Theses and Dissertations (Mercantile Law)

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The abuse of business rescue proceedings while liquidation proceedings are pending
Magxaki, Sibusiso K (University of Pretoria, 2025-10-30)
In South Africa, section 131(6) of the Companies Act enables an affected person to make an application for a company to commence with business rescue proceedings while liquidation proceedings are in progress. The effect of section 131(6) is that the business rescue application immediately suspends the liquidation proceedings that have already commenced. This may lead to an abuse of business rescue. An abuse of business rescue proceedings would be a contradiction to several objectives of the Act. One objective, in particular, is to provide for the ‘efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders.’
The Prudential Authority’s Independence in South Africa’s Implementation of the Twin Peaks Model of Financial Regulation
Dlodlo, Wayne T (University of Pretoria, 2026-02-14)
South Africa’s implementation of the Twin Peaks model of financial regulation has generally been commended by academics and international standard-setting bodies. However, concerns persist regarding the independence of the country’s prudential regulator, the Prudential Authority. For instance, the International Monetary Fund and World Bank’s 2022 “South Africa: Financial Sector Assessment Program-Technical Note on Banking Regulation and Supervision” has cautioned that the Prudential Authority’s independence may be compromised by being housed within the South African Reserve Bank. While such assessments provide valuable insights, they fall short of offering a comprehensive evaluation of the Prudential Authority, which not only evaluates its institutional structure (which is arguably appropriate in the South African context) but also examines its regulatory, supervisory, institutional, and budgetary independence. This study fills this gap by examining these dimensions of independence while also tracing the historical evolution of bank regulation and emphasising the importance of regulatory autonomy in light of the “private interest (capture) theory of regulation”.
An analysis of the purchaser's protection in terms of chapters two and three of the Alienation of Land Act 68 of 1981
Buys, Catherine (University of Pretoria, 2015-10)
Chapters II and III of the Alienation of Land Act 68 of 1981 contain various measures which are intended to protect a purchaser who has entered into a contract for the sale of land. This dissertation will consider the various sections of these Chapters to indicate what protection the purchaser is offered, whether this protection offered is to the advantage of the purchaser, and also what the purchaser must do to be afforded this protection. The different sections are split into different chapters which will cover rights which are applicable in general, rights which are applicable when a mortgage bond is still registered over the land, and also the rights which a purchaser has if the owner of the land should become insolvent before the land is transferred to the purchaser. It is important that the purchaser should be aware of these rights because they are intended for his benefit. Some sections are excessively verbose which is not to the advantage of a purchaser who probably cannot afford legal assistance since he cannot obtain a mortgage bond to assist with the purchase of the property and as such some sections can be criticised. Where possible, suggestions for easier understanding have been provided. The aim of the dissertation is to inform purchasers of what rights they have at their disposal when they enter into a contract and to ensure that he understands the rights which he has so that he can actually attempt to rely on the Act if the need arises.
Shareholder protection rules under fundmental transactions
Masondo, Nkululeko (University of Pretoria, 2021-04)
Empirical research in previous years has shown the history and evolution of takeovers and mergers in South Africa. Many theories have emerged to show the advancement in the Companies Act 71 of 2008 (2008 Act) from the Companies Act 61 of 1973, especially in issues relating to takeovers and reorganisations. This includes measures in the 2008 Act that are designed to protect shareholders involved in fundamental transactions. Several academic writers have provided insight into the changes brought about by the 2008 Act with regard to the protection of shareholders, especially in fundamental transactions. It is noted that shareholder protection rules and fundamental transaction rules are the result of some of the purposes of the 2008 Act. Both these rules are a result of the purpose to encourage investment in the economy of the country and to promote the development of South African markets, respectively. However, this research, through critical and comparative analysis of shareholder protection rules in South Africa, the United States of America, India and the United Kingdom, sets out to highlight the conflict between shareholder protection rules and fundamental transactions rules in the 2008 Act. It also shows that with the realisation of one rule comes the transgression of the other and raises the question of whether the 2008 Act has actually struck the right balance.
