2003年-世界发展银行全球_Corporate_Governance_Country_Assessment___Republic_of_South_Africa_20页_582kb

Summary of the Corporate Governance Assessment of South Africa (July 2003)

I. Executive Summary

This report evaluates the corporate governance practices of listed companies in South Africa, focusing on the institutional capacity to ensure compliance and enforcement. The assessment is based on data from December 2001 and highlights ongoing developments, including planned amendments to listing requirements by the JSE in 2003, such as the separation of chairman and CEO roles, compulsory audit and remuneration committees, and a "comply-or-explain" mechanism for the King II code.

South Africa has a well-developed equity market with a market capitalization of 154% of GDP. Listed companies account for 50% of the corporate sector by value. Domestic institutional investors control 36% of total market capitalization and hold 45% of their portfolios in equities. Despite the market's development, institutional investors remain passive in corporate governance matters.

The report outlines three categories of policy recommendations: legislative reform, institutional strengthening, and voluntary/private initiatives. It emphasizes the need to enhance the enforcement powers of the securities regulator, as compliance and enforcement are currently the most significant challenges.

II. Capital Markets and Institutional Framework

• Market Overview: As of December 2001, 537 public companies were listed on the JSE, with a market capitalization of R1,348 billion (USD 160 billion). The JSE is a member-owned self-regulatory organization (SRO) and has a 50% interest in STRATE, which handles clearing and settlement.
• Ownership Structure: Ownership is relatively concentrated, though less so than a decade ago. Mining finance houses have restructured, reducing their dominance. By October 2001, only 9 of the 20 largest listed firms were controlled by a single shareholder block.
• Legal Framework: The Companies Act (1973) governs corporate governance, inspired by British common law. It is administered by the Registrar of Companies, which has limited enforcement capacity. The Financial Services Board (FSB) oversees the insurance, pension, and securities industries, but not issuers.
• Regulatory Developments: Plans to replace the Stock Exchanges Control Act with a Securities Services Bill are underway, expected to be promulgated in late 2003. The JSE also plans to demutualize and seek listing.

III. Review of Corporate Governance Principles

Section I: The Rights of Shareholders

• Principle IA: Shareholders' rights are observed. Companies must register shares, provide financial information, and allow voting at general meetings.
• Principle IB: Shareholders have the right to participate in decisions about fundamental corporate changes. This is largely observed, with shareholder approval required for certain transactions, but recommendations include increasing the quorum for such decisions.
• Principle IC: Shareholders should be informed and able to vote effectively. This is partially observed, as postal and electronic voting are not permitted, and proxy voting is limited. Recommendations include introducing postal voting and secure absentee voting methods.
• Principle ID: Disclosure of disproportionate control structures is observed. N-shares, with limited voting rights, are disclosed in annual reports.
• Principle IE: Efficient and transparent markets for corporate control are largely observed, with rules on equal treatment and mandatory offers. However, anti-takeover devices are not subject to shareholder approval. Recommendation: Mandate shareholder approval for such devices.
• Principle IF: Shareholders should consider the costs and benefits of voting. This is not observed, as institutional investors are generally passive. Recommendation: The FSB should require pension funds to disclose voting policies and raise awareness of shareholder activism.

Section II: The Equitable Treatment of Shareholders

• Principle IIA: Equitable treatment of all shareholders is partially observed. Nominees and custodians are used extensively, but there are issues with information dissemination. Recommendations include clarifying beneficial ownership and improving pass-through procedures.
• Principle IIB: Insider trading is observed. The Insider Trading Act criminalizes insider trading, and the FSB has investigated and penalized violations.
• Principle IIC: Disclosure of material interests is partially observed. Directors must declare interests in contracts, but enforcement is weak due to limited resources. Recommendation: Expand the FSB’s oversight of issuers.

Section III: Role of Stakeholders in Corporate Governance

• Principle IIIA: Stakeholder rights are observed. Employees and trade unions have legal protections under various acts, including the Constitution, Labor Relations Act, and Basic Conditions of Employment Act.
• Principle IIIB: Stakeholders have access to redress mechanisms. They can approach courts or regulatory bodies for violations of their rights. However, there is no clear framework for determining "fraud on the minority".

IV. Summary of Policy Recommendations

1. Legislative Reform:

   • Amend the Companies Act to require higher quorums and shareholder approval for anti-takeover devices.
   • Clarify the concept of beneficial ownership and improve pass-through procedures for voting rights.
   • Introduce contingency fees to encourage class action suits by minority shareholders.

2. Institutional Strengthening:

   • Strengthen the enforcement powers of the securities regulator (FSB).
   • Expand the FSB’s oversight to include issuers.
   • Develop a super financial regulator to integrate oversight of financial markets.

3. Voluntary/Private Initiatives:

   • Promote the adoption of the King II code as a benchmark for corporate governance.
   • Encourage corporate websites and new information and communication technologies for secure absentee voting.
   • Enhance director training and proxy procedures through private sector initiatives.

V. Annexes

• Annex A: Summary of the OECD Corporate Governance Principles and South Africa's compliance status.
• Annex B: Summary of the policy recommendations outlined in the report.