Browsing by Author "Jooste, Richard"
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- ItemOpen AccessA critique of the insider trading provisions of the 2004 Securities Services Act(2006) Jooste, RichardVarious attempts have been made over the years by the legislature to combat insider trading and related activities. The Securities Services Act of 2004, which repeals the Insider Trading Act of 1998 and now regulates insider trading, has made significant changes to the law in this regard. However, this contribution argues that the law remains flawed in a number of respects and that certain innovations, such as the extension of the ambit of liability to cover body corporates, partnerships and trusts have been introduced without sufficient elaboration. The article seeks to analyse the new provisions and to highlight their failings.
- ItemOpen AccessA warning to everyone who deals with a trust(2005) Jooste, RichardThe recent case of Nieuwoudt & another NNO v Vrystaat Mielies (Edms) Bpk 2004 (3) SA 486 (SCA) has raised questions regarding the applicabilityof the doctrine of constructive notice and the so-called Turquand rule to trusts. The doctrine of constructive notice and the Turquand rule form part of the common law governing companies.
- ItemOpen AccessAn analysis of the methods used in the South African domestic legislation and in double taxation treaties entered into by South Africa for the elimination of international double taxation(2013) Gutuza, Tracy; Jooste, Richard; Horak, WallyThis thesis adds to the body of literature exploring the policy principles of equity and neutrality, as applied in the context of methods relieving international double taxation and in the context of a recently opened and developing economy.
- ItemOpen AccessCan share capital be reduced other than by way of a buy-back?(2005) Jooste, RichardThe amendments made to the Companies Act 61 of 1973 (hereafter referred to as ‘the Act’) by the Companies Amendment Act 37 of 1999 made far-reaching changes affecting the share capital of a company. A significant change was the removal of ss 83–90 of the Act, which required a special resolution and, except in limited circumstances, a court’s sanction in order for a company to reduce its share capital.
- ItemOpen AccessCan share capital be reduced other than by way of a buy-back?(2005) Jooste, RichardThe amendments made to the Companies Act 61 of 1973 (hereafter referred to as ‘the Act’) by the Companies Amendment Act 37 of 1999 made far-reaching changes affecting the share capital of a company. A significant change was the removal of ss 83–90 of the Act, which required a special resolution and, except in limited circumstances, a court’s sanction in order for a company to reduce its share capital.
- ItemOpen AccessCausation and the concomitant issue of apportionment with reference to gross income in South African income- tax law(Juta Law, 1989) Emslie, Trevor; Jooste, RichardThe objective of this article is twofold: first, to set out the correct role, in our view, of the notion of causation in the application of two elements of the definition of gross income-the characterization of an amount as being from a source within the Republic (or not) and as being of a capital nature (or not); and secondly, to ascertain the apportionment implications where two or more causae with differing tax consequences are found to have given rise to the receipt or accrual of a single amount.
- ItemOpen AccessThe civil liability of credit rating agencies in South African law: recent developments in comparative perspective(2013) Thompson, Simon; Jooste, RichardThe losses caused by the on-going financial crisis now exceed $4 trillion. This is in addition to the associated social and economic costs that are more difficult to measure. From a litigator’s perspective it is not surprising that these massive losses have triggered a very large number of civil claims. In the immediate aftermath of the crisis these claims were mostly run-of-the-mill misrepresentation actions by investors against their investment advisors, but there is now a clear, global trend where plaintiffs are casting their nets more widely and going after the financial actors allegedly responsible for the crisis itself. One class of defendants who fit squarely in this category are credit rating agencies. These financial actors are facing a global push by lawmakers to regulate their operations with, inter alia, the express aim of setting parameters for the liability ratings agencies should incur in the publication of ratings.
