Hostname: page-component-cd9895bd7-jn8rn Total loading time: 0 Render date: 2024-12-24T18:35:49.991Z Has data issue: false hasContentIssue false
  • English
  • Français

Stakeholder Protection and Corporate Social Responsibility from a Comparative Company Law Perspective: Nigeria and South Africa

Published online by Cambridge University Press:  17 September 2020

Nojeem Amodu Open the ORCID record for Nojeem Amodu [Opens in a new window]
Nojeem Amodu*
Affiliation:
University of Cape Town
*
[email protected]
Get access Rights & Permissions [Opens in a new window]

Abstract

There have been notable legislative advancements, as well as improvements in corporate governance codes, aimed at protecting stakeholder rights. However, how much protection have they really afforded stakeholders against socially irresponsible corporate behaviour? This article undertakes a comparative analysis of the legal framework underlying South Africa's stakeholder-inclusive approach and Nigeria's environmental, social and governance or sustainability corporate reporting. It identifies a misplaced philosophical background as well as policy misalignment of corporate governance codes and primary corporate law as critical factors that undermine efforts to embed responsible corporate behaviour in order to safeguard the interests of qualified and legitimate stakeholders. It recommends specific amendments to address the ideological defect and align corporate governance codes with primary corporate legislation in these two countries.

Keywords

CAMA 2020comparative company lawCSRNigeriaSouth Africastakeholder protection
Type
Research Article
Information
Journal of African Law , Volume 64 , Issue 3 , October 2020 , pp. 425 - 449
Check for updates
Copyright
Copyright © SOAS, University of London, 2020

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

URC post-doctoral research fellow, Faculty of Law, University of Cape Town, South Africa.

References

1 Ihugba, BU “Compulsory regulation of CSR: A case study of Nigeria” (2012) 5 Journal of Politics and Law 68CrossRefGoogle Scholar at 69.

2 The stakeholder group includes shareholders, employees, creditors, suppliers, contractors, customers, regulators, host and impacted communities and the media. A business's stakeholder group could be quite difficult to define. For various definitions and conceptions of the group, see among others: Freeman, RE et al. Stakeholder Theory: The State of the Art (2010, Cambridge University Press)CrossRefGoogle Scholar at 209; Freeman, E Strategic Management: A Stakeholder Approach (1984, Pitman)Google Scholar at 31; Jones, TM, Wicks, AC and Freeman, RE “Stakeholder theory: The state of the art” in Bowie, NE (ed) The Blackwell Guide to Business Ethics (2001, Wiley-Blackwell) 20Google Scholar at 21 and following; Donaldson, T and Preston, LE “The stakeholder theory of the corporation: Concepts, evidence and implications” (1995) 20 The Academy of Management Review 65CrossRefGoogle Scholar at 88; Clarkson, MBE “A stakeholder framework for analyzing and evaluating corporate social performance” (1995) 20 Academy of Management Review 92CrossRefGoogle Scholar; Mullins, LJ Management and Organizational Behaviour (2002, Prentice)Google Scholar.

3 Monks, R and Minow, N Corporate Governance (1995, Blackwell)Google Scholar at 1.

4 Parkinson, JE “Corporate governance and the regulation of business behaviour” in Macleod, S (ed) Global Governance and the Quest for Justice, vol II “Corporate governance” (2006, Oxford and Portland) 1Google Scholar at 1.

5 OECD G20/OECD Principles of Corporate Governance (2015, OECD Publishing) at 9.

6 In this article, CSR does not represent voluntary corporate charity or philanthropic community development activities beyond the requirements of the law. For a similar conception, see generally, Amodu, N “The responsible stakeholder model: An alternative theory of corporate law” (2018) 1/5 Journal of Comparative Law in Africa 1Google Scholar; Amodu, N “Regulation and enforcement of corporate social responsibility in corporate Nigeria” (2017) 61/1 Journal of African Law 105CrossRefGoogle Scholar; and Adeyeye, AO Corporate Social Responsibility of Multinational Corporations in Developing Countries: Perspectives on Anti-Corruption (2012, Cambridge University Press)CrossRefGoogle Scholar at 9.

7 Lambooy, T Corporate Social Responsibility: Legal and Semi-legal Frameworks Supporting CSR Developments 2000–2010 and Case Studies (2010, Kluwer)Google Scholar at 50.

8 OECD G20/OECD Principles of Corporate Governance, above at note 5 at 13 and 14 and following.

9 See Shlensky v Wrigley 237 NE 2d 776 (Ill App 1968), where directors of a company running a baseball team refused to install lights at the stadium to permit night-time games (which would ordinarily translate to more profits for the shareholders) because of the deleterious effect of such light on the lives of local people in the surrounding community. The shareholders brought a claim to enforce shareholder primacy but failed.

