A critical analysis of the role of disclosure in strengthening corporate governance and accountability.

Abstract

This dissertation critically analyses the role of disclosure in strengthening corporate governance and accountability to determine whether a prescriptive system of disclosure is of greater efficacy than a voluntary regime. The research undertaken has been done on a qualitative and theory building basis. The purpose of the study is to examine how current and future legal reform can curb corporate governance shortcomings and contribute to a new more dependable mode of corporate governance. This requires a comparative analysis of the South African and English models which are voluntary ('comply or explain') regimes compared to the prescriptive American model of corporate governance ('comply or else'). The foundational basis, definition and jurisdictional evolution of corporate governance is examined and analysed to ascertain the role of disclosure in relation to good governance. To facilitate this investigation a critical review of the legislative framework and reforms enacted locally (and offshore where applicable) is also undertaken. Disclosure as a concept is probed in terms of both a mandatory disclosure and voluntary disclosure regime to determine the more prudent mode of dissemination and how it impacts the efficacy of corporate governance and accountability. To ensure a holistic VIew of the role of disclosure is comprehensively critiqued its influence on corporate social responsibility is embarked upon. It is contextualized against the shareholder (contractarian) theory of governance versus that of the stakeholder (communitarian) theory of governance. This will involve a study of the competing requirements of disclosure in terms of these two theories and its impact on securing accountability. The tenuous relationship between shareholders and directors is considered to determine whether corporate governance regimes safeguard shareholder rights and how these measures contribute to strengthening governance. The codified role of directors in enhancing disclosure to shareholders is also undertaken. To exatrune the interplay between these concepts corporate governance failures are dissected to determine the shortcomings of disclosure practice. The recommendation of this dissertation is that a mandatory disclosure regime is of greater efficacy in strengthening corporate governance and accountability but to remedy recurring corporate governance shortcomings a disclosure regime that is holistic and principles based is required. It should also be supported by a dedicated and empowered regulatory system with sufficient penal measures to curb fraudulent behaviour but sufficient flexibility so as not to curtail industrial fortitude.