Friends of SMM Whatsapp Platform conversation – Monday 17 October 2016.

Conversation on Friends of SMM Whatsapp Platform on Monday 17 October 2016. Join in the conversation. Request to be added on the Whatsapp Group by Raphael on +27644964761.

  1. [7:50 AM, 10/17/2016] Tinashe Mpasiri: http://www.herald.co.zw/kasukuwere-springs-to-moyos-defence/
  2. [8:16 AM, 10/17/2016] Owen Magocha: Ironically, Prof Moyo is on record saying all leaders accused of corruption should carry their crosses and not claim that allegations against them damage the party.
  3. [6:11 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: Definition and varuants of corruption per wikipedia

Political corruption is the use of powers by government officials for illegitimate private gain. An illegal act by an officeholder constitutes political corruption only if the act is directly related to their official duties, is done under color of law or involves trading in influence.corruption-feature

Forms of corruption vary, but include bribery, extortion, cronyism, nepotism, gombeenism, parochialism, patronage, influence peddling, graft, and embezzlement. Corruption may facilitate criminal enterprise such as drug trafficking, money laundering, and human trafficking, though is not restricted to these activities. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is also considered political corruption.

The activities that constitute illegal corruption differ depending on the country or jurisdiction. For instance, some political funding practices that are legal in one place may be illegal in another. In some cases, government officials have broad or ill-defined powers, which make it difficult to distinguish between legal and illegal actions. Worldwide, bribery alone is estimated to involve over 1 trillion US dollars annually.[1] A state of unrestrained political corruption is known as a kleptocracy, literally meaning “rule by thieves”.

Some forms of corruption – now called “institutional corruption”[2] – are distinguished from bribery and other kinds of obvious personal gain. A similar problem of corruption arises in any institution that depends on financial support from people who have interests that may conflict with the primary purpose of the institution.

  1. [6:17 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: In German jurisprudence or mercantile law thus is the status on company corruption:

Although companies cannot be criminally prosecuted under German law, a company can be held liable under Germany’s Administrative Offences Act (Ordnungswidrigkeitengesetz) for an act of corruption committed by a person with managerial responsibility for the company if, as a result of the offence, duties of the company were violated or the company was enriched or intended to be enriched. A company may also be held liable for failure to take reasonable supervisory measures to prevent bribery by its employees. Furthermore, a company’s responsibility exists independently of whether or not an individual person is held criminally liable. Companies can be fined up to EUR 1 million (for each count of a related criminal offence), but stand to lose much more through confiscation of any economic advantage gained through the bribes.

  1. [6:21 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: British Law corruption] The “relevant function or activity” element is explained in Section 3—it covers “any function of a public nature; any activity connected with a business, trade or profession; any activity performed in the course of a person’s employment; or any activity performed by or on behalf of a body of persons whether corporate or unincorporated”. This applies to both private and public industry, and encompasses activities performed outside the UK, even activities with no link to the country.[15] The conditions attached are that the person performing the function could be expected to be performing it in good faith or with impartiality, or that an element of trust attaches to that person’s role.
  2. [6:23 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: British Law corruption scope:

The penalties for committing a crime under the Act are a maximum of 10 years’ imprisonment, along with an unlimited fine, and the potential for the confiscation of property under the Proceeds of Crime Act 2002, as well as the disqualification of directors under the Company Directors Disqualification Act 1986. The Act has a near-universal jurisdiction, allowing for the prosecution of an individual or company with links to the United Kingdom, regardless of where the crime occurred. Described as “the toughest anti-corruption legislation in the world”

  1. [6:28 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: The common plural of “person”, “people”, is often used to refer to an entire nation or ethnic group (as in “a people”). The plural “persons” is often used in philosophical and legal writing. By Wikipedia
  2. [6:30 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: There are only two “persons” in law, a human being, and everything else: A natural-person is a legal entity for the human-being. An artificial-person is a legal entity that is not a human being. Here are the exact definitions from Barron’s Canadian Law Dictionary, fourth edition (ISBN 0-7641-0616-3): natural person
  3. [6:31 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: Person In general usage, a human being; by statute, however, the term can include firms, labor organizations, partnerships, associations, corporations, legal representatives, trustees, trustees in Bankruptcy, or receivers.

A corporation is a “person” for purposes of the constitutional guarantees of equal protection of laws and Due Process of Law.

Foreign governments otherwise eligible to sue in United States courts are “persons” entitled to institute a suit for treble damages for alleged antitrust

  1. [6:36 PM, 10/17/2016] Shingai Ndoro: In what way is a company different from a lifeless and inanimate motor vehicle?
  2. [7:10 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: The law has not given such rights to a car. Remember this is a juristic person whose rights all arise from the law. It is like a creature of the law and all its characteristics are conferred on it by statute
  3. [7:12 PM, 10/17/2016] MD Mawere: Can a company be dishonest?
  4. [7:15 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: Indeed and if a company fails to make disclosures of BBBEE status or cooks it that’s dishonest
  5. [7:16 PM, 10/17/2016] MD Mawere: Is it the company that would be dishonest
  6. [7:27 PM, 10/17/2016] +27 73 738 4237: Is it the company or individuals within the company that lie or don’t live up to their values and purpose
  7. [7:28 PM, 10/17/2016] MD Mawere: 👍🏼
  8. [7:30 PM, 10/17/2016] +263 77 735 0451: Those individuals will be dishonest in their official capacities representing the company so it is the company being dishonest
  9. [7:30 PM, 10/17/2016] Shingai Ndoro: So this creature of law (legal construct) can be sue and be sued, acquire and dispose property, etc.

