The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

by | Oct 26, 2022 | SLR, SLR V33 I3

The Social and Ethics Committee and The Protection of Non-Shareholder Constituencies: Teething Problems or No Teeth at All?

Authors: Tangeni Nanyemba and Mikovhe Maphiri

ISSN: 1996-2193
Affiliations: LLB LLM, Candidate Attorney; LLB LLM, Lecturer and doctoral candidate, UCT, Attorney of the High Court
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 376 – 395
https://doi.org/10.47348/SLR/2022/i3a2

Abstract

Traditionally, shareholders have been the only stakeholders to hold priviledged positions in the governance of companies because they are the exclusive beneficiaries of the director’s fiduciary duties. However, the requirement for certain companies to appoint social and ethics committees in terms of section 72(4) of the Companies Act 71 of 2008, read with regulation 43 of the Companies Regulations, arguably disrupts the traditional focus on exclusive shareholder protection by offering non-shareholder constituencies limited legal recognition. These provisions require certain companies to report on how the operations of a company impact a broad range of non-shareholder constituencies, which include the employees, the environment, consumers, suppliers, and communities. The social and ethics committee thus presents itself as an ideal conduit for sensitisation of the board of directors of a particular company to issues of national priority in South Africa, such as job creation, adequate housing, anti-corruption, climate change and access to healthcare. However, the ability of the social and ethics committee to deliver on its mandate and to address the concomitant issues affecting non-stakeholder constituencies under company law is curtailed by a plethora of uncertainties and ambiguities. The Companies Act and the Companies Regulations contain many contradictions as they include generic terms of reference regarding the committee’s role and they do not provide clarity about the committee’s powers, functions, objectives and purpose. This article considers whether section 72(4) of the Companies Act read with regulation 43 of the Companies Regulations is a viable mechanism that can be enforced to protect non-shareholder constituencies. The committee’s shortcomings are analysed to determine whether the committee has teething problems or is simply ineffective as a committee that can protect non-shareholder constituencies in the South African context.

The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present

by | Oct 26, 2022 | SLR, SLR V33 I3

The Legal Combatting of B-BBEE Fronting Practices in South Africa – Past and Present

Author: Adri du Plessis

ISSN: 1996-2193
Affiliations: BProc LLB LLM LLD, Senior Lecturer, Department of Public Law, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 396 – 418
https://doi.org/10.47348/SLR/2022/i3a3

Abstract

Broad-Based Black Economic Empowerment is critical in establishing an inclusive South African economy based on social and economic justice. However, since its inception in 2003 with the promulgation of the Broad-Based Black Economic Empowerment Act 53 of 2003, misrepresentations intended to improve an enterprise’s compliance status – fronting – have been ever-present. From 2003 to 2013, there was no clear approach to dealing with fronting, which, at least in part, led to increases in the incidence and complexity of this practice. In an attempt to deal more decisively with the issue, the 2013 amendment to the Broad-Based Black Economic Empowerment Act introduced two specific measures to combat this problem. The first was criminalising fronting practices, and the second was establishing a monitoring body, the Broad-Based Black Economic Empowerment Commission. This article briefly sketches the policy and legislative framework for implementing the Broad-Based Black Economic initiative and past practices of combatting fronting practices. This is followed by a discussion of the two measures introduced by the amendment to the Act, with a specific focus on the Commission’s role since its inception to monitor and combat fronting practices. There will also be a discussion of the various activities that the Commission reports on concerning its dealing with fronting. The article concludes with suggestions for changes to the regulatory environment that could improve the efficacy of the fight against fronting.

Lessons From New South Wales, Queensland, and British Columbia to Assist South Africa in Adequately Regulating the Keeping of Assistance Animals by Disabled Persons in Sectional Title Schemes

by | Oct 26, 2022 | SLR, SLR V33 I3

Lessons From New South Wales, Queensland, and British Columbia to Assist South Africa in Adequately Regulating the Keeping of Assistance Animals by Disabled Persons in Sectional Title Schemes

Author: CG van der Merwe

ISSN: 1996-2193
Affiliations: BA LLB (UOFS) BA (Hons) and BCL (Oxon) LLD (UNISA), Research Fellow, Department of Private Law, Stellenbosch University; Emeritus Professor of Civil Law, University of Aberdeen
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 419 – 437
https://doi.org/10.47348/SLR/2022/i3a4

Abstract

South African legislation contains only one subrule in the Sectional Titles Schemes Management Regulations about the keeping of assistance animals in sectional title schemes. This subrule provides that an owner or occupier suffering from a disability who reasonably requires a guide, hearing, or assistance dog must be considered to have the trustees’ consent to keep that animal in a section and to accompany it on the common property. I submit that this subrule falls hopelessly short of regulating this matter adequately and that lessons in this regard can be learned from the comparable Australian jurisdictions of New South Wales and Queensland, and the Canadian jurisdiction of British Columbia. First, this subrule makes no reference to anti-discrimination legislation or legislation dealing with the keeping of dogs which is found in the comparable provisions in the selected jurisdictions. Second, no clear distinction is drawn between service dogs and assistance dogs. It appears that assistance dogs are equated with service dogs which are trained to cater for a specific disability in a disabled person while those suffering from illnesses like depression could also benefit from the mere presence of a dog without any specific training. Third, the rule applies only to assistance dogs while the United States, for example, also provides for miniature horses and Capuchin monkeys to assist persons with disabilities. Fourth, save for guide and hearing dogs, inadequate provision is made for the training of other types of assistance animals. In some cases, disabled persons are allowed to train their own assistance animals without the animal and the disabled person having to comply with strict competency tests, for example, the “public access test” required in Queensland. Finally, there is no agreement regarding what type of disability would qualify for assistance by an assistance animal or what evidence a disabled owner or occupier must provide as proof that he or she reasonably requires an assistance animal.

