Browsing by Author "Mupangavanhu, Brighton"

Now showing 1 - 6 of 6
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    Appraisal of South Africa’s legislative adoption of the twin-peaks system in light of international experiences
    (University of Western Cape, 2021) Bedeker, Chad-Lee; Mupangavanhu, Brighton
    The 2007-2008 global financial crisis demonstrated the weakness of a light-touch financial regulatory system. The global financial crisis thus formed the basis for countries to reconsider a model of financial regulation that functions as a preventative measure and was able to protect the financial sector in the wake of a financial crisis. This saw an international trend in financial regulation, with many countries such as Australia, the United Kingdom, Netherlands, Belgium, New Zealand, inter alia, adopting the Twin Peaks model of financial regulation. The impact felt in South Africa (SA) saw the loss of millions of jobs owing to the global financial crisis.
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    The enlightened shareholder value (esv) approach and the interpretation of the phrase ‘best interests of the company’ in South Africa
    (University of the Western Cape, 2023) Nel, Timothy; Mupangavanhu, Brighton
    According to section 76(3)(b) of the Companies Act 71 of 2008, directors are obligated to incorporate the company's best interests in their objectives. Generally, this phrase denotes the interests of the shareholders collectively.1 It has been difficult to establish what exactly the term ‘company’ means. The phrase 'best interests of the company' has similarly been difficult to explain. Currently, the efforts to provide answers are represented by three approaches, viz (i) the shareholder value approach, (ii) the pluralist/stakeholder approach and (iii) the enlightened shareholder-value (ESV) approach. While some authors may be convinced that South Africa has adopted the ESV approach under the Companies Act 71 of 2008, the phrase ‘best interests of the company’ requires further unpacking to determine its exact meaning.2
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    Evaluating the effectiveness of the audit committee: A case for protection of the independence of the audit committee under the South African corporate structure
    (University of the Western Cape, 2022) Kgwete, Nelson Thabang; Mupangavanhu, Brighton
    The recent wave of corporate governance failures in South Africa has exposed, among others, weaknesses in the realm of the audit committee as an oversight body within the corporate structure, both in private and public sectors. These governance collapses happened, despite the fact that the majority of these companies had audit committees. In this thesis, the provisions relating to the audit committee under the Companies Act 71 of 2008 (‘the Companies Act 2008’) and the Public Finance Management Act 1 of 1999 (‘the PFMA’) are analysed, with a particular focus on the adequacy of the promotion and protection of the independence of the audit committee within the corporate structure in South Africa.
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    An examination of the corporate governance failures and challenges at key South African SOEs and the implications on enterprise efficiency: A case study of ESKOM
    (University of the Western Cape, 2023) Davids, Dustin Joshua; Mupangavanhu, Brighton
    Corporate Governance encapsulates a set of rules and corporate systems which have been established to steer a company in a certain direction. In the case of State-Owned Entities, these entities were established as a mechanism to provide a strategic developmental social upliftment focus to the population of South Africa. Moreover, directors have an individual and collective fiduciary responsibilities and should ensure that the principles of corporate governance, including instruments such as the Memorandum of Incorporation, are upheld and realised through well-informed decisions.
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    A revised role of good faith in the law of contract and employment contracts
    (University of the Western Cape, 2019) Mgweba, Asiphe; Mupangavanhu, Brighton; Malherbe, Kitty
    Good faith is an open ended concept which refers to fair and honest dealings. The function of this concept is to give expression to the community’s sense of what is fair, just and reasonable. The concept of good faith has and continues to acquire a meaning wider than mere honesty or the absence of subjective bad faith. It is an objective concept that includes other abstract values such as justice, reasonableness, fairness and equity. There is competition between the two underlying values or cornerstones of the law of contract, namely that of sanctity of contract (pacta sunt servanda) and fairness. Y Mupangavanhu holds that ‘it is becoming axiomatic that sanctity of contract and fairness are competing values that need to be balanced by courts’. Differently put, Hutchison holds that: ‘The tension between these competing goals of contract law is quite evident…every time a court enforces an unreasonably harsh contractual provision, a price is paid in terms of the ordinary person’s sense of what justice requires; conversely every time a court allows a party to escape liability under what is thought to be a binding contract, a price is paid in terms of legal and commercial certainty’. Courts are often called upon to assess the abovementioned tension. South African courts have, however, shown reluctance in balancing the competing principles and have instead been opting to uphold the principle of sanctity of contract in the spirit of preserving certainty in the law of contract. Public policy, ubuntu and good faith are all mechanisms that are aimed at achieving fairness in contract law. The apparent preference of the courts to uphold the sanctity of contract above all else, falls short of achieving fairness and reasonableness. Public policy functions as an alternative doctrine of equity, fairness and good faith in contract law. As such, the idea is that a contract that is contrary to public policy is illegal and should not be enforced. Although there is no clear definition of public policy, B Mupangavanhu opines that the ‘doctrine of public policy, while difficult to comprehensively define, can be understood to refer to courts consideration of what is in the interest of society or community when interpreting contracts’. In other words, it represents the legal convictions of the community or the general sense of justice of the community and the values that are held most dear by the society.
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    Yet another missed opportunity to develop the Common Law of Contract? An analysis of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011]ZACC 30
    (Nelson R Mandela School of Law, 2013) Mupangavanhu, Brighton
    Courts are under a general obligation to develop common law by applying constitutional values as mandated by sections 8(3), 39(2) and 173 of the Constitution. There have been attempts by part of the judiciary and calls from legal commentators to develop the common law contractual doctrine of good faith. In particular, the question that has occupied judicial decision making and academic writing for some time now is whether the spirit, purport, and objects of our Constitution require courts to encourage good faith in contractual dealings or whether the Constitution insists that good faith requirements are enforceable. The Constitutional Court had an opportunity to settle this question in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd1. This article argues that the Court wrongly decided that it was not in the interests of justice to grant leave to appeal. Consequently, the Court’s misdirection and its refusal to refer the matter to the High Court to develop common law to require parties who undertake to negotiate a new term in a lease agreement to do so reasonably and in good faith resulted in the loss of a great opportunity to develop the common law.