The notice required to be sent in terms of section 129 serves not only to inform consumers of their default but also refers consumers to several remedies available under the NCA. Unfortunately, despite its noble goals, section 129 has been controversial from an interpretational perspective. Although section 129 may be considered one of the most significant sections of the NCA, this section is the most ambiguous from a legal point of view.
Creditor participation lies at the heart of South Africa’s business rescue framework under Chapter 6 of the Companies Act 71 of 2008. Yet, until recently, uncertainty surrounded the status and voting rights of post-commencement creditors - those who extend credit, supply goods, or provide services after the commencement of business rescue proceedings. In Mashwayi Projects (Pty) Ltd and Others v Wescoal Mining (Pty) Ltd and Others [2025] ZASCA 5, the Supreme Court of Appeal addressed this ambiguity, holding that all creditors - whether pre- or post-commencement - are entitled to vote on a business rescue plan. This judgment marks a turning point in South African corporate rescue law by embedding commercial realism, constitutional values, and procedural fairness into the interpretation of creditor rights. This article critically examines the implications of the Mashwayi decision, highlighting the Court’s rejection of foreign insolvency models and its endorsement of a stakeholder-driven, constitutionally grounded approach. It argues that the decision enhances the legitimacy of business rescue by affirming the participatory rights of post-commencement creditors in key decision-making areas, including the adoption of rescue plans, practitioner oversight, and the continuation or termination of rescue proceedings. In doing so, the Court paves the way for a more inclusive, resilient, and commercially effective rescue regime tailored to South Africa’s unique legal and socio-economic context.
Across the globe, the siphoning of public funds has become the new normal within the national social fabric and governance structures. It is increasingly common to hear and see that senior state officials are wealthier than some businessmen. While some state officials have been imprisoned for misappropriating public funds, others have evaded accountability because of their allegiance to the system. However, it is nebulous whether the appropriate criminal charge and nomenclature of the offence should be misappropriating public funds or theft. In this article, we revisit the categorisation of this offense and argue from a jurisprudential analysis in Cameroon, Kenya, Nigeria, and South Africa that it is a misnomer to qualify the offense as the misappropriation of public funds. We contend that it should be given the nomenclature it deserves: theft. Even though we acknowledge that the offense is widely referred to as the misappropriation of public funds, we posit differently and firmly so that such categorisation is sugarcoating it and enabling its perpetrators to continue the act without impunity and fear of social stigmatisation. We rely on a social-legal research approach to investigate this issue.
The supremacy of the Constitution requires that its values and principles be complied with to the extent of determining validity. Thus, failure to comply with this injunction renders any law or conduct invalid. Although the values and principles enshrined in the Constitution are largely discussed in the context of public law and private law, these principles and values, of course, also apply to corporate law. This article investigates the impact that constitutional principles have had on the South African corporate legal framework. The primary legislation in this regard is the Companies Act of 2008, which embodies provisions that guarantee respect for the stakeholders’ interests and the Bill of Rights in company operations. Those provisions are complemented by other extant pieces of legislation that recognise that the operational value of the corporate entity extends to all the stakeholders, including the environment.
The article advances the idea that independence is not a characteristic exclusive to the judiciary but also constitutes a defining feature of numerous public bodies whose number and scope of activity have increased in recent years. It offers a comparative analysis leading to the conclusion that the identified aspects of independence of state authorities which do not fall within the legislative or judicial branches, nor within the strict hierarchical structure of the executive one, are sufficient to sustain the argument that these bodies occupy a distinct institutional position. On this basis, the article supports the thesis that they may be regarded as representing a new, “independent” branch of public authority within the constitutional framework.
