scholarly journals A CRITICAL ANALYSIS OF THE PROPOSED CODIFICATION OF THE DUTIES OF CORPORATE DIRECTORS

2008 ◽  
Author(s):  
Rudolph Martin de Neijs
Keyword(s):  
South Africa ◽  
Critical Analysis ◽  
Common Law ◽  
Court Decisions ◽  
Fiduciary Duties ◽  
Statutory Law ◽  
The Common

In pursuance of the rectification of perceived shortcomings in the common law duties of directors, including inter alia the confusion and uncertainty among prospective and current directors concerning the degree of skill expected of them while carrying out their functions, the Department of Trade and Industry prepared a discussion draft of a proposed new Companies Act for South Africa, which, in contrast with the previous Companies Act, spelled out the duties of corporate directors. Following the discussion draft, a new Companies Bill was introduced in June 2008 in the spirit of the February 2007 bill regarding directors’ duties. In this article I shall attempt to outline the new statutory duties and other relevant sections and explain these duties as they are found in the Companies Bill. It should be stated that since the following discussion concerns proposed law not yet in force, no court decisions and very few academic articles are available to aid the interpretation thereof. The following interpretations are thus purely speculative and may differ from the ultimate interpretation that the court may give to these sections when applied. The interpretation of these sections can further not be aided by English statutory law, as the English statutory law only refers to fiduciary duties of directors and does not contain any specific criteria of care and skill by which a director’s conduct can be measured.

scholarly journals IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Michael C Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Common Law ◽  
Constitutional Court ◽  
High Court ◽  
Personality Rights ◽  
The Common ◽  
The Republic ◽  
Made In

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

scholarly journals Director's Duty to Act for a Proper Purpose in the Context of Distribution under the Companies Act 71 of 2008

2019 ◽  
Vol 22 ◽  
pp. 1-45
Author(s):  
Simphiwe Bidie
Keyword(s):  
South Africa ◽  
Common Law ◽  
Case Law ◽  
Comparative Approach ◽  
Statutory Law ◽  
The Face ◽  
The Common ◽  
Selection Of

This paper seeks to critically analyse the requirements of the duty imposed on directors to act for a proper purpose as provided in section 76(3)(a) of the 2008 Act (Companies Act 71 of 2008) whenever they distribute company money and/or property. This analysis is conducted with the obligations imposed under sections 4 and 46 of the 2008 Act in mind. The purpose is not to question the inclusion of this duty in the 2008 Act. It is simply to question whether the common law interpretation of the duty still suffices in the face of section 76(3) of the 2008 Act, which seems to suggest that a different standard of judgment must be used. The argument that is made here is that the use of common law principles in interpreting proper purpose is well and good when the actions of directors are challenged based on the common law, but, where this duty has been incorporated into statutory law the interpretation of the duty in the context of the wording of the statute should be paramount. In addition, when interpreting any provision of the Act, consideration of the objects of the statute becomes inevitable. The interpretation of the duty cannot, in the face of the changes brought about by the statute, remain stagnant as a result of reliance on common law standards of judgment. The wording of the provision in question and the purpose of the statute cannot and must not be ignored; they must be given effect. A comparative approach will be adopted, using legislation and case law from Australia and Canada. The selection of these particular jurisdictions is based solely on the fact that like South Africa, their legal heritage is based on English common law, and a comparison of the three jurisdictions therefore makes sense.  

scholarly journals Transparency in corporate governance: Extent of directors duty to declare interest in company’s transactions

2015 ◽  
Vol 11 (1) ◽  
pp. 137-148 ◽  
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Corporate Governance ◽  
United Kingdom ◽  
Comparative Analysis ◽  
Common Law ◽  
Men And Women ◽  
Legal Personality ◽  
The Common ◽  
The Law ◽  
Important Position

The realization that the directors occupy important position in corporate governance, and as business men and women, cannot be prevented from having dealings with the company, demand a close scrutiny of corporate transactions in which they are directly or indirectly involved or have an interest to ensure that such interest is not placed above their duty to the company. One of the ways in which the law strives to achieve this balance is by imposing a duty on the director to disclose to the board any interest he has in company’s transactions. This requirement which was previously governed by the common law and the company’s articles, is presently increasingly finding a place in companies statutes in different jurisdictions. The paper examines, through a comparative analysis, the provisions on the duty of the director to disclose interest in company’s transactions in South Africa and United Kingdom with the aim of discovering the extent to which the statute in both jurisdictions upholds the common law prescriptions. The paper argues that the need for transparency in corporate governance and the preservation of the distinct legal personality of the company demand that the duty to disclose interest should be upheld even in those cases of companies run by a sole director.

