overview of policy on corporate law reform parliamentary committee cape town 20 august 2004
TRANSCRIPT
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Overview of Policy on Corporate Law Reform
Parliamentary Committee
Cape Town
20 August 2004
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Objective of Presentation
• To provide an overview of the corporate law review
• To inform parliament about public consultations on draft corporate law policy framework
• To update the portfolio committee on next steps
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Summary• Policy document essentially sets out to address
3 issues:– Provides an improved platform for companies
to raise capital– Provides new definition of role of company
(including social aspects)– Defines split between primary and secondary
market for shares (clarification of roles)
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Background to Policy • Review initiated in 1998 • Initial document prepared and presented to SACCL
in about 2000• Initial document rejected• Process reinitiated in 2002• Workshop with international and local experts in
June 2003• Project Manager appointed in September 2003• New document prepared and presented to various
international and local experts in December 2003• Workshop with SAC on 27/2/2004 – document
largely accepted with inputs
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Chapter 1: Introduction • Objectives of company law
– Encouraging entrepreneurship and enterprise diversity by simplifying company formation
– Promoting investment and innovation – Promoting efficiency of firms and their management– Encouraging transparency and high standards of
corporate governance, recognizing broader social role of enterprises
– Encouraging compatibility and harmonsiation with best practice jurisdictions
• Set out scope of review
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Chapter 2: Rationale for Reform
• Companies Act 30 years old – internationally, company laws have been reviewed
• Changed political, economic and social environment
• Changed global and corporate environment• Corporate failures and scandals in SA and
internationally• Current law excessively formalistic, increasing cost
of company formation and maintenance and eliciting sham compliance
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Chapter 3: General Principles
• Scope of company law – fundamental question: “In whose interest should the company be run?”– Moves away from traditional company law principles
defining only relationships with shareholders and directors and managers to more inclusive concept that recognizes broader public interest
– Public interest best regulated through specific laws, with company law facilitating interface through disclosure and optional board representation
• Simple, comprehensive and accessible legal framework– Single Act, simplified company formation, maximum
flexibility for companies with mandatory and optional rules
• Accountability and transparency• Harmonisation with other company laws
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Chapter 4: More Detailed Guidelines
• Company formation– Introduces single corporate entity –
removes distinctions between Close Corporation, Private and Public Companies
– Mandatory rules and optional rules (90% opt out requirement for some mandatory)
– The bigger you are, the more obligations– Only distinction between listed and
unlisted companies– Simple registration of foreign firms –
accreditation system
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Chapter 4: More Detailed Guidelines
• Corporate finance– US style balance sheet and liquidity test– Flexibility around type of shares– No nominee shareholding– Review of voting arrangements
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Chapter 4: More Detailed Guidelines
• Corporate governance– Recommendations on CG to have regard to:– • the predominance of controlling
shareholder groups in South African companies– • the lack of shareholder activism as a
natural force for improving cg– • the separation of ownership from control
in listed companies and the consequent • need to bolster managerial accountability
standards for executive directors, and
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Chapter 4: More Detailed Guidelines
– CG to be divided into 3 distinct areas;• Directors• Shareholders• Corporate Reporting/disclosure
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Chapter 4: More Detailed Guidelines• Directors• (a) The structure of the board
including the establishment, where appropriate, of audit, executive, nomination and remuneration committees and the representation of some stakeholders in the board of directors;
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Chapter 4: More Detailed Guidelines• (b) The roles and functions of the
Chairman and Chief Executive Officers;• (c) The roles and functions of the
executive directors;• (d) The roles and functions of the
non‑executive directors;
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Shareholders• Make specific recommendations, inter‑alia, in
respect of• (a)The possible development of institutional
investors as a force for promoting shareholder democracy and good corporate governance;
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Shareholders• (c) The development of a proxy system,
having regard to the rights of persons other than registered shareholders,
• (d) Restraints on controlling shareholders' voting,– Controlling shareholders’ interest– Transactions at arms length
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Corporate Reporting/ Disclosure• Make specific recommendations in respect of‑ • (a) Reforming and strengthening Part XI of
CAT,• taking account of‑• • statements by big companies and
exclusion of other companies from compliance with filing provisions;
• (b) Non‑statutory disclosure requirements
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Corporate Reporting/disclosure
• (c) Improving compliance with the accounting standards in accordance with the FRB and related legislation.;
• (d) The use of information technology to report and distribute, among others, annual reports,etc
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Chapter 4: More Detailed Guidelines
• Mergers and takeovers– Maintain the existing division of power between
merger oversight namely:– (1)that SRP to continue examine M&As from the
pov of protecting minority shareholders and the credibility of the markets,and
– (2) the CA examines only the anti-competitive or public interest aspects of mergers
– New provision for mergers
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More Detailed Guidelines
– Revision of corporate rescue provisions as part of broader corporate governance regime
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More Detailed Guidelines• Administration and enforcement
– Greater involvement of state in enforcement– Combination of criminal, civil and
administrative penalties– Dispute resolution mechanism to enhance
redress– New institutional framework: – Current institutional fragmentation addressed
and roles clarified (DoJ, FSB, JSE, dti, CIPRO)
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Proposed Institutional Framework
Companies and Intellectual Property Commission Education and awareness (small business, investors, corporates, promotion of shareholder activism, education of directors)Information collection and disseminationMonitoring and enforcement (including vetting of prospectuses and mergers and takeovers etc)Company registration (primarily electronic)
JSE & FSBAdvisory function
Regulation of securities trade
Competition and Companies TribunalDeals with mergers and takeovers and
other administrative penalties (Replaces current SRP)
Courts
Minister of Trade and Industry
Makes rules and regulations
Advisory Panel
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Next Steps
• process)• •
Activity End Date
• Consultation with Nedlac • May – June 2004• Concurrent public consultation on the policy document• May – June 2004• Finalisation of policy framework• July 2004• Research into international and existing company law• January – September 2004• Review of legislative options & preparation of drafter’s memorandum• September – December 2004• Drafting of legislation and exposure draft• January – August 2005• Cabinet approval for publication• September 2005• Publication of exposure draft for public comment, including workshops and other public consultation • September – December 2005• Evaluation of comments & preparation of revision instructions to drafters• October - December 2005• Revision of Bill by drafters• October - December 2005• Submission of Bill to Parliament• January 2006• Proclamation of Bill by President• June 2006• Launch of new institutions• June 2006• •
Activity End Date
Consultation with Nedlac June- Sept 2004
Concurrent public consultation on the policy document
June-Sept 2004
Research into international and existing company law
January – September 2004
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Next Steps
Activity End Date
Drafting of legislation and exposure draft
September – December 2004
Cabinet approval for publication
September 2005
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Next StepsActivity End Date
Proclamation of Bill by President
June 2006
Launch of new institutions June 2006
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Corporate Law Reform
Thank You