- ItemOpen AccessCorporate capacity and authority of agents under the Botswana Companies Act 2003(2014) Baiketlile, Lindani; Jooste, RichardThe purpose of this paper is to examine the way in which the capacity of the company is to be determined and also how the law has been changed with regard to when the company acts beyond its capacity and where directors or other agents acts beyond their authority. Corporate capacity herein refers to the ability of a company to enter into a particular transaction with a third party and Authority on the other hand will refer to acts by individuals who purport to take decisions on behalf of the company. The effectiveness of the Act in addressing the capability of the company to contract will be critically analysed and so are the protections offered to shareholders, the company and in equal measure third parties dealing with the company. The paper will particularly analyse the two fundamental doctrines/rules relating to corporate capacity, namely the ultra vires doctrine and constructive notice. The Turquand rule, agency principles and constructive notice will be discussed in so far as they relate to authority of agents. A comparative analysis of the provisions of the Act on capacity and authority will be undertaken with reference to the South African Companies Act of 2008. The comparison is meant to assess the competitiveness and harmonization of the Act with those of other countries particularly in the SADC region, to foster regional Integration.
- ItemOpen AccessThe effective and proper exercise of appraisal rights under the South African Companies Act, 2008 : developing a strategic approach through a study of comparable foreign law(2016) Yeats, Jacqueline; Jooste, RichardThis thesis seeks to identify how the appraisal rights remedy, which was introduced into South African company law for the first time by section 164 of the Companies Act 71 of 2008 ('the South African Act'), should be interpreted and applied in order to facilitate its effective and proper exercise. When the draft version of the South African Act was initially published for public comment, critics raised concerns that the inclusion of the appraisal remedy was undesirable and unnecessary. These concerns were largely motivated by the fact that at the time appraisal rights were a novel concept and thus a completely unknown quantity in South African law. As a result there was much uncertainty in the legal and commercial sector as to how these rights would be interpreted, how they would function and how frequently they would be used. However, since the commencement date of the South African Act (being 1 May 2011) to date no appraisal rights matter has come before our courts and it could therefore be argued that the initial concerns of the critics regarding the impact that the inclusion of appraisal rights would have on South African company law were unfounded. This 'lack of use' phenomenon is in line with the general trend experienced in foreign jurisdictions where the appraisal remedy has been on the statute books for decades, such as the United States of America ('USA' or 'US'), Canada and New Zealand. Due to the fact that appraisal rights are notoriously underutilised they have often been dismissed as an ineffective remedy for minority shareholders. Clearly it could not have been the intention of the drafters of the South African Act to include an ineffective or useless remedy. My research indicates that the lack of use of the appraisal remedy in comparable jurisdictions is due to a number of factors but can be broadly attributed to the complexity, uncertainty and expense associated with the exercise of appraisal rights. The thesis therefore seeks to identify the various causes of the lack of effectiveness apparent in the USA, Canada and New Zealand, to examine the relevance of these in the South African context and to consider possible ways of addressing these challenges. The ultimate objective of the thesis is to devise measures which may be taken so that the appraisal remedy can function more effectively, or at least as effectively as possible, in South Africa.
- ItemOpen AccessFinancial Assistance - A new approach(2009) Yeats, Jacqueline; Jooste, RichardThe Companies Act 71 of 2008 introduces a new s 44 which deals with financial assistance by a company for the acquisition of its shares and which will replace s 38 of the current Companies Act 61 of 1973 when the new Act comes into operation. The focus of the legislation has shifted from the prohibition to the regulation of financial assistance in this context, and the article subjects the new section to comparative and contextual analysis, seeks to interpret the specific provisions and highlights possible areas which may prove to be problematic or confusing.
- ItemOpen AccessFinancial assistance to directors - the Companies Act 71 of 2008(Juta Law, 2010) Jooste, RichardTransactions between a company and its directors, which benefit the company at the company’s actual or potential expense, are to an extent regulated by ss 37, 226 and 297 of the current Companies Act 61 of 1973. These provisions are flawed and this article examines the corresponding (but by no means equivalent) provisions of the new Companies Act 71 of 2008, which is expected to be brought into force in 2010. The article seeks to show that the new provisions are also unsatisfactory. It reveals that the provisions are in certain respects too far-ranging and that, in others, treat directors too leniently. The article also exposes problems of interpretation which impact significantly on the effectiveness of the new provisions. The article demonstrates that the provisions need legislative attention.
