Browsing by Author "Subramanien, Darren Cavell."

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A critical analysis of the requirements needed for the commencement of business rescue in South Africa.
(2023) Chikuvanyanya, Tafadzwa Munashe.; Subramanien, Darren Cavell.
The ripple effects of COVID 19, the rise of inflation, interest rate hikes, and the negative effects of the Russia-Ukraine war are some of the reasons that have led to the poor performance of global economies. South Africa is no exception to the negative impacts of these global challenges. South Africa, which is still a young democracy, faces unique challenges such as load-shedding. Load-shedding has adversely impacted all businesses that are being forced to operate at a loss because of the additional costs they are incurring to procure alternative electricity sources to keep their businesses operational. Interest rate hikes have also impacted South African businesses to the extent that they have been described as a ‘punch to the gut for businesses already struggling. These challenges bear negative consequences on the South African economy at large because both small and big businesses may be forced to default on their payment obligations due to insolvency. Insolvency usually results in businesses being placed in liquidation, which may result in their ultimate closure and job losses. To avoid this, South Africa, like other countries, has adopted a corporate rescue process as an alternative to liquidation proceedings. This corporate rescue process is commonly referred to as ‘business rescue’, and it is necessary to analyse its requirements to ensure that the maximum potential of this process is realized and that companies benefit more from it
Analysing and comparing the impact of misrepresentation and non-disclosure on the validity of a contract: similarities, differences and remedies.
(2018) Ramphal, Kayra.; Subramanien, Darren Cavell.
This dissertation explores the concepts of non-disclosure and misrepresentation in South African law. The principal focus surrounds the effect non-disclosure as a form of misrepresentation has on the liability of contracting parties. In order to explore this effectively, the study explores the concept of duty of disclosure, and whether such a duty exists in South African law. Instances when a duty to disclose arises are explained, such as positive steps taken to conceal facts, the seller having sole knowledge of the material fact, an omission or misleading language, and a change in circumstances. Similarly to the English law duty of disclosure in relation to information in contracts uberrimae fidei, the similar South African law concept in insurance or agency contracts known as ‘utmost good faith’, is discussed and explored. The study determines whether such a concept should be a mandatory requirement in pre-contractual negotiations. Additionally, this study explores the various avenues of relief that are available to those who have fallen victim to misrepresentation. This results in an analysis of the effectiveness and success of the current traditional methods of claiming and quantifying damages that are adopted by South African legislature and the judiciary. The discussion then explores the proposed alternate method which aims to combine a claim into one of delict and that of contractual liability, or on the other hand institute a claim solely based on contractual liability. Lastly, this study explores the effect the Consumer Protection Act 68 of 2008 has had on contractual agreements, remedies and penalties, and how this ground-breaking legislation has altered the approach previously adopted by the common law and whether it has done enough to protect consumers.
An analysis of lifting of the corporate veil in light of s20(9) of the Companies Act 71 of 2008.
Govender, Tamera Nelendree.; Subramanien, Darren Cavell.
No abstract provided.
Analysis of the evolution of the appraisal and oppression remedy and its adoption under the Companies Act in South Africa.
(2018) Essop, Suhaifa.; Subramanien, Darren Cavell.
The Companies Act 71 of 2008 encapsulates the economic sphere, its procedures, problems and possible resolutions to such issues on a wide scale. It allows a litigant a basis and a guideline when dealing with corporate law in relation to the corporate sector. The main idea is to allow free, fair and prosperous trade not only for the majority shareholders but also for the minorities and the financial environment as a whole. Every shareholder who has invested in a company needs to be given the opportunity to be a part of a concern in which (s)he has full confidence and reliance on the controlling members. The issue arises when the aforementioned is not complied with whether it is a large corporation or a small start-up business. There are several remedies which can be used as a means of restitution, however, for purposes of this dissertation we shall analyse two controversial and expanded remedies, namely the Appraisal and Oppression remedies. This dissertation focuses on the two by analyzing the introduction of the Appraisal remedy and its source of adoption and the development of the Oppression remedy with the main aim of answering the questions of whether, firstly, these remedies are warranted in South Africa and, secondly, whether or not further expansion is required for their proper functioning.
Analysis of the test for review as set down in the Sidumo judgement.
Mamvura, Guest.; Subramanien, Darren Cavell.
