Browsing by Author "Stoop, Helena"

Now showing 1 - 11 of 11
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    Does the role and duties of the business rescue practitioner as conferred by the South African Companies Act 71 of 2008 give rise to conflicts with respect to the powers and duties of directors during business rescue proceedings?
    (2016) Kaudeer, Ashirah Bibi; Stoop, Helena
    The objective of this thesis is to research to what extent do the duties and powers conferred to the business rescue practitioner conflict with that of the directors during the business rescue proceedings since both of them form part of the management of the financially distressed company. In so doing, an analysis of the South African statutory provisions will be undertaken, followed by a probe into how those provisions can lead to the probable conflicts to be encountered between management and the practitioner, which can in turn considerably affect the effectiveness and success of the corporate reorganisation. In order to be able to find solutions to reduce possible conflicts, a juxtaposed analysis will be made with similarly statutory provisions in Australia, United Kingdom and United States of America.
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    The inclusion of stakeholders and the Locus Standi of the oppression remedy: a comparative analysis of South Africa and Canada
    (2016) Maponga, Ruvarashe Dorothy; Stoop, Helena
    This dissertation assesses the impact of the narrow interpretation and application of the oppression remedy in the South African Companies Act 71 of 2008, s 163 on the inclusion of stakeholders and compares it with the Canadian experience. It reviews the historical development of the oppression remedy in South Africa and focuses on how the interpretation and application of s 163 continues to exclude various stakeholders in the locus standi of the remedy. The comparative exposition of the interpretation and application of the South African and Canadian oppression remedy provided in this dissertation brings out fundamental differences between the two, highlights the need to extend the South African interpretation to include various stakeholders and elaborates on the benefits of a broader approach to the remedy. By outlining the impact and benefits of the inclusion of various stakeholders in the remedy as opposed to their exclusion, the study advocates for a broadened and inclusive interpretation of s 163 by the courts to create a platform for various stakeholders to seek relief through the remedy. Furthermore, to minimize ambiguity in application of the remedy, the dissertation proposes a modification of the interpretation and application of s 163 to explicitly include all stakeholders in the description of oppression remedy building on the Canadian experience through judicial transplantation.
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    Misrepresentation in consumer insurance: the United Kingdom legislature opts for a ‘reasonable consumer’ standard’
    (Juta, 2013-12-01) Hutchison, Andrew; Stoop, Helena
    In 2012 the UK Legislature passed a new consumer insurance Act, which deals with certain areas of insurance law which have traditionally proved troubling for consumers. This note aims to draw South African attention to the provisions of this statute, and discusses in particular: (i) the treatment of misrepresentations made by consumers in disclosure forms; as well as (ii) its provisions on the issue of constructive knowledge of insurance companies of information disclosed by consumers to insurance intermediaries. There is a detailed case history on both these issues in both the UK and in South Africa, which is used to contextualise the debate. In particular, the materiality standard of the risk awareness of a ‘reasonable consumer’ has been chosen by the UK Act, which is more permissive than South Africa’s ‘reasonable person’ standard.
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    Original powers of state-owned companies' boards in South Africa
    (2025) Tong-Mongalo, Minah Bahentse; Stoop, Helena
    The South African government uses state-owned companies (SOCs) as vehicles through which it provides the necessary services it cannot directly provide. However, the SOCs are plagued by corruption that causes perpetual dependency on the government for bailouts. Major SOCs have had a pattern of mismanagement and poor governance. One of the root causes of SOCs' governance collapse is the inappropriate intervention by state shareholder representatives in the SOCs' affairs. Although S 66(1) of the 2008 Companies Act bestows governance authority on the board, the SOC boards do not enjoy practical authority and autonomy to manage the SOCs. The state shareholder often uses the SOCs' developmental mandate to justify undue intervention in SOC governance. This thesis investigates whether the SOC boards derive their powers from the state shareholder or their governance authority is original and undelegated. It argues that the developmental mandate objective (a corporate purpose) and the board's autonomy (corporate decision-making power) can co-exist. In other words, the developmental mandate objective does not make a board-centric governance model unsuitable for the SOCs. The involvement of politically inclined persons in corporate decision-making of the SOCs poses challenges that require reforms that will ensure a conducive environment for the SOC boards to exercise their undelegated governance authority. To this end, this thesis proposes that in addition to the affirmation of the SOC boards' undelegated governing power, the reforms must also: (i) extend the fiduciary responsibilities to the state shareholder representatives, (ii) pierce the corporate veil to assign liability to the wrongdoer, (iii) extend derivative standing of persons that can litigate to protect the company's interests, (iv) the state must spearhead good governance in all spheres of government, (v) the state must publish the state ownership policy, (vii) the state must publish the government's principles for good governance and publish the Code of Practice for Corporate Governance in the SOCs, (viii) enhance its law enforcement, and (ix) fix state governance. These reforms will affirm the board's original governing authority and limit political interference. The SOC governance legislation must ensure the unconditional application of S 66 (1) of 2008, affirming the SOC boards as a focal point and the custodian of corporate governance. Furthermore, this thesis recommends legislative clarification of the developmental mandate that the SOCs must serve. Moreover, the state must enact the equivalent of S 172 of the English Companies Act, which must give extensive guidance regarding factors the SOC boards must consider when determining the companies' interests. It must also provide further guidance on how the SOC boards must balance competing interests while ensuring the attainment of the developmental objective.