The effect of business rescue and the section 133 moratorium on stakeholders
Ngwako, Pam-carol (University of Pretoria, 2017-10)
Direction: The business rescue proceedings kicks in with the general moratorium or stay on legal proceedings against the company or its property. Any claims against the company may only be enforced with the consent of the business rescue practitioner or the leave of the court. Research purpose: The moratorium on the rights of claimants may be open to abuse. It gives companies temporary "immunity" to actions brought by creditors which would have been due and actionable. The process may be abused by companies who are not in distress but merely institute business rescue proceedings to stall payments of its debts and to evade its obligations towards its stakeholders. The purpose of the research is to highlight rights that may be affected and possible protection of those rights. Motivation for the research: To investigate the research question: 'whether the avenues put in place by the chapter 6 business rescue proceedings can ensure that all stakeholders benefit and therefore remedy possible misuse?' Research approach and method: The study will include a minimal comparison of processes of other insolvency laws, for example judicial management; liquidation and common law. The study will also compare other international countries such as the United Kingdom ("UK") to provide clarity on how they ensure protection of the rights and duties of all stakeholders involved without compromising the business rescue proceedings. Main findings: Based on the research done, it is clear that the business rescue process is quite a litigious process and requires a lot of finance to effectively implement. The rescue itself is based on financial distress but the process of rescuing is a financial burden to the already distressed companies. Furthermore, the Business Rescue Practitioner is given discretionary powers in respect of the drafting of a plan which will ultimately affect stakeholder, whether they vote or not.
Artificial Intelligence and the regulation of conflicts of Interest in the corporate space
Blythen, Gavin P (University of Pretoria, 2026-02-20)
Conflicts of interest in the corporate arena remain a central concern to policymakers and are widely regarded as one of the most complicated issues for boards and executives in the corporate sector. It is becoming increasingly unrealistic to expect human judgment alone to adequately address conflicts without technological support. At the same time, tools exist to address this problem, but the practical approach for implementing these tools remains underdeveloped. Artificial intelligence (AI) offers the potential to significantly influence the manner in which conflicts of interest are addressed. Despite the potential offered by AI, South Africa has yet to meaningfully incorporate AI into its corporate governance framework. The central issue is an absence of a framework that enables the integration of AI technology in a manner that aligns with South African legal principles and values. A properly designed framework enabling the implementation of AI is required to transform how conflicts of interest are addressed. It would allow South Africa to take advantage of emerging AI capabilities, which can be a powerful tool for strengthening transparency and ethical conduct. The findings demonstrate through case studies that AI is capable of delivering benefits for the conflict of interest framework. Despite this, South Africa lacks a legislative framework that can support the integration of AI. This is problematic, and foreign trends seen in the European Union (EU), such as the EU AI Act, provide a clear risk-based model that can guide South Africa in the development of a robust national framework.
The interplay between the National Credit Act 34 of 2005 the Consumer Protection Act 68 of 2008 with respect to instalment agreements
Grobbelaar, Brandan (University of Pretoria, 2025-10-30)
This study undertakes a critical analysis of the MFC v Botha case in order to address the simultaneous and parallel application of the relevant legislative provisions of the CPA, NCA related specifically to ownership in terms of motor vehicles and instalment agreements. This study further investigates the procedural necessity of accurate legislative interpretation in light of the subject matter of concern (merx), notably identified as motor vehicles in the aforementioned case, and, as such, in accordance with the first critical analysis construct identified, explores the necessary and sufficient inclusion of the National Road Traffic Act 93 of 1996 in cases relating to motor vehicles. The third critical analysis construct presented in this study comprises the exploration of legislative intent with regard to alignment to the Bill of Rights and the Constitution in terms of consumer protection and best business practices. The constructs identified above are based on the study’s argument that there may be a lack of procedural rationality in the MFC v Botha case, wherein it may be argued that the the judiciary erred in its finding and sought to uphold common law principles which may undermine the vulnerable natural person consumer, while disregarding necessary and sufficient procedural rationality on the part of the credit provider. The second critical construct addresses this issue in terms of the potential negligent disregard of the direct influence and interpretive authority that the NRTA and other legislation related to motor vehicles has on all matters pertaining to motor vehicles in the South African context of ownership of goods. The critique of the procedural rationality presented in the MFC v Botha case is expounded upon in answer to the research questions set out in Chapter 1 in terms of the fact that the NRTA specifically addresses vehicle ownership and its definitional elements, thus providing a procedural mechanism that supports the application and enforcement of consumer rights under section 56 of the CPA without resorting to complex and heavily burdensome remedies such as cession of ownership and further aligns with established fiscal practices. In order to support the aforementioned argument, this study focuses on the current practical need for correct legislative application is based on the risk of legal error due to the misinterpretation and erroneous application of legislation, specifically with regard to the CPA and the NCA in the context of motor vehicles purchased through instalment agreements. As such, this critical case analysis is undertaken through both a case-based and literature review substantiated argument presentation in favour of upholding the procedural rationality of safeguarding consumer protection rights and responsibilities while maintaining fair and ethical credit provision and business practices through the use of all relevant legislation in relation to the parties involved as well as the subject matter of the case in question. As such, this study argues that the simultaneous legislative consideration of the CPA and NCA is not sufficient in the context of motor vehicles, specifically, motor vehicles purchased through instalment agreements, which require reference to the NRTA for the clarification of the rights and responsibilities of the parties involved.
