The market is experiencing almost unprecedented levels of liquidity, across public and private debt and equity capital markets. This is staunching restructuring activity, which might otherwise be expected to rise (not least as pandemic-related government support starts to withdraw). There are also many companies still sponsoring defined benefit pension schemes. The statutory and regulatory landscape in this area has evolved significantly in recent months – with new powers for regulators, and new restructuring tools for debtors.

Interim costs awards in arbitration proceedings are not often the precursors to winding up applications. However, it may happen that if such an award of costs is not paid, the possibility of winding up the non-paying party may arise. This possibility leads to the following question, "Is a bill of costs drafted pursuant to an arbitration award and taxed by the taxing master of the High Court a "debt" for purposes of section 345 of the Companies Act 61 of 1973?"

The Minister of Justice and Constitutional Development (the Minister) has recently determined a policy on the appointment of insolvency practitioners, which was published in theGovernment Gazette No 37287 on 7 February 2014 (the policy). This policy, once it commences, will replace all the previous policies and guidelines that are currently being utilised by the Master's offices to appoint insolvency practitioners and its stated intention is to "form the basis of the transformation of the insolvency industry".

Consider the following commonly encountered scenario: A creditor had instituted litigation proceedings against Company X and obtained a default judgment against it. Pursuant to the judgment the creditor issued a writ of execution, but is now faced with the situation where an affected person has brought an application in terms of section 131(1) of the Companies Act 71 of 2008 (the Act) to place Company X under supervision and to commence business rescue proceedings. What is the effect on the creditor?

In related Nortel and Lehman Brothers cases, the UK Supreme Court ruled in July that Financial Support Directions ("FSDs") and Contribution Notices ("CNs") under the Pensions Act 2004 rank as provable debts if issued against insolvent targets.

Overturning the decisions of Mr Justice Briggs and the Court of Appeal, the Supreme Court has ruled that such FSD or CN liabilities are not administration or liquidation expenses. It has also confirmed that they do not rank behind other provable debts (the option which had become known as the 'black hole').