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Die sekwestrasie van vennootskappe : geselekteerde anomalieë

- Muller, Johannes Ekkert

  • Authors: Muller, Johannes Ekkert
  • Date: 2012-08-14
  • Subjects: Partnership - South Africa , Attachment and garnishment - South Africa , Bankruptcy - South Africa
  • Type: Thesis
  • Identifier: uj:9267 , http://hdl.handle.net/10210/5712
  • Description: LL.M. , Tydens die ontwikkeling van die verskeie besigheidsondernemingsvorme in Suid-Afrika is groot aandag geskenk aan statutere regulering van hierdie ondernemingsvorme, asook interaksie tussen hierdie statutere reguleringsmaatreels en harmonisering daarvan met bestaande wetgewing wat daarop van toepassing mag wees. Dit wil egter voorkom dat statutere regulering in Suid-Afrika ten aansien van sekere ondernemingsvorme ver tekort skiet, aangesien daar geen onafhanklike wetgewing in Suid-Afrika bestaan ten aansien van byvoorbeeld vennootskappe nie, anders as in ander werelddele. Daar kan derhaiwe tereg gese word dat die vennootskapsreg beskou kan word as die "stiefkind" van die Suid-Afrikaanse reg. Alhoewel daar steeds verskeie Ieemtes en anomaliee bestaan ten aansien van statutere gereguleerde ondernemingsvorme en harmonisering van sekere statutere bepalings daarop van toepassing, met bestaande wetgewing, wil dit voorkom asof die bestaande verwysingsbronne ten aansien van die vennootskapsreg en ander wetgewing ernstige anomaliee teweegbring, wat vervolgens selektief bespreek gaan word, met spesifieke verwysing na anomaliee wat bestaan in die toepassing van sekere bepalings van die Insolvensiewet ten aansien van vennootskappe.
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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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A critical enquiry into the need for avoidance provisions in business rescue proceedings

- Wright, Christopher John

  • Authors: Wright, Christopher John
  • Date: 2014-06-04
  • Subjects: South Africa. Companies Act, 2008 , Corporation law - South Africa , Bankruptcy - South Africa , Business failures - Law and legislation - South Africa
  • Type: Thesis
  • Identifier: uj:11388 , http://hdl.handle.net/10210/11026
  • Description: LL.M. (Corporate Law) , This dissertation firstly looks at the need for avoidance provisions over the course of insolvency proceedings and the attaching considerations in the development of same. Mention is also made of the difference between corporate rescue proceedings compared to liquidation. This brief comparative is essential as the different avoidance powers that are afforded to “rescue practitioners” when compared to “liquidators” is a common thread running through each of the following chapters. I will then shift the focus of my discussion to South Africa, briefly describing the avoidance powers that were afforded to a judicial manager under the Companies Act 61 of 1973. Thereafter, I will discuss the extent of any avoidance powers that have been afforded to a business rescue practitioner in terms of section 141(2)(c)(i) of the Companies Act 71 of 2008. This will involve consideration of the latest case law and other practical factors which will seek to build-on and/or enhance our judiciary’s decisions as to the extent of the avoidance powers that have been afforded to a business rescue practitioner. Once I have clearly set out the position in South Africa, I will consider the avoidance powers that have been afforded to an administrator in terms of Australia’s comparative corporate rescue mechanism, known as the administration of a company’s affairs with a view to executing a deed of company arrangement. Last, I will shift my focus to England, once again discussing and comparing the range of avoidance powers that are available to what they also term an administrator, when a distressed company enters Administration. At the end of each of the chapters setting out the powers that have been afforded to the business rescue practitioner and the administrators in both Australia and England, the position in South Africa will be analysed, with any and all uncertainties and/or inadequacies relating to our section 141(2)(c)(i) being identified. Finally, I will conclude my discussion by way of setting out my proposed recommendations that could assist in making South Africa’s business rescue regime both more effective and attractive to creditors – hopefully ensuring its continued effectiveness.
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The impact of the National Credit Act 34 of 2005 on insolvency proceedings

- Nel, Imo-Rhesa

  • Authors: Nel, Imo-Rhesa
  • Date: 2014-11-04
  • Subjects: South Africa. National Credit Act, 2005 , South Africa. Insolvency Act, 1936 , Credit - Law and legislation - South Africa , Bankruptcy - South Africa
  • Type: Thesis
  • Identifier: uj:12753 , http://hdl.handle.net/10210/12643
  • Description: LL.M. (Commercial Law) , When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.
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The sources and obstacles of post-commencement finance in South Africa : a comparison with the United Kingdom and Australia

