Bibliographie sélective OHADA

Recently, South African company law underwent a dramatic overhaul through the introduction of the Companies Act 71 of 2008. Central to company law is the promotion of corporate governance: companies no longer are accountable to their shareholders only but to society at large. Leaders should direct company strategy and operations with a view to achieving the triple bottom-line (economic, social and environmental performance) and, thus, should manage the business in a sustainable manner. An important question in company law today: In whose interest should the company be managed? Corporate governance needs to address the entire span of responsibilities to all stakeholders of the company, such as customers, employees, shareholders, suppliers and the community at large. The Companies Act aims to balance the rights and obligations of shareholders and directors within companies and encourages the efficient and responsible management of companies. The promotion of human rights is central in the application of company law: it is extremely important given the significant role of enterprises within the social and economic life of the nation. The interests of various stakeholder groups in the context of the corporation as a “social institution” should be enhanced and protected. Because corporations are a part of society and the community they are required to be socially responsible and to be more accountable to all stakeholders in the company. Although directors act in the best interests of shareholders, collectively, they must also consider the interests of other stakeholders. Sustainable relationships with all the relevant stakeholders are important. The advancement of social justice is important to corporations in that they should take into account the Constitution, labour and company law legislation in dealing with social justice issues. Employees have become important stakeholders in companies and their needs should be taken into account in a bigger corporate governance and social responsibility framework. Consideration of the role of employees in corporations entails notice that the Constitution grants every person a fundamental right to fair labour practices. Social as well as political change became evident after South Africa's re-entry into the world in the 1990s. Change to socio-economic conditions in a developing country is also evident. These changes have a major influence on South African labour law. Like company law, labour law, to a large extent, is codified. Like company law, no precise definition of labour law exists. From the various definitions, labour law covers both the individual and collective labour law and various role-players are involved. These role-players include trade unions, employers/companies, employees, and the state. The various relationships between these parties, ultimately, are what guides a certain outcome if there is a power play between them. In 1995 the South African labour market was transformed by the introduction of the Labour Relations Act 66 of 1995. The LRA remains the primary piece of labour legislation that governs labour law in South Africa. The notion of industrial democracy and the transformation of the workplace are central issues in South African labour law. The constitutional change that have taken place in South Africa, by which the protection of human rights and the democratisation of the workplace are advanced contributed to these developments. Before the enactment of the LRA, employee participation and voice were much-debated topics, locally and internationally. In considering employee participation, it is essential to take due cognisance of both the labour and company law principles that are pertinent: the need for workers to have a voice in the workplace and for employers to manage their corporations. Employee participation and voice should be evident at different levels: from information-sharing to consultation to joint decision-making. Corporations should enhance systems and processes that facilitate employee participation and voice in decisions that affect employees. The primary research question under investigation is: What role should (and could) employees play in corporate decision-making in South Africa? The main inquiry of the thesis, therefore, is to explore the issue of granting a voice to employees in companies, in particular, the role of employees in the decision-making processes of companies. The thesis explores various options, including supervisory co-determination as well as social co-determination, in order to find solutions that will facilitate the achievement of employee participation and voice in companies in South Africa.

The issue of portability of social security benefits is a daunting issue facing migrant workers in both Southern Africa and the world in general. In the Southern African Development Community region migration seems to be driven mainly by the need to attain economic freedom. The fact of the matter is that migrant workers from Lesotho and Swaziland who work and have worked in South Africa do play a major role in boosting these countries’ economies. Another issue that cannot be ignored is the fact that circular migration as a phenomenon is unlikely to come to an end any time soon in this part of the world. This means that social security benefits of migrant workers and its portability should be an issue that is dealt with cautiously and speedily, especially in terms of looking at the millions of unclaimed social security benefits reported each year by social security funds and schemes in South Africa. While examining the extent to which selected SADC member states, namely Lesotho, Swaziland and South Africa, have undertaken to combat this issue, international and regional instruments that have a bearing on social security rights are analysed and the realisation is that in as much as these do provide for social security rights and portability of benefits thereof, a lack of ratification and implementation play a vital role in achieving efficient portability of these rights. Although South Africa, as the largest migrant-receiving country in the SADC region, does provide for the right to social security in its Constitution, the fragmented nature of its social security framework, together with other factors such lack of information, exploitation by employers, distances travelled to lay claims and a non-existent social security adjudication system means that migrant workers are normally left with lack of redress when their contracts of employment reach an end. On the other hand, Swaziland and Lesotho, as migrant-sending countries, do not even have provisions in their constitutions that specifically deal with the right to social security. This means that citizens who work abroad do not have sufficient social security coverage in either country, as well as in South Africa as a host country. Consequently, multilateral and bilateral agreements on social security are pivotal in addressing this issue of unclaimed social security benefits as they go a long way in making sure that migrant workers are provided with adequate social security protection and coverage as a whole. Migrant sending countries also need to undertake unilateral initiatives to guarantee that their citizens are adequately protected in this specific sphere of social security. Examples are further drawn from the best practices of different regions in the world, namely the Southeast Asian Nations Region, Caribbean Community and Common Market and the Southern Common Market. The above-mentioned regions have established multilateral social security agreements that seek social security protection for migrant workers who play an undeniable role in their economies. Bilateral social security agreements between Zambia and Malawi, together with the one between Sweden and Philippines, are taken into consideration as best practices that Lesotho, Swaziland and South Africa may draw examples from when drawing up and concluding their own bilateral social security agreements. The Philippines’ unilateral initiatives are also discussed and hailed as the best practices that migrant-sending countries such as Lesotho and Swaziland may further draw examples from. The Philippines has developed strategies aimed at guaranteeing social protection for its migrant workers abroad and further makes sure that it enters into bilateral agreements with any country that receives services from its citizens. While the need to conclude multilateral and bilateral agreements on social security cannot be denied, there is also a need for migrant-sending countries to come up with unilateral initiatives to lessen the burden on migrant-receiving countries in this social security domain. Sectors such as the mining sector should also have mining-specific agreements that specifically deal with issues related to migrant mine workers. Lack of statistics of migrant workers moving in and out of South Africa has also been labelled as one of the reasons halting access and portability of social security benefits; hence there is a need to develop a data-base aimed at keeping track of all migrant workers, retired and otherwise. Migrant workers who seek redress regarding access of their unclaimed or unpaid social security benefits also have to be provided with comprehensive protection from the courts of law. This therefore means that an adjudication system should be established to deal with social security woes so that those seeking redress have adequate legal support.