10 Osemeke, L and Adegbite, E “Regulatory multiplicity and conflict: Towards a combined code on corporate governance in Nigeria” (2016) 133 Journal of Business Ethics 431CrossRefGoogle Scholar at 433 and 434.

11 Parkinson “Corporate governance”, above at note 4 at 17.

12 Ibid.

13 For empirical data on this, see generally, Hakkon, K, Kwangwoo, P and Doojin, R “Corporate environmental responsibility: A legal origins perspective” (2017) 140 Journal of Business Ethics 381Google Scholar.

14 Parkinson “Corporate governance”, above at note 4 at 17.

15 K Marx Early Writings (trans and edited by T Bottomore, 1963, McGraw-Hill) at 52.

16 Sunstein, C Legal Reasoning and Political Conflict (1996, Oxford University Press)Google Scholar at 52.

17 Foster, NHD “Company law theory in comparative perspective: England and France” (2000) 48/4 American Journal of Comparative Law 588CrossRefGoogle Scholar.

18 Dine, J The Governance of Corporate Groups (2000, Cambridge University Press)Google Scholar at 1, citing Bottomley, S “Taking corporations seriously: Some consideration for corporate regulation” (1990) 19 Federal Law Review 203CrossRefGoogle Scholar at 204.

19 TK Cheruiyot and P Onsando “Corporate social responsibility in Africa: Context, paradoxes, stakeholder orientations, contestations and reflections” in [1985] BCLC 45 (PC); Stachowicz-Stanusch, A (ed) Corporate Social Performance in the Age of Irresponsibility: Cross National Perspective (2016, Information Age Publishing Inc) 89Google Scholar at 95 and 96 and following. See also, Garriga, E and Mele, D “Corporate social responsibility theories: Mapping the territory” (2004) Journal of Business Ethics 53Google Scholar at 65; Parkinson, JE “Models of the company and the employment relationship” (2003) British Journal of Industrial Relations 481CrossRefGoogle Scholar; Dewey, J “The historic background of corporate legal personality” (1926) 35 Yale Law Journal 655CrossRefGoogle Scholar; Sacco, R “Legal formants: A dynamic approach to comparative law” (1991) 39 American Journal of Comparative Law 10Google Scholar.

20 For detail of the theoretical underpinnings of corporate actions and CSR generally, see Amodu “The responsible stakeholder model”, above at note 6; and Amodu, N “Theoretical underpinnings of corporate social responsibility: Victim of ideological clashes” (2014) 3/6 Journal of Corporate Governance 1160Google Scholar at 1214.

21 Fairfax, LM “Easier said than done? A corporate law theory for actualizing social responsibility rhetoric” (2007) 59 Florida Law Review 771Google Scholar at 779, citing Bainbridge, S “Director primacy: The means and ends of corporate governance” (1997) Northwestern University Law Review 547Google Scholar at 563.

22 Whitehouse, L “Corporate social responsibility as regulation: The argument from democracy” in O'Brien, J (ed) Governing the Corporation: Regulation and Corporate Governance in an Age of Scandal and Global Market (2005, John Wiley & Sons) 141Google Scholar at 156.

23 Friedman, M Capitalism and Freedom (1962, University of Chicago Press)Google Scholar at 133.

24 Id (40th anniversary ed, 2002, University of Chicago Press) at 133. Profits maximization however is not at all costs, as Friedman also acknowledged. The model still recognizes certain restrictions to act within the limits of the law and play “within the rules of the game”. However, Friedman appears to take a classic view. More recent exponents of the shareholder primacy model argue that, in the drive for profit maximization for shareholders, corporate executives may simply treat statutory laws and regulations merely as an operational cost and may willingly flout them if the penalties pose no significant risk to the company's bottom line. See Sneirson, JF “Shareholder primacy and corporate compliance” (2015) 26 Fordham Environmental Law Journal 1Google Scholar at 4 and 5 and following.

25 Hayek, F “The corporation in a democratic society: In whose interest ought it and will it be run?” in Anshen, M and Bach, G (eds) Management and Corporations (1985, McGraw-Hill) 97Google Scholar at 100.

26 Miller, RT “The Coasean dissolution of corporate social responsibility” (2014) 17/2 Chapman Law Review 1Google Scholar at 2.

