Affected and fundamental transactions: balancing the competing rights and interests of stakeholders envisaged in the Companies Act 71 of 2008

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.