Electronic Theses and Dissertations (Masters)

Permanent URI for this collectionhttps://hdl.handle.net/10539/37939

Browse

End date: 2024Subject: search.filters.subject.SDG-8: Decent work and economic growth

Search Results

Now showing 1 - 10 of 60
  • Thumbnail Image
    Item
    Balancing majority shareholder rights, minority shareholder rights and creditors rights in statutory mergers: in terms of the Companies Act 71 of 2008
    (University of the Witwatersrand, Johannesburg, 2024) Ado, Jean Philippe Mathurin Sik
    Companies in their various forms are crucial to South Africa’s economy and its prosperity as they contribute towards wealth creation, social renewal and social welfare. In our growing world and borderless international markets, there are ongoing changes that affects a company’s competitiveness and productivity both nationally and internationally. These changes may be brought by the necessity to abide by international company law standards and practices that to some extent are aiming at sustainable economic growth and profitability. The South African company law regime, introduced since 1926, has undergone a series of amendments to ensure that its national companies and stakeholders benefit from the most updated legal system to galvanise its economy. In so doing, mergers and acquisitions represent one of the most cutting- edge concepts of company law around the world that encompasses the social, economic and financial needs of companies and that have been introduced in the current national company law regime. This research paper analyses the protections of shareholders and creditors in the statutory merger contained in the Companies Act 71 of 2008. It discusses also whether these protections are adequately balanced towards a fair consideration of majority shareholders, minority shareholders and creditors’ interests — which includes consideration of their rights too — in implementing a statutory merger. The main findings are that some protections are not properly balanced in consideration of the aforementioned parties’ interests. These include the appraisal remedy, the merger agreement and the oppression remedy — between minority and majority shareholders — and the creditors’ notification coupled with the court review, the open transferability of creditors’ contracts and the solvency and liquidity test — between majority shareholders and creditors — which in some aspects offers uncertainty in protecting their applicants. The approach adopted in the Canadian cases of Black & Decker and Loeb, set out in section 2 below, emphasises the importance of policy considerations which must meet the stated goals of s7 of the Companies Act 71 of 2008.
  • Thumbnail Image
    Item
    Balancing the odds: A law to legalise and regulate online gambling on casino games in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Bate, David John; Cachalia, Firoz
    Online gambling has become a pervasive phenomenon across the world. Yet South Africans enjoy limited scope to participate legally in this activity. Current legislation permits online betting on sports events (including horse racing) but prohibits all other forms of online gambling. Despite this prohibition, online gambling on casino games is widespread in South Africa. The Government has a choice: continue to criminalise the activity or follow international trends and allow the same. It initially attempted to legalise and regulate online gambling through legislation without success. It subsequently opposed (and continues to publicly oppose) any legalisation of the activity. Significant adverse consequences arise from continued prohibition of online gambling on casino games in South Africa including, inter alia: the spread of illegal gambling sites; loss of confidence in law enforcement; loss of tax revenues; discrimination against casino operators; loss of job opportunities; and inability to monitor and regulate online gambling activities. This study proposes key features for a law and licensing and regulatory framework to legalise and regulate online gambling on casino games in South Africa. It reviews regulation of online gambling on casino games in a representative sample of international jurisdictions to identify issues and best practices that may be germane to South Africa’s circumstances. It examines and analyses current and proposed legislation and stare decisis in South Africa to identify challenges and opportunities for further consideration as part of any process to legalise and regulate online gambling on casino games. It summarises and analyses public interest concerns that likely require redress as part of any such process. Based on these efforts, this study highlights fourteen areas of law and makes recommendations regarding specific interventions in those areas that may merit further consideration in development of any ‘made in South Africa’ solution to legalise and regulate online gambling on casino games in the country.
