Browsing by Subject "Company law"

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    Open Access
    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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    Pre-incorporation Contracts: Statutory Reform
    (Juta, 2009) Ncube, Caroline
    South African company law is undergoing a major two-stage overhaul that will culminate in the coming into force of the Companies Act 71 of 2008. The first stage was completed with the coming into force of the Corporate Laws Amendment Act 24 of 2006 on 14 December 2007 (Proc 47 GG 30594 of 14 December 2007) and the second stage will be completed with the coming into force of the Companies Act, 2008. This Act has been assented to by the President and was published for information on 9 April 2009 (GN 421 GG 32121 of 9 April 2009). Section 225 of this Act provides that it will come into force on a dated fixed by the President by proclamation in the Gazette, which may not be earlier than one year following the date of presidential assent. The earliest that the Act can come into force is therefore 9 April 2010. This note examines certain aspects of the regulation of pre-incorporation contracts contained in s 21 of the Companies Act, 2008, read with the definition of the term ‘pre-incorporation contract’ contained in s 1. The policy considerations underlying the current provision regulating this issue (s 35 of the Companies Act 61 of 1973) and some of the difficulties of interpretation that section has presented will be considered, with a view to evaluating whether there is any policy shift evident in s 21, and whether its provisions represent an improvement on its predecessor. The formulation of s 21 draws on the provisions of its counterpart in the recently amended New Zealand Companies Act, 1993, and so consideration will also be given to those provisions.