What legal rights are specifically limited to a natural person and not given to this legal construct?   rights

  1. [7:33 PM, 10/17/2016] MD Mawere: A legal construct can commit murder, I suppose
  2. [7:34 PM, 10/17/2016] +27 73 738 4237: Is this a way avoid the individuals responsible safe from embarrassment since the company name is forward, or the company must disassociate itself from moles and individuals dragging the company name down the drain
  3. [7:35 PM, 10/17/2016] Shingai Ndoro: Can it?
  4. [7:36 PM, 10/17/2016] MD Mawere: Ask those that want to give it life
  5. [7:36 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: Well said Sir remember a Company always acts through people but these are referred to as acts of the company
  6. [7:37 PM, 10/17/2016] +44 7481 818249: Yes it can. Companies can be prosecuted for murder and have been sentenced for same.
  7. [7:37 PM, 10/17/2016] MD Mawere: I guess a company can also lie
  8. [7:37 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: There are crimes that can or cannot be committed by a company let us not generalise it’s like crimes of passion. A company cannot commit such crimes.
  9. [7:37 PM, 10/17/2016] MD Mawere: I would like to visit the jail
  10. [7:37 PM, 10/17/2016] +44 7481 818249: Companies can do everything that a person can do except things that fall within the purview of ‘Family Law’
  11. [7:38 PM, 10/17/2016] +44 7481 818249: Typically companies get fined, as opposed to being sentenced to prison
  12. [7:38 PM, 10/17/2016] MD Mawere: I guess a company car cannot commit an offence of exceeding a speed limit
  13. [7:38 PM, 10/17/2016] +263 77 735 0451: Duly authorised reps of the company can legally disown actions of unsanctioned persons. But suppose the dishonest has been the action of the board or CEO then it is legally accepted that it is the action of the company
  14. [7:39 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: Exactly and refer to the various sanctions available
  15. [7:39 PM, 10/17/2016] MD Mawere: Is a company capable of satisfying the elements of intent and knowledge
  16. [7:39 PM, 10/17/2016] +44 7481 818249: TESLA likely can Could GM be charged with murder?If corporations are people, what does that mean for handling GM causing 13 deaths?fortune.com
  17. [7:39 PM, 10/17/2016] +44 7481 818249: http://fortune.com/2014/06/05/could-gm-be-charged-with-murder/
  18. [7:40 PM, 10/17/2016] +27 73 738 4237: What do you mean by unsanctioned persons please explain
  19. [7:40 PM, 10/17/2016] +263 77 735 0451: A company car is an asset of the juristic person which is the company
  20. [7:41 PM, 10/17/2016] +263 77 735 0451: It is not the juristic person.
  21. [7:41 PM, 10/17/2016] +27 73 738 4237: But the car won’t go to jail
  22. [7:42 PM, 10/17/2016] MD Mawere: Does the car exist independent of the title holder
  23. [7:43 PM, 10/17/2016] +263 77 735 0451: But the company pays the fine for their asset.
  24. [7:43 PM, 10/17/2016] +263 77 735 0451: As much as they repair it
  25. [7:44 PM, 10/17/2016] +27 73 738 4237: Fair enough but in many cases the company makes the individual involved pay
  26. [7:47 PM, 10/17/2016] +44 7481 818249: Yes of course
  27. [7:47 PM, 10/17/2016] MD Mawere: It is important to understand where a juristic person starts and ends and where a natural person starts and ends. We need to appreciate causation and agency
  28. [7:48 PM, 10/17/2016] +27 73 738 4237: Please elaborate more so I understand
  29. [7:48 PM, 10/17/2016] Tawanda Madamombe: 😂😂😂😂
  30. [7:50 PM, 10/17/2016] MD Mawere: A juristic person is a construct and is created by man and limitations are inherent and self-evident
  31. [7:51 PM, 10/17/2016] Tawanda Madamombe: Isn’t this a lawsuit rather??
  32. [7:53 PM, 10/17/2016] +44 7481 818249: The mistake people often make is to assume that the law is always very clear on every single issue. It isn’t. Sometimes the clearest position on an issue is that it is not clear.
  33. [7:53 PM, 10/17/2016] MD Mawere: Laws don’t come from heaven
  34. [7:54 PM, 10/17/2016] +44 7481 818249: It’s a lawsuit during which many argued that the company should also be charged with murder
  35. [7:54 PM, 10/17/2016] +44 7481 818249: Didn’t realise l suggested they did.
  36. [7:56 PM, 10/17/2016] Tawanda Madamombe: Then what happens with the principle of sentencing…isn’t this a new experiment on law
  37. [7:58 PM, 10/17/2016] +27 73 738 4237: 👍🏾got it
  38. [7:58 PM, 10/17/2016] MD Mawere: Just teasing thought process
  39. [7:59 PM, 10/17/2016] +44 7481 818249: Companies typically get fined but sometimes, directors go to jail. The sentences when passed are usually lower than if the convicted person was a natural person
  40. [7:59 PM, 10/17/2016] Shingai Ndoro: A company is a juristic person.
  41. It is human construct through the operation of law.
  42. It can sue and be sued, acquire and dispose property, etc.
  43. What legal rights are given to a natural person BUT not to this legal construct? History of corporate manslaughter: five key cases Following Cotswold Geotechnical’s landmark £385,000 fine on Thursday for
  44. corporate manslaughter we take a look back at five key cases.www.telegraph.co.uk
  45. [8:01 PM, 10/17/2016] +44 7481 818249: http://www.telegraph.co.uk/finance/yourbusiness/8330905/History-of-corporate-manslaughter-five-key-cases.html
  46. [8:01 PM, 10/17/2016] Tawanda Madamombe: Then its going back to natutal persons…and the fine constitute a form of suing
  47. [8:02 PM, 10/17/2016] +44 7481 818249: See above
  48. [8:02 PM, 10/17/2016] Tinashe Mpasiri: Which is in Chinamasa’s case he could have mistaken “person” of the company, thus using them law in specifying SMM. I stand to learn and affirm the need for a master class where I can broaden my knowledge and understand law.
  49. [8:05 PM, 10/17/2016] Tawanda Madamombe: But as long as laws are earthly they are bound to earthly limitations…e.g a person commits suicide after committing murder ,the law cannot prosecute beyond its limits
  50. [8:10 PM, 10/17/2016] +263 77 456 0075: Today FOSMMers are on COMMERCIAL LAW 101
  51. [8:58 PM, 10/17/2016] +27 61 430 2252: In the case of South Africa, if you take for instance the tax administration act, company as a juristic person become none compliant the fiduciary will be hold to hold to account
  52. [9:01 PM, 10/17/2016] +27 61 430 2252: If the organization become insolvent at any given point the revenue authority will initiate legal action against directors of the company to recover any outstanding debt
  53. [9:04 PM, 10/17/2016] +27 73 738 4237: Does this mean these directors will pay if the company had fallen to a state of deficit
  54. [9:07 PM, 10/17/2016] +27 61 430 2252: Directors are linked to assets and liabilities of companies they control except public companies
  55. [9:10 PM, 10/17/2016] Shingai Ndoro: A company is a juristic person.south-african-company-law

