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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.

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

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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Business rescue: balancing the interests of all the relevant stakeholders

- Sephesu, Kagiso

A critical comparison between how the rights of employees are affected by winding-up and business rescue proceedings

- Huneberg, Samantha

  • Authors: Huneberg, Samantha
  • Date: 2015-11-13
  • Subjects: Employee rights - South Africa , Employee rights - Great Britain , Employee rights - Australia , Liquidation - South Africa , Liquidation - Great Britain , Liquidation - 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:14566 , http://hdl.handle.net/10210/15099
  • Description: LL.M. (Commercial law) , This dissertation seeks to explore the fundamental differences between the rights of employees in terms of windiqg-up procedures and that of business rescue proceedings. I will be specifically looking at each procedure, winding-up and business rescue proceedings, and the effect that each of these procedures have on the rights of employees. In terms of the analysis of the procedures, I will be looking at the history of both insolvency law and labour law, as well as a look at the old Companies Act of 1973 and specifically at judicial management. By looking at the history we can gain an outlook on the problems we encountered then and how they can be improved today. I will then move on to look specifically at the specific proceedings of winding-up in Chapter 14 of the old 1973 Act and Chapter 6 of the new 2008 for the provisions on business rescue. Through analysing the proceedings I will also look at the legal position in other jurisdictions on the specific matter into account. Specifically I will look to the UK and Australia. Additionally, I will be looking at the International Labour Organisations position on employees' rights in terms of insolvency law. The specific rights of employees that I will be considering are employees rights to commence proceedings, their right to be informed, their right to be consulted, the effect on their employment contracts, retrenchments, claims which they may have against the company as well as the specific rights of employees in the case of a transfer of the business. In analysing all of the above aspects, I will come to conclude from my findings that the rights afforded to employees under business rescue and Chapter 6 of the 2008 Act are extremely beneficial to the employees and are so extensive that they cover almost all rights of employees. In comparison with the rights afforded to employees' in terms of winding-up procedures under Chapter 14 of the 1973 Act these rights are stiII beneficial to employees but they are not as extensive. Both procedures afford employees a significant amount of protection.
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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 of the winding up grounds as set out in section 81(1)(d) of the Companies Act 71 of 2008

- Mohamed, Faheem

  • Authors: Mohamed, Faheem
  • Date: 2013-09-02
  • Subjects: Liquidation - South Africa , South Africa. Companies Act, 2008
  • Type: Thesis
  • Identifier: uj:7723 , http://hdl.handle.net/10210/8593
  • Description: LL.M. (Commercial Law) , Section 81(1)(d) of the Companies Act 71 of 2008 allows a company, one or more of its directors or shareholders to apply to a court of law to wind up a solvent company. In essence, they can do so under three specified circumstances namely, where the directors are deadlocked in the management of the company and the shareholders are unable to break the deadlock, the shareholders are deadlocked in voting power and have failed for a period that includes at least two consecutive annual general meeting dates, to elect successors to directors whose terms have expired, or it is otherwise just and equitable for a company to be wound up. Item 9 schedule 5(1) of the Companies Act 2008 states that chapter 14 of the Companies Act 1973 continues to apply in regard to winding-up and liquidation of companies under the Companies Act 2008 as if the Companies Act 61 of 1973 has not been repealed. By virtue of this schedule, section 347 of the Companies Act 1973 still remains applicable. However, section 347(1) of the Companies Act 1973 still makes reference to section 346 of the Companies Act 1973 which is no longer applicable for winding-up of a solvent company and for that very reason it appears as though the intention is that section 347(1) of the Companies Act 1973 should not apply in such circumstances, I recommended that an amendment be made to the Companies Act 2008 to rectify this discrepancy. In light of the inclusion of section 347(2) of the Companies Act 1973, by virtue of item 9 schedule 5 of the Companies Act 2008, an application brought by shareholders places a definitive onus and an additional burden on the applicants to prove that they have exhausted all remedies available to them and they had no other alternative but to bring a winding-up application as a last resort. The all encompassing provision of section 81(1)(d)(iii) of the Companies Act 2008, I argued, should allow for a winding-up of a company, even in respect of the weaker forms of deadlock, where it does not fit neatly within section 81(1)(d)(i) and section 81(1)(d)(ii) of the Companies Act 2008. The word ‘otherwise’, in my opinion, has been correctly included in section 81(1)(d)(iii) of the Companies Act 2008. The courts will inevitably be 8 | P a g e left to determine the perimeters of section 81(1)(d)(iii) of the Companies Act in relation to the sections 81(1)(d)(i) and 81(1)(d)(ii) of the Companies Act 2008. I discovered striking similarities to the wording of the just and equitable provision and this wording has been consistent in various versions of the companies acts (both current and previous) in various jurisdictions. The ejusdem generis principle, I argued, is not applicable and the just and equitable provision needs to be looked at independently of the other grounds. From the recent case law arising on the interpretation of section 81(1)(d) of the Companies Act 2008, it is clear that the various principles which were developed during the era of the previous companies acts were still applicable and relevant to the Companies Act 2008, unless the Supreme Court of Appeal in South Africa decides otherwise.
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Interpretation of “liquidation proceedings” : a discussion of Richter v ABSA Bank Limited

- Mudau, Tshifhiwa

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

- Ntingane, Neo Samantha

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