n South African Law Journal - Contemporary Company Law, Farouk H.I. Cassim (Ed.) : book review

Volume 128, Issue 4
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



The Companies Act 71 of 2008 represents a significant rupture from legislation which preceded it. After all, the Companies Act 61 of 1973, which followed the Van Wyk Commission of Enquiry (RP 45/1970; RP 31/1972) was itself a product of earlier legislation borrowed almost exclusively from the company law of 19th and early 20th century England. As Professor Farouk Cassim writes in the introduction to this new work (at 3), since that period,

'[n]ew corporate law concepts had been developed, such as solvency and liquidity, new and higher standards of corporate governance, new standards of accountability, disclosure and transparency, market manipulation and new ideas and approaches to mergers and amalgamations, shareholder appraisal rights and corporate rescue'.

Not only has the 2008 Act sought to respond to significant global economic changes that have occurred over the past 40 years but the drafters expanded the scope of influence which was exerted upon 2008 text, to borrow from a richer source of law than simply the United Kingdom. A careful reading of the text will reveal that, apart from English law, comparative corporate law will now play a greater influence as persuasive authority in the development of South Africa company law, with key concepts having been taken from the Model Business Corporation Act of the United States of America, the Delaware General Corporation Law, the Maryland General Corporation Law, and Australasian principles of corporate governance, the last of which will be essential reading for those seeking to parse ss 76-78 of the Act (standards of directors' conduct and liability of directors and prescribed officers respectively). In regard to US law, see the instructive contribution of James Hanks 'The new legal capital regime in South Africa' 2010 131. Professor Hanks, who was a member of the international reference team, the contribution of which was critical to the conceptualisation and drafting of the 2008 Act, provides an instructive exposition of the legal capital regime in South Africa as shaped by US legislation, particularly the Model Act, references to which would greatly have enriched the chapters dealing with the new capital regime.

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