- ItemOpen AccessIs the corporate governance law applicable to Zambian banks and financial institutions adequately promoting good corporate governance?(2014) Sikazwe, Chanza Kephas; Jooste, RichardGood corporate governance has been hailed as an important factor for the growth of sustainable economic development by enhancing the development of companies and increasing their access to outside capital. Furthermore, for emerging markets like Zambia, improving corporate governance can serve a number of important public policy objectives. Good corporate governance reduces emerging markets vulnerability to financial crisis, reinforces property rights, reduces transaction costs and the cost of capital and leads to capital market development. Since Banks are primarily companies, they also fall within the preserve of corporate governance.
- ItemOpen AccessIssues relating to the regulation of 'Distributions' by the 2008 Companies Act(2009) Jooste, RichardThe distribution by a company of its assets to its shareholders, whether they be in the form of cash or otherwise, ought to be carefully regulated by any legal system intent on protecting the interests of creditors and minority shareholders of the company. Until 1999 such protection was largely provided for by the maintenance of capital principle. This principle manifested itself in various ways, the most significant being that it was unlawful for a company to acquire its own shares or shares in its holding company, and the distribution of funds to shareholders other than those representing legally distributable profits usually required a court order. In 1999 this all changed with far-reaching amendments to the Companies Act 61 of 1973 (see the Companies Amendment Act 37 of 1999). The maintenance of capital principle was effectively abolished; companies were permitted to acquire their own shares and shares in their holding companies; and the distinction between profits and other funds of a company was removed. The distribution of funds entailed was allowed provided, inter alia, the company's solvency and liquidity was not placed in jeopardy and, in the case of a buy-back or a purchase of shares in the holding company, a special resolution had been adopted to approve the transaction.
- ItemOpen AccessThe maintenance of capital and Companies Bill 2007(Juta Law, 2007) Jooste, RichardThe Companies Amendment Act 37 of 1999 brought about a significant mind-shift in relation to the concept of the maintenance of capital of a company. Prior to this Act, in an attempt to protect shareholders and minority shareholders, an extremely tight rein was kept on the ability of a company to part with its capital other than in the course of its business operations. Before the Amendment Act came into force this meant that, generally, a company could not acquire its own shares, a subsidiary could not acquire shares in its holding company, and dividends could not be paid out of capital. As a result of the 1999 Amendment Act all these transactions are now allowed subject to the basic requirement that the solvency and liability of the company must not be affected (see ss 85, 89 and 90 of the Companies Act 61 of 1973).
- ItemOpen AccessThe normal tax treatment of cross-border dealings between various parts of a company in terms of the Income Tax Act, No. 58 of 1962, compared to selected aspects of the Organisation for Economic Cooperation and Development's Model convention on incom(2006) Hattingh, Petrus Johannes; Jooste, Richard; Clegg, DavidIncludes bibliographical references (leaves 147-151).
- ItemOpen AccessOffshore trusts and foreign income - the specific anti-avoidance provisions(Juta Law, 2002) Jooste, RichardFrom the perspective of the hardworking tax practitioner (to say nothing of the academic), the phrase 'compensation and damages' strikes terror into the heart. The statute law, particularly in relation to income tax, capital gains tax and value added tax (VAT), lacks clarity and the case law - which covers only income tax - does not paint a cohesive picture either. This article aims to summarize the position in relation to each tax and then to make some recommendations for the future. (1) "What is meant by compensation and damages? The phrase clearly has no technical meaning but, the for purposes of this article, covers contractual settlements arrived at in the normal course of commerce and falling short of litigation; settlement of delictual claims (ie not founded on contract) and settlements for those claims reached as a consequence of litigation. The costs of litigation itself will be treated as a deduction but not damages and compensation, which are outside the context of a trade carried on by the claimant or defendant, as the case may be.'
