Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008

 

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dc.contributor.advisor Bradstreet, Richard en_ZA
dc.contributor.author Zindoga, Washington Tawanda en_ZA
dc.date.accessioned 2016-02-08T14:28:01Z
dc.date.available 2016-02-08T14:28:01Z
dc.date.issued 2015 en_ZA
dc.identifier.citation Zindoga, W. 2015. Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008. University of Cape Town. en_ZA
dc.identifier.uri http://hdl.handle.net/11427/16923
dc.description Includes bibliographical references en_ZA
dc.description.abstract The first part of this minor dissertation will examine the historical development of the common law doctrine of piercing the corporate veil, its status and the concerns raised against the rule. In light of the fact that veil piercing erodes the limited liability of a company, it is necessary to appreciate both the relevance and the significance of separate legal personality and the historical development of the doctrine that carves out exceptions to limited liability in this context. The concept of separate legal personality goes hand in hand with the doctrine of veil piercing. This part will further illustrate the various approaches that courts have taken in deciding whether or not to pierce the corporate veil. A criticism of the doctrine is that it comes with no clear guidelines directing courts to the appropriate circumstances for piercing the corporate veil. It will be argued that the courts have relied invariably on a number of discrete, unrelated categories of conduct upon which to base decisions to disregard the corporate personality of a company, but this approach in the end is unsatisfactory. The concept of corporate personality will be discussed in this part in order to achieve a better understanding of the concept itself and to shed some light on the legal nature of the corporate personality. Furthermore, this part will examine recent trends in foreign law in regard to the doctrine of piercing the corporate veil that may serve as guidelines to the interpretation and the application of the doctrine in South African law. Particularly, the English judicial approach to piercing the corporate veil will be discussed. This in turn will lead to a consideration of the question whether further development is necessary, and if so, which direction is best suited for South African company law. The second part of this dissertation will discuss the rules of interpretation, the basic approaches to statutory interpretation followed by our courts and which approach has enjoyed preference in recent judgments. These approaches will assist in the discussion on the interpretation of section 20 (9) of the Companies Act. Section 20(9) will be examined, and the concerns that writers have raised will be discussed. This part will further examine the judgment delivered in Gore with specific reference to the theories of statutory interpretation used, and the final interpretation applied by the court and what effect this has on the existing rules of piercing the corporate veil. It will be contended that courts must interpret and apply section 20(9) in a way that gives effect to the purport and spirit of the Constitution and results in clarity and simplicity in the statutory doctrine of piercing the corporate veil. The fourth and final part of this research will summarize the discussion, where the research will be considered and recommendations made as to how section 20 (9) should be best interpreted. Given the lack of a unified approach to the scope and conditions of application of the doctrine of veil piercing, which allegedly leads to confusion and frequent misuse, this study aims at clarifying the scope of the doctrine and conditions under which it can be applied. It will attempt to clear up some of the mist enveloping the concept of corporate veil piercing. en_ZA
dc.language.iso eng en_ZA
dc.subject.other Commercial Law en_ZA
dc.title Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008 en_ZA
dc.type Master Thesis
uct.type.publication Research en_ZA
uct.type.resource Thesis en_ZA
dc.publisher.institution University of Cape Town
dc.publisher.faculty Faculty of Law en_ZA
dc.publisher.department Department of Commercial Law en_ZA
dc.type.qualificationlevel Masters
dc.type.qualificationname LLM en_ZA
uct.type.filetype Text
uct.type.filetype Image
dc.identifier.apacitation Zindoga, W. T. (2015). <i>Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Commercial Law. Retrieved from http://hdl.handle.net/11427/16923 en_ZA
dc.identifier.chicagocitation Zindoga, Washington Tawanda. <i>"Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2015. http://hdl.handle.net/11427/16923 en_ZA
dc.identifier.vancouvercitation Zindoga WT. Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2015 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/16923 en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Zindoga, Washington Tawanda AB - The first part of this minor dissertation will examine the historical development of the common law doctrine of piercing the corporate veil, its status and the concerns raised against the rule. In light of the fact that veil piercing erodes the limited liability of a company, it is necessary to appreciate both the relevance and the significance of separate legal personality and the historical development of the doctrine that carves out exceptions to limited liability in this context. The concept of separate legal personality goes hand in hand with the doctrine of veil piercing. This part will further illustrate the various approaches that courts have taken in deciding whether or not to pierce the corporate veil. A criticism of the doctrine is that it comes with no clear guidelines directing courts to the appropriate circumstances for piercing the corporate veil. It will be argued that the courts have relied invariably on a number of discrete, unrelated categories of conduct upon which to base decisions to disregard the corporate personality of a company, but this approach in the end is unsatisfactory. The concept of corporate personality will be discussed in this part in order to achieve a better understanding of the concept itself and to shed some light on the legal nature of the corporate personality. Furthermore, this part will examine recent trends in foreign law in regard to the doctrine of piercing the corporate veil that may serve as guidelines to the interpretation and the application of the doctrine in South African law. Particularly, the English judicial approach to piercing the corporate veil will be discussed. This in turn will lead to a consideration of the question whether further development is necessary, and if so, which direction is best suited for South African company law. The second part of this dissertation will discuss the rules of interpretation, the basic approaches to statutory interpretation followed by our courts and which approach has enjoyed preference in recent judgments. These approaches will assist in the discussion on the interpretation of section 20 (9) of the Companies Act. Section 20(9) will be examined, and the concerns that writers have raised will be discussed. This part will further examine the judgment delivered in Gore with specific reference to the theories of statutory interpretation used, and the final interpretation applied by the court and what effect this has on the existing rules of piercing the corporate veil. It will be contended that courts must interpret and apply section 20(9) in a way that gives effect to the purport and spirit of the Constitution and results in clarity and simplicity in the statutory doctrine of piercing the corporate veil. The fourth and final part of this research will summarize the discussion, where the research will be considered and recommendations made as to how section 20 (9) should be best interpreted. Given the lack of a unified approach to the scope and conditions of application of the doctrine of veil piercing, which allegedly leads to confusion and frequent misuse, this study aims at clarifying the scope of the doctrine and conditions under which it can be applied. It will attempt to clear up some of the mist enveloping the concept of corporate veil piercing. DA - 2015 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2015 T1 - Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008 TI - Piercing of the corporate veil in terms of Gore: Section 20(9) of the new Companies Act 17 of 2008 UR - http://hdl.handle.net/11427/16923 ER - en_ZA


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