text:
A Sibanda*
PER / PELJ - Pioneer in peer-reviewed, open access online law publications
Author Aubrey Sibanda
Affiliation Advocate of the High Court of South Africa
Email aubreysibandah@gmail.com
Date Submission 30 October 2020
Date Revised 7 September 2021
Date Accepted 7 September 2021
Date published 26 October 2021
Editor Dr TV Warikandwa
Sibanda A "Shareholder Oppression as Corporate Conduct Repugnant to Public Policy: Infusing the Concept of uBuntu in the Interpretation of Section 163 of the Companies Act 71 of 2008" PER / PELJ 2021(24) - DOI http://dx.doi.org/10.17159/1727-3781/2021/v24i0a10731
DOI http://dx.doi.org/10.17159/1727-3781/2021/v24i0a10731
The concept of
Corporate governance; shareholder oppression; oppression remedy; ubuntu; contract; public policy; constitutionalism.
Scholars of corporate governance in South Africa are arguably fascinated by the concept of ubuntu1 having become an integral aspect of the country's corporate governance.2 My study on how the concept of ubuntu features in contemporary corporate governance in South Africa has led me to two observations.
* Aubrey Sibanda. LLB (UFH) LLM (UFH). Advocate of the High Court of South Africa. Email: aubreysibandah@gmail.com. ORCiD: https://orcid.org/0000-0003-4153-7448.
1 See para 4 of the article below for the definition of ubuntu.
2 Corporate governance is widely defined in academic literature. The common definition often used is given by the Cadbury Committee in the United Kingdom in its report on the financial aspects of corporate governance published in 1992, known as the Cadbury Report. The report defined the concept as "a system by which companies are directed and controlled". See Committee of Financial Aspects of Corporate Governance Report of the Committee para 2.5. Also see Rossouw, Van der Walt and Malan 2002 Journal of Business Ethics 289, stating that the definition has become "fashionable" since the Cadbury Report.
3 See Ngcobo J in Barkhuizen v Napier 2007 5 SA 323 (CC) para 52, noting that "[p]ublic policy is informed by the concept of ubuntu". According to the Black's Law Dictionary, "public policy" refers to the notion that the law seeks to promote public good. See Law Dictionary Date Unknown https://dictionary.thelaw.com/public-policy/.
4 For a general discussion of ubuntu and the interpretation of the Constitution, see Mokgoro 1998 PELJ 1; Mokgoro "Ubuntu as a Legal Principle" 1-2.
5 See para 3 of the article below for a detailed discussion on this subject.
6 See Davis 2008 SAJHR 329. Notwithstanding the observation, there have, however, been few cases where ubuntu was relied on in interpreting private law, for example, Dikoko v Mokhatla Dikoko v Mokhatla 2006 ZACC 10 (3 August 2006); 2006 6 SA 235 (CC); Bhe v Magistrate Khayelitsha 2004 2 SA 544 (C); Everfresh Market Virginia (Pty) v Shoprite Checkers (Pty) Ltd 2011 1 SA 256 (CC); Barkhuizen v Napier 2007 5 SA 323 (CC).
7 "Soft law" refers to quasi-legal instruments which do not possess any legally binding force. Soft law encompasses regulatory instruments such as codes of conduct, codes of practice, statements, principles and others.
8 South Africa has a set of corporate governance codes referred to as the King Reports developed by the King Committee on Governance. The last report, King IV Report
Firstly, although ubuntu summons public policy3 as a guiding value in the interpretation of South African laws, including the Constitution of South Africa 1996,4 the concept has not been adequately embedded in the interpretation of corporate law. There is limited case law as evidence in that regard. Perhaps the private nature5 of corporate law may have led to the aforesaid development, considering that the notion of ubuntu is not as prominent in private legal relationships6 as it is in public ones. The default outcome has therefore been that ubuntu in corporate governance remains largely underscored in codes of practice referred to as "soft law"7 regulating corporate conduct in South Africa.8
of Corporate Governance in South Africa, was published in 2016 (IoDSA King IV, hereafter King IV). For a discussion on the relationship between ubuntu and the practice of corporate governance in South Africa, see IoDSA King II (hereafter King II) Introduction and Background para 38.
9 For the given definition of "stakeholders", see Mallin Corporate Governance 49. For discussions on the role of ubuntu in the governance of stakeholder relationships, see King II Introduction and Background para 38; s 4 ch 2 paras 6-8; Ndiweni "Towards a Theoretical Framework of Corporate Governance" 335-357.
10 For a discussion of justice, fairness, equity, and reasonableness as principles that define public policy, see Barkhuizen v Napier 2007 5 SA 323 (CC) paras 51-52. In South African Broadcasting Corporation Limited v Mpofu 2009 4 All SA 169 (GSJ) paras 63-66, the court relied on the principle of ubuntu in formulating what it considered to be a transparent relationship between the board members of a company. The decision remains the leading authority at the time of writing this article, which takes the concept of ubuntu beyond stakeholder governance to other relationships in the firm.
11 See Bachmann et al Regulating the Closed Corporation 63-64 observing that "[t]he relationship between and among shareholders themselves and the conflicts resulting from this relationship are critically important for closed corporations". Similarly, this argument is applicable to companies.
12 Traditionally, corporate law focusses on the regulation of three kinds of relationships in the firm, namely the relationship between directors and shareholders, the relationship between shareholders themselves and the relationship between shareholders and the company's stakeholders.
13 See generally Dugar 2010 NLSIR 110. See O'Neal 1987 Clev St L Rev 121 discussing the harm on the company of shareholder disputes.
My second observation is that in instances where the concept of ubuntu is emphasised in corporate governance, its relevance is often narrowed to how the company is expected to interact with its "stakeholders", who are the different constituents impacting on its business activities.9 Limited regard has been given to the role of ubuntu in promoting a legal understanding that public policy as a constitutional value may also demand that other commercial relationships within the corporate firm be aligned to the notions of justice, fairness, equity and reasonableness.10 This article is inspired by the second observation.
2 Setting the scene
This article fuses the principles of constitutional law and corporate law. As a starting point, majority-minority shareholder relations are presented as an important feature of the firm11 regulated by corporate law.12 Fair dealing by majority shareholders towards minority shareholders is hailed as an embodiment of sound corporate governance capable of promoting the economic success of the company - particularly its wealth-generating capability.13 Conversely, mala fide actions of majority shareholders towards their minority counterparts are bemoaned as threatening the entire
economic success of the company14 and the establishment of good corporate governance.
14 See Bahls 1990 J Corp L 287. The author cites shareholder disputes as a costly problem, particularly in privately held companies, and regards such disputes to be a cause of business failures.
15 Anyadiegwu Minority Shareholder Remedies. See also O'Neal 1987 Clev St L Rev 125-134 discussing other forms of shareholder oppression.
16 Shkolnikov 2006 http://www.mafhoum.com/press10/290E19.pdf.
17 Also see Garza 1999-2000 St Mary's LJ 619.
18 For further discussion, see Vutt 2010 Juridica International 188-198.
19 Under the repealed Companies Act 61 of 1973, the remedy was provided in terms of s 252 of the legislation.
20 See generally Davies et al Gower's Principles of Modern Company Law 691.
21 Miller 1992-1993 Dick L Rev 229.
Mala fide actions of majority shareholders against minority shareholders include, among others, the unjustifiable withholding of dividends, exclusion from corporate decision-making processes and the denial of corporate information.15 Shkolnikov notes a "widespread" view, especially in transition economies, which considers minority shareholders as "dead weight" incapable of making a meaningful contribution of capital.16 In the author's view, minority shareholders still play a crucial role in the success of the firm and only good practices of corporate governance can entrench such a conviction.17
South African companies have not been immune from the abuse of minority shareholders. The country's corporate law provides a variety of remedies for minority shareholders in case of any harmful conduct being perpetrated against them. Against this background, it should be noted that minority shareholder remedies are a means by which corporate law furthers the practice of sound corporate governance.18 The statutory remedy which is the subject of this discussion is provided in terms of section 163 of the Companies Act.19 Under the legal provision cited, a minority shareholder can seek remedial judicial intervention if there is "oppressive conduct", "unfairly prejudicial conduct" or any conduct that "unfairly disregards" his or her rights. The conceptualisation of shareholder oppression involves an analysis of the peculiar merits of each case.20 Basically, the definition of oppression has been left to judicial construction.21 A challenge still remains, however, in relation to the remedy for oppression, particularly on how to formulate a statutory framework of acceptable commercial conduct to fulfill the dual purpose of tutoring the business community as well as guiding
judicial decisions.22 In South Africa, common law has continued to provide a yardstick on how shareholder oppression can be established.23
22 Miller 1999 Am Bus LJ 587. Also see in NR Murty v Industrial Development Corporation (1977) 47 Comp Cas 389 Orissa para 34, where it was stated that: "…[l]aying down a general guideline [on oppression] would be difficult because in varying facts proved before the court, the question of oppressiveness has got to be determined".
23 See the discussion on South African case law under para 5 of this article.
24 For the purpose of this discussion, the term "oppressive conduct" is used to encompass both "unfairly prejudicial conduct" and conduct that "unfairly disregards" any shareholder's interests, as articulated by s 163 of the Companies Act 71 of 2008 (the Companies Act).
25 In Barkhuizen v Napier 2007 5 SA 323 (CC) para 28, Ngcobo J defined public policy as a representation of the legal convictions of the society. Also see Price Waterhouse Coopers Inc v National Potato Co-operative Ltd 2004 6 SA 66 (SCA) para 24, where it was stated that an agreement would be contrary to public policy when it conflicts with the "interests of the community, whether it be contrary to law or morality or runs counter to social or economic expedience".
