1. State of the Restructuring Market

1.1 Market Trends and Changes

State of the Restructuring and Insolvency Market

There were 27,359 insolvencies in France as of the end of September 2021, down 25.1% from the same period in 2020, and down 47.9% from September 2019. Such reduction is relatively stable across all sectors, including those most severely affected by the health-related restrictions, such as accommodation and food services (down 44.2% year-on-year) and trade (down 28.1% year on year).

Fewer Insolvencies for More Opportunities

At the end of 2021, corporate bankruptcies (for most company sizes and in most sectors) were at their lowest level compared to the pre-COVID-19 figures from 2019, with a 50% drop in insolvency proceedings and a 10% decrease in pre-insolvency situations. This was largely due to the temporary impact of government emergency measures and support, including:

Section 134 of Act 71 of 2008 is extremely important because it is there to protect the interests of both the company in business rescue and the creditors and other third parties related to the company.

Judge Megarry in Re Rolls Razor Limited¹, aptly describes the necessity of insolvency enquiries:

One of the first cases involving the operation of section 153(1)(a)(ii) of the Companies Act 71  of 2008 is the matter of Copper Sunset Trading 220 (Pty) Ltd t/a Build It Lephalale (In Business Rescue) and Spar Group Limited (First Respondent) and Normandien Farms (Pty) Ltd (Second Respondent).  This matter was decided under case 365/2014 in the High Court of South Africa (Gauteng Division, Pretoria) functioning as Limpopo Division, Polokwane.

Judge Andre van Niekerk handed down an interesting judgment in the High Court of South Africa (North Gauteng Division) on 30 September 2013.  In my respectful opinion the judgment is insightful and is correct.  The facts are fairly simple.  Miles Plant Hire (Pty) Ltd (MPH) had a tax liability of R37 441 090.59 to the commissioner of the South African Revenue Services (SARS). SARS had levied a tax assessment in this amount on MPH, which included penalties and interest.

An interesting judgment was delivered by the Honourable J Majiki on 19 of November 2013 in the Eastern Cape High Court, Port Elizabeth. The first and second applicants under case 3521/2012 were ABSA Bank Limited and Maria Ramos respectively.