Acta Juridica - Volume 2010, Issue 1, 2010
Volume 2010, Issue 1, 2010
Dealing with corporate defaulters : curbing the unfettered exercise of criminal law : enforcement and regulatory regime : part IVAuthor Dennis M. DavisSource: Acta Juridica 2010, pp 411 –432 (2010)More Less
The 1973 Companies Act used the criminal law extensively to enforce numerous provisions of the Act. This process of criminalisation proved ineffective and many provisions of the Act were honoured in the breach rather than the compliance. The drafters of the 2008 Act, following comparative precedent, sought to decriminalise the enforcement mechanisms contained in the Act by introducing a complaint procedure to be investigated by a newly created Companies Commission or the Takeover Panel, as well as introducing compliance notices. This paper examines the international trend to remove criminal sanctions from company law and to introduce alternative means of enforcement. It then proceeds to evaluate the new measures contained in the 2008 Act.
The potency of co-ordination of enforcement functions by the new and revamped regulatory authorities under the new Companies Act : enforcement and regulatory regime : part IVAuthor Dorothy FarisaniSource: Acta Juridica 2010, pp 433 –445 (2010)More Less
One of the main aims of the Companies Act 71 of 2008 is regulation. This is clearly visible from the move by the legislator, in this piece of legislation, towards the decriminalisation of company law. Under the Companies Act 61 of 1973 enforcement was mainly by means of criminal sanctions. In the 2008 Companies Act, several regulatory authorities have been introduced and some of the ones that were already in existence have been revamped, as a way of ensuring that the provisions of the Act are enforced. These regulatory authorities are the Companies and Intellectual Property Commission (s 185), which is the regulatory authority that bears the bulk of ensuring that there is enforcement of the 2008 Act, the Takeover Regulation Panel (s 196), the Companies Tribunal (s 193), and the Financial Reporting Standards Council (s 203). These are all administrative bodies with their own individual functions. It is thus important to ensure that the functions of these regulatory authorities are co-ordinated. In this article, each regulatory authority is discussed with the main emphasis being on the actual function of the regulatory authority. From this discussion it will be clear that there are areas where there are apparent overlaps. A brief discussion of how the enforcement function of the High Court will be affected by the regulatory authorities follows. This is followed by a discussion of how the enforcement functions may be carried out to allow for co-ordination of the functions.
The synergies and interaction between King III and the Companies Act 61 of 2008 : enforcement and regulatory regime : part IVAuthor Mervyn E. KingSource: Acta Juridica 2010, pp 446 –455 (2010)More Less
The new Companies Act 61 of 2008 incorporates into statute for the first time issues of corporate governance. Governance, strategy and sustainability have become inseparable. This is so because of the ecological and biodiversity crisis on planet earth. This leads to the King III recommendation of integrated reporting, namely, a holistic and integrated representation of the company's performance in terms of both its finance and its sustainability. The new Act has a chapter on accountability and transparency and includes setting out the director's duties of good faith, care, skill and diligence. The Companies Tribunal will carry out, by way of voluntary alternative dispute resolution, reviews of administrative decisions made by the Commission, in line with the international emerging governance trend of mediation and arbitration clauses in major procurement contracts. Internal audit is now risk-centric and advises the board on the adequacy and effectiveness of internal controls. IT governance and IT security are now pervasive in the business of a company and dealt with in King III. Company law sets the framework in which the company operates and the recommended practices set out in King III provide guidance for directors as to how they should direct the business of the company and make decisions on behalf of the company. In this sense, the new Act and King III complement each other.
The impact of South African company law reform on close corporations : selected issues and perspectives : enforcement and regulatory regime : part IVAuthor Johan J. HenningSource: Acta Juridica 2010, pp 456 –479 (2010)More Less
The main impact of the new South African Companies Act 71 of 2008 on close corporations may be summarised as follows. First, new close corporations are proscribed, which not only translates into the phasing out of close corporations, however gradual, but leaves small entrepreneurs with only one avenue for new incorporations and that is under the new Companies Act. Second, there is the clearly discernible tendency to subject the close corporation to more and more onerous administrative duties and arrangements. This is amply illustrated by the approach to supplant numerous arrangements of the Close Corporations Act by that of the new Companies Act, by repealing the first and incorporating large tracts of the latter by reference. It is unfair to expect the close corporation to perform optimally in a legal milieu for which it was not designed and to encumber it with duties and obligations contrary to its very nature and fundamental design philosophy. However, it seems as if officially the last thing that is hoped for of the current close corporation in the new dispensation is that it performs optimally.