26 See Ngcobo J in Barkhuizen v Napier 2007 5 SA 323 (CC) para 52, implying that public policy is a concept informed by ubuntu.
27 Griggs and Snell 1994 QUTLJ 22.
My thesis in this article is that time is here for South African corporate law to consider relying on public policy as a guide in determining whether certain actions of shareholders amount to "oppressive conduct".24 By that it is certainly not implied that the use of the common law standard to identify shareholder oppression, which has been the traditional approach, be abandoned. My contention is simple. I argue that courts can in a corroborative manner incorporate considerations of public policy25 into their interpretation of shareholder oppression under section 163 of the Companies Act. For South African courts, the conceptualisation of minority shareholder oppression with reference to public policy can be actualised with reference to the philosophy of ubuntu and its underlying principles.26 One of the leading objectives of corporate law is to protect the rights of shareholders. Notwithstanding the aforesaid, paradoxically, corporate law is accused of sometimes of failing to provide a comprehensive shield against shareholder prejudice.27
The application of natural justice has been suggested as an alternative capable of providing relief to shareholders who may fail to find protection because of the rigid application of statutory law.28 Natural justice is a dominant principle in administrative law and provides that a person receives a fair or unbiased hearing before a decision that negatively affects him or her is made. In the context of this paper, it is argued that natural justice should be characterised by unbiased decision-making by majority shareholders in instances where certain corporate decisions affect their
minority counterparts. It is on the same premise that ubuntu finds its applicability.
In a South African context, the concept of ubuntu to a large extent coheres with the values of social justice and fairness.29 In a legal milieu ubuntu is viewed as a lived system of norms that can go beyond abstract principles of law in curing injustices. Such injustices arguably include those of a commercial nature and can attract ethical30 or humanistic considerations in some instances. uBuntu is also intertwined with the notion of transformative constitutionalism.31 Transformative constitutionalism in a crude sense is an overarching and guiding philosophy advocating an interpretation of South African laws in a manner that advances the values of the Constitution; particularly, the promotion of human rights and the pursuance of substantive justice.32 Debatably, transformative constitutionalism should be applicable to private commercial law relations like those designed or established by corporate law. In my view, the infusion of constitutional values in the interpretation of corporate law in South Africa results in the latter legal discipline also being "transformative", due to it upholding a constitutional sense. For the South African corporate lawyer, transformative constitutionalism also calls for the perception of the country's current corporate law as constitutionally inspired, and socially constructed and situated.33
29 Nussbaum 2003 Perspectives 1; Letseka 2014 MJSS 548; Jajbhay v Cassim 1939 AD 537 544; Sasfin (Pty) Ltd v Beukes 1989 1 SA 1 (A) paras 9F-G. For an opposing view, see Keevy "Ubuntu versus the Core Values" 54-96 disputing the synergy between ubuntu and the values of the South African Constitution.
31 See Himonga, Taylor and Pope 2013 PELJ 373.
32 See Budlender AJ in Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C) para 100 noting that "Ours is a transformative constitution… Our Constitution provides a mandate, a framework and to some extent a blueprint for the transformation of our society…". Also, Jaybhay J in City of Johannesburg v Rand Properties (Pty) Ltd 2006 6 BCLR 728 (W) paras 51-52 stating that "Our Constitution encompasses a transformative provision. As such, the State cannot be a passive bystander in shaping the society in which individuals can fully enjoy their rights…[T]he full transformative power of the rights in the Bill of Rights will only be realised when they are interpreted with reference to the specific social and economic context prevalent in the country as a whole…". For further discussion, see the general discussion in Christiansen 2010 J Gender Race & Just 575.
33 For the origin of this submission, see Quinot 2011 SALJ 417 (own emphasis). For further discussion on the interpretation of corporate law in terms of the values of constitutional law, see para 4 of this article.
The discussion in this article starts with an articulation of shareholder rights recognised in corporate law. Thereafter, I proceed to explain the legal origin of such rights with reference to legal theories that have been utilised to define the corporate firm. Two economic perceptions of the company are discussed. The first theory, namely, the property rights theory, considers a
company as a vehicle conferring protectable private ownership rights to its shareholders, who are perceived as the "owners" of the company.34 According to the property rights theory, the company is characterised as a collection of people with assets35 vested in the company.
34 Gamble and Kelly 2001 Corporate Governance 113. The property rights theory of the company can be traced to the writings of prominent corporate law scholars such as Adolf Berle, Gardiner Means and Milton Friedman. See Berle and Means Modern Corporation and Private Property; Friedman Capitalism and Freedom; Friedman 1970 New York Times Magazine 1-6.
35 Armour 2005 http://www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/working-papers/wp299.pdf 6.
36 Valesco 2006-2007 UC Davis L Rev 443; Alchian and Demsetz 1972 Am Econ Rev 794-795; Jensen and Meckling 1976 3 JFE 309. There is voluminous literature on this subject.
37 Armour 2020 Oxford Review of Economic Policy 315.
The second theory treats the company as a network of bargained or negotiated contractual relationships. In terms of the latter theory, the company does not extend any property rights to shareholders. Rather, all constituents in the company, including its shareholders, are deemed to be simply in contractual relationships with one another.36 For instance, when a shareholder receives dividends on shares, according to the contractual theory of the company, the shareholder is not perceived as getting dues from "personal and private property" but rather as a recipient of contractual proceedings. Corporate law is interpreted in a contractual sense, therefore becoming the law that sustains and actualises contractual relationships in the firm.
Having overviewed how shareholder rights feature in terms of the summarised theories of the firm, the concepts of ubuntu and "shareholder oppression" are briefly defined. The definition provides a point of entry into the theme of the discussion, which is the role ubuntu can play in interpreting shareholder oppression with reference to considerations of public policy. This is followed by a section in which I identify and address some possible criticisms of this article which are likely to be raised by other scholars of corporate law. Thereafter, I conclude the article.
3 The basic rights of shareholders, their legal nature and interpretation in terms of established theories of the firm
Shareholder rights are defined as a set of legal entitlements that shareholders enjoy vis-à-vis companies in which they invest.37 Corporate law recognises four basic rights which apply to shareholders. They are the right to capital, the right to income, the right to vote and the right to
information.38 The right to capital enables a shareholder to receive residual capital in the event of the company being wound up or liquidated. The right to income denotes the shareholder's entitlement to dividends or any distribution made by the company. The right to vote is how the shareholder participates in decision-making in the company. The right to information enables the shareholder to access information that pertains to his interest in the company.39 It has been argued that of the stated rights, the right to vote and the right to access to information are absolute and are provided in terms of legislation.40 While some rights can be considered to be absolute due to their provision by corporate law, some authors have argued that some shareholder entitlements remain structured as default entitlements and others as mere contractual entitlements.
38 See Mäntysaari Law of Corporate Finance 164, who classifies such rights as economic rights, governance rights and information rights. The ability of shareholders to seek judicial enforcement of their other rights has been identified as another independent shareholder right in its respect, see Valesco 2006-2007 UC Davis L Rev 443. This discussion, however, focusses on only the four rights of shareholders already mentioned in the main text.
39 See the DTI Guidelines for Corporate Law Reform 2004 para 4.4.1; Valesco 2006-2007 UC Davis L Rev 413-423. See Armour 2020 Oxford Review of Economic Policy 316, arguing that companies cannot avoid such mandatory legal requirements save by incorporating themselves in a different jurisdiction.
40 DTI Guidelines for Corporate Law Reform 2004 para 4.4.1.
41 Mostert et al Principles of the Law of Property 20.
42 See Gien v Gien 1979 2 SA 1113 (T).
43 Van der Walt and Pienaar Introduction to the Law of Property 48-49; Mostert et al Principles of the Law of Property 93.
45 Tigon Ltd v Bestyet Investments (Pty) Ltd 2001 4 SA 634 (N) 643B; Etkind v Hicor Trading Ltd 1999 1 SA 111 (W) paras 15B-C; Brink v Mampundi Mining (Pty) Ltd 2003 5 SA 221 (T); Cooper v Boyes 1994 4 SA 521 (C). Also, s 35(1) of the Companies Act provides that "[a] share issued by a company is movable property,
Having outlined the basic rights of shareholders, it is important to explore their legal origin. The discussion below attributes the origin of shareholder rights to both the law of property and the law of contract.
3.1 The property rights foundation of shareholder rights
The legal objects at the centre of the law of property are things or property.41 The law of property provides that ownership is the most complete right a legal subject can have in relation to any form of property.42 Ownership confers various entitlements to the owner in relation to the property, such as the ability to control it, use it, encumber it, alienate it and vindicate it.43 It is argued that ownership without entitlements is impossible as it amounts to the provision of a right without content.44 In terms of property law, shares in a company are movable, incorporeal property45 and the owner thereof can
transferable in any manner provided for or recognized by [the] Act or other legislation".
46 Bradbury v English Sewing Cotton Co Ltd [1923] AC 744 (HL) 746. There is debate, however, on whether share ownership gives rise to personal or real rights in terms of the law of property. It has been argued that considering shares as property may not be accurate, as shares represent a "bundle of interests and liabilities" somehow differing from the conventional understanding of the "ownership of property". Arguments in favour of the treatment of shares as property emphasise their tradable nature and the fact that ownership rights are awarded by any companies that wish to raise capital through the issuing of shares. For further discussion, see Chiu 2008-2009 Rich J Global L & Bus 117-160. See Valesco 2010 U Ill L Rev 905-906, settling the debate by stating that both "thing-ownership" and "the bundle of rights" argument account for any kind of property interest. The argument is similarly applicable to share ownership. Also see related observation in Van der Walt Property and Constitution 116.