27 Its agenda and assumptions have also been propagated by international financial agencies, such as the World Bank and the International Monetary Fund, when providing financial assistance to developing countries and advising them on the best route to economic and social development. In fact, the OECD's Principles on Corporate Governance (as revised in 2004), for example, were said to be unashamedly shareholder-oriented: S Soederberg The Politics of the New Financial Architecture (2004, Zed Books) at 139. See also, Ireland, P and Pillay, RG “Corporate social responsibility in a neoliberal age” in Utting, P and Marques, JC (eds) Corporate Social Responsibility and Regulatory Governance Towards Inclusive Development? (2010, Palgrave Macmillan) 77Google Scholar at 85 and 87; and OECD G20/OECD Principles of Corporate Governance, above at note 5, part 5.

28 UK Company Law Review Steering Group, Department of Trade and Industry “Modern company law for a competitive economy: The strategic framework” (1999, Department of Trade and Industry) at 37. Dine, J “Jurisdictional arbitrage by multinational companies: A national law solution?” (2012) 3/1 Journal of Human Rights and the Environment 44CrossRefGoogle Scholar at 57; Ireland, P “Company law and the myth of shareholder ownership” (1999) 62/1 Modern Law Review 32CrossRefGoogle Scholar; P Davies “Enlightened shareholder value and the new responsibilities of directors” (2005, inaugural lecture at University of Melbourne Law School).

29 Hansmann, H and Kraakman, R “The end of history for corporate law” in Gordon, J and Roe, M (eds) Convergence and Persistence in Corporate Governance (2004, Cambridge University Press) 33Google Scholar at 34. See also Roe, MJ “The shareholder wealth maximization norm and industrial organisation” (2001) 149 University of Pennsylvania Law Review 2063CrossRefGoogle Scholar at 2065.

30 CA Williams and JM Conley “An emerging third way? The erosion of the Anglo-American shareholder value construct” (2004, University of Carolina legal studies research paper no 04-09) at 4, available at: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=632347> (last accessed 7 August 2020).

31 Villiers, C “Corporate law, corporate power and corporate social responsibility” in Boeger, N, Murray, R and Villiers, C (eds) Perspectives on Corporate Social Responsibility (2008, Edward Elgar) 85Google Scholar at 97 and 98 and following. Villiers notes the similarity between the UK ESV and the Australian “Business approach to corporate responsibility”, underscoring the “business case” argument for CSR. This enjoins corporate executives to consider stakeholder interests and report on non-financial matters relating to CSR (regarding employees or the environment, for example) so long as it makes business sense (taking into account cost-benefit implications) to so do and provided such considerations are in relation to the company's overall economic performance and without prejudice to enhancing shareholder value.

32 Ireland and Pillay “Corporate social responsibility”, above at note 27 at 85 and 86. See also, J Armour, S Deakin and SJ Konzelmann “Shareholder primacy and the trajectory of UK corporate governance” (2003, ESRC Centre for Business Research, University of Cambridge working paper no 266) at 7, available at: <http://www.cbr.cam.ac.uk/fileadmin/user_upload/centre-for-business-research/downloads/working-papers/wp266.pdf> (last accessed 7 August 2020).

33 Keay, A and Iqbal, T “The impact of enlightened shareholder value” (2019) 4 Journal of Business Law 304Google Scholar at 326; at 319, the authors noted that “as the ultimate aims of the various companies were not considerably different before and after the enactment of ESV and the companies continued to portray themselves as adopting, for the most part, the same approach, it is contended that ESV has not made much difference in practice to the companies studied, certainly as far as aims are concerned, and this may, arguably, be because some or all of the companies studied, perhaps compared with other large companies, were already doing at least aspects of what ESV requires on the basis that it made good business sense”. Keay and Iqbal's finding confirmed the results of the evaluation of the UK Companies Act 2006 undertaken by Infogroup / ORC International for the Department of Business Innovation and Skills in 2010; this study found that the enactment of section 172 had not changed behaviour at all among the vast majority of directors, with only 17 per cent of directors indicating that the provision had led to a change in their behaviour: S Fettiplace and R Addis “Evaluation of the Companies Act 2006” (2 August 2010) at 72 and 73, available at: <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/31655/10-1360-evaluation-companies-act-2006-volume-1.pdf> (last accessed 16 August 2020). See also, Eijsbouts, J Corporate Responsibility, Beyond Voluntarism: Regulatory Options to Reinforce the Licence to Operate (2011, inaugural lecture, Maastricht University)CrossRefGoogle Scholar at 51; Abugu, J “Primacy of shareholders’ interests and the relevance of stakeholder economic theories” (2013) 7 Company Lawyer 201Google Scholar at 204 and 205 and following; and Davies, PL Gower and Davies’ Principles of Modern Company Law (8th ed, 2008, Sweet & Maxwell)Google Scholar at 506 and 507 and following.

