'n Regsvergelykende studie aangaande die leerstuk lig van die korporatiewe sluier

[摘要] English: Lifting of the corporate veil as an exception to the rule of limited liability surely is one of the most litigated issues in corporate law worldwide. The reason being the lack in predictability and sturdy rules that can be used as guidelines when setting aside the corporate veil. The common approach of courts is to determine each case on its own merits which left the doctrine of lifting the corporate veil enveloped in the mist of metaphor, unpredictable and vague. As an answer to the need for sturdy guidelines section 20(9) was implemented in die 2008 Companies Act stating that the separateness of a legal person can be set aside if an unconscionable misuse of the corporate personality has taken place. Section 20(9) however does not state what exactly will be deemed as an unconscionable misuse. The interpretation of unconscionable misuse is there for left to the courts discretion.The aim of this study is to find answers to this vagueness and uncertainty by identifying possible grounds or guidelines for lifting of the corporate veil. During this comparative study attention is also given to the legal state of matters regarding lifting of the corporate veil in Australia, the United States of America and Canada to identify useful guidelines and principles which will assist the South-African courts in setting aside the corporate veil. The Australians considers the proceeding of business under insolvent circumstances as a statutory ground for lifting the veil.The American courts also show support for fraud as a ground for lifting the corporate veil. A solid Canadian ground for lifting the corporate veil is in the family context where one party would unjustly suffer a loss if the other parties company is treated as a separate entity. The Canadians also considers tax evasion and not adding the suffix 'Ltd to the company name as grounds for lifting the corporate veil. These mentioned grounds for lifting the corporate veil can surely be adopted by the South-African courts as part of a sturdy set of guidelines.

[发布机构] University of the Free State