It is human construct through the operation of law.

It can sue and be sued, acquire and dispose property, etc.

What legal rights are given to a natural person BUT not to this legal construct?

  1. [9:12 PM, 10/17/2016] Tawanda Madamombe: Does this mean all directors in private cos are shareholders
  2. [9:16 PM, 10/17/2016] +27 61 430 2252: Good question. there is non-executive directors, executive directors and alternative directors
  3. [9:16 PM, 10/17/2016] +27 61 430 2252: Its possible u can be a director with no stake
  4. [9:19 PM, 10/17/2016] Tawanda Madamombe: So how can a person with no stake accumulate liability in a co they, have no shares
  5. [9:19 PM, 10/17/2016] MD Mawere: Directors are agents of the company
  6. [9:20 PM, 10/17/2016] MD Mawere: Do shareholders own companies?
  7. [9:31 PM, 10/17/2016] Tawanda Madamombe: They do
  8. [9:31 PM, 10/17/2016] MD Mawere: Then why call them holders of shares
  9. [9:33 PM, 10/17/2016] Tawanda Madamombe: Cause they collectively own the company
  10. [9:34 PM, 10/17/2016] Tawanda Madamombe: Through relative input
  11. [10:28 PM, 10/17/2016] Dr Vusumuzi Sibanda Sibbs: No one owns a company but they have a share in the company. I think it’s the legal position. This especially true when the company is incorporated. We talk of control and shareholding in various shades which we loosely refe8to as ownership.
  12. [10:44 PM, 10/17/2016] +27 61 430 2252: In the case of parastatals there are directors appointment the arms of state to over oversee and set policies ,such directors are non-share holders
  13. [10:52 PM, 10/17/2016] +27 61 430 2252: If a private company is incorporated, there is a separate document knows as share certificate or ownership certificate issued by company Secretariat not companies commission so in a nutshell if all directors were shareholders there was no need for such document
  14. [10:55 PM, 10/17/2016] +27 61 430 2252: According to the companies act of 1961 public companies and non-profit companies must have a minimum of 5 directors, shareholding it doesn’t matter the company can even have sole ownership
  15. [11:02 PM, 10/17/2016] +27 61 430 2252: What it means is the company can have directors who are non-shareholders and appear on the company cerficate, whilst the sole owner name can be absent from ck document and will only be validated by shareholding certificate

 

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