34 See generally, Hutton v West Cork Railway Co (1883) 23 Ch D 654; Lee v Chou Wen Hsien [1985] BCLC 45 (PC); Item Software (UK) Ltd v Fassihi (2004) EWCA Civ 1244 (CA); Re Smith & Fawcett [1942] Ch 304; Brady v Brady [1988] BCLC 20; Peskin v Anderson [2000] All ER (D) 2278; Dawson International Plc v Coats Paton Plc [1989] BCLC 233; Percival v Wright (1902) 2 Ch 421; Dodge v Ford Motor Co (1919) 204 Mich 459, 170 NW 668; Re Lee, Behrens & Co Ltd (1932) Ch 46; Rogers v Hill 289 US 582 (1933); McQuillen v National Cash Register Co 27 F Supp 639 (D Md 1939); Greenhalgh v Arderne Cinemas Ltd (1951) Ch 286 at 291; Gottlieb v Heyden Chemical Corp 90 A 2d 660 (Del 1952); Parke v Daily News Ltd (1962) 3 WLR 566; Amalgamated Society of Woodworkers of South Africa v Die 1963 AmbagsaaWereniging (1967) 1 SA 586 (T); Michelson v Duncan 407 A 2d 211 (Del 1979).

35 Freeman, E “A stakeholder theory of the modern corporation” in Pincus, LB (ed) Perspectives in Business Ethics (1998, McGraw-Hill) 171Google Scholar at 174.

36 Parkinson, JE Corporate Power and Responsibility (1993, Clarendon Press)Google Scholar at 310.

37 Hopt, K and Leyens, P “Board models in Europe: Recent developments of internal corporate governance structures in Germany, the United Kingdom, France, and Italy” (2004) 2/1 European Company and Financial Law Review 135Google Scholar at 141; and Block, D and Gerstner, A “One-tier vs two-tier board structure: A comparison between the United States and Germany” (2016) Comparative Corporate Governance and Financial Regulation 1Google Scholar.

38 Freeman, E, Wicks, A and Parmar, B “Stakeholder theory and ‘the corporate objective revisited’” (2004) 15 Organization Science 364CrossRefGoogle Scholar at 365. It has also been argued that, as the shareholder primacy theorists contend that shareholders may claim private ownership of the company because of their investment, stakeholders such as employees, financiers, creditors and other constituents, who have also invested their skills and monies can (stakeholder theorists argue) lay a similar ownership claim to the company. See Letza, S et al. “Shareholding versus stakeholding: A critical review of corporate governance” (2004) 12 Corporate Governance: An International Review 242CrossRefGoogle Scholar at 251.

39 Farrar, JH Company Law (2nd ed, 1988, Butterworths)Google Scholar at 12.

40 For instance, the weakening, flexing or expansion of the business judgment rule, such that some form of protection is afforded to stakeholders in what is considered legitimate management of a business enterprise; for example, corporate executives may now legitimately increase employees’ wages rather than declare profits for shareholders. Also, the definition of a “reasonable takeover” now involves consideration of the impact of the takeover on employees, suppliers, local communities and creditors in determining whether a takeover may be permitted. See among others: Hampson v Price's Patent Candle Co (1876) 45 LJ Ch 437; Shlensky v Wrigley, above at note 9; Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil NL (1968) 121 CLR 483 at 493; Teck Corporation Ltd v Millar (1973) 33 DLR (3d) 288 (BCSC); People's Department Stores Inc v Wise (2004) 3 SCR 461; Lonrho Ltd v Shell Petroleum Co Ltd (1980) 1 WLR 627 (HL); Unocal Corporation v Mesa Petro Co (1985) Del Supr 493 A 2d 946. See also, Horrigan, B Corporate Social Responsibility in the 21st Century: Debates, Models and Practices Across Government, Law and Business (2010, Edward Elgar)CrossRefGoogle Scholar at 108, citing Stout, L “Bad and not-so-bad arguments for shareholder primacy” (2002) 75 Southern California Law Review 1189Google Scholar at 1202–03.

41 For examples of business codes, see Ireland and Pillay “Corporate social responsibility”, above at note 27 at 88. Other regulatory codes include, to mention just a few: the 2018 Nigerian Code of Corporate Governance; the South African King IV Report on Governance 2016; the 2014 Central Bank of Nigeria Code of Corporate Governance; the Nigerian Securities and Exchange Commission Code of Corporate Governance for Public Companies of 2011; and the 2014 Nigerian Communication Commission Code of Corporate Governance for the Telecommunications Industry.

