Doctoral Degrees (Business Law)

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Law of money, value and payment.
(2002) Eitelberg, Eduard.; O'Shea, A. G.; Somaroo, Harichand.
Societies have, since time immemorial, traded real goods and services for expectations of goods and services in some future. These expectations have been associated with tangible and, lately, intangible property - which is generally called money. From the crude quantity theory of money, the purchasing power of a monetary unit is given as 1/ P = T/(Mv). P is the price of the traded goods and services T, M is the total money supply and its turnover rate is v. The total money supply M is dominated by bank credit. In the South African law (and elsewhere) the judicial recognition given to bank credit (1) as money seems to have happened as an unintended side-effect to accepting cheques as delivery vehicles in a cash transfer without any tangible money moving from the transferor to the transferee. In payment of money, the law of property and the law of contract overlap and become inseparable. Both the English and South African laws define payment as performance of a preceding duty. The Supreme Court of Appeal, in the Vereins- und Westbank case seems to have declared an abstract transfer of ownership of money to be payment even though no preceding duty to pay was found. The profit of a financial investment is called interest and is calculated from a simple or compound interest formula. Despite medieval legal, theological and ethical objections, neither is illegal in the South African positive law. The last remnant of the medieval protection of a guilty debtor (often the ruler) at the expense of an innocent creditor is the in duplum rule. This is particularly obnoxious during modern rampant inflation that was unknown and could not be predicted when only metallistic money was in use. The influence of the in duplum rule is being limited by recent restrictive judgments in South Africa and in Zimbabwe. In South Africa, the Government has a constitutional duty to ensure that its subjects are not deprived of property. Specifically, the Constitution prescribes in Section 224(1) that the South African Reserve Bank must 'protect the value of the currency'. It is shown that the recent Reserve Bank policies, unless urgently modified, are in conflict with the publicly promised inflation rate of no greater than 6%. The exchange rates depend fundamentally on the price levels of the traded or tradable goods and services in the respective economies. This leads to the concept of purchasing power parity, which is most accurately reflected in the relationship between interest rates in different states and their relative foreign exchange depreciation rates. It is submitted that the South African Exchange Control Regulations have outlived their usefulness (if ever they had any) and are unconstitutional - at least in so far as they interfere with the South African Reserve Bank's obligation to pursue its primary object 'independently and without fear'. In the main, the South African Courts have applied restrictive interpretation to the Exchange Control Regulations and they have justifiably ignored the public international law obligation of the Republic to recognise the Exchange Control Regulations of fellow IMF members extraterritorially. (1) To money related claims on banks - see the body of the thesis for the two-creditor-two-debtor legal aspects in the 'bank credit'.
Creditors' rights in business rescue proceedings in terms of South Africa's Companies Act 71 of 2008.
(2017) Rugumamu, Victor William.; Williams, Robert Charles.
The focus of this study is the protection of creditors’ rights in South Africa’s statutory business rescue regime provided for in Chapter 6 of the Companies Act 71 of 2008. In this analysis, three issues in particular are addressed in depth. The first is the creditors` power to initiate the business rescue process. The second is the position of creditors between the commencement and the termination of the business rescue process. The third issue is to suggest (on the basis of experience drawn from reported case law and academic criticism of the current business rescue statutory provisions) an improved model that will more effectively safeguard creditors’ rights in South Africa’s business rescue regime. In exploring these issues, I give a critical review of pertinent literature. With respect to the first issue, I conclude that the legislative provisions granting creditors the right to seek a court order initiating the business rescue process are open to criticism. By contrast, a resolution of the board of directors for the commencement of business rescue is a simpler route. With regard to the second issue I conclude that the company’s creditors have considerable influence in the business rescue process. Overall, the current statutory business rescue regime is intended to give a voice to all major stakeholders in the company’s continued solvent existence. In the event of certain irresoluble disputes in the course of that process, the judiciary has the final say. A substantial number of judicial decisions have provided interpretations of the statutory provisions, and the trend has been to try to restore financial ailing companies to solvency and viability where there is a reasonable prospect for success in this regard. In my conclusion, I propose a legislative model that seeks to strike an optimum balance between the competing and sometimes conflicting interests of the various interested parties and I suggest reforms directed at enhancing the protection of creditors’ rights. This thesis takes account of South African legislation and legislative amendments as at 31 December 2016 and of decisions of the South African courts up to and including those handed down during April 2017 and reported in the saflii on-line law reports. Since a substantial part of this thesis was written from outside South Africa, the author relied heavily on the safllii data base of judgments of the South African courts, rather than on hard copy law reports which take time to reach their destination by post.