This research study focuses on the test for review as set down in the Sidumo & another v Rustenburg Platinum Mines Ltd &others (2007) BLLR 1097 (CC) (herein after referred to as Sidumo), judgement. An analysis of case law is undertaken in order to determine whether the test is now in decline. This is achieved by exploring the relevant case law and cases that were decided before the Sidumo case, particularly the Carephone (Pty) Ltd v Marcus and others (1998) 11 BLLR 1093 (LAC) (herein after referred to as Carephone)case. The Sidumo (CC) case is discussed in detail, as well as the recent judgements in Herholdt v Nedbank Ltd (701/2012)2013ZASCA (herein after referred to as Herholdt) and Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA (JA 2/2012) 2013 ZALAC 28, 2014 1 BLLR (herein after referred to as Gold Fields Mining) The aim of this work is to explore whether employment justice for all might be better served were the relief against awards to take the form of an appeal rather than review.
Business rescue a success or a failure? An analysis on the effectiveness of business rescue in South Africa.
(2018) Kahamba, Leona Ruvimbo.; Subramanien, Darren Cavell.
No abstract available.
A closer look at the lifting of the corporate veil under the Common Law and Companies Act 71 of 2008.
Cassimjee, Naazira.; Subramanien, Darren Cavell.
No abstract available.
Consumer protection in Swaziland : a comparative analysis of the law in South Africa and the United Kingdom.
(2012) Dlamini, Eugene Majahemphini.; Subramanien, Darren Cavell.
Consumer protection has become an important issue in many spheres of trade. This fact is borne out by the many consumer protection laws introduced in many countries globally. However, despite these developments Swaziland is lagging behind. Obviously, this state of affairs has left consumers in Swaziland in a totally vulnerable position. Consumers are often exploited in two material respects. They are either subjected to unfair contract terms in the provision of services, or supplied with defective products having the potential of causing serious bodily harm. In protecting consumers the common law has been judicially developed over many centuries to curb these unfair trading practices. The doctrine of freedom of contract has been the driving force in regulating the relations between consumers and suppliers. The import of this doctrine is the unyielding recognition of an individual’s autonomy in the conclusion of consumer transactions. The underlying percepts of this doctrine are privity of contract, which only recognises obligations between contracting parties, and pacta sunt servanda which requires contractual undertakings to be recognised. The operation of contractual freedom in concluding agreements often leads to unfair results against consumers because suppliers usually impose unfair terms as a result of their stronger bargaining power over consumers. In short, problems faced by consumers were twofold; first, they have to battle the issue of potentially harmful goods, and secondly, their economically weak bargaining position is exploited by suppliers through the use of unfair contract terms. Many countries, including the United Kingdom and South Africa, addressed these two consumer issues decisively through statutory reform aimed at protecting consumers against potentially harmful products and unfair contract terms. Swaziland requires statutory reformative measures that will ensure a shift from the current consumer framework regulated by outmoded common law principles towards a modern framework that will comply with international standards.
A critical analysis of the effectiveness of the business rescue regime as a mechanism for corporate rescue.
Bagwandeen, Kiren Kesh.; Subramanien, Darren Cavell.
Almost eight years after the enactment of the business rescue regime under the Companies Act 71 of 2008, and a plethora of judgments which have probed and prodded its provisions, it is an opportune time to ascertain whether the business rescue regime is an effective corporate rescue mechanism suitable to the modern day demands of the South African economy. In the current economic downturn, South Africa can ill afford a repeat show of the failed judicial management system. It requires a modern and effective corporate rescue mechanism that can be utilised in appropriate circumstances as a viable alternative and not merely a precursor to liquidation. This dissertation seeks to provide a critical analysis of the effectiveness of the business rescue regime to ascertain its worthiness as a corporate rescue mechanism.
A critical analysis of the fiduciary duties of directors and evaluation of the development of these duties in terms of the common law and statutory law.
(2017) Mdunge, Mzwendoda Smiso Patson.; Subramanien, Darren Cavell.