The credit agreements subject to the National Credit Act 34 of 2005
De Vries, Stanley Richard (University of Pretoria, 2025)
This research analyses the classification and interpretation of credit agreements regulated under the National Credit Act 34 of 2005 (“NCA”), focusing on the three principal categories of credit agreements: credit facilities, credit transactions, and credit guarantees. The study addresses ongoing uncertainty in legal practice and jurisprudence concerning the correct identification of credit agreements, an issue with significant implications for regulatory compliance, consumer protection, and credit enforcement in South Africa. The primary objective of the research is to examine the statutory definitions of credit agreements subject to the NCA, identify their distinguishing characteristics, and evaluate whether these definitions provide sufficient legal certainty. The research demonstrates that although the NCA adopts a broad and purposive approach to consumer protection, several statutory definitions suffer from conceptual overlap and ambiguity. Difficulties arise in distinguishing between credit facilities and incidental credit agreements, instalment agreements and leases, and section 8(4)(f) “other agreements” and acknowledgements of debt. Courts have frequently relied on substance-over-form reasoning and purposive interpretation to resolve these classification disputes. While this approach advances the objectives of the NCA, it has also contributed to uncertainty and inconsistent outcomes. The study identifies key lacunae in the Act, including ambiguities surrounding revolving credit, the 20-business-day gestation period applicable to incidental credit agreements, and the treatment of certain secured transactions. It concludes that targeted legislative reform and clearer drafting are required to enhance legal certainty while maintaining robust consumer protection. Accurate classification of credit agreements is ultimately essential to the effective operation of the NCA and the development of a fair and sustainable credit market.
Credit guarantees in terms of section 8(5) of the National Credit Act 34 of 2005
Holoane, Sharon Khoeli Lerato (University of Pretoria, 2025-01-01)
The South African credit reform journey was catapulted into motion by the Department of Trade and Industry’s policy framework for consumer credit. The policy’s objective was to establish a regulated credit market that would be effective in unlocking the nation’s economic potential while also addressing the structural legacy of racial exclusion and discrimination perpetuated against marginalised people in the country. Several factors and challenges revealed the necessity for a legislative framework aimed at protecting consumers participating within the credit market from over-indebtedness and preventing the granting of credit recklessly. The National Credit Act 34 of 2005 came into operation on 01 June 2007 and was the first consolidated piece of consumer protection legislation to regulate the South African consumer credit industry. The Act repealed the Credit Agreements Act 75 of 1980 and the Usury Act 73 of 1968. It recognises the imbalances that exist in consumer-creditor agreements and makes certain remedies available to consumers who have fallen victim to reckless credit lending practices. The Act aims to promote and advance the social and economic welfare of South Africans by promoting a fair, transparent, competitive, sustainable, responsible, efficient, effective, and accessible credit market. Although the NCA has been welcomed and hailed for creating some structure in the credit market, its effectiveness has been heavily criticised. With the growth and development of the global economy, creditors and consumers alike are looking to exploit economic opportunities and it goes without saying that procedural certainty becomes imperative in maintaining a good understanding of the consumer and creditor position in the credit agreement. Whilst credit may offer multiple opportunities for consumer protection, there exist multiple factors which could ultimately increase risks to both creditors and consumers.