47 See para 2 above for a discussion of the property rights theory of the firm.
48 Cohen 1991 U Pa J Int'l Bus L 381.
49 Valesco 2006-2007 UC Davis L Rev 440-441.
50 Cassim et al Contemporary Company Law 355, 451; Ben-Tovim v Ben-Tovim 2001 3 SA 1074 (C) 1088.
51 Njoya Property in Work 93; also see general the discussion in Kriebaum and Schreuer 2007 http://www.univie.ac.at/intlaw/wordpress/pdf/88_concept_ property.pdf 6-10.
enjoy various entitlements which come with ownership. Shares become the property of the person who purchases them.46
The property rights theory47 of the company owes its origin to the notion of the ownership of shares by a company's shareholders. In terms of the property rights theory of the firm, shareholders are "to do as they wish" with their shares which are their property.48 The rights of shareholders are limitable, however, particularly in terms of the law or any of the internal arrangements of the company usually expressed in its founding documents, such as the articles of association or its memorandum of incorporation. The exercise of its pre-emptive rights, restrictions on the transferability of certain kinds of shares, and the prohibition of insider trading49 are some of the examples through which the entitlements of shareholders are limited. The significance of corporate law in the context of the property rights theory is to regulate the enjoyment of ownership entitlements. Arrangements actualised by corporate law such as the election of directors by shareholders and the voting of shareholders are legal conduits through which shareholders express their entitlements over their property.50 The property rights theory advances the understanding that share ownership is encapsulated in the right to property, which is a fundamental entitlement provided under modern constitutional law.51
3.2 The contractual rights foundation of shareholder rights
It has been mentioned that the contractual theory of the firm postulates that the firm is merely a web of contractual relationships.52 In simpler terms, two or more parties conclude a contract to carry on a commercial activity and it is from this contract that a company is born.53 The common approach adopted by most contractualists is to treat various constituent groups as "stakeholders"54 contracted with the company.55 This includes the company's shareholders.56 In terms of the contractual theory, the rights of the different stakeholders in the company originate from their having contributed "certain inputs in exchange for certain rights with respect to outputs".57
52 For influential scholarly contributions that contributed to this view see Coase 1937 Economica 386; Alchian and Demsetz 1972 Am Econ Rev 777; Jensen and Meckling 1976 JFE 305.
53 Esser Recognition of Various Stakeholder Interests 27.
54 The treatment of other constituent groups of the company as "stakeholders" was promoted by American scholar Edward Freeman. Important publications by the author emphasising the same include Freeman, Zyglidopoulos and Harrison Strategic Management; Freeman, Wicks and Harrison Managing for Stakeholders; Freeman, Wicks and Harrison Stakeholder Theory.
55 The implication of the contractual relationship is that each stakeholder assumes the power to affect the performance of the company, and that each stakeholder has a stake in the firm's performance.
56 Hage Stakeholders Concern 70.
58 In this regard, what is in focus is the relationship between individual stakeholders from the same constituent group of the firm; for example, shareholders.
59 Prior to the promulgation of a new Companies Act in South Africa, the memorandum of incorporation was considered to constitute the constitution of the company
Contractualists have, however, scantily explored the nature of the relationship between stakeholders inter se;58 that is, whether it is also contractual in design. Since the focus of this article is shareholder relations, it will be investigated whether the relationship between shareholders can be of a contractual nature. The above question is answered in the affirmative. Support for the contractual interpretation of shareholder relations will be rendered through an exploration of important designs in the company which reflect a contractual arrangement between shareholders. Such corporate arrangements can further be assumed also to be "sources" of the basic rights of shareholders under South African corporate law and in other jurisdictions. Moreover, they are capable of being enforced at a contractual dimension, as will be extrapolated below.
3.2.1 The memorandum of incorporation
The memorandum is the founding document of the company. Due to its significance, it is often termed the "constitution of the company".59 Section
together with its articles of association. See Mongalo Corporate Law and Corporate Governance 237.
60 Mongalo Corporate Law and Corporate Governance 137-138; 237; Morojane 2010 PELJ 183; Wood v Odessa Waterworks Co (1889) 42 ChD 636 641; Re Saul & Sons 1995 1 BCLC 14 ca; Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame [1906] 2 Ch 34; Pender v Lushington (1977) 6 ChD 70.
61 Gower Modern Company Law 253-254.
62 Cassim et al Contemporary Company Law 131; Russell v Northern Bank Development Corporation [1992] 1 WLR 588 (HL).
63 Thomas Legitimate Expectations 1.
1 of the Companies Act provides that shareholders and directors derive rights, duties and responsibilities from the company's memorandum of incorporation. Section 15(6) of the Act provides that it is binding "between and among the shareholders of the company". It has been submitted that the memorandum of incorporation also constitutes a statutory contract among the shareholders of the company inter se.60 For example, Gower argues that the enforcement of the right of pre-emption among shareholders of a company when the same is provided for in the company's founding document is a manifestation of a contractual relationship among shareholders.61
3.2.2 Shareholder agreements
Section 15(7) of the Companies Act provides that shareholders of a company may enter any agreement with one another concerning any matter relating to the company. Any agreement entered in terms of the provisions of section 15(7) of the Companies Act must be consistent with it and the company's memorandum of incorporation. Any provision of the shareholder agreement that conflicts with the Act or the memorandum of incorporation is void to the extent of the inconsistency. The binding nature of shareholder agreements is informed by the principles of the law of contract.62
3.2.3 Shareholders' legitimate expectations
The doctrine of legitimate expectations has its origin in administrative law. The doctrine of legitimate expectation operates as a control over the execution of discretionary powers by a public authority.63 It is argued that the doctrine of legitimate expectations is aimed at granting relief to legal subjects when they are not able to justify claims based on strict legal rules after they have suffered a civil consequence due to a violation of their "legitimate expectation". According to Talagala, a legitimate expectation arises "where a person responsible for taking a decision has induced in someone who may be affected by the decision, a reasonable expectation
that he will receive or retain a benefit or that he will be granted a hearing before the decision is taken".64
64 Talagala 2009 Bar Association Law Journal 3.
65 See generally Alvillar v National Union of Mineworkers 1999 20 ILJ 419 (CCMA); Maritime Industries Trade Union of South Africa v Portnet 2000 21 ILJ 2519 (CCMA); South African Rugby Players Association on behalf of Bands v South African Rugby (Pty) Ltd 2005 26 ILJ 176 (CCMA); Ackerman v United Cricket Board 2004 25 ILJ 353 (CCMA).
66 Ikhariale 2001 J Afr L 2.
67 Ebrahimi v Westbourne Galleries Ltd [1973] AC 360.
68 Also see generally in Re Saul & Sons 1995 1 BCLC 14.
69 Dunne 2004 JSIJ 109.
70 Riley 1992 MLR 794; Miller 1999 Am Bus LJ 614; O'Neill v Phillips (1991) 1 WLR 1092.
71 Nicolaides 2014 J Soc Sci 18.
72 Mokgoro 1998 PELJ 2.
Since its evolution the doctrine of legitimate expectations has been subsumed by South African jurisprudence with its manifestations being witnessed in legal specialties such as labour law.65 It has been averred that South African courts have often treated the doctrine of legitimate expectations as an expansion of the rules of natural justice.66 The concept of legitimate expectations has also featured in corporate law, particularly in the interpretation of shareholder relations. In the leading English case of Ebrahimi v Westbourne Galleries Ltd67 the court held that a shareholder in a privately held company that typified a quasi-partnership had a legitimate expectation that his management role in the company would continue and that the voting provisions of its articles would not be used by fellow shareholders to force him out of the enterprise.68 Based on the Ebrahimi decision, it is contended that shareholders in privately-held companies will not consider their commercial relationship as being comprehensively regulated by the constituting documents of the company, but rather premised on "rights, expectations and obligations inter se which may not necessarily submerge in the company structure".69 Legitimate expectations are also viewed as a form of inter-shareholder contract recognised in terms of corporate law.70
4 Defining the concepts of ubuntu and "minority shareholder oppression"
uBuntu is an African philosophy viewed as being exemplary of normative ethics, which concentrates on classifying certain actions as being right or wrong. From this notion, normative rules governing human conduct are developed.71 It is a culture which places some emphasis in the commonality and on the interdependence of the members of the community. uBuntu embraces personhood, humanity, humaneness and morality.72 It recognises
a person's status as a human being entitled to unconditional respect, dignity, value and acceptance from the members of the community that such a person may be part of.73 A crucial moralistic aspect of ubuntu which is pertinent to the theme of this article is articulated by Munyaka and Motlhabi, who state that "ubuntu ethics can be termed anti-egoistic as it discourages people from seeking their own good without regard for, or to the detriment of, others and the community".74 In essence, ubuntu finds its content in its emphasis in communalism and particular social values.75
73 South African Broadcasting Corporation Limited v Mpofu 2009 4 All SA 169 (GSJ) para 66.
74 Munyaka and Motlhabi "Ubuntu and its Socio-Moral Significance" 71-72.
75 Himonga, Taylor and Pope 2013 PELJ 380-381.
76 Biney "Historical Discourse on African Humanism" 29.
77 Keevy "Ubuntu versus the Core Values" 70-75.
79 Abbey Insightful Study of the Oppression Remedy 102.
80 Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324 342.
81 For application of the test in South African case law, see Livanos v Swartberg 1962 4 SA 395 (W) 398; Marshall v Marshall (Pty) Ltd 1954 3 SA 571 (N) 580; Grancy Properties Limited v Manala 2013 3 All SA 111 (SCA) paras 22-23.