  • Thumbnail Image
    Item
    nformation Asymmetry and Merger Performance on the Johannesburg Stock Exchange
    (University of the Witwatersrand, Johannesburg, 2024) Dludla, Sambulo Siyanda; Chipeta, Chimwemwe
    This study examines the impact of information asymmetry on the long-term performance of mergers and acquisitions (M&A) on the Johannesburg Stock Exchange (JSE). The empirical test evaluates the 3-year period of share performance from 2001 to 2019. An event study methodology is utilized to evaluate the relationship between information asymmetry and M&A performance after the deal's completion. The study interrogates the relationship between information asymmetry through proxies and the M&A performance measures (BHAR & CAAR) and the relationship between the deal specific variables and the M&A performance measures. The results reveal several information asymmetry proxies (SPREAD, VOLATILITY, TRADED VOLUME, and TRADED VALUE) exhibit a statistically significant relationship with one or more M&A performance measures in the panel OLS fixed effects model. However, ANALYST COVERAGE was not statistically significant for M&A performance. This suggests that information asymmetry impacts M&A transactions on the JSE on the long run. Additionally, mixed results are observed in the Generalised Method of Moments (GMM) regression. When observing deal-specific variables, the panel OLS regression emphasises their significant relationship with M&A performance, particularly against the CAAR, rejecting the null hypotheses for cash, mixed, size, leverage, and value variables at a 1% or 5% level. Controlling for the financial industry, both panel OLS regression and GMM show a significant relationship between CAAR, which is consistent with Harford's (2005) concept of M&A waves and industry clustering. This emphasises the critical role of industry dynamics on M&A performance. The results suggest that management and investors need to be aware of the information asymmetry in the market when conducting and concluding an M&A transaction. Moreover, management and investors must be aware of the information asymmetry in the market in the long run post-merger.
  • Thumbnail Image
    Item
    Deconstructing the debate around bank account closures on the pretext of institutional reputational risk
    (University of the Witwatersrand, Johannesburg, 2024) Hayath, Iram; Kawadza, Herbert
    The Supreme Court of Appeal in Bredenkamp v Standard Bank found that a bank has a contractual right to close a client’s accounts on reasonable notice, and that a bank is entitled to exercise this right if it perceives that a continued relationship with the client may result in reputational and business risks to the bank (albeit may be premised on allegations which the client denies). Banks have regulatory obligations to (amongst others): (i) manage their reputational risk; and (ii) take steps to avoid their accounts being used by clients to facilitate the proceeds of unlawful activities. Banks are at the receiving end of scrutiny for the latter, including from the media. Banks’ actions of closing accounts for institutional reputational risk are however, often challenged by clients on the basis that these decisions are informed by untrue allegations and are contrary to public policy. A particular consideration is the potential consequences of the clients becoming ‘unbanked’. There are also other issues of contention including that reputational risk is an elusive reason. The competing interests and public policy considerations at play have not yet been adjudicated by our courts. This research report argues that the complexities involved necessitates legislative reform to ensure certainty and fairness on both sides.
  • Thumbnail Image
    Item
    The constitutionality of COVID 19 Vaccination Policies and its implications on the right to freedom of religion in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Karuaihe, Janee Raahua Siegfried
    Covid-19 was declared by the World Health Organisation (WHO) as a disease affecting people over a large geographical area. It caused severe illness to millions of people around the world and the death of over four million people. This impact on people had a direct effect on employers, employees and the workplace. Religions and those practicing their religion weren’t spared from the impact of Covid-19. To control the impact of Covid-19 on the workplace, employers were obligated to take steps to keep the workplace safe and to ensure that businesses can reopen in a manner that would ensure the safety of employees and the public. One of the measures taken by employers to ensure the safety of the workplace was the introduction of vaccination policies. These policies varied from workplace to workplace, but a consistent feature was that employees were required to be vaccinated to return to the workplace. If such workplace were to be implemented without exception, it would fail to recognise the fact that certain religious practices and certain people who practice various religions do not permit vaccines, and where they do, only certain vaccines are allowed. As there is no specific legislation governing the implementation of vaccination policies in the workplace, many employees across South Africa believed these policies unjustifiably limited rights protected by the Constitution, including the right to religion. The courts have accepted that vaccination policies may have the effect of limiting rights that are protected in terms of the Bill of Rights. Still, such limitations may be justified where the employer takes steps and introduces such a policy where necessary to ensure the safety of the workplace.