Globally, companies pursue profitability; they want lower prices for the goods they buy and for the services they use. To gain profit and keep their prices low, they contribute to human rights violations and/or the devastation of the environment. The UNGP is the UN unanimously endorsed instrument that encourages states to pass legislation to compel companies to exercise human rights due diligence and to report on their efforts. The United Nations Guiding Principles (UNGP) impose a duty on companies to conduct human rights due diligence that apprises them of possible human rights or environmental risk exposure in their international operations. States have a responsibility to assist those harmed by a company’s activities to seek judicial relief. The UNGP is a soft law instrument but has had a major effect in the field of business and human rights. Though a voluntary obligation, the UNGP has become the reference document and is used by Civil Society Organisations (CSO) to pressure states into passing regulations on business and human rights. In 2016 Germany passed a National Action Plan (NAP) and the Lieferkettensorgfaltspflichtgesetz (Supply Chain Due Diligence Act) in 2021. France passed a Vigilance Law (Loi de Vigilance) in 2017. Additionally, a UN resolution has initiated a treaty-making process, which might lead to an internationally legally binding instrument that will articulate companies’ responsibilities to avoid, mitigate and remedy human rights violations that their activities cause. The South African government’s response to the UNGP has focused on negotiating a legally binding instrument at an intergovernmental level. This research examines three countries’ varying responses to the UNGP, a soft law instrument. In February 2022 the EU Commission published a proposed directive on corporate sustainability due diligence. The proposed EU legislation aims to advance respect for human rights and environmental protection. The goal is to create a level playing field within the European Union which leads to the exploration of the role China plays in a globalised world. China aims to be more than the world's factory and to become a leader in innovation and high-end manufacturing.

The thesis entitled ―Consumer arbitration in South Africa and its effect on the consumer‘s right to redress and enforcement ‖ notes with concern the outdated and inadequate nature of the Arbitration law currently applied in South Africa. The fact that the Act was enacted in 1965 and has never been amended highlights the desperate need to review the prevailing arbitration law with a view to aligning it with the current needs of the business world. The thesis addresses the concern that consumers are not adequately protected by the current arbitration law and thus substantially develops the discourse on the topic of arbitration in situations of unequal bargaining power. It raises three primary research questions in this context. The first question reads thus, if private arbitration is properly conducted should it still provide the parties with the envisaged benefits? Secondly, is private arbitration constitutional, especially as it impacts upon consumers‘ contracting with large corporations? Thirdly, is the private arbitration process as it is currently applied, constitutional as far as it denies parties an appeal on merits against an award that is clearly wrong? The thesis attempts to answer these questions and offer recommendations for the South African Law Reform Commission (SALRC) within the specific context of commercial arbitration. In addressing these research questions, the thesis incorporates a brief overview followed by a detailed discussion of the Arbitration law framework in South Africa and abroad. The discussion of arbitration abroad is done in order to identify best practices, which could be adapted to suit the South African environment. International Arbitration law receives attention and a few observations regarding how selected foreign jurisdictions treat arbitration. Finally, the thesis explores the possibility of establishing an independent institution that will be fully equipped to handle arbitration proceedings from inception to completion.