Due Diligence

AbstractThis article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to exercise due diligence would create a rebuttable presumption of causation and hence liability. A company could then avoid liability only by carrying its burden to prove that the risk of the human rights violations was not reasonably foreseeable, or that the damages would have resulted even if the company had exercised due diligence.

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Cylinder-scales in marine flagellates from the genus Chrysochromulina (Haptophyceae = Prymnesiophyceae): further observations from C. microcylindra Leadbeater and C. cyathophora Thomsen

Journal of the Marine Biological Association of the United Kingdom ◽

10.1017/s0025315400045896 ◽

1981 ◽

Vol 61 (1) ◽

pp. 27-33 ◽

Cited By ~ 8

Author(s):

I. Manton ◽

K. Oates ◽

J. Sutherland

Keyword(s):

South Africa ◽

Parallel Evolution ◽

The Other ◽

Transverse Fracture ◽

Insufficient Evidence ◽

Other Hand ◽

Mere Presence ◽

Different Parts

As aids to the phyletic interpretation of the newly described Chrysochromulina pachycylindra Manton et al., some hitherto unrecorded gatherings of C. microcylindra Leadbeater and C. cyathophora Thomsen, from South Africa and South Alaska respectively, are introduced, thereby amplifying the type descriptions of both species, which were previously known only from Europe. Characters shared between C. pachycylindra and C. microcylindra are numerous, including a capacity for transverse fracture of their cylinders not previously noted in the latter. This suggests an exceptional degree of affinity between these two species in spite of gross differences in relative dimensions of different parts of their respective cylinder scales. On the other hand the general resemblance between C. microcylindra and C. megacylindra (Leadbeater, 1972), previously noted, is unaffected by these findings and it is concluded that all three species could be treated as a closely related subgroup within the genus Chrysochromulina. In contrast, C. cyathophora is shown to be so different as to be interpretable only in terms of parallel evolution from a separate prototype source, the plate-scales in particular being so far unique in the genus in being thin, rimless, peculiarly patterned and convex when seen in section. The mere presence of cylinder-scales is thus seen to be insufficient evidence of phyletic affinity unless confirmed by other characters, among which the details of the plate-scales are probably the most important.

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Statecraft, Witchcraft, God’s Craft: Religious Diversity and the Forces of Law in South Africa

Journal of Religion in Africa ◽

10.1163/15700666-12340102 ◽

2017 ◽

Vol 47 (2) ◽

pp. 257-284

Author(s):

Marian Burchardt

Keyword(s):

South Africa ◽

Human Rights ◽

Religious Diversity ◽

Historical Context ◽

The Other ◽

Power Struggles ◽

Other Hand ◽

The Law ◽

The One

AbstractLegal anthropologists and sociologists of religion increasingly recognize the importance of law in current controversies over religious diversity. Drawing on the case of South Africa, this article explores how such controversies are shaped by contestations over what counts as ‘religion’. Analyzing the historical context and emergent forms of institutional secularity from which contemporary contestations over religious diversity draw, the article explores debates and practices of classification around religion, tradition, and culture, and the ways in which these domains are co-constituted through their claims on the law: on the one hand through an analysis of religion-related jurisprudence; on the other hand through an examination of the debates on witchcraft, law, and religion. I argue that the production of judicial knowledge of ‘religion’, ‘culture’, and ‘tradition’ is tied up with contestations over the power to define the meaning of the domains. In fact, contrary to notions of constitutionality in which rights seem to exist prior to the claims made on their basis, in a fundamental sense rights struggles help to constitute the contemporary human rights dispensation. Against the Comaroffs’ claim that judicialization depoliticizes power struggles, I show that legal claims making remains vibrantly political.

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