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Item Open Access Advantages and disadvantages of partial codification of directors’ duties in the South African Companies Act 71 of 2008(Faculty of Law, University of the Free State, 2016) Coetzee, L.; Van Tonder, J. L.This article offers a critical examination of partial codification and its effect on the interpretation of the directors’ standard of conduct provision. Previously, the fiduciary duties and the duty of care and skill were regulated by the common law and case law. In May 2004, the Department of Trade and Industry released a policy document entitled South African company law for the 21st century: Guidelines for corporate law reform. The policy document acknowledged that South Africa had no extensive statutory dispensation that covered the duties of directors. The policy document recognised the need to bring South African company law in line with international trends and to reflect and accommodate the changing environment for businesses locally and internationally. For the first time in South Africa’s corporate law history, the Companies Act 71 of 2008 partially codifies the fiduciary duties of directors, the duty of care and skill, and introduces the business judgement rule (also referred to as the ‘safe-harbour provisions’) into South African company law. The Companies Act 71 of 2008 prescribes certain duties and its extent, but the content of those duties, such as bona fides, is still determined by the common law.Item Open Access The eternal quest for an independent public broadcaster: what’s news?(Faculty of Law, University of the Free State, 2016) Lotter, S.Sec. 192 of the Constitution of the Republic of South Africa, 1996 compels the National Legislature to establish an independent authority to regulate broadcasting in the public interest, and to ensure fairness and a diversity of views broadly representative of South African society. The purpose of this article is to establish the manner in which the Legislature discharged this constitutional obligation. The bodies appointed and mandated with the execution of this duty are identified, their jurisdiction established and their competency in ensuring that the public broadcaster remains independent in serving the public interest, critically considered. It appears that appropriate structures and procedures are in place to support the independence of the public broadcaster.Item Open Access The public-interest action in South Africa: the transformative injunction of the South African Constitution(Faculty of Law, University of the Free State, 2016) Swanepoel, C. F.The insertion of sec. 38 in the Constitution of the Republic of South Africa, 1996, has seen substantial broadening of standing opportunities for litigants since the advent of the country’s constitutional dispensation. Amongst others, it has led to the development of public-interest litigation in terms of sec. 38(d), which is in line with the constitutional mandate of societal transformation. The full impact of the latter constitutional provision has recently been illustrated by the public and legal controversy surrounding the South African government’s failure to arrest Sudanese President Omar Hassan Ahmed Al-Bashir while he was attending an AU summit in Johannesburg. The Southern African Litigation Centre’s application to enforce the International Criminal Court’s warrant of arrest against Al-Bashir was brought in the centre’s own name, but was supplemented by public interest. Currently, however, there is neither case law nor legislation explicitly dealing with a pure public-interest action in South Africa, which leaves litigants and the judiciary without any guiding principles. Therefore, this article draws on the South African Law Commission’s 1998 proposals on class and public-interest actions, as well as the substantial case law dealing with sec. 38(a) own-interest actions combined with a strong element of public interest, to formulate proposals on how ‘public interest’ as well as standing for public-interest litigants should be interpreted and determined.Item Open Access Statutory discretion or common law power? Some reflections on “veil piercing” and the consideration of (the value of) trust assets in dividing matrimonial property at divorce – part one(Faculty of Law, University of the Free State, 2016) Smith, B. S.Although it is an entrenched principle of company law that the abuse of corporate personality may require the “corporate veil” of a company to be “pierced”, this possibility has only recently become a feature of South African trust law. While this is a salutary development in theory, the application and practical usefulness of this remedy remain shrouded in uncertainty. A particularly acute manifestation hereof arises where it is argued that (the value of) trust property should be considered for the purposes of dividing matrimonial property at divorce. By drawing on the established principles of “piercing” in the company context and analysing relevant case law, Part One of this article concludes that the prevailing position in respect of trusts neither accords with the principles of proper trust administration nor gives effect to the legal obligations imposed on divorcing spouses by matrimonial property law. More specifically, it is argued that, while piercing the trust veil is a power that is derived from common law (as opposed to legislation), the actual exercising of this power in a divorce context is dependent on a nexus provided by the matrimonial property regime in question. From this platform, Part Two of this article will provide perspectives on how the property of an abused trust should be dealt with in divorces involving the three major matrimonial property regimes that are recognised by South African family law. In addition, it will be argued that potential litigation based on these contentions should contribute towards rectifying the unsatisfactory legal position that prevails.Item Open Access A comparative study of child justice systems: any lessons for South Africa from The Netherlands?(Faculty of Law, University of the Free State, 2016) Songca, R.; Karels, M.This submission is a theoretical overview of the adjectival process of child justice in The Netherlands. It offers insight into the criminal procedure of an almost pure inquisitorial system dealing with children in conflict with the law. Unlike the South African methodology, the Dutch approach uses welfare and education as the premise for its criminal actions against child offenders. The author posits that the South African system, especially with her incorporation of an inquisitorial preliminary inquiry in the child justice process, would benefit from the lessons offered in inquisitorial jurisdictions with regard to the implementation of the best interest standard in the process of prosecuting child offenders.Item Open Access Die interpretasiereël in die Suid-Afrikaanse kontraktereg – deel twee(Faculty of Law, University of the Free State, 2016) Bekker, T.In the first part of this article (that appeared in the June 2016 issue of this journal), the author analysed the development and current application of the interpretation rule in the South African law of contract. In the second part of this article, the author investigates in detail whether the current application of the interpretation rule is in line with the South African contractual liability approaches. The basis of contractual liability is briefly examined and how this concept is expressed as the common intention of the parties when a contract is entered into. Finally, the reasons for the existence of the application of the interpretation rule are critically investigated. It is argued that, although there has been considerable progress in terms of the admission of extrinsic evidence in the interpretation of contracts in the South African law, there is still a large degree of confusion and the current application in terms of the admission of extrinsic evidence in the interpretation of contracts still falls short. It is, therefore, recommended that legislation seems to be the only workable solution to rectify the problems pertaining to the interpretation rule once and for all.Item Open Access Ondernemingsredding en werknemers in die Suid- Afrikaanse reg: “verlore siele” of nie?(Faculty of Law, University of the Free State, 2016) Jacobs, L. M.; Smit, D. M.In South Africa, business rescue is a procedure created by the Companies Act 71 of 2008, which aims to facilitate the rehabilitation of companies in financial distress. Not all companies in financial distress will fail; some only need care and guidance to keep the wolf from the door. The business rescue procedure grants a financially distressed company the opportunity to re-organize its affairs by allowing for a moratorium on legal proceedings and the implementation of a structured payment scheme with creditors or, alternatively, to provide the creditors and shareholders with a better return than in liquidation. In addition, it could also be argued that a further objective of the business rescue procedure is the retention of the company’s workforce, entirely or to some extent, at least. Despite their improved position in rescue proceedings, employees remain vulnerable and have subsequently been regarded as “lost souls” in corporate insolvency procedures. It is widely acknowledged that employees are now in a better position when it comes to protecting their rights during employment. In business rescue proceedings, the primary view held by many is that employees are in a much better position than they were during rescue proceedings in the past. The Companies Act makes extensive provision for the involvement of employees who are affected by the business rescue process, in its undertaking or implementation, and creates a platform for them to contribute to an outcome that affects them. This article investigates the outcome of business rescue proceedings on employee rights during the phases of business rescue, both in their capacities as employees and creditors of the company, and over the course of various employment relationships. It will be concluded that employees are not as protected during business rescue proceedings as is generally believed.