The normative value system underpinning the Companies Act 71 of 2008 with specific reference to the protection of creditors and employees

[摘要] The company developed through an evolutionary process. Our conceptualization of the companyand its position in law is determined by our philosophical approach to justice (our underlying systemof belief), the resultant theory of law that we adopt and the underlying economic, political and socialenvironment in which the company operates.Three broad philosophical approaches to justice are identified in this study. The first revolvesaround the idea of maximizing welfare, the second around the idea of respecting freedom and thethird approach sees justice as bound up with virtue and the good life. It is argued in this thesis thatwe cannot detach arguments about justice and rights from arguments about virtue and the good life.It is not possible to devise a grand theory of the nature of the company. But from a normativeperspective the communitarian theory and arguably the concession theory (more particularly thedual concession theory of Dine) is the most acceptable theory of the nature of the company. Thereal entity theory, as articulated by Dodd, is the preferred theory of the corporate personhood of thecompany. A company, especially a large company, is a public or quasi-public entity and a corporate citizen that should have the same legal, social and moral rights and responsibilities as a naturalperson.From a normative perspective the entity maximization and sustainability model (EMS model) andthe stakeholder model are the most attractive models of corporate governance. It is generallyaccepted that the ultimate purpose of the company must be to serve society. Subject to this ultimateand supreme objective, the corporate objective on a narrower level must be to maximize and sustainthe company as a separate legal entity.The aforesaid conceptualization of the company corresponds with the normative value system thatunderpins the Constitution of the Republic of South Africa, 1996 (the Constitution), and thereforealso the Companies Act 71 of 2008 (the Companies Act of 2008). The Constitution encompasses asocial democratic vision for South Africa in which commercial autonomy must be tempered byvirtue, dignity and social and economic equality. The Companies Act of 2008 gives expressrecognition to bring company law within our constitutional framework.There has been a fundamental paradigm shift in the normative value system that underpins ourcompany law since liberalism and laissez-faire reigned supreme in the eighteenth and nineteenthcentury Great Britain, from which country our company law originates. The underlying philosophyand approach of our company law is now more aligned with that of Canada. This also has animportant effect on the rights, protections and remedies of creditors and employees of the company.

[发布机构] University of Pretoria