- ItemOpen AccessThe protection of shareholders' rights versus flexibility in the management of companies: a critical analysis of the implications of corporate law reform on corporate governance in South Africa with specific reference to protection of shareholders(2017) Chokuda, Carias Tererai; Jooste, Richard; Van Wyk, AndreasIn June 2004 the Department of Trade and Industry embarked on a corporate law reform process which culminated in the enactment of the Companies Act 71 2008. One of the key objectives of the reform process was to provide flexibility in the formation and management of companies. As part of this goal, and by the use of the concept of alterable and unalterable provisions, the new Act unravelled some shareholder protective mechanisms provided for under the old Companies Act 61 of 1973. At the same time, it conferred increased powers on the board of directors of a company. These changes affect the power dynamic between shareholders and the board of directors within the company. Given the significant role of directors within the company, these changes give rise to concerns about shareholder protection, especially in the light of the conduct of directors in corporate scandals of the recent past. The objective of this thesis is to show where there has been a shift in the balance of power between shareholders and the board of directors and, how this shift affects shareholder protection and, whether the shift of power has been balanced by increased shareholder protection.
- ItemOpen AccessThe role of the independent director in maintaining good corporate governance(2009) Gona, Shingirirayi; Jooste, RichardThe role of the independent director is not clearly defined in most legislation around the globe. Hence, a company, through its Articles of Association or Memorandum of Incorporation, may attach any role it wishes the director to carry out. Most companies seem to entrust the independent director with three roles, which are the monitoring of managerial activities, strategy development, and ensuring that the company complies with the various companies' legislation. However, Dixion et al assert that, the independent director has largely emerged, amongst other factors, due to the need to monitor managerial activities.
- ItemOpen AccessThe statutory derivative action under the Companies Act of 2008: guidelines for the exercise of the judicial discretion(2014) Cassim, Maleka Femida; Jooste, RichardSection 165 of the Companies Act 71 of 2008 introduces the new statutory derivative action. The section confers a pivotal function on the courts as gatekeepers to the derivative action, with an important filtering or screening function to weed out applications for derivative actions that are frivolous, vexatious or without merit. The vital judicial discretion to grant leave to an applicant to bring a derivative action entails a tension between two equally important policy objectives. A proper balance between these two underpinning policy objectives depends on the appropriate judicial interpretation and application of the three vague, general and open-textured criteria or gateways for the grant of leave to institute a derivative action. The courts have been entrusted by s 165 to flesh out the details, the contours, the ambit and the scope of these criteria. This crucially gives the courts a dominant and a decisive role in shaping the effectiveness of the new statutory derivative action. This thesis makes an original contribution to knowledge in three main respects. First, this thesis focuses on the three guiding criteria for leave, and their many nuances, interpretations and applications in certain foreign jurisdictions that have exerted an influence on the provisions of s 165. Based on experience garnered from Australian, Canadian and New Zealand law, as well as the United Kingdom and the USA, guidelines are suggested for the approach that the South African courts should adopt to the three preconditions for a derivative action. Secondly, it is submitted that the real weakness in s 165 lies in the rebuttable presumption in s 165(7) and (8), which contains a fatal flaw that renders the remedy defective and calls for legislative amendment. Pending such amendment, proposals are suggested for the proper judicial approach in the meantime to the troublesome presumption. These proposals are supported by both reasoned argument and original research on experience in certain foreign jurisdictions, particularly the USA. Thirdly, and equally importantly, a framework is suggested in this thesis for the proper exercise of the judicial discretion to make orders of costs, which is known to have plagued minority shareholders wishing to bring derivative proceedings against miscreant directors who have wronged the company.
- ItemOpen AccessTax compliance in Tanzania : an analysis of law and policy affecting voluntary taxpayer compliance(2011) Ongwamuhana, Kibuta; Jooste, RichardThis study examines the problem of low level tax compliance in Tanzania. It proceeds from the premise that high level taxpayer compliance is essential to the success of the tax system. Unless taxpayer compliance is achieved at sufficient levels, the performance of the tax system will be significantly impaired.