Professional Skepticism and Corporate Transactions
DOI:
https://doi.org/10.17159/1727-3781/2025/v28i0a21349Keywords:
Professional skepticism, standards of conduct of directors, ; fundamental corporate law transactions , financial assistance for share acquisitions, adequate consideration requirementsAbstract
The approval of corporate law transactions under the South African Companies Act 71 of 2008, as amended, is anchored in directors' standards of conduct (that is, the fiduciary duties and the duty of care, skill and diligence) as the primary requirement. It is argued that the standards of conduct of directors as a requirement for the approval of selected fundamental transactions (which require uncompromising objectivity and independence) are inadequate. Professional skepticism – a concept embedded in the work of professional auditors – is proposed as an additional standard for approval of those selected fundamental corporate law transactions. Because professional skepticism goes beyond mere objective considerations of fiduciary duties and the duty of care, skill and diligence; and requires the observance of critical factors such as having a questioning mind and making a critical assessment of transactional evidence, it is best suited for the selected fundamental transactions explained in this article, as these require a high standard of independence and transparency in their approval.
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Bibliography
Literature
American Institute of Certified Public Accountants Statement on Auditing Standards No 82: Consideration of Fraud in a Financial Statement Audit (American Institute of Certified Public Accountants New York 1997)
American Institute of Certified Public Accountants Statement on Auditing Standards No 99: Consideration of Fraud in a Financial Statement Audit (American Institute of Certified Public Accountants New York 2002)
Boush DM, Friestad M and Rose GM "Adolescent Skepticism Toward TV Advertising and Knowledge of Advertiser Tactics" 1994 The Journal of Consumer Research 165-175
Bunge M "A Skeptic's Beliefs and Disbeliefs" 1991 New Ideas in Psychology 131-149
Burnyeat M The Skeptical Tradition (University of California Press Berkeley 1983)
Cassim FHI et al Contemporary Company Law 3rd ed (Juta Cape Town 2021)
Choo F and Tan K "Instruction, Skepticism, and Accounting Students' Ability to Detect Frauds in Auditing" 2000 Journal of Business Education 72-87
Clark RA and Goldsmith RE "Market Maven: Psychological Influences" 2005 Psychology and Marketing 289-312
Committee on Corporate Laws of the Business Section of the American Bar Association Report on the South African Companies Act No 61 of 1973 and Related Legislation (American Bar Association Chicago 2001)
Cozzens MD and Contractor NS "The Effect of Conflicting Information on Media Scepticism" 1987 Communication Research 437-451
Ferran E Company Law and Corporate Finance (Oxford University Press Oxford 1999)
Hallie PP Sextus Empiricus: Selections from the Major Writings on Skepticism, Man, and God (Hackett Indianapolis1985)
Havenga MK Fiduciary Duties of Company Directors with Specific Regard to Corporate Opportunities (29 Tran CBL Bloemfontein 1998)
Hurtt RK "Development of a Scale to Measure Professional Skepticism" 2010 Auditing: A Journal of Practice and Theory 149-171
Institute of Directors in South Africa Being a Director: Part 1, 2, 3 and 4 (Institute of Directors in South Africa Johannesburg 2024)
Institute of Directors in South Africa King Code on Corporate Governance for South Africa (Institute of Directors in South Africa Johannesburg 2009)
Irving LM and Berel SR "Comparison of Media-literacy Programs to Strengthen College Women's Resistance to Media Images" 2001 Psychology of Women Quarterly 103-111
Irving LM, DuPen J and Berel SR "A Media Literacy Program for High School Females: Eating Disorders" 1998 The Journal of Treatment and Prevention 119-131
