Doctoral Degrees (Mercantile Law)
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Browsing Doctoral Degrees (Mercantile Law) by Subject "Close corporation"
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Item Open Access Legal comparison between the South African Close Corporation and the German "Gesellschaft mit beschränkter Haftung"(University of the Free State, 2006-05) Jaehne, Christoph; Henning, J. J.The GmbH and the close corporation within their respective legal contexts provide alternative legal options for small and medium sized business entities, giving them a simpler and less expensive legal form, thus satisfying the need for flexibility while guaranteeing liability limitations and continuity. While the maximum number of members in the GmbH is unlimited, the close corporation is restricted to ten members. Membership in the GmbH is open to natural and juristic persons alike. The close corporation is, generally speaking, only open to natural persons. Membership as such is expressed through shares in the GmbH and members' interests in the close corporation. The transfer of a share and a member’s interest is allowed. The regulations for transfer and restrictions vary. In both entities the members as such are the highest decision making organ. Regarding organs, the GmbH is more formally structured and has, as mandatory organs, the managing director and the shareholders' meeting. Such a strict distinction is not embodied in the CCA; and while the GmbH-members must appoint a managing director to represent the GmbH, the close corporation uses the partnership principle of mutua praepositio. Each member of the close corporation has the right to participate in the management of the affairs of the corporation. While for the GmbH articles of association are compulsory, in the close corporation it is up to the members whether they conclude an association agreement or refrain from doing so. The applicable legislative measures provide differently for the protection of the financial well-being of the entities. The GmbH as 'Kapitalgesellschaft' requires strict compliance with specific obligations imposed by its members regarding their share capital contribution, while for the close corporation various aspects of liability and external relations are equally important. The innovative liability solution found in the CCA is remarkable. Concerning transparency of financial matters the close corporation requires the position of an accounting officer, and through this achieves some kind of control with regard to the financial matters, which are otherwise an internal affair of the corporation. The GmbH is 'forced' to make its financial matters more transparent. Subject to specific conditions, companies are required to have their financial results audited and approved by a certified public accountant. In the African context it is noteworthy that the principal objectives of the African Union aim at accelerating political and socio-economic integration. Given the success of the close corporation this legal form, a Societas Africaea, utilized for smaller entrepreneurs, can play a role in achieving these goals. The reform process initiated through the SA DTI must take into account that the creation of wealth in South Africa is achieved by companies in which the close corporation plays an important part. Necessary reforms must therefore be pursued with precaution. A possible one-Act approach for South African company law is to be viewed critically as the differentiation between various types of enterprises should not easily be put aside. It will be interesting to see how the GmbH takes on the challenge of the new legal forms within Germany and the competition with similar foreign business forms now entering the German market as a consequence of the ECJ’s recent judgements and how the close corporation will develop within the context of a company law in the process of reform. It is also of relevance for the South African reform process to follow the developments in Britain. The close corporation has been commented on positively not only within South Africa. The recent discussion in the USA on the close corporation approach and its legal structure is of relevance here.Item Open Access Verteenwoordiging in 'n Suid-Afrikaanse maatskappyregtelike verband: 'n regshistoriese en regsvergelykende ondersoek(University of the Free State, 2008-09) Rabie, Pierre Jacques; HENNING, J. J.English: The general principles of the law of agency form the basis of representation in South African company law. A unique set of agency principles have however developed in company law as a result of specific needs that arose from the application of certain company law doctrines (for example the doctrine of constructive notice, ultra vires doctrine, doctrine of disclosure and the Turquand rule) in this field of study. An attempt is made to elucidate the contiguity of these doctrines. The common law position regarding agency was originally regulated by the Roman Dutch principle of direct agency. This was coupled with extensive regulations regarding the relationship between principal and agent. These regulations have not provided a solution to the questions regarding agency in a modern society. A very strong need for the development of South African agency law arose as a result of this. English law provided the source for the development of the South African law of agency. The result of the development is that the law of agency in South Africa has a Roman Dutch base, but is strongly influenced by English law principles in this regard. The hybridisation of the South African legal position has provided some solutions. It must however be noted that this process has also created numerous problems. The question can be posed whether the game is worth the candle. If the position regarding agency is considered in other jurisdictions as well as in the law of close corporations it is clear that the only solution seems to be that the legislature has to remedy the situation. This has however not been done in South Africa. The South African law of agency in a company context is plagued by many difficulties. Possible solutions for these problems are provided. The research has been done on a comparative basis. The legal positions in Australia, England and the USA have been selected for this purpose.