42 Even courts within Anglo-American jurisdictions have stated that directors may take into account the long-term well-being of a company, as well as the short-term benefits of maximizing profits for the shareholders. See for instance, Provident International Corporation v International Leasing Corp Limited (1969) 1 NSWR 424 at 440; Paramount Communications Inc v Time Inc 571 A 2d 1140 (Del 1989); People's Department Stores v Wise, above at note 40; and BCE Inc v 1976 Debenture holders (2008) 3 SCR 560.

43 Companies Act, 2013 (India), sec 166(2); Companies Act, No 71 of 2008 (South Africa), secs 7 and 72(4); Companies Act 2006 (UK), sec 172; and Companies and Allied Matters Act, 1990 as amended (Nigeria), sec 279.

44 KJ Hopt “Comparative corporate governance: The state of the art and international regulation” (2011, European Corporate Governance Institute law working paper, no 170/2011), available at: <http://ssrn.com/abstract=1713750> (last accessed 7 August 2020).

45 The UK Financial Reporting Council undertakes regular reviews of the UK code. The latest version of the code is that of July 2018, available at: <https://www.frc.org.uk/getattachment/88bd8c45-50ea-4841-95b0-d2f4f48069a2/2018-UKCorporate-Governance-Code-FINAL.PDF> (last accessed 7 August 2020).

46 See UK Companies Act 2006, sec 172, enjoining corporate executives to have regard to the interests of employees, local communities, customers, suppliers and other related stakeholders in working for the success of the company. Creditors’ interests are specifically made crucial under sec 172(3).

47 Keay, A “Stakeholder theory in corporate law: Has it got what it takes?” (2010) 3/9 Richmond Journal of Global Law and Business 249Google Scholar at 300.

48 Ibid.

49 See for instance the arguments and underlying assumptions of theories such as the “team production theory” canvassed by Blair, Margaret and Stout, Lynn in Blair, M and Stout, L “A team production theory of corporate law” (1999) 2/85 Virginia Law Review 247CrossRefGoogle Scholar and the “entity maximisation and sustainability model” canvassed in Keay, A “Ascertaining the corporate objective: An entity maximisation and sustainability model” (2008) 71 Modern Law Review 663CrossRefGoogle Scholar.

50 This middle ground theory appears necessary as proponents on both sides of the shareholderism / stakeholderism divide have almost irredeemably condemned the other. Ireland and Pillay “Corporate social responsibility”, above note 27 had noted (at 91) that, “while the advocates of CSR seek to modify corporate behaviour through voluntarism and self-regulation, a ruthlessly shareholder-oriented, Anglo-American model of the corporation which is antithetical to meaningful CSR is being entrenched around the world by legal and other means”. The formulation of RSM and its interaction, similarities and differences from other theories can be found in Amodu “The responsible stakeholder model”, above at note 6.

51 Corporate greenwash arises where corporate executives and companies pay lip service and only half-heartedly comply with code requirements without embedding those requirements in corporate culture or making them part of the company's so-called DNA. Greenwash involves box ticking disclosures and empty integrated reporting of stakeholder management activities. See Cherry, M “The law and economics of corporate social responsibility and greenwashing” (2014) 14 UC Davis Business Law Journal 281Google Scholar; and Cherry, AM and Sneirson, JF “Chevron, greenwashing, and the myth of ‘green oil companies’” (2012) 3 Washington & Lee Journal of Energy, Climate and the Environment 133Google Scholar at 140 and 141.

52 There is other legislation covering other aspects of the law outside the purview of this article. For example, in South Africa, see: 1998 National Environmental Management Act; Bill of Rights included in the South African Constitution, 1996; 1995 Labour Relations Act 66; and Broad Based Black Economic Empowerment Act 53 of 2003. In Nigeria, see: FRC of Nigeria Act 2011, secs 11(a) and 50; 2007 Nigerian Minerals and Mining Act No 20, sec 166; 2007 Nigeria Extractive Industries Transparency Initiative Act; and 2007 National Environmental Standards and Regulations Enforcement Agency Act, etc.

53 See CAMA 2020, sec 305(3) and (4). For a brief history of CAMA, see Amao, O “Corporate social responsibility, multinational corporations and the law in Nigeria: Controlling multinationals in host states” (2008) Journal of African Law 89CrossRefGoogle Scholar at 95 and 96.