82 Elder v Elder & Watson 1952 SC 49 55.
According to Biney, commonly agreed upon values encapsulated in the concept of ubuntu are interdependence, dignity, self-respect, respect for others, co-operation or communalism, forgiveness, sharing and equality.76 Although the view that remains dominant in scholarship focusing on ubuntu is that the concept promotes values of dignity and equality, it would be unjust to omit mentioning that, paradoxically, ubuntu has also been criticised by some authors as entrenching social ills such as patriarchy and homophobia, which are considered to be repugnant to communalism.77
With regard to "minority shareholder oppression", it is accepted that the conceptualisation of oppressive conduct in corporate law largely depends on judicial construction based on the peculiar merits of each case.78 Generally speaking, oppressive conduct by shareholders has been described as any conduct that is coercive and abusive.79 The common judicially-constructed definition of oppressive conduct was articulated in Scottish Co-operative Wholesale Society Ltd v Meyer.80 In the case, oppressive conduct was considered to be "conduct that is burdensome, harsh and wrongful, a visible departure from the standards of fair dealing and an abuse of power which results in an impairment of confidence in the probity with which the company's affairs are being conducted".81 Another far-reaching definition of oppressive conduct was provided in Elder v Elder & Watson,82 where the opinion was expressed that the conduct in question should indicate a "departure from the standards of fair dealing and a
violation of the conditions of fair play on which every shareholder who entrusts his money to a company is entitled to rely".83
83 For an application of this test in South African case law, see Aspek Pipe Co Ltd v Mauerberger 1968 1 SA 517 (C).
84 Aspek Pipe Co Ltd v Mauerberger 1968 1 SA 517 (C). See the discussion in Delport et al Henochsberg on the Companies Act 570.
85 Barnard v Carl Greaves Brokers (Pty) Ltd 2008 3 SA 663 (C); McMillan v Pott 2011 1 SA 511 (WCC).
86 There are instances particularly in privately-owned companies where the oppression of minority shareholders can be perpetuated by directors. See s 161(3)(c) of the Companies Act, which empowers the petitioner to allege that the "powers of a director" are being or have been used in a prejudicial manner.
87 Grancy Properties Limited v Manala 2013 3 All SA 111 (SCA); Re Cumana Ltd (1986) 2 BCC 99 453.
88 Omar v Inhouse Venue Technical Management (Pty) Ltd 2015 3 SA 146 (WCC).
The ascertainment of minority shareholder oppression in litigated cases remains a difficult task. Equally cumbersome is the task of compiling an exhaustive list of oppressive acts against shareholders, due to their multi-faced manifestations. An analysis of case law has provided a starting point for the classification of certain acts as oppressive conduct, however. Actions which have been identified as oppressive both in South Africa and in other jurisdictions include but are not limited to the following activities by majority shareholders:
• majority shareholders exercising voting power to deliberately exclude a minority shareholder from participating in the affairs of the company;84
• where the minority shareholders have entered into an association upon the understanding that each of them will participate in the management of the company, the majority using their voting power to exclude a member from participating in management without giving him an opportunity to remove his capital on reasonable terms;85
• majority shareholders or directors86 awarding unjustifiable excessive financial benefits to themselves;87
• majority shareholders diverting business to a group of companies in which they have an interest;88
• majority shareholders refusing to accept an offer for the purchase of the business when the minority shareholder considers the sale to be a
viable option in view of the operational difficulties the business is encountering;89
• majority shareholders altering the company's articles of association to provide for the compulsory expropriation of a minority shareholder who refuses to sell his shares to his majority counterparts;90 and
• the company's withholding dividends when the payment thereof on certain shares is provided in terms of a special clause in the company's memorandum of incorporation.91
89 Gatenbay v Gatenbay 1996 3 SA 118 (E).
90 Brown v British Abrasive Wheel Co Ltd [1919] 1 Ch 290. These are normally referred to as "squeeze out" transactions and are often regarded as "fraud on the minority".
91 Wambo Coal (Pty) Ltd v Sumiseki Materials Co Ltd [2014] NSWCA 326.
92 O'Neill v Phillips (1991) 1 WLR 1092.
93 The general difficulty in dividing the transactions in terms of the criterion provided in O'Neill v Phillips (1991) 1 WLR 1092 is acknowledged in this discussion, as the transactions are closely related to each other and seem to exhibit overlapping unfair characteristics.
In O'Neil v Phillips92 the court made a persuasive observation which appears to be still useful in classifying purportedly unfair commercial acts. Lord Hoffmann expressed the opinion that "unfairness may consist in [either] a breach of the rules or in using the rules in a manner which equity would regard as contrary to good faith". From the given examples and in my opinion, self-dealing acts such as directors awarding themselves excessive financial benefits and the diversion of business to a company in which the majority shareholders have an interest characterise a blatant breach of the rules of corporate law. Concomitantly, the other examples typify to some extent a manipulation of the rules of corporate law to further a mala fide purpose.93 The above submissions will be supported later in the discussion as I focus on the most common methods used to perpetuate shareholder oppression.
5 Fitting ubuntu into the judicial interpretation of "shareholder oppression"
Before drawing a nexus between ubuntu and the interpretation of the remedy for oppression, may I spare a moment to comment on the synergy between corporate law and some principles of constitutional law. The foregoing legal exploration delivers both a starting point and a solid understanding on how ubuntu can be infused in the interpretation of the remedy, as I shall explain later. It was alleged in the introduction of this article that corporate law in the past escaped thorough constitutional
scrutiny.94 This can perhaps be blamed on the private nature of corporate law. Corporate law is traditionally understood to institute a system of private ordering95 starting from its incorporation of the business enterprise which undoubtedly appears to be a private organisation. Moreover, corporate law provides the basic rules, also of a private nature, which determine how the enterprise functions.
94 See the introduction of this article in para 1.
95 "Private ordering" can be defined as the process of establishing social norms by parties involved in any regulated activity without the involvement of the state.
96 This is because of its private nature, as explained in the text.
97 Section 8 of the Constitution of the Republic of South Africa, 1996 (the Constitution). The provision reads that "[a] provision of the Bill of Rights binds … a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the rights and the nature of that juristic person".
98 Section 8(4) of the Constitution. See, for example, Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A); Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 4 SA 293 (A), where the right to privacy as applicable to juristic persons was upheld. Also, in Manong & Associates (Pty) Ltd v City of Cape Town 2007 4 All SA 1452 (C), where the plaintiff's cause of action was based on alleged unfair discrimination against it as a juristic person.
99 That is, the shareholders.
100 Whether one views the company as property or as a contract also determines the interpretation of corporate law.
101 The above argument invites a horizontal application of the Bill of Rights to protect the property rights of shareholders as parties to private commercial relationships.
102 See s 7(a) of the Companies Act.
In South Africa, the traditional detachment96 of corporate law from constitutional interpretation appears to be disappearing. Primarily, the Bill of Rights in the Constitution is binding on juristic persons,97 which include companies. The resultant legal implication of this arrangement is that it extends the same protection of some fundamental rights to juristic persons as it does to natural persons.98 A corresponding obligation also arising from the same constitutional provision is that companies, although they are private persons, are impliedly implored to uphold constitutionally-protected rights, be they the rights of individuals who interact with the entity, or of members99 of it. It is my opinion in this contribution that whether South African jurists view the corporate firm in terms of the property theory or the contractual theory,100 the Bill of Rights remains central to the protection of the fundamental corporate rights of shareholders.101 Lastly, an additional legal development promoting constitutional inroads into South African corporate law is that the Companies Act itself is aligned to the Constitution as the supreme law in South Africa.102
5.1 Ubuntu and the conceptualisation of "shareholder oppression" from a property theory perspective
It is trite that if the company is viewed in terms of the property theory, the shareholder is a legal subject who bears property rights. Such property rights also find protection in terms of the principles of constitutional law. As a result, any corporate transaction that dispossesses the shareholder of basic property rights, specifically ownership, must be treated with suspicion. With reference to case law on shareholder oppression, I now turn to some prominent techniques used by majority shareholders to strip their minority counterparts of property ownership in the firm. I will conclude by arguing that apart from their being in clear breach of primarily corporate law and secondarily constitutional law, such methods of dispossession conflict with the communitarian ethics or morals that underlie ubuntu.
The common method of dispossessing minority shareholders of their property interests in a company is through "tunneling", which has also been regarded as oppressive conduct in terms of the remedy for oppression. The practice undoubtedly amounts to the theft of corporate assets, which can be the company's cash flow, its physical assets or its equity.103 Tunneling is the transfer of resources out of the company to the benefit of the controlling shareholder,104 literally leaving minority shareholders as owners of an "empty shell". Tunneling happens in various forms, such as shareholders siphoning off resources from the company by awarding themselves unjustifiably exorbitant salaries or benefits. In the South African case of Grancy Property Limited v Manala,105 a case of minority shareholder oppression was successful after majority shareholders, being also directors of the company, plundered its financial resources. As its cause of action, Grancy Property Ltd alleged that Manala and Ginwala, both majority shareholders and directors in Seena Marena Investments (Pty) Ltd in which the former held minority equity, made unauthorised hefty payments to themselves and other individuals connected to them. The payments which were disguised as "director remuneration", "surety fees" and "auditors' remuneration" had the effect of denying Grancy Property Ltd profit entitlements as one of the minority shareholders.
103 See the classification of assets that can be tunneled in Atanasov, Black and Ciccotello 2011 J Corp L 1.
104 Johnson et al 2000 Am Econ Rev 22.
105 Grancy Properties Limited v Manala 2013 3 All SA 111 (SCA); also see Re London School of Electronics Ltd [1986] Ch 211.