Johnson OA Skepticism and Cognitivism (University of California Press Berkeley 1978)
Kurtz P The New Skepticism: Inquiry and Reliable Knowledge (Prometheus Books Buffalo 1992)
Lawrence JE "Ethics, Experience, and Professional Skepticism: A Situational Analysis" 1996 Behavioral Research in Accounting 124-157
Linn MC, De Benedictis T and Delucchi K "Adolescent Reasoning About Advertisements: Preliminary Investigations" 1982 Child Development 1599-1613
Lom P The Limits of Doubt: The Moral and Political Implications of Skepticism (State University of New York Press Albany 2001)
Luiz SM "Some Comments on the Scheme of Arrangement as an 'Affected Transaction' as Defined in the Companies Act 71 of 2008" 2012 PELJ 101-131
Manning B "The Shareholder's Appraisal Remedy: An Essay for Frank Coker" 1962 Yale LJ 223-265
Manning B and Hanks JJ Legal Capital 4th ed (Foundation Press St Paul 2013)
Mautz RK and Sharaf HA The Philosophy of Auditing: American Accounting Association Monograph No 6 (American Accounting Association Sarasota 1961)
McGinn M Sense and Certainty: A Dissolution of Scepticism (Basil Blackwell New York 1989)
McGuire WJ "Personality and Susceptibility to Social Influence" in Borgatta EF and Lambert WW (eds) Handbook of Personality Theory and Research (Rand McNally Chicago 1968) 1130-1187
Mongalo TH "Directors’ Standards of Conduct Under the South African Companies Act and the Possible Influence of Delaware Law" 2016 Journal of Corporate and Commercial Law and Practice 1-16
Mongalo TH "The Shareholder Vote Exemption for Disposal of All or a Greater Part of the Assets of the Holding Company" 2017 SA Merc LJ 515-526
Mongalo T and Scott T Corporate Law and Corporate Governance: An Overview of Business Undertakings in South Africa 2nd ed (Van Schaik Pretoria 2023)
Mupangavanhu BM Directors' Standards of Care, Skill, Diligence, and the Business Judgment Rule in View of South Africa's Companies Act 71 of 2008 (PhD-thesis University of Cape Town 2016)
Naess A Scepticism (International Library of Philosophy and Scientific Method Humanities Press New York 1969)
Nelson MW "A Model and Literature Review of Professional Skepticism in Auditing" 2009 Auditing: Journal of Practice and Theory 1-34
Phakeng M "Regulation of Mergers and Acquisitions in Terms of the South African Companies Act 71 of 2008: An Overview" 2020 BRICS Law Journal 91-118
Popkin RH The History of Scepticism from Erasmus to Spinoza (University of California Press Berkeley 1979)
Shaub MK "Trust and Suspicion: The Effects of Situational and Dispositional Factors on Auditors' Trust of Clients" 1996 Behavioral Research in Accounting 154-174
Stevens R "The Legal Nature of the Duty of Care and Skill: Contract or Delict?" 2017 PELJ 1-28
Worthington S "Fiduciaries: When is Self-denial Obligatory?" 1999 CLJ 500-508
Worthington S "Corporate Governance: Remedying and Ratifying Directors' Breaches" 2000 Law Quarterly Review 638-675
Zim L Time and Chance: Daring to Dream (Information Giants Publishers Polokwane 2021)
Case law
City of Tshwane Metropolitan Municipality v Nambithi Technologies (Pty) Ltd 2016 1 All SA 332 (SCA)
Coronation Syndicate Ltd v Lilienfeld and the New Fortuna Co Ltd 1903 TS 489
Paramount Communications, Inc v QVC Network, Inc 637 A2d 34 (Del 1994)
Robinson v Randfontein Estates Gold Mining Co Ltd 1921 AD 168
Trevo Capital Ltd v Steinhoff International Holdings (Pty) Ltd (2833/2021) [2021] ZAWCHC 123 (2 July 2021)
Legislation
South Africa
Companies Act 71 of 2008
Constitution of the Republic of South Africa, 1996
United Kingdom
Companies Act, 2006
United States of America
Model Business Corporations Act, 2022
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Copyright (c) 2025 TH Mongalo, MR Mosala
This work is licensed under a Creative Commons Attribution 4.0 International License.
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