54 Now CAMA 2020, sec 305(9). See also CAMA, secs 314 and 315 (CAMA 2020, secs 374, 375 and following) showing the largely shareholder primacy orientation of the primary corporate legislation, with little or no real value addition for stakeholder protection.

55 Hutton v West Cork, above at note 34; Percival v Wright, above at note 34; Dodge v Ford, above at note 34; Evans v Brunner, Mond & Co (1921) 1 Ch 359; Re Lee, Behrens, above at note 34; Rogers v Hill, above at note 34; McQuillen v National Cash Register, above at note 34; Greenhalgh v Arderne, above at note 34 at 291; Gottlieb v Heyden, above at note 34; Parke v Daily News, above at note 34; Amalgamated Society of Woodworkers of South Africa v Die, above at note 34; Michelson v Duncan, above at note 34. See also Companies Act, 2006 (UK), sec 172.

56 While this is the case under secs 331, 332 and following and schedule 2 of CAMA, however, section 305(3) of CAMA 2020 demonstrates some improvement, as it enjoins corporate directors to have regard to the impact of the company's operations on the environment in the community where the company operates. Compare with CAMA, sec 334(2)(h) (now CAMA 2020, sec 377(2)(i)) in relation to financial statements containing a “value-added statement for the year”, which according to CAMA, sec 335(4) (now CAMA 2020, sec 378(4)) is a report of “the wealth created by the company during the year and its distribution among various interest groups such as the employees, government, creditors, proprietors and the company”. This has been interpreted in terms of a stakeholder protection provision. See Amao “Corporate social responsibility”, above at note 53 at 101, citing Orojo, JO Company Law in Nigeria (3rd ed, 1992, Mbeyi & Associates)Google Scholar at 37. Interestingly, the Nigerian 2007 Investments and Securities Act, which established the Securities and Exchange Commission (SEC) and regulates the activities of public liability and quoted companies in Nigeria, also made no provision for integrated corporate reporting (on non-financial matters). Further, while secs 11(a) and 50 of the FRC of Nigeria Act may contain promising provisions for stakeholder protection, the definition of “financial statements” under sec 77 of the act, linking them to the purely shareholder-primacy oriented statements of CAMA and with no reference to stakeholder integrated reporting, has undermined any stakeholder safeguards that secs 11 and 50 might otherwise afford.

57 Compare with CAMA, sec 7(c). See also, FRC of Nigeria Act, sec 11(a).

58 See also 2011 Companies Regulations (South Africa), regs 26 and 43. There are no comparable provision in CAMA or any subsidiary legislation in Nigeria. However, as in South Africa, see the 2013 Indian Companies Act, secs 134(3)(o) and 135, requiring, inter alia, the constitution of a CSR committee on the board of directors of qualifying Indian companies.

59 This can be compared to the wording of CAMA, secs 279 and 283 in Nigeria.

60 Esser, I-M “Corporate social responsibility: A company law perspective” (2011) 23 South African Mercantile Law Journal 317Google Scholar at 324.

61 Muswaka, L “Shareholder value versus stakeholders’ interests: A critical analysis of corporate governance from a South African perspective” (2015) Journal of Social Sciences 217CrossRefGoogle Scholar.

62 Similarly, Irene-Marie Esser and Piet Delport also noted that, in this circumstance, the corporate governance code in South Africa, “King IV is not law, and does not prescribe, with a primary emphasis not on ‘what’ must be done, but rather ‘how’ it must be done”: Esser, I-M and Delport, PA “The South African King IV on Corporate Governance: Is the crown shiny enough?” (2018) 39/11 Company Lawyer 378Google Scholar at 384.

63 King IV Report on Governance for South Africa 2016 (2016, Institute of Directors in Southern Africa), which replaced the King III Report on Corporate Governance for South Africa 2009 (2009, Institute of Directors in Southern Africa).

64 See: Code of Corporate Governance for the Telecommunication Industry 2016, issued by the Nigerian Communications Commission (replacing the 2014 code); Code of Corporate Governance for Banks and Discount Houses in Nigeria 2014, issued by the Central Bank of Nigeria (replacing the 2006 code); Code of Corporate Governance for Public Companies in Nigeria 2011, issued by the SEC (replacing the 2003 code); Code of Good Corporate Governance for Insurance Industry in Nigeria 2009, issued by the National Insurance Commission; and Code of Corporate Governance for Licensed Pension Fund Operators 2008, issued by the National Pension Commission. They are usually called “sectoral codes”, the phrase adopted in this article.