The role of central banks as lender of last resort
Ssali, Jacob (University of Pretoria, 2025)
The history of many central banks is intrinsically connected to the need to create a mitigating mechanism in times of financial crisis. A key role at the disposal of the central banks is that of being the Lender of Last Resort (LOLR). The LOLR concept is fundamental to central banking and has traditionally been based on Bagehot's Principle which states that: ‘to stem a financial panic a central bank should lend freely at a penalty rate to solvent institutions against good collateral.’ In their role as LOLRs, central banks act at their discretion by providing emergency capital to alleviate financial crises. The LOLR's discretion stems from the need to avoid moral hazard. This discretionary role of central banks as LOLR, however, came under intense scrutiny during the 2008 Global Financial Crisis (GFC), when many central banks invented and experimented with various financial products to mitigate the Crisis, deviating from Bagehot Principle in the process. The central banks' execution of their LOLR role during the GFC drew both praise and criticism, raising concerns about the legitimacy of this critical role. This thesis seeks to explore the concept of LOLR and considers the theories regarding this critical role of central banks. The study further analyses the history of central banks and how they evolved in their reactions to financial crises during the 200 years before the 208 GFC. The thesis then explores the events leading to the GFC, the causes of the GFC, and how the Crisis unfolded, including the reaction of prominent central banks across the globe to the Crisis. The study specifically interrogates the responses of selected prominent central banks to the 2008 GFC against the backdrop of the traditional Bagehot principle of LOLR. It also explores the lessons that central banks can learn from their mitigation arrangements during the GFC as well as the pertinent reforms in financial regulation in the wake of the GFC, focusing on the global reaction as well as the reaction of selected major central banks. It takes guidance from the traditional Bagehot Principle and the application of the LOLR role by central banks during the GFC as well as developments post-GFC. The study is concluded with recommendations for the creation of a rules-based legal framework (model law) for the future application of the LOLR by also considering the lessons learnt from the GFC and relevant legal reforms in the financial sector post-GFC.
The regulation and competencies of business rescue practitiners in South Africa
Demas, Verona (University of Pretoria, 2025)
Chapter 6 of the Companies Act 71 of 2008 regulates business rescue in South Africa. Business rescue aims to rehabilitate financially distressed companies but it faces challenges due to gaps in the regulation and competencies of Business Rescue Practitioners (BRPs). This dissertation examines these challenges and compares South Africa’s framework with those in Zimbabwe, the UK, and Australia. This study highlights the lack of clear statutory guidelines for BRP qualifications, leading to inconsistencies and inefficiencies. It advocates for structured licensing, mandatory training, continuing professional development, and stricter oversight to ensure BRPs possess the necessary legal, financial, and managerial expertise. By proposing reforms to strengthen BRP regulation, this research aims to enhance the effectiveness of business rescue in South Africa, aligning it with international best practices to promote corporate rehabilitation and economic stability.
Measures to protect and assist low-income consumers against reckless lending and over-indebtedness
Van Sittert, Charlotte (University of Pretoria, 2025-08-21)
This thesis critically examines the effectiveness of the reckless lending provisions contained in the National Credit Act 34 of 2005 (NCA), with particular emphasis on the consumer affordability assessment obligations imposed on credit providers. The central question addressed is whether these provisions, especially those introduced through Regulation 23A in the 2014 amendments, have succeeded in improving the position of South Africa’s low-income consumers or whether they have inadvertently created new barriers to credit access and financial relief. The research traces the evolution of the pre-agreement affordability assessment framework, analysing its doctrinal development and practical application, and interrogates whether the regulatory intent of safeguarding vulnerable consumers has been realised in practice. Beyond preventative measures, the study investigates the remedial mechanisms available to low-income consumers who nonetheless fall victim to reckless lending. The debt review process under section 86 of the NCA is subjected to detailed scrutiny, with particular attention to its accessibility, affordability, and procedural effectiveness. Complementary avenues of redress—including alternative dispute resolution mechanisms, the National Credit Regulator, the National Consumer Tribunal, Consumer Courts, and relevant ombuds—are evaluated to determine whether these institutions provide meaningful and equitable relief to over-indebted low-income consumers. For the purposes of this research, ‘low-income consumer’ refers not to the poor or unemployed, but to individuals within the Living Standards Measure (LSM) 5–7 categories, earning between R4 465 and R11 263 per month, who are theoretically capable of repaying credit but remain vulnerable to over-indebtedness. The thesis adopts a doctrinal methodology, drawing on statutory provisions, case law, regulatory instruments, and academic commentary, while situating the South African framework within a comparative and international context. The study benchmarks South Africa’s affordability assessment regime and debt relief mechanisms against international principles and guidelines issued by bodies such as the World Bank, the Organisation for Economic Co-operation and Development, the Group of Twenty, and the International Federation of Insolvency Professionals’ International Consumer Debt Report, as