Homeowners’ Associations as Urban Property Management Entities

by | Oct 26, 2022 | SLR, SLR V33 I3

Homeowners’ Associations as Urban Property Management Entities

Authors: GJ Pienaar and JG Horn

ISSN: 1996-2193
Affiliations: B Jur et Com LLB LLD, Professor, Northwest University; B Proc LLB LLM MA(HES) LLD, Senior lecturer, University of the Free State
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 438 – 459
https://doi.org/10.47348/SLR/2022/i3a5

Abstract

The concept “homeowners’ association” falls within the description of fragmented property schemes. It is an entity that is the owner or manager of communal property and the land of an estate, consisting of individual properties owned by members of the association and communal areas used collectively by the individual owners. The individual properties and communal areas are managed in terms of conditions and rules, albeit with different purposes. A homeowners’ association is normally a juristic person incorporated as a non-profit company or by agreement between the individual owners as members to establish a common law juristic person. In terms of its management documents, it has the capacity to manage the estate and enforce the rules of the scheme. Therefore, the memorandum or constitution should contain specific management directions, which are discussed in this article. The rules of the scheme must be approved by the Ombud for Community Schemes before they may be enforced. The latter may also be approached to mediate disputes between members of the association or between members and the management. Initially the social-political need for urban fragmented property schemes is explained, followed by an analysis of the management of urban fragmented property. It is emphasised that ownership of immovable property is not only an individual right, but also fulfils an important community function. The legalities surrounding the establishment of a homeowners’ association is thereafter discussed. Essential matters to be included in the management documents are examined with specific reference to the enforceability and constitutionality of the rules of the association. Finally, the establishment of gated communities is reviewed with an emphasis on the constitutional viability of imposing limitations on the fundamental rights of owners, occupiers and third parties (like visitors and employees) who need access to the scheme or want to use communal areas in the scheme.

The Right to Deletion: Identity, Memory, and Surveillance Capitalism

by | Oct 26, 2022 | SLR, SLR V33 I3

The Right to Deletion: Identity, Memory, and Surveillance Capitalism

Author: Yvonne Jooste

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Research Associate, Department of Jurisprudence, University of Pretoria
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 460 – 483
https://doi.org/10.47348/SLR/2022/i3a6

Abstract

This article considers “the right to deletion” enacted under the Protection of Personal Information Act 4 of 2013 and uses the right as a lens through which to contemplate (1) memory, identity, and forgetting in the digital age; (2) the erosion of the privacies of life and the notion of “home” in the context of ubiquitous technologies; and (3) a new form of instrumentarian power created by surveillance capitalist regimes that aims to make individuals into known and knowable entities for economic ends as well as the implications of this form of power for the values of dignity, democracy and privacy. It is suggested that the reclaiming of forgetting is necessary for human growth and agency and that the reclaiming of “home” is required as a shelter for the privacies of life, intimacy, and freedom. The argument is also made that the right to deletion should be understood within the context of the increasing loss of privacy within societies under techno-capitalist control.

Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

by | Oct 26, 2022 | SLR, SLR V33 I3

Local Government and the Conundrum of Constitutional Competencies in South Africa: the Tussle Between City of Tshwane Municipality and the Gauteng Health Department Over Ambulance Services

Author: Oliver Fuo

ISSN: 1996-2193
Affiliations: LLB LLM LLD, Associate Professor, Faculty of Law, North-West University, South Africa
Source: Stellenbosch Law Review, Volume 33 Issue 3, 2022, p. 484 – 500
https://doi.org/10.47348/SLR/2022/i3a7

Abstract

Local government’s autonomy in post-apartheid South Africa is constitutionally guaranteed. A reading of the Constitution of the Republic of South Africa, 1996 shows that local government, made up of 257 municipalities, has a wide range of powers and functions. However, confusion over the scope of constitutional distribution of powers and functions vis-à-vis other spheres of government often constrains the ability of municipalities to take action over a function not expressly assigned to local government in Schedules 4B and 5B of the Constitution. The squabbles between the City of Tshwane and the Gauteng Health Department over the power to provide ambulance services in March 2021 show how some municipalities may be hamstrung from taking action that seeks to operationalise and deliver a function that is not expressly conferred on local government in terms of Schedules 4 and 5 of the Constitution. This article discusses why and how municipalities with the requisite capacity should be able to provide ambulance services, although this is listed in Schedule 5A of the Constitution as a functional area of exclusive provincial legislative competence. I argue that three features in the Constitution give the power to provide ambulance services to municipalities that have the requisite capacity: the framing of health rights and concomitant obligations; the incidental powers of municipalities; and the principle of allocative subsidiarity. It is argued that, given the mandatory wording of the principle of allocative subsidiarity in sections 156(4) of the Constitution and 32(2) of the National Health Act 61 of 2003, where a provincial health department is averse to assigning the provision of ambulance services to a municipality that has the requisite capacity, such a municipality can approach the High Court for an order compelling the department to assign this function.