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Bogra is a company that is active within the funeral industry. As a result of serious financial problems, an administrator (bewindvoerder) was appointed on 28 June 2017. On the same date Bogra was declared bankrupt (30 June 2017), the employment agreements of Bogra’s employees were terminated. Funico acquired (part of) Bogra’s assets on 18 July 2017 due to an asset transaction. Effective 19 July 2017, Bogra’s activities were continued by Bogra Uitvaartkisten.
In Ex Parte Nell and Others NO 2014 (6) SA 545 (GP) (28 July 2014), the board of a company passed a resolution placing it in business rescue in accordance with s129 of the Companies Act, No 71 of 2008 (Companies Act). In terms of this section, a financially distressed company may, without any prior judicial oversight or consultation with its creditors, achieve a general moratorium against legal proceedings.
Crusade against dormant companies: make sure you file your annual accounts on time!
Introduction
On 5 September 2017, the Dutch legislator published an amended bill on pre-insolvency proceedings in the Netherlands1 for consultation purposes.2 The Bill contains a proposal for an amendment to the Dutch Bankruptcy Act (Faillissementswet) which enables a company in financial difficulties to propose a composition outside insolvency proceedings to its creditors and shareholders, to restructure problematic debts.
On July 19 2017, the National Treasury published the Draft Taxation Laws Amendment Bill 2017. The bill proposes to clarify the tax implications that arise when a person assumes contingent liabilities under the corporate reorganisation rules contained in Sections 41 to 47 of the Income Tax Act (58/1962).
A Melomed Finance (Pty) Ltd (In Liquidation) v Harris Jeffrey (SGHC Case no: 2016/A5028) (Judgment handed down 23 June 2017)
The South Gauteng High Court, sitting as a court of appeal, recently handed down a judgment to the effect that a verbal acknowledgement of debt when made at an enquiry held into the affairs of a company, in terms of s417 and s418 of the Companies Act, No 61 of 1973 (s417 enquiry), can be used as evidence in subsequent civil litigation to recover the amount so acknowledged.
Since 1956, legislation has required suretyship agreements to be embodied in a written document. A suretyship agreement involves three parties; simplistically if A does not pay B, then C will. C will step into the shoes of A and perform A’s obligations for them.
The recast Insolvency Regulation of 20 May 2015 embodies a further step towards the harmonisation of European Union insolvency law. The main provisions are set to apply to insolvency proceedings as of 26 June 2017.
The key changes relate to a broader scope, the “centre of main interests” (COMI) concept, secondary proceedings, group insolvencies and the introduction of insolvency registers. Overall, the new elements will increase the chance of a positive outcome in complex cross-border insolvencies and offer better cooperation and transparency.
The introduction of business rescue proceedings by Chapter 6 of the Companies Act, No 71 of 2008 (Act) created uncertainty on various levels, in particular the extent and nature of certain rights previously enjoyed by creditors.
Our courts are making progress in finding a path through the muddy waters in this regard and every day a judgment is delivered that sheds some light on previous uncertain propositions.