well as against the consumer credit regimes of the United Kingdom and Australia. These jurisdictions, with their well-developed responsible lending frameworks, provide valuable comparative insights into balancing consumer protection with financial inclusion. Findings reveal that while Regulation 23A and the broader NCA framework represent important steps towards responsible lending, their implementation has fallen short in addressing the lived realities of low-income consumers. The affordability assessment provisions, though designed to prevent reckless credit, have in practice restricted access to credit for many low-income households, thereby undermining financial inclusion. At the same time, the debt review process and related dispute resolution mechanisms remain prohibitively costly, procedurally complex, and inaccessible to those most in need of relief. As a result, low-income consumers continue to face significant obstacles both in avoiding reckless lending and in obtaining redress once over-indebtedness occurs. The persistence of high levels of indebtedness in South Africa, compounded by structural socio-economic challenges such as unemployment, poverty, and inequality, underscores the urgent need for regulatory reform. The findings clearly indicate that the current framework does not adequately protect low-income consumers and requires reorientation. With reference to international principles and guidelines, the thesis concludes with concrete suggestions for reform, aimed at strengthening consumer protection, enhancing the accessibility of relief mechanisms, and promoting a fairer, more inclusive credit system. In doing so, it contributes to the broader discourse on responsible lending and consumer protection in emerging markets and highlights the imperative of aligning regulatory design with the realities of vulnerable consumers. .
Temporary employment services in contemporary South Africa
Madzunya, Samaria (University of Pretoria, 2025-10-31)
Temporary Employment Services (TES), which is commonly referred to as a labour broking arrangement, is recognised in the Labour Relations Act (LRA). Section 198 (1) of the LRA defines a TES as “any person who, for reward, procures for or provides to a client other persons who render services to, or perform work for the client, and who are remunerated by the temporary employment services.’’ This is a controversial employment relationship because it involves three parties, whereas a conventional employment relationship involves two parties, namely the employer and the employee. A TES can be characterised as an arrangement where a client provides work for the TES employee, but is not accountable for the conditions in which the employee works. This happens when a labour broker provides employees to outside clients who delegate tasks to them and oversee how they are carried out, but do not bear the responsibility of being regarded as the employer. The labour broker typically signs an employment contract with the employee, handles payroll for those who have been placed with the clients, and takes on the duty of withholding employees' taxes from the employee’s pay. Employment contracts are frequently made with the stipulation that they will remain in effect for as long as the client needs the employee’s services. The client and the labour broker enter into a commercial agreement whereby the client receives an invoice for the services rendered, the labour broker pays the worker’s wages, and the client and the employee do not have a contractual relationship. The lack of regulation in the TES industry led to employees being exploited by the client or the TES. Employees did not enjoy many of the employment rights that standard-type employees were entitled to, such as the right to security of employment. The other challenge was that employees of the TES could not effectively exercise their right to join a trade union, which led to the client and the labour broker being able to avoid their obligation towards the employees. The LRA Amendment was drafted to balance the need for flexibility in the labour market and social protection. However, one of the shortcomings of the LRA was the limited protection it provided to non-standard forms of employment. The designation of the TES as the employer in section 198(2) of the LRA of 1995 has aided the ability of the TES and its clients to obscure the employer's identity within a triangular relationship. For instance, if the client terminated the employee, the employee could not seek recourse against the client since the client was not considered the employer, even though the instruction to dismiss would have come from the client. Furthermore, the LRA of 1995, before the amendment, did not offer a timeline for how long an employee could be employed through a TES. The absence of a timeline suggested that this tripartite relationship could continue indefinitely. Therefore, employees could be assigned to the client's workplace for an indefinite duration, lacking the benefits that permanent employees directly hired by the client received. This arrangement enabled the TES and its client to exploit vulnerable TES employees. The LRA of 1995 was amended in January 2015, resulting in the inclusion of section 198A. These amendments changed how the TES relationship operates to ensure that vulnerable employees, such as those in TES arrangements, receive adequate protection. Section 198A (3) (b) of the LRA states that employees hired through a TES to work for a client for over three months, and whose earnings fall below the annual earnings threshold, are considered to be employed by the client. With effect from 1 April 2025, the threshold amount has been raised from R254,371.67 to R261,748.45 annually. Section 198A was introduced to deal effectively with the abusive practices and exploitation relating to labour broking or temporary employment services. This study seeks to determine whether the amendment provides adequate protection to vulnerable employees employed by TES’s. Furthermore, the study will examine whether the sole employer relationship, pronounced by the constitutional court in Assign Services, is sustainable.
