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Section 417 of the Companies’ Act 1973

- Joubert, Yvette

  • Authors: Joubert, Yvette
  • Date: 2014-02-18
  • Subjects: South Africa. Companies Act, 1973 , Corporation law - South Africa
  • Type: Thesis
  • Identifier: uj:4165 , http://hdl.handle.net/10210/9512
  • Description: LL.M. (Mercantile Law) , This thesis deals with the question whether section 417 is adequately framed in order to fulfill its intended purpose in South African law. The necessity, efficiency and validity of private examinations are explored. Chapter 1 provides an introduction which sets out the methodology relied upon, namely a closer look at the primary source, namely section 417 as set out in the Companies Act 61 of 1973, as well as the consideration of secondary sources including academic texts and court decisions. In particular the matter of Kebble v Gainsford 2010 (1) SA 561 GSJ is considered as it is a recent case which again highlighted the value of private examinations. The law applicable to South African private examinations is considered in Chapter 2. By unpacking the various provisions relating to private examinations, which have been honed by the courts in a prolific number of cases, the aim of the thesis is to determine whether section 417 in its present format remains lawful, purposeful and necessary in our current society. As a comparison, section 236 of the English Insolvency Law 1986 is considered in Chapter 3, where the relevant legislation and complimentary rules are firstly ventilated, before the scope and purpose of the section as crystalised in English law, is determined. It is found that the main objective of the private examination procedure in South Arican law is to collect information which is not available by other means, in order that liquidators may determine as many assets as quickly and efficiently as possible. Although this purpose is echoed in English law, the wider scope of the section in that jurisdiction suggests areas where South African law may be enhanced by reform. In particular, the duty to investigate the cause of failure of a company is emphasised in English law, but underplayed in South African law. It is submitted that liquidators should have a duty to determine the cause of failure of a company, as the failure of a company affects society as a whole. Further suggestions for reform, based on the English example, comprise the adoption of supportive measures to complement the liquidator in the performance of his duties. It is acknowledged that a restructuring of South African insolvency law as a whole is needed
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The appropriateness of business rescue as opposed to liquidation : a critical analysis of the requirements for a successful business rescue order as set out in section 131(4) of the Companies Act 71 of 2008

- Sher, Lara-Jade

  • Authors: Sher, Lara-Jade
  • Date: 2014-05-26
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Bankruptcy - South Africa , Business failures - Law and legislation - South Africa
  • Type: Thesis
  • Identifier: http://ujcontent.uj.ac.za8080/10210/379145 , uj:11169 , http://hdl.handle.net/10210/10763
  • Description: LL.M. (Commercial Law) , The Companies Act 71 of 2008 (hereinafter referred to as the Act) was passed by Parliament on 19 November 2008 and assented to by the President on 8 April 2009. The Act came into force on 1 May 2011 and contains the provisions regulating the new business rescue proceedings that replace judicial management under the Companies Act 61 of 1973. However, since the introduction of Chapter 6 of the Act, the courts South Africa still appear to be finding their feet with regard to many of the Act’s provisions. In spite of this, the new business rescue practice has become an important part of the South African corporate framework. The outbreak of recent case law has started to shape the direction, which business rescue, as interpreted by the Courts, is taking. An important debate among the courts is whether the courts should rescue a business entity or liquidating the businesses assets in order to settle claims against it. While a liquidation aims to divide the profit from the sale of assets amongst creditors and to dissolve the company, business rescue legislation provides for a restructuring of the financial structure of a distressed debtor to save the business as a going concern and to assist the settlement of claims against the business in full. The business rescue proceedings have been provided for by legislation in the Act, however, the result of the vast recent court decisions show that the Act may not be relied upon unconditionally without proper regard to the circumstances of each case. This research analyses the appropriateness of business rescue as opposed to liquidation by specifically looking at the requirements for a successful business rescue order. This research further analyses whether the decisions of the courts in present case law are on the correct path when interpreting the business recuse provisions in terms of the Act.
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Cross-border insolvency : a comparative study of recognition and enforcement of foreign insolvency judgments between China and South Africa weighed in light of the progress of the European Union

- Lotter, Gina

An overview of the business rescue moratorium contained in Section 133 of the Companies’ Act 71 of 2008

