Abstract:
This is a research analysis on whether the Companies Act 71 of 2008 (the Act)
balances the competing rights and interests of stakeholders affected by an affected
transaction and fundamental transaction, and the remedial procedures triggered by
these transactions.
The new regime relating to fundamental transactions and affected transactions in the
Act has, in practice, presented a number of legal questions, the answers to which are
not readily apparent from the Act itself.1 These innovative provisions have also brought
with them some fear and anxiety for a number of small and medium sized private
companies as the administrative duties associated with the regulation of these
transactions are fairly onerous and costly.2 The Companies Act 71 of 2008 aims:
“to provide for the incorporation, registration, organisation and management of
companies, the capitalisation of profit companies, and the registration of offices of
foreign companies carrying on business within the Republic;
to define the relationships between companies and their respective shareholders or
members and directors;
to provide for equitable and efficient amalgamations, mergers and takeovers
of companies;
to provide for efficient rescue of financially distressed companies; to provide appropriate legal redress for investors and third parties with respect to
companies;
to establish a Companies and Intellectual Property Commission and a Takeover
Regulation Panel to administer the requirements of the Act with respect to companies,
to establish a Companies Tribunal to facilitate alternative dispute resolution and to
review decisions of the Commission;
to establish a Financial Reporting Standards Council to advise on requirements
for financial record-keeping and reporting by companies;
to repeal the Companies Act, 1973 (Act No. 61 of 1973), and make amendments to
the Close Corporations Act, 1984 (Act No. 69 of 1984), as necessary to provide for a
consistent and harmonious regime of business incorporation and regulation; and
to provide for matters connected therewith.”
3
The Act aims for a more flexible approach that has a balance between accountability
and transparency, with less regulatory burden.