Another tunneling method employed by majority shareholders is establishing a new company where the minority shareholder has no interest and then transferring the company's assets or business to the new company
and perhaps dissolving the old company. In Omar v Inhouse Venue Technical Management (Pty) Ltd,106 the oppression of minority shareholders consisted in the directors of Inhouse Venue Technical Management using their positions to divert business to other companies, the Greenhouse Group of Companies in which they had vested interest. The directors had also orchestrated a steep increase in rental amounts which Venue Technical Management was paying for using facilities belonging to the Greenhouse Group of Companies.
106 Omar v Inhouse Venue Technical Management (Pty) Ltd 2015 3 SA 146 (WCC); also see Re Little Olympian Each Ways Ltd (No 3) [1995] 1 BCLC 636; Re Full Cup International Trading Ltd [1995] BCC 682.
107 De Villiers v Kapela Holdings (Pty) Ltd 2016 ZAGPJHC 278 (14 October 2016).
108 Walton 2007 http://www.michaelwalton.info/wp-content/uploads/2011/08/Corporate-governance-and-agency.pdf.
109 Metz 2007 Journal of Political Philosophy 324.
The other method which does not amount to tunneling per se but is rather a dispossession of the property of a minority shareholder, is the termination by majority shareholders of the minority shareholder's contract of employment, despite his having perhaps invested in the establishment of the company, perhaps by sacrificing personal assets. This happens especially in private companies where someone can be both a shareholder and an employee of the firm. In De Villiers v Kapela Holdings (Pty) Ltd107 a minority shareholder was granted judicial relief, having averred that a retrenchment process had been initiated by the company for the sole purpose of ousting him from it and preventing him from deriving economic benefit from a merger favourable to the company. The interim relief was granted despite the majority shareholders having offered to buy the minority shareholder's shares at what they considered to be a fair value.
Tunneling has been classified as a "moral hazard"108 due to how it hurts the interests of minority shareholders. It is the negative effects of tunneling which invite its assessment in terms of the provisions of ubuntu. Professor Thaddeus Metz, a renowned philosopher, makes crucial observations in one of his writings which I find pertinent in judging tunneling practices in terms of the values that underlie ubuntu. Metz identifies what he terms "moral judgments that are commonly accepted by both adherents of ubuntu and Western people in modern, industrialised, constitutional democracies".109 The author proceeds to cite acts such as murder, rape, deception, theft, violation of trust and discrimination, which he describes as being "uncontroversially pro tanto immoral" be it in African or Western societies.110 Considering the earlier description of tunneling as theft perpetuated against fellow shareholders with the result of dispossessing them of their property, the assumption that tunneling is not only a corporate
governance ill but also a social ill that is repugnant to ubuntu hereby finds support. The practical way to fit tunneling into the precept of ubuntu is to construe it as a delict committed against a fellow shareholder who to some extent cannot be separated from the broader society. In terms of delictual law, the wrongfulness of a delict lies in its being boni mores, meaning that it conflicts with public policy that is the prevailing convictions of society regarding what is right or wrong.111
111 Neethling, Knobel and Potgieter Law of Delict 40.
113 De Villiers v Kapela Holdings (Pty) Ltd 2016 ZAGPJHC 278 (14 October 2016) para 78.
114 Allen Right to Property 111.
The approach of the court in De Villiers v Kapela Holdings (Pty) Ltd112 in granting relief in terms of section 163 of the Companies Act to a shareholder who alleged unfair ousting from the company also mirrors ubuntu principles. It came to the attention of the court that the petitioning shareholder had, together with other members of the companies, sacrificially forfeited drawing salaries from the company for several years after its establishment. The forfeiture of salaries was based on the shareholders' collective hope of deriving benefits in the future. The court rejected the majority shareholders' bid to buy out the minority shareholder, basing its decision on an argument that indirectly buttresses the communitarian and emphatic elements of ubuntu. Van der Linde J observed that:
In response then, to the respondents' central submission, there is in my view no principle of fairness, derived from the larger concept of majority rule in corporate law, which compels a court always to honour a majority offer to buy out a minority, provided that the price was right, and irrespective of the circumstances. And here, as pointed out, the circumstances are two-fold: first, the common cause background that the shareholders all sacrificed in the early days so as to benefit in the later years, yet to come, and second the retrenchment process, mala fide in its design and application, so as to trigger the deemed offer provisions by means of which to expropriate the applicant's shares at undervalue.
Additionally, in what can be inferred to be a veiled reference to the principles of property entitlements underlying the property theory of the firm, the court held that a prima facie right had been established by the petitioner to protect share value.113 The judicial observation can be interpreted as asserting the perception that a shareholder has a right to protect his shares from any acts that may result in the diminution of their value. Allen notes, however, that the question whether South African courts have no need to refer to the principle of ubuntu in the interpretation of property rights remains to be seen.114
5.2 uBuntu and the conceptualisation of "shareholder oppression" from a contractual theory perspective
The contractual theory of the firm starts with an assumption that all the constituents of the firm are in a contractual relationship. Such constituents include shareholders of the company, who are also viewed as bearing contractual responsibilities towards one another. It follows that any conduct perpetuated by a shareholder against a fellow counterpart becomes a violation of contractual duties assumed by the shareholder under the corporate contract. When interpreted in accordance with the contractual theory of the company, the remedy for oppression is some form of cure for the breach of a contractual relationship.
The interpretation of the oppression remedy in terms of contractual principles is not a new phenomenon in the scholarship of corporate law. In Fulton v Callahanyn,115 in applying the oppression remedy where the plaintiff alleged oppressive conduct perpetuated because of a "squeeze-out" transaction, Justice Houston of the Supreme Court of Alabama remarked that:
115 Fulton v Callahanyn 621 So 2d 1235 (Ala 1993).
116 Means 2011 Fordham L Rev 1161.
117 Also see Riley MLR 782 linking the oppression remedy as formerly provided under s 459 of the Companies Act, 1985 in the United Kingdom to contractual interpretation.
Corporate law is a form of contract law; and [squeeze out] should be a contractual action, because the minority shareholders' injuries flow from a breach of an implied contract the behavior of the majority shareholders (officers, directors, etc) violates the reasonable expectations of the minority shareholders that is generated by the business relationship which the contract created.
Likewise, Professor Benjamin Means of the University of South Carolina presents what he labels as the "justification for judicial protection of vulnerable minority shareholders"116 in terms of the principles of contractual.117 I will expound the author's argument in detail owing to its persuasiveness to my submission at this point of the discussion. Means observes that the standard law principles and economics assume that shareholders can protect themselves from prejudices by bargaining against opportunistic behaviour by controlling shareholders before investing in a firm.
According to Means, because of the stated assumption, courts offer a remedy for shareholder oppression on the notion that controlling shareholders owe fiduciary duties to the minority or must honour the
minority's reasonable expectations.118 The author finds the articulated legal position wrong on two grounds; the first being that shareholders often fail to anticipate and comprehensively bargain against various forms of oppression that may arise against them in the future. Secondly, Means avers that even if a shareholder may have due diligence in the bargaining process to protect his interests, such a shareholder can still fall victim to oppressive conduct by fellow shareholders.119
120 See Du Plessis 2019 PELJ 1-25; Hutchison 2019 Journal of Commonwealth Law 227-271.
121 In Makate v Vodacom (Pty) Ltd 2016 4 SA 121 (CC) para 102 it was stated that good faith cannot be divorced from the serious intention of the contractual parties to reach a consensus in their negotiations.
122 Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman 1997 4 SA 302 (SCA) 318-319.
As a panacea to the shortcomings of shareholder bargaining power, Means proposes the application of the principles of contractual equity in the interpretation of the oppression remedy to attain justice for an affected shareholder. Central to Means' argument is that apart from oppressive conduct being hurtful to targeted shareholders; it also exhibits corporate opportunism which can be controlled by a strict interpretation of the relationship between shareholders as a contract governed by the principles of good faith. It is from the notion of good faith in contractual relationships that ubuntu finds its entry into the interpretation section 163 of the Companies Act. Considering the intricate connection between ubuntu and constitutionalism in South Africa, it becomes inevitable that the application of the concept of ubuntu in the shareholder contract subjects such a corporate contract to constitutional scrutiny.
The potency of ubuntu as a value that advances the law of contract in South Africa has been emphasised in the country's courts and by legal scholars.120 It has been underscored to be an indispensable legal assumption in the interpretation of the law of contract in South Africa, that contracts are concluded in good faith.121 In Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman,122 the concept of good faith was considered to enhance the functionality of contractual law by giving effect to the public's perception of fairness or reasonableness in the adjudication of a contractual matter. In a manner that signals the development of contractual law beyond the abstraction of common law, the Constitutional Court in South Africa has argued that the duty of any contractual party to negotiate contractual
relationship in good faith ought to be informed by public policy considerations such as ubuntu.123
123 Everfresh Market Virginia (Pty) v Shoprite Checkers (Pty) Ltd 2011 1 SA 256 (CC) para 72.
124 See Brand 2009 SALJ 73 stating that "… in South African legal parlance, the concept of bona fides or good faith has acquired a meaning wider than mere honesty or the absence of subjective bad faith [but] includes other abstract values such as justice, reasonableness, fairness and equity".