- Noomé, Jade

  • Authors: Noomé, Jade
  • Date: 2014-12-02
  • Subjects: South Africa. Companies Act, 2008 , Bankruptcy - South Africa , Bankruptcy - Great Britain , Bankruptcy - Australia , Corporate law - South Africa , Corporate law - Great Britain , Corporate law - Australia , Business failures - Law and legislation - South Africa , Business failures - Law and legislation - Great Britain , Business failures - Law and legislation - Australia
  • Type: Thesis
  • Identifier: uj:13140 , http://hdl.handle.net/10210/13121
  • Description: LL.M. (Mercantile Law) , Rescue refers to the restructuring of a company which would be necessary in order to preserve the said company and reinstate the entity‟s status to one of viability and profitability. One of the success factors of a business rescue is to develop and implement a business rescue plan, with one of the critical components of a successful business rescue plan involving securing post-commencement finance, which would be necessary to adhere to trade obligations as well as attempting to restore the company to a solvent position. The absence of post-commencement finance can result in the failure of business rescue altogether and thus the Companies Act has introduced a system of preference ranking in order to stimulate the required funding. This classification is encapsulated in section 135 of Chapter 6 in the Companies Act 71 of 2008. There is a prevalent shift of ideology from placing restrictions on a distressed company and a movement towards a capitalist approach creating a foundation for growth and re-entrance into the economy whereby distressed companies may continue as going concerns in terms of section 7(c) of the Companies Act, which will ultimately improve trade through the adherence to international standards ensuring employment as well as economic social benefits in section 7(d) of the Companies Act. The focus on distressed companies has allowed for the emphasis of previous legislation to be shifted away from a creditor-friendly approach to a debtor-friendly approach. This dissertation will attempt to briefly describe business rescue and analyse the concept and obstacles with regards to the provision of post-commencement finance in South Africa as well as international jurisdictions, specifically Australia and the United Kingdom...
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Business rescue: balancing the interests of all the relevant stakeholders

- Sephesu, Kagiso

A critical analysis of the business rescue requirements according to Newcity Group v Allan David Pellow and section 131(4) of the Companies Act of 2008

- Ngwenya, Pervia Kudakwenyu

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

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 impact of the business rescue moratorium on creditors

- Mmbara, Hulisani Kevin

  • Authors: Mmbara, Hulisani Kevin
  • Date: 2016
  • Subjects: South Africa. Companies Act, 2008 , Business failures - Law and legislation - South Africa , Bankruptcy - South Africa , Corporation law - South Africa
  • Language: English
  • Type: Masters (Thesis)
  • Identifier: http://hdl.handle.net/10210/90470 , uj:19984
  • Description: Abstract: A temporary moratorium on the rights of claimants against a company during business rescue proceedings is a universally acknowledged measure to facilitate the rehabilitation of a financially distressed company. In this regard, section 133(1) of the Companies Act 71 of 2008 provides for a general moratorium on legal proceedings against a company or property lawfully in its possession. This short dissertation critically analyses the impact of the section 133(1) moratorium on creditors. The moratorium is effective automatically, upon commencement of business rescue proceedings. The legal effect of the moratorium is that the right of creditors to enforce their claims against the company is suspended for the duration of business rescue proceedings. However, the moratorium may be lifted upon the written consent of the business rescue practitioner or the leave of the court. Further, certain proceedings or actions are automatically excluded from the operation of the moratorium. This research analyses the objectives of business rescue, the rationale, scope, and duration of the moratorium, in order to ascertain the possible impact of the moratorium on the creditors. In conclusion, the research analyses measures to mitigate unwarranted prejudice to the interests of creditors within the current legislative scheme of Chapter 6 of the Companies Act 2008 and proposes alternatives thereto, where appropriate. , LL.M. (Commercial Law)
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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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Interpretation of “liquidation proceedings” : a discussion of Richter v ABSA Bank Limited

- Mudau, Tshifhiwa

Bank failures : lessons for South Africa

- Terblanche, Francois

The interruption of liquidation by business rescue application: a lacuna in the Companies Act

- Ntingane, Neo Samantha

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

- Buthelezi, Lungile Cynthia

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