  • Thumbnail Image
    Item
    Realising the right to healthcare: the legislative frameworks pertaining to private health establishments and private healthcare funding models in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Labuschagne-Kom, Lindsie; Mahery, Prinslean; Martin, Blake
    The Universal Declaration of Human Rights recognises access to healthcare as a fundamental human right and is guaranteed by the South African Constitution. An analysis of this right reveals that it comprises of two main components, namely financing and delivery of healthcare services. These are fulfilled by the government in the public sector and by private healthcare funders and private health establishments in the private sector. However, an analysis reveals that access to healthcare is substantively inequitable due to the fragmentation of the health system and unveils significant inefficiencies in the private sector that impeded realisation of this right. This dissertation examines the cause of this fragmentation and the inefficiencies within the private healthcare funders and private health establishments market. It investigates how these issues can be resolved to realise the right to healthcare. This study applied a qualitative desktop review of governmental policies, direct and incidental legislation, and multidisciplinary fields of academic reviews such as competition, healthcare, constitutional law and international policies to evaluate the effect of historical, contemporary and prospective policies and legislation, on access to healthcare. This analysis reveals that access to healthcare was historically manipulated to achieve political ideology through a legislative framework that provided the foundation for private funding models and private health establishments to flourish. This occurred at the expense of the public sector and embedded the fragmentation and inefficiencies in the health system. Notwithstanding the enactment of the Constitution, which envisioned a transformed and equal society, access to healthcare remains substantively inequitable. This is due to governmental failings to regulate these stakeholders. Given this state of affairs, the government intends to enact legislative reform through the National Health Insurance Bill to meet its constitutional mandate to realise the right to healthcare. An analysis of the Bill’s framework, however, reveals that it will have a cascading effect with the collapse of the private healthcare funders and private health establishment markets. This will ultimately cause a regression in access to healthcare and impede the practical realisation of this right. An investigation into alternative mechanisms to fulfil the right to healthcare reveals that incorporation and collaboration with private healthcare funders and private health establishments is a pragmatic alternative to the National Health Insurance Bill that will aid with the practical realisation and vindication of this right. These findings indicate the need for government to improve its stewardship of the health system and provide pragmatic solutions to reform the legislative and regulatory frameworks governing these stakeholders to resolve inefficiencies and to foster collaboration to fulfil the right to healthcare.
  • Thumbnail Image
    Item
    Consideration of the interests of corporate stakeholders in addition to shareholders, in the approval of fundamental transactions under the companies act of 2008
    (University of the Witwatersrand, Johannesburg, 2024) Mdlongwa, Gugulethu; Mongalo, Tshepo
    In an attempt to grow markets and generate profits, companies often engage in fundamental transactions, among other activities. Fundamental transactions may change the share value and structure of a company. They are listed in Chapter 5 of the Companies Act 71 of 2008 to include the disposal of a greater part of the company’s assets, mergers and amalgamations and schemes of arrangements. In this research, financial assistance in section 45 is considered as a fundamental transaction because when effecting it, companies rely on the requirements that apply to fundamental transactions in Chapter 5. In addition, when not effected accordingly, financial assistance may threaten the structure of a company, as it may cause fluctuation of securities. Before effecting a fundamental transaction, companies must adhere to the general requirements, which include a notice to shareholders, an approval from shareholders through a special shareholder’s resolution, and compliance with the solvency and liquidity tests. On implementation, dissenting shareholders may rely on the appraisal rights remedy in section 164. This right gives protection to dissenting shareholders by invoking a process of valuation of shares to ensure fair compensation for their shares in a fundamental transaction. In so far as the consideration of the interests of stakeholders is concerned, the Act does not adequately protect all stakeholders in fundamental corporate decisions. The issue of stakeholder inclusion in fundamental transactions has not received serious attention from scholars, a gap which may be attributed to the prevailing focus on the shareholder primacy approach in corporate governance. This has overshadowed the consideration of other stakeholders as well as the complexity of balancing the interests of different stakeholders within a company. These complexities may deter researchers from delving into this multifaceted issue. This paper addresses the gap and focuses on the effects of the implementation of fundamental transactions – the worst being corporate failure – as attributable to the non-consideration of stakeholders such as employees, customers, and investors in corporate decision-making. This study makes recommendations for the consideration of the interests of all key stakeholders, in addition to shareholders, in financial transactions. It seeks to address the undesirable effects on them and promote good corporate practice to achieve sustainability in the company, which is of common interest to all stakeholders.
  • Thumbnail Image
    Item
    Tax Morale: Utilising behavioural insights to improve tax compliance in South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Meyer, Aneeqah; Romm, Aylit; Gutuza, Tracy
    In South Africa, there is a significant tax gap due in large part to the non-compliance of personal income taxpayers. This study seeks to deliver proposals that would reduce that tax gap by increasing tax compliance through the improvement of tax morale. Noting that the use of behavioural techniques to achieve policy outcomes has seen considerable success in recent years, there has been an increase in uptake of behavioural techniques being used by policy makers to increase tax compliance (and tax morale). While studies have indicated the types of behavioural insights that may be relevant to increase tax compliance, what has been missing from these discussions is a detailed analysis of how current domestic legislation and policy should be amended. This dissertation analyses how behavioural tools could be implemented to increase tax morale within the South African taxation framework. To do so, it considers empirical evidence to determine drivers of tax morale within South Africa. With reference to these drivers, this dissertation presents legislative and policy changes that could be made to influence taxpayers’ intrinsic motivation to pay taxes and, through this mechanism, improve national voluntary tax compliance.