Corporate law is based on the premise that directors are fiduciaries of their companies. This is an unbending duty which has to be adhered to at all cost by individuals appointed as directors of a company. Previously the director’s duties were governed by the common law which often relied on the interpretation of the courts on a case by case basis. Therefore the courts would often arrive at different conclusions based on a similar set of facts. The advent of the 2008 Companies Act (Act 71 of 2008)1 brought about a major evolution in South African company law by partially codifying the fiduciary duties of the directors. Understanding fiduciary duties of a director is of significant importance in the modern democracy based on the fact that directors engage on the international spectrum. Company directors have discretionary power which may be abused if they are not familiar with the fiduciary duties. This study seeks to comprehend fully the fiduciary duties of a director of a company. These are the duty to act bona fide, the duty to act for a proper purpose, the duty to avoid conflicts of interest and the duty not to use a corporate opportunity and information for personal profit. This task will be undertaken both in terms of the common law as well as statute (Companies Act 2008 Act). The study will delineate the fundamental consequences of partial codification of these duties and set out the current legal position of the common law which operates in tandem with the statute. In addition, it will deal with whether the common law provisions are still applicable side by side with the statutes. The duties of a company director represent a subject that is not merely academic in nature, but one that is of vital importance in our ever changing commercial world. More and more people are appointed as company directors every day and often they do not know or understand the implications of what they have agreed to.
A critical analysis of the role, appointment, and powers of a business rescue practitioner.
(2022) Luthuli, Bayanda Nompumelelo.; Subramanien, Darren Cavell.
No abstract provided.
A critical analysis on simulated transactions.
(2018) Tshabalala, Alwanduxolo Thembalihle.; Subramanien, Darren Cavell.
No abstract provided.
A critical discussion of the 'pay now argue later’ rule in South African tax law.
Muyonjo, Amanda Elizabeth.; Badul, Chantal Jacqueline.; Subramanien, Darren Cavell.
The process of tax recovery is a significant and necessary one. However, it is also fraught with complexities and controversy. The State has enacted laws to facilitate the efficient collection of taxes. When it comes to the various stringent tax laws in the South African tax system aimed at ensuring the efficient collection of taxes, the ‘pay now, argue later’ rule is certainly a contender. The practical impact of the rule is that neither the noting of an objection nor an appeal suspends a taxpayer’s pre-existing obligation to pay tax. The provisions of the Tax Administration Act 28 of 2011 contain wide powers that are conferred upon the South African Revenue Service (SARS). These provisions in conjunction with the rule are the catalysts through which taxpayers’ co-operation with SARS is achieved. It is therefore not surprising that the State may enact and execute its laws in a manner so as to effectively achieve its tax collection mandate, whilst not having sufficient regard to the rights of taxpayers. The purpose of this mini dissertation is to engage in a critical discussion of the ‘pay now, argue later’ rule and to show the need to ameliorate the effect of the powers bestowed upon SARS in order to ensure better protection of taxpayers’ rights. There is a need to create better awareness of taxpayers’ rights and for tax legislation to be a lot more understandable and unambiguous in the interest of creating certainty for taxpayers, SARS and the courts.
A critical discussion of the affected parties in business rescue proceedings.
(2020) Gayadin, Kashmita.; Subramanien, Darren Cavell.
Abstract available in PDF.
A critical discussion of the directors’ duties and business judgement rule.
(2018) Zondi, Sphesihle Brilliant.; Subramanien, Darren Cavell.
No abstract available.
A critical discussion of the requirements of business rescue in terms of the Companies Act 71 of 2008.
(2020) Ismail, Mariam.; Subramanien, Darren Cavell.
Despite business rescue being approximately ten–years–old with several court judgments available in South Africa, certain legal terminology in the Companies Act 71 of 2008 (‘the 2008 Act’) are still ambiguous. This study includes an overview of the old administration to emphasise that the issue could have been resolved in the 2008 Act. Under the novel regime, it is the task of the business rescue practitioner to temporarily administer the assets and dealings of the business by restructuring the business, property, debt, other liabilities, and equity (section 128(1)(b)). The objective would be to either emerge from the process solvent or a better return for creditors (or immediate liquidation as a final route). However, the two built-in requirements, namely, the company must be ‘in financial distress’, and there must be a 'reasonable prospect’ of success, is unclear as the 2008 Act does not provide what standard of proof is required in these instances. Accordingly, this study analyses the two gateways into business rescue and the abovementioned requirements to begin the process. It is suggested that the general moratorium and post-commencement finance and the implications in practically executing the statutory obligations be considered concurrently. Thereafter, this study includes a discussion on South African Airways, the first state-owned entity to be placed under voluntary business rescue on 5 December 2019. The study concludes by recommending methods that the court and a business rescue practitioner could utilise in interpreting the requirements for the process to be more effective. For example, the courts and a business rescue practitioner may use a pre-assessment for determining ‘financial distress’ together with financial and cash-flow ratios. For ‘reasonable prospect’, a pre-assessment is recommended, as well as an opportunity analysis (OA) and a ‘do we have a business?’ test (DWaB test).