125 Mupangavanhu" 2015 De Jure 116. Also see Mupangavanhu 2011 Speculum Juris 148.
126 Barkhuizen v Napier 2007 5 SA 323 (CC) para 51.
uBuntu does not only buttress the concept of good faith at the conclusion of the contract but it has also been extended to the establishment of principles of contractual equity or fairness124 regarding the enforcement of contractual clauses. Mupangavanhu notes that by developing and expanding concepts such as good faith and ubuntu, "unfairness and inequality [in contractual relationships] will be ameliorated".125 To some extent, ubuntu provides a judicial standard on how parties to a contractual relationship ought to treat one another. In a striking example, in Barkhuizen v Napier126 Ngcobo J held that it would be contrary to public policy as informed by ubuntu to enforce a time limitation clause in a contract that did not afford the person bound by the contract an adequate and fair opportunity to seek judicial redress. The learned judge acknowledged that public policy necessitated the execution of simple justice between individuals. Also, in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd, Moseneke J acknowledged the persuasiveness of the argument that it was contrary to ubuntu where a lessor to a contract of lease chose not to negotiate with the lessee on the possibility of renewing the contract when the likelihood of the renewal was provided in terms of a contractual clause.127
Turning to the question of how certain oppressive shareholder acts can be regarded as conflicting with ubuntu in the purview of the contractual interpretation of the remedy for oppression, it is paramount that such shareholder acts must openly exhibit contractual bad faith. To begin with, it can be assumed that any shareholder entering into a corporate contractual relationship has an expectation to be treated fairly, to rightfully participate in its affairs or to profit from it. Any conduct denying the shareholder the aforesaid privilege to some extent "runs afoul of the implied covenant of good faith and fair dealing implied in every contract".128
There is a plethora of case law in South Africa where the remedy for oppression was upheld by the courts to provide relief to shareholders from
conduct that is manifestly mala fide. For example, in Aspek Pipe Co Ltd v Mauerberger,129 which was decided under then section 111 bis of Companies Act 1926 that provided the oppression remedy, the applicant had been removed not only as a director of the company but also from his position as its rental and supervision agent. The applicant had apparently been replaced by an agent who was under the control of the respondent and the new agent's remuneration had been increased regardless of his being incompetent. Also, in Livanos v Swatzberg,130 the applicant alleged that the respondent formed another company to compete with the company in which the parties were fellow shareholders. It was further alleged that the respondent delayed some tenders available to the company in a bid to award them to his newly formed company. The applicant also averred that the respondent attempted to persuade an employee of the former company to join the respondent's newly formed firm. In Omar v Inhouse Venue Technical Management (Pty) Ltd,131 bad faith manifested in the directors of the respondent company's prejudicing the firm and its shareholders by diverting business opportunities to another company in which they had an interest.
129 Aspek Pipe Co Ltd v Mauerberger 1968 1 SA 517 (C).
130 Livanos v Swartberg 1962 4 SA 395 (W).
131 Omar v Inhouse Venue Technical Management (Pty) Ltd 2015 3 SA 146 (WCC).
132 Grancy Properties Limited v Manala 2013 3 All SA 111 (SCA) para 32.
In Grancy Property Limited v Manala, one of the arguments that persuaded the court to grant the applicant relief under the oppression remedy was that the directors had acted "in bad faith and with the fraudulent intention to deceive and prejudice" when they made unathorised payments to themselves.132 Apart from the conduct of the directors being in bad faith and in my view contrary to the contractual equity connotations of ubuntu, the manner in which the directors handled the complainant's grievance was also castigated by the court. The court observed that there had not been a demonstrable attempt by the respondents to address the Grancy Property Limited's protest against the unauthorised payments. To some extent, the failure by respondents to address the complainant's query flouted the good faith required in dispute resolution in terms of ubuntu.
Commenting on the role of ubuntu in conflict resolution, Johansen observes that; "[t]he purpose of [ubuntu] is to work toward a situation that acknowledges a mutually beneficial condition. Its emphasis is on cooperation with one another for the common good as opposed to
competition that could lead to grave instability within any community".133 Similarly, in Afriforum v Malema,134 Lamont J expressed the opinion that:
133 Johansen 2015 http://www.humiliationstudies.org/documents/JohaansenProject
DescriptionUbuntu.pdf 4.
134 Afriforum v Malema 2011 6 SA 240 (EqC) para 18.
136 See Absa Bank Limited v Eagle Creek Investments 490 (Pty) Limited 2014 ZAWCHC 81 (28 May 2014) para 25.
137 See Sammel v President Brand Gold Mining Co Ltd 1969 3 SA 629 (A) 678.
138 See emphasis in Gundelfinger v African Textile Manufacturers Ltd 1939 AD 314 326.
Ubuntu is recognised as being an important source of law within the context of strained or broken relationships amongst individuals or communities and as an aid for providing remedies which contribute towards more mutually acceptable remedies for the parties in such cases. Ubuntu is a concept which…dictates a shift from confrontation to mediation and conciliation; … [ubuntu] favours the re-establishment of harmony in the relationship between parties.135
The above observations qualify the presumption that under company law, ubuntu may present an opportunity of having shareholder disputes resolved in a manner that does not damage the entire company. Instances where shareholders are compelled to resort to acrimonious litigation can somehow be avoided.
6 Possible criticism and responses
I find it appropriate to identify and address two possible criticisms that may be raised against this argument. The first one is that the extension of ubuntu to shareholder relations may imply that majority shareholders owe fiduciary duties to their minority counterparts. This view remains rejected under South African corporate law.136 I too argue that majority shareholders do not owe any fiduciary duty to minority shareholders. The emphasis on the application of ubuntu in shareholder relations is purely for the promotion of equity and fair dealing among shareholders. Both attributes can be considered important to South African corporate governance, particularly when one considers the alignment of the country's corporate law with its constitutional principles.
Another criticism is that the submissions made in this article may sound at odds with majority rule, the latter being a fundamental principle of corporate law. It is correct that majority rule remains orthodox under South African corporate law. Nevertheless, the courts have emphasised that majority shareholder decisions may be upheld only if they "are arrived at in accordance with the law".137 While the proprietary right of shareholding may be exercised in the best interest of the shareholder,138 majority shareholders cannot be permitted to wilfully prejudice their minority counterparts through
the employment of unlawful methods. The court in De Villiers v Kapela Holdings (Pty) Ltd139 expressed its reluctance to endorse a decision taken by majority shareholders which met certain procedural requirements but fell short of other considerations of equity.
The statutory remedy for unfair prejudice, section 163 of the Companies Act, remains a potent legal weapon for minority shareholders in South Africa. It follows that the entrance of ubuntu into the law of contract presents a starting point for a possible extension of the concept in the interpretation of the remedy. An innovative interpretation of section 163 of the Companies Act which incorporates the concept of ubuntu is necessitated by the fact that shareholder relations remain a revered feature of the corporate firm. It is hereby submitted that the values embodied in ubuntu can offer guidance in defining what can be viewed as fair shareholder resolutions in pursuance of good corporate governance.
