Investor protection in empowerment schemes of arrangements and joint ventures.
Joko, Michael Kiyong Kimbi.
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In this paper, I have attempted to highlight the problems that face investors, both black and white, in South Africa, especially in the light of the effects of the new legislation promulgated after apartheid was abolished. The legislation with which I am most concerned, is the legislation which was promulgated to promote the entry of blacks into the South African economy. In chapter one, I deal with the concept of empowerment from the constitutional view point and the problem of its definition. I also discuss out the relevant new legislation that in my argument I believe impacts on corporate activity and then deal with the distinction between an "arrangement" within its ordinary meaning in corporate law distinct from that as defined in the in the Companies Act 61 of 1973. In chapter two, I deal with the dangers facing an individual investor, the benefits of incorporation, the problem of the existence of money revolving schemes, and the effects of a lack of education amongst previously disadvantaged investors. In chapter three, I deal with joint ventures, their benefits, the effect of the Competition Act 81 of 1998 on joint and potential areas of conflict between black and white partners. Certain aspects of fraudulent and negligent conduct of directors are examined. In Chapter four, I deal with the methods of executing mergers and acquisition in relation to empowerment companies, their advantages and disadvantages, certain procedures necessary for the protection of investors like due diligence inquiries, the protection offered by the present company legislation and the common law and criticisms of the courts to protect shareholders. I look at a case study and special considerations in mergers and acquisitions. In chapter five, I look at the problem of capital in empowerment companies, the various methods that have been used to raise capital, and the loopholes in the law that affect some of these arrangements. I have focused specifically on special purpose vehicles and buyouts. In chapter six, I deal with the impact of government action and government policy on empowerment and I have compared this with what has happened in other countries. I conclude by recommending that the Black Empowerment Commission should be given teeth to take corrective measure towards empowerment.