A discussion of the success and failures of business rescue as a remedy for ailing companies.
(2018) Sobantu, Vuyo.; Subramanien, Darren Cavell.; Badul, Chantal Jacqueline.
Companies are constantly facing risks, including financial constraints, which may contribute to companies being unable to trade in the manner desired. Unfortunately, companies that find themselves in this predicament have, in reality, been without a remedy from as early as statutory provisions regulating company law were promulgated in 1926. Judicial management, as a remedy, is notorious for being an outright failure, but the current Companies Act 71 of 2008 introduced the remedy of business rescue for financially distressed companies. The scrutiny and spotlight on the new remedy turns on whether it can be truly accessible for the companies in question and what significant changes it has made to favour financially distressed companies. This mini dissertation will aim to discuss whether the remedy of business rescue has been a success or failure.
A discussion on the duty of care, skill and diligence to be exercised by a director in light of the Companies Act 71 of 2008, as well as the common law and an overview of the business judgement rule : a company law perspective.
Maharaj, Nithen.; Subramanien, Darren Cavell.
The duty of care, skill and diligence is a duty on a director that has been considered both internationally as well as locally. It is a duty that has come under the microscope, and is thus of importance to consider in a country such as South Africa, whom attempts to update its corporate law, to meet international standards. This duty is therefore of importance to consider, as well as to gain some insight as to exactly what the tests for negligence will be or is. This “confusion” is as a result of the development of the common law as well as the statutory law, standard of care, skill and diligence. This is because it will need to be determined whether both objective and subjective tests are to be adopted in determining a director’s negligence, and thus whether a director’s performance of such care and skill resulted in negligence. The business judgement rule is a recent addition to the South African corporate law regime, and is seen with its codification in the Company’s Act 20081. In essence this rule is there as a means to protect directors, as a result of having both objective and subjective elements mentioned above. It also allows for a director to defend him or herself from liability, but also safe harbour them from a possible breach of the duty of care, skill and diligence, that is expected of a director. Although the business judgement rule is one that has been applied in many foreign jurisdictions, it is a rule that has come under the microscope in South Africa, for criticism, as to whether it is really a rule that is needed in South African corporate law. The rationale of this dissertation is therefore to allow for readers to have a better understanding of the duty of care, skill and diligence in terms of both the common law as well as the statutory law, in South Africa. It will also allow for a reader to have insight on the business judgement rule, and its applicability in South African law.
A discussion surrounding restraint of trade in employment law.
(2017) Danka, Aamina.; Subramanien, Darren Cavell.
This dissertation seeks to critically examine the restraint of trade doctrine in South African law. Section 22 of the Constitution, 1996 guarantees every citizen the right to not only choose a trade, profession, or occupation, but also to practise them. However, in terms of section 36 of the Constitution, the rights in the Bill of Rights are not absolute. Restraint of trade provisions are incorporated into an employee’s employment contract by the employer, and has the effect of limiting the employee’s free exercise of his/her chosen trade, or profession. An employee who is bound by a restraint of trade cannot compete with his/her employer during the employment relationship and after its termination. The dissertation will explore the enforceability of restraint of provisions in South African law by tracing its history of enforceability in South African law, defining a restraint of trade provision and discovering the reason why such a provision exists, the implications of its incorporation, its status in employment law, as well as contentious issues which arise in respect of such a provision. The dissertation also articulates the requirements which must be met in order for a restraint of trade provision to be upheld by the courts, and the current law on restraint of trade. Garden leave clauses have not been considered by South African courts before February 2016. Garden leave primarily originated from English law and employers, especially in the financial sector have been incorporating them into their employees’ employment contracts. This dissertation will investigate the new concept of garden leave in South African law, by considering its origins, definition, and its applicability in South African law.
The effectiveness of South African labour legislation in dealing with mass industrial action before and after the promulgation of The Constitution Act 108 of 1996.
(2016) Joseph, Judell-Lesha.; Subramanien, Darren Cavell.
Abstract not available.