- Van Huÿssteen, Hilgard Louis

  • Authors: Van Huÿssteen, Hilgard Louis
  • Date: 2015-01-13
  • Subjects: South Africa. Companies Act 2008
  • Type: Thesis
  • Identifier: uj:13149 , http://hdl.handle.net/10210/13172
  • Description: LL.M. (Commercial Law) , South African company law has seen many changes in respect of corporate rescue, due to inter alia globalisation, increase in open trade, instant and freer communication and the need for better regulation of companies and stakeholders. As a result, the previous rescue mechanism of judicial management was widely criticised and poorly implemented. The Companies Act 71 of 20081 has however now replaced judicial management with business rescue. Business rescue encompasses many facets, most importantly the moratorium in section 133. Section 133 has already, and will even more so in future, have a dramatic impact on the launching or continuation of any legal or enforcement proceedings against a company undergoing business rescue, the status and enforceability of its contracts and the rights of affected parties (ie creditors, shareholders and directors). This study will discuss the general nature and effects of rescue moratoria and the moratoria (or lack thereof) created under the Companies Act 61 of 1973,2 the 2008 Companies Act and the administration procedure in England. The moratorium under each relevant rescue procedure will be analysed according to its purpose, nature, effects and procedure. As such, this study will attempt to set out why the section 133 moratorium is the cornerstone to the business rescue procedure and vital in securing the turnaround of the company. The section 133 moratorium will, to a great extent, determine whether business rescue is a saving grace in South Africa. I will discuss why I welcome business rescue (and its moratorium) and consider it an improvement on judicial management, but also what I regard as its inherent weaknesses. This study will conclude with my proposals regarding prudent amendments that have to be made to the 2008 Companies Act.
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A critical analysis on how the courts have circumvented abuse arising from the shortfalls of legislation in business rescue Yatzee Investments CC v CAPX Finance Pty Ltd (3300/2015) [2015] ZAWCHC 117 (26 August 2015)

- Mashego, Morwesi

African Banking Corporation of Botswana v Kariba Furniture Manufacturers & Others (228/2014) [2015] ZASCA 69 (20 May 2015) : a discussion of the meaning of the term “binding offer” in terms of section 153(1)(b)(ii) of the Companies Act

- Soobramanie Abby, Shalini

Interpretation of ‘liquidation proceedings’ in terms of Section 131(6) of the Companies Act : a case analysis of Richter v ABSA Bank Limited

- Silva, Angela Rosa E.

The Richter judgment : an analysis of section 131(6) of the Companies Act

- Motsai, Tebogo

  • Authors: Motsai, Tebogo
  • Date: 2016
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Liquidation - South Africa , Bankruptcy - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90494 , uj:19986
  • Description: Abstract: The initiation of the Companies Act 71 of 2008 (the Act) has fundamentally changed South African company law and consequently there is still a there is a lot of grey areas and uncertainty which is yet to be cleared up by the courts in their interpretation of the current law by interpreting the law. The Act in chapter 6 introduces the concept of business rescue which provides for the rescue and rehabilitation of financially distressed companies from distress and ultimately liquidation proceedings. Prior to the adoption of the business rescue regime, financially distressed companies in South Africa had limited alternatives to their disposal. Companies now have the option to adopt and follow a rescue proceedings plan if the company is in financial distress and needs assistance in saving it from insolvency and ultimately liquidation proceedings. This mini-dissertation looks at the decision of the Supreme Court of Appeal in Richter v Absa Bank Limited, the application for business rescue during liquidation proceedings, inter alia the provisions of section 131(6) of the Act, and the abuse of business rescue by entities in an effort to starve liquidation and frustrate creditors. The Act does not define the concept liquidation proceedings and/or what it entails and court decisions that grappled with its meaning in this context have reached divergent conclusions. The mini-dissertation concludes that the ambiguity created by the confusing use of the terminology in section 131 is a cause for concern and consequently a judicial amendment and/or an explanatory note is long overdue. , LL.M. (Corporate Law)
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African Banking Corporation of Botswana v Kariba Furniture Manufacturers (Pty) Ltd and others 2015 (5) SA 192 (SCA): a critical analysis of the interpretational glitches of the terms “binding offer” and “reasonable prospect”

- Chiweshe, Dudzai

An analysis of the application of Section 129 of the Companies Act 71 of 2008 in Panamo Properties v Nel

- Phiri, Chifundo

A discussion of the regulation of insolvency practitioners in South African law: a dream deferred?

- Ramotlou, Letjeka Logan

A legal analysis of the concept of a binding offer in Section 153 of the Companies Act

- Shabalala, Themba

Business Rescue: Bridging the gap between formal and informal debt restructuring

- Mokone, Angela

Effects of business rescue on creditors’ rights against sureties

- M’Crystal, Matthew Robert

Legal challenges arising from the application and granting of a business rescue order after final liquidation

- Pillay, Diren

A legal analysis of the concept of insolvency in Boschpoort Ondernemings (Pty) Ltd v Absa Bank Ltd

- Makoro, Lebogang Shadi

Non-compliance with the criteria for business rescue resolution of the Companies Act, 2008 : Panamo Properties (Pty) Ltd v Nel

- Tebele, Tebatso Confidence

The problems and pitfalls in the appointment of insolvency practitioners in South African Insolvency Law

- Buthelezi, Lungile Cynthia

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