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    Piercing the Corporate Veil: Exploring Legal Implications and Corporate Accountability
    (2024) Kessow, Payal Dharmesh; Stoop, Helena
    This thesis seeks to explore and analyse the concept of piercing the corporate veil within the context of South African corporate law. The purpose of this study is to provide a comprehensive understanding of the circumstances in which courts in South Africa may disregard the separate legal personality of a company and hold the shareholders or directors accountable for the company's actions. The corporate veil is a fundamental principle that shields individual shareholders from personal liability for the actions of a corporation. However, in certain circumstances, courts may lift this veil to hold shareholders personally accountable for corporate obligations. This study begins by examining the concept and origins of separate legal personality, examining the legal concepts associated with this principle. The South African position on piercing the corporate veil is then discussed. An analysis of both the common law and statutory law is given. To enrich this discussion, a comparative analysis will also be made between the approach in South African law and the one adopted in English law. It will include a detailed examination of the origins, principles and interplay between the common law and statutory law provisions. Reference will also be made to the German position on piercing the corporate veil, which will discuss their position in relation to piercing the corporate veil. Furthermore, this thesis investigates the policy considerations underlying the piercing of the corporate veil in South African and English law. Differences in legal traditions and economic structures contribute to variations in the legal standards and tests applied by courts. This research aims to provide a comprehensive understanding of the factors that influence judicial decisions in piercing the corporate veil. A comparative analysis will also be employed to illustrate the practical application of the doctrine in various scenarios, shedding light on the outcomes and reasoning in each jurisdiction.
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    Post-Commencement Finance - Domiciled Resident or Uneasy Foreign Transplant?
    (University of the North-West, 2017-05-10) Stoop, Helena; Hutchison, Andrew
    The 2008 Companies Act introduced a new business rescue regime into South African company law, bringing it into line with trends in developed countries, particularly the United States. Indeed, it appears that the United States Chapter 11 model was followed in this process, introducing the business rescue concept as a legal transplant. Corporate law is well suited to legislative borrowing, but there are important caveats to bear in mind when doing so. In particular: the context and legal culture of the country of origin may differ from those of the destination country. South Africa's commercial environment is different from that of the United States, problematising a transplant of Chapter 11's concepts. Post-commencement finance will be used as a micro-study of this broader phenomenon, and this topic will be investigated with comparative reference to the position in the United States. It will be argued that an essential difference between the two procedures is the lack of legislatively mandated court oversight in South Africa. This impacts on the interests of creditors, as well as on the availability of fresh finance. This results in problems in the implementation of the post-commencement finance provisions, which threaten the viability of this particular legal transplant.
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    Priority issues in business rescue
    (2015) Prins, Deon; Stoop, Helena
    The status of a creditor has always been vitally important in South African law. Our law contains numerous provisions - amongst others in the law of insolvency - to protect creditor's rights, that is, the ability of creditors to collect from debtor s what they are owed. Traditionally secured creditors - that is, creditors who hold some form of real security for their claim - rank higher in priority when it comes to repayment of their claims by a defaulting debtor, both in individual and collective debt enforcement procedures, and as such are, in the vast majority of cases, able to recover full or at least partial repayment of their claims. Business rescue was introduced into South African l aw with the commencement of the Companies Act 71 of 2008, which became effective on 1 May 201 1. Business rescue is a relatively new collective debt enforcement mechanism applicable to corporate debtors. There has been considerable uncertainty with regards to the interpretation of some of its provisions, mainly due to important concepts and terms not being defined. This uncertainty has extended to the provisions dealing with the extension of finance to a corporate debtor after commencement of the business rescue proceedings (so-called 'post-commencement finance') and the ranking of priority of creditors of such corporate debtor during the business rescue proceedings. The dissertation firstly seeks to explain the concept of business rescue, with specific emphasis on post-commencement finance. The relevant provisions relating to post-commencement finance are interpreted along the lines of recent principles governing statutory interpretation. An apparent conflict in the interpretation of these provisions is identified through specific reference to the limited number of judicial pronouncements on this subject matter to date. In attempting to resolve the apparent conflict in the interpretation of the relevant provisions, the dissertation then briefly considers the background to business rescue in South Africa. The Companies Act itself is considered, with specific reference to its stated purpose and objects, along with a look at the historical development of the specific provisions in question. A brief review is then undertaken of the role and f unction of real security in a collectively debt enforcement procedure such as business rescue under South African law, with specific reference to the existing distribution rules in insolvency la w. A comparative review of relevant foreign jurisdictions is then carried out. The dissertation concludes with a suggested approach to the interpretation of the ranking of priorities under business rescue.