Enhancing South Africa’s traditional knowledge trade through the extension of geographical indications under the TRIPS Agreement.
(2018) Balaram, Sujata.; Stevens, Clydenia Edwina.
Due to the absence of an international agreement to protect traditional knowledge, divisive measures need to be taken in order to ensure that a governing structure is available, if not to fully protect traditional knowledge but at least to recognise it and limit its usage in order to prevent misappropriation. Geographical indications can provide such a governing structure, on an international level, as it is already entrenched under TRIPS. The hindrance to such governing structure being realised is that enhanced geographical indication protection under Article 23 of TRIPS is only available to wines and spirits. Negotiations have been initiated to see such enhanced protection be extended to products other than wines and spirits, such as traditional knowledge. Such negotiations started off with vigour but have since reached a stagnate point, with developing countries appealing for the reigniting of negotiations, with limited success and progress to no avail. The prime cause for the stagnation is the stalemate debate between the proponents (the EU and its supporters) and the opponents (the USA and its supporters) of the extension and thus recommendations need to be sought to identify measures to appease both parties to reach an amicable agreement. South Africa has seen success with the use of geographical indications to protect traditional knowledge, in light of the Rooibos issue. If such success is garnered through a free-trade-agreement with the EU, then success can be anticipated if geographical indication protection is extended to traditional knowledge on a multilateral level, through the WTO. It is against this background, that the research seeks to identify recommendations that can propel the support of the TRIPS geographical indication extension and see its realisation so that traditional knowledge can be enhanced in developing African countries such as South Africa
The evolution of an effective business rescue statutory regime in South Africa 1926 – 2021=Inguqukomumo yohlobombuso lokomthetho lokutakula amabhizinisi esebenza ngendlela eNingizimu Afrika 1926-2021.
(2021) Phungula, Simphiwe Peaceful.; Williams, Robert Charles.
ENGLISH ABSTRACT: An embryonic concept of what is now referred to as “business rescue” was enacted as so-called “judicial management” in the then Union of South Africa by the Companies Act 46 of 1926. It had already become clear that companies were substantial drivers of the country’s economy and a vital source of employment. It was therefore highly desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be relatively quickly overcome with a return to solvency and viability. The legal process of an attempt to achieve the “rescue” of struggling but potentially viable companies raised many difficulties. How was to be determined whether a company in serious financial difficulty had the potential to return to solvency? What legal process was to be set in train in attempting to achieve that objective? Who was to have locus standi to initiate that process? How would a company’s admission to a statutory business rescue regime affect the legal rights of creditors who had claims against the company and whose own solvency might be imperilled if payment to them was deferred? Who would be in managerial control of the company whilst it attempted to regain solvency? How long would the attempt in this regard be allowed to last? The thesis traces how these and other issues emerged and how potential answers presented themselves and have been refined. The judicial management provisions of the Companies Act 1926 were the first substantial attempt to provide