scholarly journals The protection of environmental interests through corporate governance: A South African company law perspective

2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Corporate Governance ◽  
South African ◽  
Common Law ◽  
Company Law ◽  
The Common ◽  
Corporate Administrators ◽  
Environmental Interests

The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.

scholarly journals The publication of judicial decisions as a reason for convincing precedent

1970 ◽  
pp. 195-199
Author(s):  
Roman Sabodash
Keyword(s):  
Common Law ◽  
Civil Law ◽  
General Idea ◽  
Court Decisions ◽  
Supreme Courts ◽  
State Register ◽  
Pros And Cons ◽  
Legal Position ◽  
The Common ◽  
The Right

The paper shows how the publication of court decisions influenced the formation of a precedent. The author reviewed scientific works devoted to research the precedent in common and continental law. The research explains that the formation of precedent in England was accompanied by development of the judgment’s reviews and their prevalence among lawyers. Of course, publication of court decisions was not a major factor in setting a precedent, but it played a significant role in this. The paper also describes facts of the publication of court decisions in Italy, Germany, France and the Netherlands, as well as the admissibility of their citations at the court of cassation. The general idea of the paper is that convincing precedent exists and is used although the countries of continental law do not have a «classic» precedent. The paper gives a review of the importance of the state register of court decisions for setting a convincing precedent in Ukraine. The author analyzes the pros and cons of citing court decisions. It’s stated that, unfortunately, the quotations of court decisions is not always correct and sometimes amounts to rewriting the «right» legal position without comparing the circumstances of the case. The article concludes that the practice of applying a convincing precedent in Ukraine is only emerging and needs further improvement.          It has been found out that the publication of judgments of supreme courts is one of the factors that helped to establish precedent in common law countries. The publication of court rulings also created the conditions for a convincing precedent in civil law countries (especially in private law). At the same time, the formation of a “convincing precedent» in countries where court decisions are published in publicly available electronic court registers is much faster than in common law countries. Of course, the structure and the significance of the precedent in the common law and civil law countries are different, but one cannot dismiss that publication of court decisions as one of the factors for establishing the precedent.

The Common Law in Lesotho

1969 ◽  
Vol 13 (3) ◽  
pp. 127-144
Author(s):  
Sebastian Poulter
Keyword(s):  
South Africa ◽  
East Africa ◽  
Southern Africa ◽  
Legal System ◽  
Common Law ◽  
The Subject ◽  
The Common ◽  
English Law ◽  
The Republic

Whereas the reception and operation of English law in West and East Africa have been the subject of much study over the last few years, the introduction and application of Roman-Dutch law in Southern Africa (apart from South Africa itself) have received scant treatment.1 This article deals only with the position in Lesotho and attempts to show the extent to which Lesotho's legal system is tied to that of the Republic of South Africa, and thus strengthens the geographical and economic bonds which link the two countries.

The King Reports and the common law in South Africa

2020 ◽  
Vol 11 (2) ◽  
pp. 167-172
Author(s):  
J. Michael Judin
Keyword(s):  
South Africa ◽  
Design Methodology ◽  
Common Law ◽  
Bill Of Rights ◽  
Content Type ◽  
The Supreme Court ◽  
Task Team ◽  
The Common ◽  
Court Of Appeal

Purpose This paper aims to discuss the King Reports and Codes and the development of South Africa’s common law. The role of developing the common law is explicitly recognised in the Constitution, as is the obligation to give effect to the spirit, purport and objects of the Bill of Rights. With decisions of the Supreme Court of Appeal being based on the King Code, the King Code is now an integral part of South Africa’s common law. Design/methodology/approach When the task team drafting King IV commenced their work, one of the important issues raised with Mervyn King, as Chairman, was the challenge to ensure that King IV was aligned to the now firmly entrenched common law principles taken from King I, King II and King III. It is believed that this has been achieved and it is hoped that King IV (and the subsequent King Reports that will inevitably follow because the corporate milieu keeps changing) continues to enrich South Africa’s common law. Findings The King Reports and Codes have been made part of South Africa’s common law. Originality/value This paper fulfils an identified need to study the King Report and Code, as it relates to South Africa’s common law.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

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