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    Remedying abuses of limited liability in company groups
    (2016) Smit, Anina; Stoop, Helena
    In the modern world, company groups have become a commercial reality. With increasing regulatory and compliance requirements for different industries, larger companies are often more optimally managed in a group structure. The individual companies within a group structure still operate in the economic interest of the group as a whole. Despite this reality, company law has strictly upheld the separate legal personality of individual companies within a group. As a result of this separate legal personality, the holding company of the group cannot be held liable for its subsidiaries obligations. This creates room for abuse, especially since the holding company is able to control which obligations may be incurred by the subsidiaries in the first instance. This paper will discuss some of the abuses and possible unintended consequences of extending separate legal personality and limited liability to companies operating within a group. The author will seek to evaluate the common law remedy for piercing the corporate veil as a possible remedy against these abuses. The statutory remedy for piercing the corporate veil under section 20(9) of the Companies Act will similarly be evaluated. The research will conclude that these remedies do not consider the unique policy and economic realities of company groups and therefore are not adequate to address the abuse which may occur in company groups.
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    The limits on limited liability: a comparative analysis of piercing the corporate veil in Swedish and South African law
    (2023) Richard, Chelsea; Stoop, Helena
    The doctrine of piercing the corporate veil assumes a controversial role in both Sweden and South Africa. When making affirmative veil-piercing decisions, both countries' courts are faced with the choice of whether to defend the principle of limited liability, as an inherently respected component of company law, or to neglect a company's separate legal personality and reveal abusive situations. Over the last few decades, the precise approach to be embraced when making such a decision has followed a trend of inconsistency in both jurisdictions. The purpose of this paper is therefore to examine the common law and statutory law in both South Africa and Sweden to ascertain the current position regarding veil-piercing and to establish whether the law, as it presently stands, affords sufficient guidance for courts to pierce the veil. This will be enhanced by the fact that the paper encompasses a comparison between a common law and civil law jurisdiction. Ironically, it is the former, South Africa, which has elected to endorse the doctrine by codifying it in the 2008 Companies Act, but the latter, Sweden, has tended to safeguard the principle of limited liability by refusing to codify it.
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    The use of presumptions in determining liability for passive participation in price-fixing cartels: a comparative study
    (2024) Preller, Surita; Stoop, Helena
    While competition authorities worldwide share a common resolve to denounce cartels, they adopt varying approaches to their prosecution and punishment. The inherent secrecy of cartels makes it a daunting task to strike the right balance in legislative and governmental intervention. For that reason, courts in different jurisdictions have allowed evidentiary presumptions aimed at aiding authorities in establishing the essential elements of transgressions, particularly in cases of price-fixing. The appropriate balance between reliance on evidentiary presumptions and the burden of proof is of paramount significance in the context of price-fixing offences. Finding this balance is vital for preventing detrimental effects on competition and market dynamics. The issue considered herein is what the appropriate balance is for South African competition law, after considering the examples provided by the European Union (“EU”) and the United States of America (“US”) in their reliance on evidentiary presumptions. In the EU, the paramount focus lies on the competitive process. The EU has been developing their competition law jurisprudence on the use of presumptions for many years and the US is not far behind. South Africa has progressively incorporated concepts and practices from the EU system into its legal framework, exemplified by the introduction of the concept of public distancing as a rebuttal to the presumption of involvement in the EU. This thesis delves into the European and U.S. positions respectively, analysing the process of proving and defending price-fixing cases, including the development of presumptions. It explores the South African position and the interplay of systems to find that the South African context is unique due to historical complexities and aims of the South African Competition Act. The aim is to determine the extent to which foreign systems provide guidance for addressing the legal questions raised in the South African context. This thesis then suggests that the US model might offer a more balanced approach that aligns with South Africa's specific needs and circumstances and gives reasons for this. It is emphasised, however, that each legal system must be considered and understood as a whole before categorical rules are drawn and transplanted from one to the other as contextual differences are present.