65 Osemeke and Adegbite “Regulatory multiplicity and conflict”, above at note 10 at 435.

66 Compare with the Financial Reporting Standards Council in South Africa established under SACA, sec 203. The FRC of Nigeria is a federal government parastatal under the supervision of the Federal Ministry of Industry, Trade and Investment with the statutory remit to, inter alia, develop and publish corporate governance codes, and accounting and financial reporting standards to be observed in the preparation of the financial statements of public entities in Nigeria. See FRC of Nigeria Act, sec 8.

67 The code was adopted as part of the Regulation on the Adoption and Compliance with Nigerian Code of Corporate Governance 2018. Certain companies are mandated to report on the application of the Nigerian Code in their annual reports for financial years ending after 1 January 2020 in the form and manner prescribed by the FRC of Nigeria. These companies include: all public companies (whether listed or not); all private companies that are holding companies of public companies or other regulated entities; all concessioned or privatized companies; and all regulated private companies being private companies that file returns to any regulatory authority other than the Federal Inland Revenue Service and the Corporate Affairs Commission. The Nigerian Code is available at: <https://drive.google.com/file/d/1_uOzdXFOqexptBQDfDudAvNoIYPjAO27/view> (last accessed 7 August 2020). In any event, other sectoral codes of conduct are still applicable in Nigeria. See paragraph F of the Introduction to the Nigerian Code.

68 This article deliberately excludes references to the Code of Business Conduct and Ethics or the word “ethics” in principles 24 and 25 of the Nigerian Code as they are contextualized in terms of morality. See the definition of “ethics” in the Nigerian Code, para 29.1.9. In Nigeria and many other jurisdictions, good moral values are generally not enforceable unless they coincide with a prescribed legal duty. To be clear, this article's conception of CSR and stakeholder protection measures is not based on morality.

69 For a general overview of the objectives of, and more historical perspectives on, the King IV Report, see Esser and Delport “The South African King IV”, above at note 62 at 378 to 384.

70 So, rather than corporate disclosure aimed at stakeholder protection being referred to as “non-financial” reporting or disclosure, “integrated reporting” or disclosure is preferred. Integrated reporting under King III clearly demonstrates an improved understanding of stakeholder protection techniques. Such improved understanding appears to have prompted independent production of a new form of corporate reporting and be responsible for the increased number of companies in South Africa compared to Nigeria disclosing on so-called non-financial matters. See the findings in the empirical research of Ofoegbu, GN, Odoemelam, N and Okafor, RG “Corporate board characteristics and environmental disclosure quantity: Evidence from South Africa (integrated reporting) and Nigeria (traditional reporting)” (2018) 5 Cogent Business & Management 1CrossRefGoogle Scholar at 3.

71 See Regulations on the Adoption and Compliance with Nigerian Code of Corporate Governance 2018, reg 1. It is interesting to note however that, unlike principle 8 of the Code of Corporate Governance for Banks and Discount Houses in Nigeria 2014 issued by the Central Bank of Nigeria or page 53 of the 2016 National Code of Corporate Governance, this code has no specific provision categorically stating that it is mandatory. Explanations in its introduction coupled with usage of the word “should” demonstrate that corporate executives and directors are recommended to implement it voluntarily.

72 See the impressive principle 16 of the King IV Report. Also, part 5.5 embodies the stakeholder-inclusive approach towards getting businesses to behave responsibly towards stakeholders.

73 Joubert, DJ “Reigniting the corporate conscience: Reflections on some aspects of social and ethics committees of companies listed on the Johannesburg Stock Exchange” in Visser, C and Pretorius, TT (eds) Essays in Honour of Frans Malan: Former Judge of the Supreme Court of Appeal (2014, LexisNexis) 183Google Scholar at 187.

74 With the development of share option schemes rampant across many jurisdictions including in Africa, where directors are given shares in the company essentially rendering them both directors and shareholders at the same time, how exactly are they expected to balance stakeholders’ competing interests objectively? Further, as a problem under the agency theory, directors have been shown not necessarily to constitute effective monitors or guardians of their principals’ (shareholders’) interests. See, Bolodeoku, IO “Corporate governance: The law's response to agency costs in Nigeria” (2007) 32 Brooklyn Journal of International Law 467Google Scholar, noting (at 480) that “the optimism of effective monitoring by the board of directors is, oftentimes, illusory, since the social and economic relationship between top-level managers and members of the board can, in fact, undermine the latter's effectiveness as monitors”. If this is anything to go by, how much of a success can a stakeholder protection process be if it is primarily hinged on directors’ judgments?

75 Relatedly, Ireland Paddy and Renginee Pillay noted: “The ‘soft’ law of CSR is no match for the ‘hard(er)’ laws protecting shareholder interest”: Ireland and Pillay “Corporate social responsibility”, above at note 27 at 79.

