Masters Degrees (Mercantile Law)
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Browsing Masters Degrees (Mercantile Law) by browse.metadata.advisor "Sutherland, P. J."
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- ItemComparison of post-employment restraints in South Africa, England and Germany(Stellenbosch : Stellenbosch University, 2003-12) Guhl, Christian Andreas; Sutherland, P. J.; Stellenbosch University. Faculty of Law. Dept. of Mercantile Law.ENGLISH ABSTRACT: This dissertation deals with restraints in post-employment cases in England, South Africa and Germany. The attempt was made to compare the restraint of trade doctrine that was developed in England and is still used in the common law countries, on one the hand, and the German restraint of trade rules on the other. Therefore the development of the restraint of trade doctrine in England is described, as well as the modifications of the restraint of trade doctrine in South Africa. Also it is given an overview of the German restraint of trade rules. As far as the English and South African law is concerned, the historical developments and applicable principles of the restraint of trade doctrine are emphasised, whereas the main aim in the German part is to give an overview about the codified restraint of trade rules. While comparing the common law doctrine and the German restraint of trade law it is emphasised that in the common law countries the reasonableness and public interest plays an important role, whereas in German restraint of trade law, on the other hand, the payment of compensation is an important matter.
- ItemThe legal regulation of corporate governance with reference to international trends(Stellenbosch : University of Stellenbosch, 2005-12) Horn, Roelof Combrinck; Sutherland, P. J.; University of Stellenbosch. Faculty of Law. Dept. of Mercantile Law.Corporate governance is defined as the system by which companies are managed and controlled. The concept came to the fore with the Cadbury Report in England in 1992 and has since been the topic of much academic discussion. The recent collapse of companies like Enron and WorldCom raised serious questions about international corporate governance practices. This has resulted in widespread reform. In the United States large-scale prescriptive measures were implemented through the enactment of the Sarbanes-Oxley Act. The United Kingdom persisted with their principle-based approach of comply or explain, although some amendments were made to the Combined Code through a joint effort by the Co-ordinating Group on Audit and Accounting Issues, the Smith Report and the Higgs Report. In Australia change took the form of the ASX Corporate Governance Principles and CLERP 9. South Africa, influenced by its common law background, followed a similar approach to that of the United Kingdom but has recently adopted a more prescriptive approach similar to that of the US. The King Committee was set up to review corporate governance in South Africa and two reports report were published – one in 1994 and another in 2002. Amendments to the JSE Listings Requirements followed. The Konar Report made recommendations on the reform of the accounting and auditing profession. The Department of Trade and Industry has recently launched a review of South African company law in conjunction with a review of the audit and accounting professions. These recent developments in company law will however not be discussed in depth as it is at a very early stage and is still subject to change. The aim of this study is to evaluate and determine whether or not the reform in South Africa is adequate to address the questions raised by recent corporate scandals in South Africa. The question also has to be asked whether South Africa should follow international trends in reform just for the sake of reforming. This requires an understanding of the principles underlying corporate governance and the reasons for the existence of corporate governance rules. With the increasing separation between ownership and control the accountability of directors has waned considerably. When addressing corporate governance issues, this must be kept in mind constantly. While the focus of recent reform has been on the company, its directors and auditors, the role of shareholders should not be ignored. What is needed to prevent directors and managers from abusing their positions of power are more informed and involved shareholders. The different role players must also cooperate in developing a culture of ethical behaviour and an environment of openness and accountability.
- ItemReconsidering Distributions: A Critical Analysis of the Regulation of Distributions to Shareholders in the Companies Act of 2008, with Special Reference to the Solvency and Liquidity Requirement(Stellenbosch : Stellenbosch University, 2015-03) Van der Merwe, Constant Pieter; Sutherland, P. J.; Stellenbosch University. Faculty of Law. Department of Mercantile LawENGLISH ABSTRACT : The Companies Act 71 of 2008 introduces a completely new system for the regulation of distributions by a company to its shareholders. The preferred method for protecting the interests of creditors in distributions is now based on a solvency and liquidity test. Regrettably, the provisions setting out the requirements for distributions on the one hand and the solvency and liquidity test on the other have been poorly drafted. This thesis first explains and then applies an innovative interpretation theory to these provisions with a view to piecing together coherent content. The thesis finds that creative interpretations will not suffice in various places, meaning that substantive revision is required. The thesis concludes with brief amendment proposals and accompanying commentary.