Browsing by Author "Idensohn, Kathleen"
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- ItemOpen AccessThe basis and boundaries of employee fiduciary duties in South African common law(2015) Idensohn, Kathleen; Rycroft, AlanThe nature and potential application of the common-law fiduciary doctrine, and of the distinctive nature of the duties to which it gives rise, is seldom appreciated or analysed in South African law. This is particularly evident in the law of employment, where the courts’ references to the ‘fiduciary’ nature of employment and the ‘fiduciary duties’ of employees have often been ambiguous, confused and unprincipled. In addition, there is almost no reference to employee fiduciary duties in the general literature on South African labour and employment law and, even where these duties are (briefly) mentioned, they are not acknowledged as being in any way separate or distinct from the employee’s other duties to the employer. This contrasts noticeably with other Commonwealth jurisdictions, where fiduciary duties form the basis of increasing numbers of cases, and are well-established and extensively debated aspects of the general jurisprudence, both generally and in relation to employees. This thesis critically explores and advances certain propositions about the general theoretical nature of the South African common- law fiduciary concept and the principles that govern the incidence, nature, purpose, scope and operation of fiduciary duties, with comparative reference to the positions in English and Canadian law. The first six chapters provide a critical analysis of those general propositions and principles. They also locate them and the debates that surround them within their broader legal and theoretical context. Chapter 7 considers their application to relationships of employment in order to determine the basis and boundaries of the fiduciary duties of employees (as ‘ordinary’ employee and in certain other established ‘fiduciary’ capacities commonly associated with employment) in terms of South African common law. In particular, the chapter considers when those duties will arise, their scope of application, what they require of the employee, and how they differ from other employee duties. Chapter 8 considers the broader issues of whether all relationships of employment are inherently and necessarily ‘fiduciary’ ones and whether they ought generally to be classified as a class of ‘fiduciary relationship’. The final chapter critiques the current position in South African law on these matters. It also suggests a set of fiduciary principles and propositions for the future application and development of fiduciary duties, both generally and in relation to employment, that are theoretically sound, clear, coherent and, where appropriate, consistent with contemporary jurisprudence in other comparable jurisdictions.
- ItemOpen AccessProtecting South African companies against cybercrime: a critical analysis of the directors? duty of care in relation to cybersecurity and the use of artificial intelligence to protect companies? online meetings(2023) Kritzinger, Julian; Idensohn, KathleenSouth Africa (SA) has one of the highest rates of cybercrime in the world and SA companies' cyberassets are vulnerable to cyberattacks. Since SA companies' online meetings (OMs) are conducted on an online platform and use online databases that contain sensitive Personally Identifiable Information (PII), they are particularly prone to cyberattacks. Artificial Intelligence (Al) could however be used to resist cyberattacks on a company's cyberassets, such as its online platform and its online databases. Contrariwise, AI could be used by cybercriminals to instigate cyberattacks. This thesis will critically analyse how a more detailed treatment of the directors' duty of care in relation to cybersecurity can help to make SA companies more cyberresilient, with the specific focus on their OMs, as well as the role that the use of AI can play in this regard, and how it should be regulated? Where other researchers looked at OMs as a means to enhance corporate governance and corporate social responsibility (CSR), they have failed to look at the dangers that cybercrime present to OMs and that directors may be held personally liable in the event that a company's cybersecurity was inadequate to thwart a cyberattack and the company's cyberassets were compromised. By means of legal comparison, this thesis critically analyses how directors need to exercise their duty of care in relation to cybersecurity in order to help make SA companies more cyberresilient, and will argue for directors' use of Al as a tool to help resist cybercrime, and its regulation. This thesis mounts the challenge of SA cybercrime by firstly looking at how OMs and the duty of care in relation to cybersecurity are regulated in different jurisdictions, and how corporate governance and CSR should include AI, while it also looks at directors' exposure to liability in terms of the use and regulation of AI. It is submitted that the SA Cybercrimes Act 19 of 2020 and the King Code should be updated to include the use of Al, since it is an important tool for directors in the fight against cybercrime.
- ItemOpen AccessThe ownership and control architecture of South Africa's state-owned companies and its impact on corporate governance(2021) Thabane, Tebello; Ncube, Caroline; Idensohn, KathleenThe thesis examines the ownership model and various control arrangements of state-owned companies (SOCs) to establish how the division of corporate power between the boards of directors and shareholder-representatives and the exercise of corporate power by these organs impact corporate governance. The thesis makes several claims. First, it argues that the architecture of ownership and control is not underpinned by a sound theoretical base and lacks a clear and consistent economic and political logic. Second, the motivations for state ownership are vague and contradictory, resulting in an irrationally amorphous ownership model. Third, shareholder control powers are excessive, often abused, and lead to shareholder proximity to the locus of governance, which engenders interference and erodes boards' autonomy and authority to govern effectively. Fourth, the legal and regulatory regime governing SOCs is plural, complex, fragmented, and contradictory. Collectively, these and other conceptual flaws have an adverse impact on governance. To address the flaws, the true nature and role of SOCs as entities of a special kind designed to fulfil an overarching public interest mandate need to be reimagined. To realise the public interest mandate, SOCs must be governed in the public interest. This has several aspects. The first is the truncation of excessive shareholder powers and the elimination of interference by removing SOCs from direct political control and placing them under an independent and professional shareholder entity akin to Singapore's state holding company, Temasek. The second aspect is a rethink and expansion of the duties of SOCs' directors by introducing a novel duty to act in the public interest, in addition to their traditional duties. The third aspect is that the legal and regulatory framework must be de-layered, responsive, and complementary to accommodate and give impetus to the public interest approach to corporate governance. Ultimately, these changes must culminate in a nuanced and bespoke architecture of ownership and control that is minimalist and structured and that can, arguably, address the idiosyncratic governance challenges that confront South African SOCs.