76 See similar arguments in Amodu “Regulation and enforcement”, above at note 6.

77 Executive Council, Western Cape v Minister for Provincial Affairs and Constitutional Development and Another; Executive Council, KwaZulu-Natal v President of the Republic of South Africa 2000 1 SA 661 (CC); Adene and Others v Dantubu (1994) 2 NWLR (pt 382) 509; Eko Hotels Limited v FRC of Nigeria (FHC/L/CS/1430/2012); NNPC v Famfa Oil Ltd (2012) 17 NWLR (pt 1328) 148; Bernard Amasike v The Registrar General of the Corporate Affairs Commission (2010) NWLR (pt 1211) 337; Olanrewaju v Oyeyemi and Others (2001) 2 NWLR (pt 697) 229; Din v AG Federation (1998) 4 NWLR (pt 87) 147 at 154; Governor Oyo State v Folayan (1995) 8 NWLR (pt 413) 292 at 327; AG of Lagos State v Eko Hotels Limited and Oha Limited (2006) NWLR (pt 1011) 3782; Noble Drilling Nigeria Limited v Nigerian Maritime Administration and Safety Agency (2013) LPELR-22029 (CA).

78 Ireland and Pillay “Corporate social responsibility”, above at note 27 at 97.

79 Inadequacies in, or a general failure of, the self-regulatory corporate governance approach and codes around the world and the reduction of compliance requirements of corporate governance codes to a box ticking exercise are no longer news. See: Osemeke and Adegbite “Regulatory multiplicity and conflict”, above at note 10 at 438; van Zyl, AS “Sustainability and integrated reporting in the South African corporate sector” (2013) 8/12 International Business & Economics Research Journal 903Google Scholar at 904 and 905 and following. See Parkinson “Corporate governance”, above at note 4, footnote 88 and accompanying text. See also Nike Inc v Marc Kasky 539 US 654 (2003); and Kasky v Nike, Inc 45 P 3d 243 (Cal 2002) where Kasky filed a lawsuit in California regarding newspaper advertisements and several letters Nike had distributed in response to criticisms of labour conditions in its factories. Kasky claimed that the company made representations that constituted false advertising. Also see, McCorquodale, R “Corporate social responsibility and international human rights law” (2009) 87 Journal of Business Ethics 385CrossRefGoogle Scholar at 394.

80 King IV Report, above at note 63 at 26. See also, Esser, I and Delport, P “The protection of stakeholders: The South African Social and Ethics Committee and the United Kingdom's enlightened shareholder value approach: Part 1” (2017) 50 De Jure 97CrossRefGoogle Scholar at 106 and footnote 33. For similar arguments in Nigeria, see Aina, K “Board of directors and corporate governance in Nigeria” (2013) 1 International Journal of Business and Finance Management Research 21Google Scholar.

81 See generally, Esser “Corporate social responsibility”, above at note 60 for other expansive interpretations of relevant sections in the South Africa Companies Act No 71 of 2008 towards stakeholder protection.

82 CSR and stakeholder protection were not direct issues for determination in Minister of Water Affairs and Forestry v Stilfontein Gold Mining Co Ltd 2006 5 SA 333 (W). However, it has been argued that Justice Hussain's allusion to the King Report corporate governance requirements in this case (following the mass resignation of corporate executives involved after an environmental (water) pollution scandal) pushed the agenda for stakeholder protection and CSR in South Africa.

83 2004 (2) All SA 457 (SCA).

84 [2015] JOL 33744.

85 Rott, P “Directors’ duties and corporate social responsibility under German law: Is tort law litigation changing the picture?” (2017) 1 Nordic Journal of Commercial Law 9Google Scholar at 18.

86 See Companies Act 2013 (India), secs 134(3)(0) and 135.

87 Above at note 73.

88 Esser “Corporate social responsibility”, above at note 60 at 324.

89 Id at 334.

90 There are indeed instances where the shareholder primacy model may encourage non-compliance with legal obligations if they might increase shareholders’ earnings in the long-term. Under a cost-benefit analysis, corporate executives may deliberately evade (not avoid) tax obligations if calculations suggest that the penalty for such evasion is less than the corporate earnings derivable from such evasion. After all, it is all about profit maximization, at almost any cost. See generally Sneirson “Shareholder primacy”, above at note 24.

91 Bratton, WW and Wachter, ML “Shareholder primacy's corporatist origins: Adolf Berle and the modern corporation” (2008) 34/1 The Journal of Corporate Law 99Google Scholar at 151.