answers to such questions, but the initial legislation was sketchy, vague, and, in some respects, contradictory. Early reported judgments revealed difficulties, and weaknesses in the statutory process, and divisions of judicial opinion soon became apparent. After a lengthy debate, a modern business rescue regime was incorporated into the Companies Act 71 of 2008. The lessons learned from the shortcomings of judicial management and the positive and negative aspects of the business rescue regimes of other countries had been considered, and important contributions were made by an international advisory team. The thesis traces the development of South Africa’s business rescue regime from its beginnings in the Companies Act of 1926 to the present day and provides a critical review of the present law in this regard with suggestions for improvements and further refinement. IQOQA LOCWANINGO: Umqondo osemusha walokho manje osekubizwa ngokuthi i “business rescue” wawushaywe ngokuthi i “judicial managment” endaweni ngaleso sikhathi eyayibizwa ngokuthi i-Union of South Africa ngokoMthetho Wezinkampani 46 ka-1926. Kwase kusobala ukuthi izinkampani zingabashayeli abakhulu bomnotho wezwe kanye nomthombo obalulekile womsebenzi. Ngakho-ke kwakufiseleka kakhulu ukuthi izinkampani ezinamandla kwezomnotho kwakufanele zingaqedwa uma zihlangabezana nezinkinga zezimali ezazingase, zinqotshwe ngokushesha uma kuqhathaniswa nokubuyela ekukhokheni nasekusebenzeni. Inqubo yezomthetho yomzamo “wokuhlengwa” kwezinkampani ezazidonsa kanzima kodwa ezazingase zikwazi ukuphumelela yeza nobunzima obuningi. Imibuzo eyavelwa kwabe kungukuthi kwakuzonqunywa kanjani ukuthi inkampani esebunzimeni bezezimaliy yayinalo ithuba lokubuyela kwi-solvency? Iyiphi inqubo engokomthetho okwakumelwe imiswe ukuze kuzanywe ukufeza leyo njongo? Ubani owayezoba ne-locus standi ukuze aqale leyo nqubo?Ukwamukelwa kwenkampani ohlelweni olusemthethweni lokuhlenga ibhizinisi kwakungabathinta kanjani abanamalungelo asemthethweni futhi abakweletwayo izinkampani uma besengozini yokuthi inkokhelo yabo ihlehliswe? Ubani owayengaba sesikhundleni sokuphatha inkampanini ngenkathi izama ukuhlengwa? Kwakuzothatha isikhathi esingakanani ukuhlenga inkampani? I thesis ilandelela ukuthi lezi zinkinga zavela kanjani nokuthi izimpendulo ezingaba khona ziye zavela kanjani futhi zacwengwa kanjani. Izinhlinzeko zokuphatha kwezobulungiswa zoMthetho Wezinkampani 1926 kwaba umzamo wokuqala omkhulu wokunikeza izimpendulo kuleyomibuzo, kodwa umthetho wokuqala wabe ungacacile, futhi, ngandlela thize, uphikisana. Izahlulelo ezenziwa ngalesenesikhathi zaveza ubunzima, nobuthakathaka enqubweni yomthetho, nokwehlukana kwemibono yenkantolo kwasheshe kwabonakala. Ngemva kwenkulumo mpikiswano ende, uhlelo lwesimanje lokuhlenga ibhizinisi lwafakwa kuMthetho Wezinkampani 71 wezi-2008. Izifundo ezatholwa kumthetho we judicial management kanye nezici ezinhle nezimbi zemibuso yokuhlenga amabhizinisi kwamanye amazwe kwase kucatshangiwe, kanye negalelo elibalulekile lethimba labeluleki bamazwe ngamazwe. Le thesis ilandelela ukuthuthukiswa kombuso wokuhlenga amabhizinisi aseNingizimu Afrika kusukela ekuqaleni kwawo kuMthetho Wezinkampani ka-1926 kuze kube namuhla futhi inikeza ukubukezwa okubalulekile komthetho wamanje mayelana kanye neziphakamiso zokwenziwa kwentuthuko kanye nokuthuthukiswa okucutshunguliwe.
Legal harmonisation of non-tariff barriers of regional economic communities as a catalyst to the realisation of the African continental free trade area=Ukuvunyelaniswa okusemthethweni kwezithiyo ezingakhokhisi emiphakathini yezomnotho yesifunda njengento egqugquzela ukufezekiswa kwendawo yohwebo olukhululekile lwezwekazi lase-Afrikha.
(2023) Achancho Etagha Epse Abia, Elisabeth.; Mnyongani, Freddy Duncan.; Stevens, Clydenia Edwina.