  • Thumbnail Image
    Item
    Cannabis in the workplace: the implications of enever V Barloworld Equipment, a division of Barloworld SA (Pty) Ltd (2022) 43 ILJ 2025 (LC)
    (2024) Naidoo, Yuveshen; Pillay, Karmini
    The Labour Courts in South Africa face many challenges in respect to cannabis-related issues within the workplace. This has been evident ever since the landmark constitutional ruling of Minister of Justice and Constitutional Development v Prince. The recent judgment of Enever v Barloworld Equipment (Pty), A Division of Barloworld SA (Pty) Ltd), highlights some of these challenges. The core challenge is in striking an appropriate balance between the rights between employers and employees, where our courts appear to tip the scale in favouring the employer. In Enever, despite the court acknowledging the fact that zero-tolerance policies prevent employees from being able to use cannabis within their own space, there was no attempt really made to rectify this issue. There is thus a need to provide greater protection for employees and achieve the ultimate aim of labour law, which is to effectively balance the rights between employers and employees. Another challenge relates to the testing for cannabis within the workplace. With no scientifically accurate method currently available for proving cannabis-induced impairment, many employers are of the view that for as long as an employee simply tests positive for the drug then an employer will be entitled to take disciplinary action. Many employers in South Africa make use of tests, such as urinalysis, which does not help in proving impairment but merely indicate recent use. As will be seen in Enever and various other decisions regarding cannabis, our courts appear to overlook the established jurisprudence in relation to testing for similar substances, such as alcohol, with no real justifications as to why they do this. I will consider two sources of foreign law, namely the United States of America (USA) and Canada respectively. Both jurisdictions have successfully struck a balance between balancing the rights and interests of the employee and employer following a fundamental shift in how cannabis is viewed societally and in the workplace. I will look to USA, where there has been a great shift towards accepting and normalising cannabis use, to determine exactly how selected the states effectively balance the rights between employers and employees. I will also consider lessons from Canada to tackle the testing issues for cannabis within the workplace and look at potential testing methods, which South African employers could adopt. It is clear, there is much development still to be made within the legal framework regarding cannabis regulation in the workplace and, as such, I will investigate and critically evaluate key changes that are likely to impact the regulation of cannabis in South Africa.
  • Thumbnail Image
    Item
    The role of corporate governance in reducing illicit financial outflows In South Africa
    (University of the Witwatersrand, Johannesburg, 2024) Ramparsad, Tia-Schae
    Illicit financial outflows have emerged as a significant concern in South Africa, impeding economic growth, exacerbating social inequality, and undermining the country's developmental efforts. This research report aims to investigate the crucial role of corporate governance in reducing illicit financial outflows in South Africa. By examining the factors contributing to these outflows and exploring the effectiveness of corporate governance mechanisms, this study provides insights into how ethical and accountable business practices can contribute to curbing illicit financial activities. This research report highlights significant corporate scandals in South Africa, underscoring the imperative need for strong corporate governance practices to prevent illicit financial outflows. Despite sterling efforts, various areas require improvement and pose distinct challenges. Enforcing corporate governance practices demands adequate resources and capacity within regulatory bodies. Additionally, challenges include the lack of transparency in beneficial ownership and limited shareholder activism, both hindrances to curbing illicit financial outflows. Collaborative efforts are paramount, with stakeholders, including regulatory bodies, companies, shareholders, and the government, working together to fortify corporate governance frameworks, enhance regulatory oversight, foster ethical business conduct, and elevate public awareness. Critical areas of focus encompass strengthening internal controls, ensuring board independence and composition, addressing executive compensation structures, promoting shareholder engagement, enhancing risk management and internal control mechanisms, and improving regulatory oversight and enforcement. Moreover, fostering collaboration among stakeholders and upholding ethical standards are essential elements in curtailing illicit financial outflows, ultimately fostering transparency, accountability, and sustainable economic development in South Africa.