Bibliographie sélective OHADA

Creditors of the corporate business form are in a vulnerable position. Recognition of the plight of corporate creditors led to the implementation of various legal measures aimed at protecting their financial interest in the company. These measures proved disappointingly inadequate in many instances. As a result the judiciary in some jurisdictions felt compelled to develop existing legal principles pertaining to directors’ duties in such a way that they could be used to facilitate protection of corporate creditors’ interests. This development did not meet with universal approval. Those opposed to the extension of directors’ duties to protect creditors’ interests have three main arguments against it. The first is related to conceptual issues and policy concerns. The second argument is that existing remedies are more than adequate to protect creditors’ interests. A last argument against a directorial duty to creditors pertains to the practical implementation of this extended duty. It is argued that the existing legal framework with regard to directors’ duties is not suitable to provide protection for creditors’ interests. However, it was shown in this study that the extension of directors’ duties to protect creditors’ interests is indeed justifiable on a sound conceptual basis and that policy concerns regarding such an extension are either unfounded, or should be addressed in some other way. An analysis of existing protective measures and remedies often referred to by opponents of an extension of directors’ duties, namely statutory personal liability of directors, traditional insolvency remedies, and the piercing of the veil doctrine furthermore showed that these measures are inadequate. This leads to the conclusion that there is a definite need for an alternative remedy, such as the extension of directors’ duties to include creditors’ interests. The existing legal framework in respect of directors’ duties furthermore proved to be capable of being successfully adapted to include creditors’ interests. Central issues in this respect, as was indicated by an analysis of case law, are the point in time when the duty to creditors is triggered, the beneficiary of the duty, in other words who would have locus standi in case of a breach of the duty, and the type of protection afforded to creditors’ interests by way of fiduciary duties and the duty of care and skill. The existing legal framework also provides measures in terms of which honest and diligent directors may be relieved from liability, such as indemnification, relief granted by the courts and director liability insurance. These measures, if formulated correctly, may achieve and maintain the essential balance between accountability and entrepreneurial freedom. The legislature appears to have adopted a cautious approach to the issue of directors’ duties to creditors. It thus seems to be up to the judiciary to develop directors’ duties to creditors in a meaningful way. Pioneering in this respect has already been done in Australia, New Zealand, England, Canada and the United States of America. It is to be hoped that the South African judiciary will follow suit when the opportunity to do so arises.

Chapter 4 of the Companies Act of 2008 aims to regulate offers to the public of securities and is reviewed against the principles which underscore the regulation of offerings. An overview of the historical development of the company which is parallel to the regulation of securities shows the crystallized principles which are compared against the development and enactment of the current regulatory regime. The concept of “complete law” as key element to effective regulation is discussed and applied in the review of Chapter 4 determining the effectiveness of the dispensation. The three determining concepts of regulation: the “offer,” “securities” and “public” are studied against the definitions which determine regulation and the inclusion of secondary market regulation of unlisted securities. Serious shortcomings in the process are identified. These errors, together with the practical problems of defining and regulating the secondary market in Chapter 4 read with the remainder of the delineating definitions, concludes that the current system is not in line with the principles of regulation and the Grundnorm of fraud prevention, resulting in Chapter 4 falling under the concept of “incomplete law” resulting in a high probability of enforcement failure and inefficiency. A comparative overview related to the jurisdictions of the United Kingdom and the United States follows with recommendations aimed at amending Chapter 4 relating to the regulatory regime in toto as well as the regulation of unlisted securities in the secondary market.

The objective of this thesis is to critically analyse synthetic securitisation schemes in South African law as synthetic collateralised debt obligations using primarily credit default swaps (CDSs). This transpires from the perspective of primarily company law, and secondarily securities law and the law of contract. It includes a contextualised study of these schemes with regards to their origins, their significance regarding the recent financial crisis, and their rationales micro-economic influence and Basel capital requirements. Not only are the participants, such as parties acting in a primary role and secondary role and special-purpose institutions, studied, but also the obligations between these parties, such as the CDS contract, and the meaning of commercial paper, the legal nature of credit-linked notes, the business of a bank, and the influence of recent case law. It also includes a consideration of synthetic securitisation schemes in terms of the Collective Investment Schemes Control Act 45 of 2002. Furthermore, the role of systemic risk and moral hazard is explained, as well as the interaction between synthetic securitisation schemes, credit rating agencies and the function of risk management. The CDS is compared with insurance contracts, and a discussion of the 2014 International Swaps and Derivatives Association Credit Derivative Definitions is incorporated. For legal comparison, the South African model is compared with Canadian law and its unfunded credit derivatives in the light of recent regulation, and compared to German law and its prevalence of funded credit derivatives. Finally, suggestions are made as to the future of synthetic securitisation schemes.

Abstract: In law it is common to encounter two separate pieces of legislation which govern a single matter or transaction, for example, the Companies Act 71 of 2008 (the Companies Act) and the Securities Transfer Act 25 of 2007 both of which address the sale of shares. Similarly, the Income Tax Act 58 of 1962 (the Income Tax Act) and the Companies Act both have regulations which govern, respectively, tax law and company law matters in South Africa. These two Acts overlap in various business and commercial fields as tax is frequently an important component of any business transaction undertaken by a company. Issues, however, arise when the regulations in these two Acts, are inconsistent. This can be observed if one compares the current South African Income Tax and Companies Act, specifically as regards the sections involving merger and amalgamation transactions. Section 44 of the Income Tax Act governs merger and amalgamation transactions from a tax perspective and provides for tax rollover relief if certain requirements are met. The regulations governing mergers and amalgamations under the Companies Act are contained in sections 113, 115 and 116 of the Act. Although these sections in both Acts address the same transaction – a merger or amalgamation between two or more companies – there are several discrepancies between the regulations in the two Acts which appear to operate entirely independently of one another. In practice, one often sees that other sections in the Companies Act and Income Tax Act are used to achieve a merger due, in the main, to the uncertainties in the application of the relevant merger sections in the two Acts and the limited interaction between them. This study identifies and assesses the impact of the discrepancies identified in these two Acts in relation to merger and amalgamation transactions. The study makes recommendations to address these discrepancies and to align the South African Companies Act and Income Tax Act as regards merger/amalgamation transactions.