Abstract Legal harmonisation is an integral aspect of regional integration and the desire to promote regional and sub-regional economic integration in Africa is exemplified by the establishment of the African Continental Free Trade Area (AfCFTA) in 2018. The 2012 decision of the AU to create the CFTA by 2017 was reiterated in Aspiration two of Agenda 2063. The legal harmonisation of non-tariff barriers has been a vital instrument in the achievement of EU economic integration and the Organisation for the Harmonisation of Business Laws in Africa (OHADA). The study seeks to critically examine the theoretical and conceptual underpinnings of regional integration and legal harmonisation of non-tariff barriers by the AU and RECs. It also analyses the current political, economic, and legal reinforcements to regionalism in Africa and practices needed to advance intra-regional trade within the framework of Agenda 2063. This was done by evaluating the key legal frameworks of the AU (the Abuja Treaty, the Constitutive Act of AU, 2007 Protocol on relations between AU and RECs and Agenda 2063) with the aim of identifying best practices, gaps and impediments pertinent to strengthening Agenda 2063 CFTA. At the end of the study, the abilities of three selected RECs (SADC, COMESA and EAC) were assessed to drive home the AfCFTA. This was done by identifying flaws in existing treaties of RECs, while advancing a model of legal harmonisation of NTBs between them. It was found out that the AU and RECs have not vigorously considered the significance of legal harmonisation in their integration agendas. This resulted in the lack of unambiguous and concrete provisions for the legal harmonisation of NTBs in their guiding policies. Where some attempts are evident, such as in the EAC, they have been implemented unsatisfactorily with lack of a compliance mechanism. This study contended that if legal barriers to free trade are not eliminated, even if all other barriers were to be removed, the effective realisation of the AfCFTA would still be hindered. Hence, this study recommends the principles of direct applicability and direct effects of regional laws to addressing the legal harmonisation challenge underscored. Iqoqa Ukuvumelanisa okusemthethweni kwezithiyo ezingakhokhiswa intela kuyisici esibalulekile sokudidiyelwa kwesifunda kanye nesifiso sokugqugquzela ukuhlanganiswa komnotho wesifunda kanye nesifunda esincane e-Afrikha sibonakala ngokusungulwa kweNdawo Yezwekazi Lase-Afrikha Yokuhweba Ngokukhululekile (i-AfCFTA) ngowezi-2018. Isinqumo sowezi-2012 se-AU sokwakha i-CFTA ngowezi-2017 saphindwa Esifisweni Sesibili soHlelo- 2063. I-CFTA iphinde ibe wuhlelo olubalulekile oHlelweni-2063 futhi impumelelo yayo ibalulekile. Ucwaningo luhlose ukuhlola ngokujulile izisekelo zethiyori nezomqondo zokuhlanganiswa kwesifunda kanye nokuvunyelaniswa kwezomthetho kwezithiyo ezingakhokhisi yi-AU kanye nama-REC. Iphinde ihlaziye ukuqiniswa kwamanje kwezepolitiki, ezomnotho, kanye nezomthetho kuzwelonke e-Afrikha kanye nezinqubo ezidingekayo ukuze kuthuthukiswe ukuhwebelana kwangaphakathi kwesifunda ngaphakathi kohlaka loHlelo-2063. Lokhu kwenziwa ngokuhlola izinhlaka zomthetho ezibalulekile ze-AU (iSivumelwano sase-Abuja, UMthetho-sisekelo we-AU, 2007 Protocol on relationship between AU and RECs and Agenda 2063) ngenhloso yokuhlonza izindlela ezingcono kakhulu, amagebe kanye nezithiyo ezihambisana nokuqinisa uHlelo-2063 CFTA. Ekupheleni kocwaningo, amakhono ama-REC amathathu akhethiwe (i-SADC, i-COMESA kanye ne-EAC) ahlolwa ukuze aqhubekisele phambili i-AfCFTA. Lokhu kwenziwa ngokuhlonza amaphutha ezivumelwaneni ezikhona zama-RECs, ngenkathi kuthuthukiswa imodeli yokuvumelana okusemthethweni kwama-NTB phakathi kwawo. Kwatholakala ukuthi osopolitiki base-Afrikha abazange bayicabange indlela eqinile yokuhlanganisa umnotho wesifunda, nakuba indlela enjalo yaphakanyiswa abasunguli besifunda sase-Afrikha. I-AU kanye nama-REC awazange acabangele ngamandla ukubaluleka kokuvumelana kwezomthetho ezinhlelweni zawo zokuhlanganisa. Lokhu kuholele ekuntulekeni kwezinhlinzeko ezicacile nezibambekayo zokuvumelana ngokusemthethweni kwama-NTB kuzinqubomgomo eziqondisayo. Lolu cwaningo lwagomela ngokuthi uma izithiyo ezingokomthetho zokuhwebelana ngokukhululeka zingaqedwa, ngisho noma zonke ezinye izithiyo zizosuswa, ukufezeka ngempumelelo kwe-AfCFTA kusazothikamezwa. Ngaphakathi kwalokhu kwangemuva, lolu cwaningo luncoma izimiso zokusebenziseka okuqondile kanye nemiphumela eqondile yemithetho yesifunda ukuze kubhekwane nenselele yokuvumelana kwezomthetho egcizelelwe.

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