Abbey Insightful Study of the Oppression Remedy
Abbey NA An Insightful Study of the Oppression Remedy under South African and Canadian Corporate Law (LLM-thesis University of Western Ontario 2012)
Alchian and Demsetz 1972 Am Econ Rev
Alchian A and Demsetz H "Production, Information Costs, and Economic Organization" 1972 Am Econ Rev 777-795
Allen Right to Property
Allen T The Right to Property in Commonwealth Constitutions (Cambridge University Press Cambridge 2000)
Anyadiegwu Minority Shareholder Remedies
Anyadiegwu OH Minority Shareholder Remedies in Corporate Law (LLM mini-thesis University of British Columbia 1991)
Armour 2020 Oxford Review of Economic Policy
Armour J "Shareholder Rights" 2020 Oxford Review of Economic Policy 314-340
Atanasov, Black and Ciccotello 2011 J Corp L
Atanasov V, Black B and Ciccotello C "Law and Tunneling" 2011 J Corp L 1-49
Bachmann et al Regulating the Closed Corporation
Bachmann G et al Regulating the Close Corporation (De Gruyter Berlin 2014)
Bahls 1990 J Corp L
Bahls SC "Resolving Shareholder Dissension: Selection of the Appropriate Equitable Remedy" 1990 J Corp L 285-338
Berle and Means Modern Corporation and Private Property
Berle AA and Means GC The Modern Corporation and Private Property (Transaction Publishers New Brunswick 1932)
Biney "Historical Discourse on African Humanism"
Biney A "The Historical Discourse on African Humanism: Interrogating the Paradoxes" in Praeg L and Magadla S Ubuntu: Curating the Archive (University of KwaZulu Natal Press Pietermaritzburg 2014) 27-54
Brand 2009 SALJ
Brand FDJ "The Role of Good Faith, Equity and Fairness in the South African Law of Contract: The Influence of the Common Law and the Constitution" 2009 SALJ 71-90
Cassim et al Contemporary Company Law
Cassim F et al Contemporary Company Law (Juta Cape Town 2012)
Chiu 2008-2009 Rich J Global L & Bus
Chiu IHY "The Meaning of Share Ownership and the Governance Role of Shareholder Activism in the United Kingdom" 2008-2009 Rich J Global L & Bus 117-160
Christiansen 2010 J Gender Race & Just
Christiansen E "Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court Authority to Advance Substantive Law" 2010 J Gender Race & Just 575-614
Coase 1937 Economica
Coase R "The Nature of the Firm" 1937 Economica 386-405
Cohen 1991 U Pa J Int'l Bus L
Cohen Z "Fiduciary Duties of Controlling Shareholders" 1991 U Pa J Int'l Bus L 379-410
Committee of Financial Aspects of Corporate Governance Report of the Committee
Committee of Financial Aspects of Corporate Governance Report of the Committee on the Financial Aspects of Corporate Governance (The Committee London 1992)
Davies et al Gower's Principles of Modern Company Law
Davies P et al Gower's Principles of Modern Company Law 8th ed (Sweet and Maxwell London 2008)
Davis 2008 SAJHR
Davis D "Private Law after 1994: Progressive Development or Schizoid Confusion?" 2008 SAJHR 318-329
Delport et al Henochsberg on the Companies Act
Delport P et al Henochsberg on the Companies Act 71 of 2008 (LexisNexis Butterworths Durban 2011)
DTI Guidelines for Corporate Law Reform
Department of Trade and Industry Guidelines for Corporate Law Reform (DTI Pretoria 2004)
Dugar 2010 NLSIR
Dugar RK "Minority Shareholders Buying out Majority Shareholders" 2010 NLSIR 105-110
Dunne 2004 JSIJ
Dunne D "The Position of Quasi-Partnership Type Private Company in Irish Law" 2004 JSIJ 108-143
Du Plessis 2019 PELJ
Du Plessis H "Harmonising Legal Values and uBuntu: The Quest for Social Justice in the South African Common Law of Contract" 2019 PELJ 1-25
Esser Recognition of Various Stakeholder Interests
Esser E Recognition of Various Stakeholder Interests in Company Management (LLD-thesis University of South Africa 2008)
Freeman, Wicks and Harrison Managing for Stakeholders
Freeman RE, Wicks AC and Harrison JS Managing for Stakeholders: Survival, Reputation and Success (Yale University Press New Haven 2007)
Freeman, Wicks and Harrison Stakeholder Theory
Freeman RE, Wicks AC and Harrison JS Stakeholder Theory: The State of the Art (Cambridge University Press Cambridge 2010)
Freeman, Zyglidopoulos and Harrison Strategic Management
Freeman RE, Zyglidopoulos S and Harrison JS Strategic Management: Stakeholder Approach (Cambridge University Press Cambridge 2018)
Friedman Capitalism and Freedom
Friedman M Capitalism and Freedom (University of Chicago Press Chicago 1962)
Friedman 1970 New York Times Magazine
Friedman M "The Social Responsibility of Business is to Increase Its Profits" 1970 The New York Times Magazine 1-6
Gamble and Kelly 2001 Corporate Governance
Gamble A and Kelly G "Shareholder Value and the Stakeholder Debate in the UK" 2001 Corporate Governance 110-117
Garza 1999-2000 St Mary's LJ
Garza JJ "Rethinking Corporate Governance: The Role of Minority Shareholders – A Comparative Study" 1999-2000 St Mary's LJ 615-642
Gower Modern Company Law
Gower LCB Modern Company Law 2nd ed (Stevens London 1957)
Griggs and Snell 1994 QUTLJ
Griggs L and Snell R "Natural Justice: An Alternative Ground for Intervention in Corporate Decision Making?" 1994 QUTLJ 22-34
Hage Stakeholders Concern
Hage M A Stakeholders Concern: Towards an Economic Theory on Stakeholder Governance (Van Gorcum Assen 2007)
Himonga, Taylor and Pope 2013 PELJ
Himonga C, Taylor M and Pope A "Reflections on Judicial Views of Ubuntu" 2013 PELJ 372-424
Hutchison 2019 Journal of Commonwealth Law
Hutchison A "Good Faith in Contract: A Uniquely South African Perspective" 2019 Journal of Commonwealth Law 227-271
Ikhariale 2001 J Afr L
Ikhariale M.A "The Doctrine of Legitimate Expectations: Prospects and Problems in Constitutional Litigation in South Africa" 2001 J Afr L 1-12
IoDSA King II
Institute of Directors in South Africa King II Report on Corporate Governance (IoDSA Sandton 2000)
IoDSA King IV
Jensen and Meckling 1976 JFE
Jensen MC and Meckling WH "Theory of the Firm: Management Behavior, Agency Costs and Ownership Structure" 1976 JFE 305-360
Johnson et al 2000 Am Econ Rev
Johnson S et al "Tunneling" 2000 Am Econ Rev 22-27
Keevy "Ubuntu versus the Core Values"
Keevy I "Ubuntu versus the Core Values of the South African Constitution" in Praeg L and Magadla S Ubuntu: Curating the Archive (University of KwaZulu Natal Press Pietermaritzburg 2014) 54-96
Letseka 2014 MJSS
Letseka M "Ubuntu and Justice as Fairness" 2014 MJSS 544-551
Mallin Corporate Governance
Mallin C Corporate Governance 2nd ed (Oxford University Press Oxford 2007)
Mäntysaari Law of Corporate Finance
Mäntysaari P The Law of Corporate Finance: General Principles and EU Law: Volume I: Cash Flow, Risk, Agency, Information (Springer Berlin 2010)
Means 2011 Fordham L Rev
Means A "A Contractual Approach to Shareholder Oppression Law" 2011 Fordham L Rev 1161-1211
Metz 2007 Journal of Political Philosophy
Metz T "Toward an African Moral Theory" 2007 Journal of Political Philosophy 321-341
Miller 1992-1993 Dick L Rev
Miller SK "Should the Definition of Oppressive Conduct by Majority Shareholders Exclude a Consideration of Ethical Conduct and Business Purpose?" 1992-1993 Dick L Rev 227-254
Miller 1999 Am Bus LJ
Miller SK "How should UK and US Minority Shareholder Remedies for Unfairly Prejudicial or Oppressive Conduct be Reformed?" 1999 Am Bus LJ 579-632
Mokgoro 1998 PELJ
Mokgoro Y "Ubuntu and the Law in South Africa" 1998 PELJ 1-11
Mokgoro "Ubuntu as a Legal Principle"
Mokgoro Y "Ubuntu as a Legal Principle in an Ever-Changing World" in Diedrich F (ed) Ubuntu, Good Faith and Equality: Flexible Legal Principles in Developing Contemporary Jurisprudence (Juta Cape Town 2011) ch 1
Mongalo Corporate Law and Corporate Governance
Mongalo T Corporate Law and Corporate Governance: A Global Picture of Business Undertakings in South Africa (New Africa Education Claremont 2003)
Morojane 2010 PELJ
Morojane T "The Binding Effect of the Constitutive Documents of the 1973 and 2008 Companies Acts of South Africa" 2010 PELJ 171-189
Mostert et al Principles of the Law of Property
Mostert H et al The Principles of the Law of Property in South Africa (Oxford University Press Cape Town 2010)
Munyaka and Motlhabi "Ubuntu and its Socio-Moral Significance"
Munyaka M and Motlhabi M "Ubuntu and its Socio-Moral Significance" in Murove FM (ed) African Ethics: An Anthology of Comparative and Applied Ethics (University of KwaZulu-Natal University Press Scottsville 2009) 63-84
Mupangavanhu 2011 Speculum Juris
Mupangavanhu B "Yet another Missed Opportunity to Develop the Common Law of Contract? An Analysis of Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd [2011] ZACC 30" 2013 Speculum Juris 149-171
Mupangavanhu 2015 De Jure
Mupangavanhu Y "Fairness as a Slippery Concept: The Common Law of Contract and the Consumer Protection Act 68 of 2008" 2015 De Jure 116-135
Ndiweni "Towards a Theoretical Framework of Corporate Governance"
Ndiweni E "Towards a Theoretical Framework of Corporate Governance: Perspectives from Southern Africa" in Tsamenyi M and Uddin S (eds) Corporate Governance in Less Developed and Developed Economies (Emerald Bingley 2008) 335-357
Neethling, Knobel and Potgieter Law of Delict
Neethling J, Knobel JC and Potgieter J Law of Delict 7th ed (LexisNexis Durban 2015)
Nicolaides 2014 J Soc Sci
Nicolaides A "Utilizing Ubuntu to Inform Chief Executive Officer Thinking on Corporate Social Responsibility and Codes of Ethics in Businesses" 2014 J Soc Sci 17-25