The independence and accountability of financial sector regulators under the South African Twin Peaks model
Blignaut, Jacobus Philippus (University of Pretoria, 2025)
The mini-thesis focuses on the independence and accountability of Financial Sector Regulators under the South African Twin Peaks Model. The mini-thesis investigates the history of financial regulation and why the current system is used. The focus is then placed on the current independence of the Prudential Authority and Financial Sector Conduct Authority looking at, amongst others, political and financial independence. The accountability of these regulators is also explored, as to whom they report to and how they are held accountable for actions taken. The Australian and United Kingdom models of financial regulation is also looked at to determine what lesson South Africa can adopt from those jurisdictions in respect of independence and accountability of Financial Sector Regulators.
The role debt intervention in South African insolvency law
Lekalakala, Mmathabo E (University of Pretoria, 2025-10)
A focal point of this dissertation is to unpack the South African natural person insolvency law through specific consideration of the effectiveness of the debt intervention measure. It is evident that there is a myriad of access requirements for debt relief measures in South Africa. A debtor ought to be in possession of either assets or income in order to trigger the various procedures. Thus, an absence of assets or income consequently operates as a bar to entry of the debt relief measures currently in place. More recently, the National Credit Amendment Act introduced the debt intervention measure whose primary objective is to extend a form of statutory recourse to vulnerable consumers that are currently excluded from formal debt relief measures by way of making provision for debt restructuring and a payment plan. The World Bank Report on the treatment of natural persons essentially functions as a guiding tool in the development of an insolvency regime through outlining characteristics of an effective regime for natural persons as well as the challenges which may flow from the development thereof. The Report will therefore be considered for the purposes of this study. This study aligns with the United Nations’ Sustainable Development Goal 1 which seeks to end poverty in all its forms by promoting social protection systems and ensuring equal access to economic resources. The analysis of South Africa’s natural person insolvency law, particularly the debt intervention measure reflects these objectives by addressing the exclusion of vulnerable consumers from traditional debt relief mechanisms. The creation of a statutory pathway for individuals without assets or income to restructure debt and implement payment plans functions as a social protection tool that mitigates the risk of deepening poverty caused by over-indebtedness. In doing so, it advances the United Nations’ Sustainable Development Goal 1’s commitment to reducing vulnerability to economic shocks and fostering financial inclusion for vulnerable consumers.
Quasi-punitive measures as a deterrent to abuse in corporate insolvency
Dempers, Reghard Aurelius (University of Pretoria, 2025-12-10)
The board of directors effectively assumes the role of the captain(s) of a ship, the ship in this case being a company. What to do then when the actions of a director or the board of directors have the effect of causing severe damage to the ship, causing it to lose its capacity to be seaworthy or, even worse, to sink? This question is what this study seeks to answer. This study investigates the general duties owed by directors to a company and what these duties entail in the context of the period leading up to and until the insolvency of a company. An investigation is conducted to determine whether any recourse exists for affected persons who may seek to penalise the director(s) of a company for causing the insolvency of a company. If such penalties exist, a further analysis is embarked upon to determine whether such penalties are sufficiently severe, and therefore adequate, for the purposes of discouraging similar conduct by the directors of other companies. This study entails a short but focused analysis of South African company and commercial insolvency law, followed by a similarly short and focused analysis of United Kingdom company and commercial company law. The United Kingdom is chosen because of the empowering provisions of South African company law, which enables such comparisons, and the fact that the influence of English Law upon South African Law is undeniable. The study concludes that the United Kingdom corporate insolvency law specifically caters for the disqualification of a director due to the conduct of such a director causing the insolvency of a company. Further, the United Kingdom framework caters for the vindication of creditors’ interests through providing creditors with locus standi to apply to have a director disqualified. South African corporate insolvency law does permit the declaration of a director as delinquent, with a consequence of such a declaration being the disqualification of such a director. However, there are no explicit provisions catering for the disqualification of a director for the contribution to or causing of a company’s insolvency, nor are there provisions explicitly providing creditors with locus standi to apply to have such directors declared delinquent and subsequently disqualified.
The judicial determination of fair value for the purposes of section 164 of the Companies Act 71 of 2008
Krynauw, Liezl (University of Pretoria, 2025)
Section 164 of the Companies Act 71 of 2008 introduced the statutory appraisal remedy into South African company law, affording dissenting shareholders a no-fault exit mechanism when opposing certain fundamental corporate actions. Central to the operation of this remedy is the judicial determination of “fair value” of the appraisal shares, a concept left undefined by the legislature. Recent South African case law has revealed significant uncertainty regarding the appropriate valuation methodologies to determine fair value and the appointment of expert appraisers. This dissertation critically examines the judicial determination of fair value under section 164, with particular emphasis on the role of the courts once the appraisal right has been perfected. It adopts a comparative approach, analysing the appraisal remedy as developed under Delaware law in the United States and under the Japanese Companies Act, both of which represent mature yet distinct responses to the valuation challenges inherent in shareholder appraisal proceedings. Through doctrinal analysis and comparative evaluation, this study identifies shortcomings in the current South African approach and proposes targeted reforms aimed at enhancing certainty, fairness and efficiency in fair value determinations.
The liability of third parties appointed to satisfy a tax debt in terms of section 179 of the Tax Administration Act 28 of 2011
De Lange, Esmeralda (University of Pretoria, 2025)
This study evaluates whether SARS’s power to appoint third-party agents for tax debt collection unjustifiably limits taxpayers’ constitutional rights under sections 22, 25, 33, and 34 of the Constitution. Although it is not a constitutional analysis per se, it examines the procedural and substantive fairness of this mechanism, focusing on issues such as: who must prove the taxpayer’s financial capacity, how affordability is determined, consequences of not making representations, enforcement against offshore assets, potential unlawful credit extension, lack of judicial oversight, and the effectiveness of available legal remedies. It also considers whether SARS’s dual role as debt collector and affordability assessor creates a conflict of interest, whether bypassing notice requirements undermines administrative justice, and whether current laws adequately protect taxpayers from disproportionate rights infringements. Finally, the study suggests possible legislative reforms to better align the system with constitutional standards.
The information-gathering powers of the South African Revenue Service
Kreft, Sascha A (University of Pretoria, 2025-10-31)
This study examines the scope and limits of the South African Revenue Service’s (“SARS”) statutory powers to gather information under sections 46 and 47 of the Tax Administration Act 28 of 2011 (“TAA”), and the extent to which these powers may be constrained by taxpayers’ constitutional, statutory, and common-law rights. Although SARS is mandated to collect revenue efficiently and is accordingly equipped with extensive information-gathering powers, these powers are not without boundary. The research evaluates how concepts such as “relevant material,” “reasonable specificity,” and third-party information operate within the statutory framework, and considers whether overly broad requests may amount to unlawful “fishing expeditions.” By analysing case law, interpretive principles from Endumeni, and comparative jurisprudence—including emerging South African reliance on Australian authority—the study interrogates whether courts have appropriately balanced SARS’ investigative needs against taxpayer protections. Taxpayer rights under sections 14, 32, 33 and 35 of the Constitution, and statutory mechanisms in POPIA, PAIA and PAJA, are assessed, alongside the common-law doctrines of privacy and legal professional privilege. The study further evaluates the consequences of non-compliance, including administrative penalties and estimated assessments.
From rule takers to rule makers : harmonising voluntary sustainability standards through Annex 6 of the AfCFTA Ppotocol on trade in goods
Chihera, Tinotenda Ratidzo (University of Pretoria, 2025-11-25)
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