Njoya Property in Work
Njoya W Property in Work: The Employment Relationship in the Anglo-American Firm (Ashgate Aldershot 2007)
Nussbaum 2003 Perspectives
Nussbaum B "African Culture and Ubuntu: Reflections of a South African in America" 2003 Perspectives 1-12
O'Neal 1987 Clev St L Rev
O'Neal H "Oppression of Minority Shareholders: Protecting Minority Rights" 1987 Clev St L Rev 121-146
Quinot 2011 SALJ
Quinot G "Transformative Legal Education" 2012 SALJ 411-432
Riley 1992 MLR
Riley CA "Contracting Out of Company Law: Section 459 of the Companies Act 1985 and the Role of the Courts" 1992 MLR 782-802
Rossouw, Van der Walt and Malan 2002 Journal of Business Ethics
Rossouw GJ, Van der Walt A and Malan DP "Corporate Governance in South Africa" 2002 Journal of Business Ethics 289-302
Talagala 2009 Bar Association Law Journal
Talagala CS "The Scope of the Doctrine of Legitimate Expectation as a Ground for Judicial Review of Administrative Action" 2009 Bar Association Law Journal 1-17
Thomas Legitimate Expectations
Thomas R Legitimate Expectations and Proportionality in Administrative Law (Hart Oxford 2000)
Van der Walt Property and Constitution
Van der Walt A.J Property and Constitution (PULP Pretoria 2012)
Van der Walt and Pienaar Introduction to the Law of Property
Van der Walt AJ and Pienaar GJ Introduction to the Law of Property (Juta Cape Town 2016)
Valesco 2010 U Ill L Rev
Valesco J "Shareholder Ownership and Primacy" 2010 U Ill L Rev 897-956
Valesco 2006-2007 UC Davis L Rev
Valesco J "The Fundamental Rights of the Shareholder" 2006-2007 UC Davis L Rev 407-468
Vutt 2010 Juridica International
Vutt M "Systematics of Shareholder Remedies: Origins and Developments" 2010 Juridica International 188-198
Absa Bank Limited v Eagle Creek Investments 490 (Pty) Limited 2014 ZAWCHC 81 (28 May 2014)
Ackerman v United Cricket Board 2004 25 ILJ 353 (CCMA)
Afriforum v Malema 2011 6 SA 240 (EqC)
Alvillar v National Union of Mineworkers 1999 20 ILJ 419 (CCMA)
Aspek Pipe Co Ltd v Mauerberger 1968 1 SA 517 (C)
Automatic Self-Cleansing Filter Syndicate Co Ltd v Cuninghame [1906] 2 Ch 34
Barkhuizen v Napier 2007 5 SA 323 (CC)
Barnard v Carl Greaves Brokers (Pty) Ltd 2008 3 SA 663 (C)
Ben-Tovim v Ben-Tovim 2001 3 SA 1074 (C)
Bhe v Magistrate Khayelitsha 2004 2 SA 544 (C)
Bradbury v English Sewing Cotton Co Ltd [1923] AC 744 (HL)
Brink v Mampundi Mining (Pty) Ltd 2003 5 SA 221 (T)
Brown v British Abrasive Wheel Co Ltd [1919] 1 Ch 290
City of Johannesburg v Rand Properties (Pty) Ltd 2006 6 BCLR 728 (W)
Cooper v Boyes 1994 4 SA 521 (C)
De Villiers v Kapela Holdings (Pty) Ltd 2016 ZAGPJHC 278 (14 October 2016)
Dikoko v Mokhatla Dikoko v Mokhatla 2006 ZACC 10 (3 August 2006); 2006 6 SA 235 (CC)
Ebrahimi v Westbourne Galleries Ltd [1973] AC 360
Eerste Nasionale Bank van Suidelike Afrika Bpk v Saayman 1997 4 SA 302 (SCA)
Elder v Elder & Watson 1952 SC 49
Etkind v Hicor Trading Ltd 1999 1 SA 111 (W)
Everfresh Market Virginia (Pty) v Shoprite Checkers (Pty) Ltd 2011 1 SA 256 (CC)
Financial Mail (Pty) Ltd v Sage Holdings Ltd 1993 2 SA 451 (A)
Fulton v Callahanyn 621 So 2d 1235 (Ala 1993)
Gatenbay v Gatenbay 1996 3 SA 118 (E)
Gien v Gien 1979 2 SA 1113 (T)
Grancy Properties Limited v Manala 2013 3 All SA 111 (SCA)
Gundelfinger v African Textile Manufacturers Ltd 1939 AD 314
Jajbhay v Cassim 1939 AD 537
Janit v Motor Industry Fund Administrators (Pty) Ltd 1995 4 SA 293 (A)
Livanos v Swartberg 1962 4 SA 395 (W)
Makate v Vodacom (Pty) Ltd 2016 4 SA 121 (CC)
Manong & Associates (Pty) Ltd v City of Cape Town 2007 4 All SA 1452 (C)
Maritime Industries Trade Union of South Africa v Portnet 2000 21 ILJ 2519 (CCMA)
Marshall v Marshall (Pty) Ltd 1954 3 SA 571 (N)
McMillan v Pott 2011 1 SA 511 (WCC)
NR Murty v Industrial Development Corporation (1977) 47 Comp Cas 389 Orissa
Omar v Inhouse Venue Technical Management (Pty) Ltd 2015 3 SA 146 (WCC)
O'Neill v Phillips (1991) 1 WLR 1092
Pender v Lushington (1977) 6 ChD 70
Price Waterhouse Coopers Inc v National Potato Co-operative Ltd 2004 6 SA 66 (SCA)
Rates Action Group v City of Cape Town 2004 12 BCLR 1328 (C)
Re Cumana Ltd (1986) 2 BCC 99 453
Re Full Cup International Trading Ltd [1995] BCC 682
Re Little Olympian Each Ways Ltd (No 3) [1995] 1 BCLC 636
Re London School of Electronics Ltd [1986] Ch 211
Re Saul & Sons 1995 1 BCLC 14
Russell v Northern Bank Development Corporation [1992] 1 WLR 588 (HL)
Sammel v President Brand Gold Mining Co Ltd 1969 3 SA 629 (A)
Sasfin (Pty) Ltd v Beukes 1989 1 SA 1 (A)
Scottish Co-operative Wholesale Society Ltd v Meyer [1959] AC 324
South African Broadcasting Corporation Limited v Mpofu 2009 4 All SA 169 (GSJ)
South African Rugby Players Association on behalf of Bands v South African Rugby (Pty) Ltd 2005 26 ILJ 176 (CCMA)
Tigon Ltd v Bestyet Investments (Pty) Ltd 2001 4 SA 634 (N)
Wambo Coal (Pty) Ltd v Sumiseki Materials Co Ltd [2014] NSWCA 326
Wood v Odessa Waterworks Co (1889) 42 ChD 636
Companies Act 61 of 1973
Companies Act, 1985 (UK)
Armour 2005 http://www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/working-papers/wp299.pdf
Armour J 2005 The Proprietary Foundations of Corporate Law http://www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/working-papers/wp299.pdf accessed 1 February 2021
Johansen 2015 http://www.humiliationstudies.org/documents/Johaansen ProjectDescriptionUbuntu.pdf
Johansen LA 2015 African Solutions to African Intergroup Conflicts: Ubuntu and Humiliation http://www.humiliationstudies.org/documents/Johaansen ProjectDescriptionUbuntu.pdf accessed 1 February 2021
Law Dictionary Date Unknown https://dictionary.thelaw.com/public-policy/
The Law Dictionary Date Unknown Public Policy https://dictionary.thelaw.com/public-policy/ accessed 1 February 2021
Kriebaum and Schreuer 2007 http://www.univie.ac.at/intlaw/ wordpress/pdf/88_concept_property.pdf
Kriebaum U and Schreuer S 2007 The Concept of Property in Human Rights Law and International Investment Law http://www.univie.ac.at/intlaw/word
press/pdf/88_concept_property.pdf accessed 1 February 2021
Shkolnikov 2006 http://www.mafhoum.com/press10/290E19.pdf
Shkolnikov A 2006 Protecting Minority Shareholders in Emerging Markets http://www.mafhoum.com/press10/290E19.pdf accessed 1 February 2021
Walton 2007 http://www.michaelwalton.info/wp-content/uploads/2011/ 08/Corporate-governance-and-agency.pdf
Walton M 2007 Corporate Governance and Agency Problems: Consequences for Efficiency and Equity http://www.michaelwalton.info/wp-content/uploads/2011/08/Corporate-governance-and-agency.pdf accessed 1 February 2021
Am Bus LJ
American Business Law Journal
Am Econ Rev
Clev St L Rev
Cleveland State Law Review
Dick L Rev
Dickinson Law Review
Department of Trade and Industry
Fordham L Rev
Fordham Law Review
J Afr L
Journal of African Law
J Corp L
Journal of Corporation Law
Journal of Financial Economics
J Gender Race & Just
Journal of Gender, Race and Justice
J Soc Sci
Journal of Social Sciences
JSIJ
Judicial Studies Institute Journal
MJSS
Mediterranean Journal of Social Sciences
Modern Law Review
NLSIR
National Law School of India Review
PELJ
Potchefstroom Electronic Law Journal
QUTLJ
Queensland University of Technology Law Journal
Rich J Global L & Bus
Richmond Journal of Global Law and Business
SAJHR
South African Journal on Human Rights
SALJ
South African Law Journal
St Mary's LJ
St Mary's Law Journal
UC Davis L Rev
UC Davis Law Review
U Ill L Rev
University of Illinois Law Review
U Pa J Int'l Bus L
University of Pennsylvania Journal of International Business Law


NICE LARGE HALF ACRE LOT IN A COUNTRY SETTING. THIS LOT BACKS UP TO ACREAGE. ALSO AND ADJOINING LOT FOR SALE BY THE SAME OWNER. ALL NEWER HOMES BUILDING TDO THIS AREA. CLOSED TO THE SUNCOAST PARKWAY AND ALL MAJOR SHOPPING. THIS LOT IS ON A PAVED ROAD.


Mixed (14) - 42% of the 14 user reviews in the last 30 days are positive.
Mixed (81) - 56% of the 81 user reviews for this game are positive.
"We love community feedback and suggestions! There are many additions and improvements that we've planned for V.L.A.D.i.K, and being a small team, each comment, forum discussion, gameplay video or stream will be very helpful for us in deciding what to do next.
And many more different small changes.
ATTENTION: The game is made by one person and it is in the early access, bugs and errors are possible!
All events and characters are fictional. Any coincidences with reality are random.
In an alternative reality in Russia, a president came to power called "Navalny"
You are a regular guy. Your name is Vlad and you are the oppositionist. Being living in Chipushilov, a typical city of the Zhiguli region, you must protect your small homeland. Your task is to find the Navaln headquarters and try to destroy its plans, at the same time helping the population by fulfilling their requests. There is no money for weapons, and you have only two ways: you either get it or you get lead in your face from Navaln or other groups. And only your fate depends on you.
I was inspired by such games as half life 2, mount & blade and Postal 2. I tried to connect all these games and in the end it turned out V.L.A.D.i.K. Buying an army is currently working incomprehensibly, but I'm working on it. The main thing I worked on 70% of the time is optimization and AI. In general, welcome to the Zhiguli region!