On 21 September 2016, the Western Cape High Court (Court) handed down judgement in the case of Tyre Corporation Cape Town (Pty) Ltd and Others v GT Logistics (Pty) Ltd and Others (Rogers J) [2016] ZAWCHC 124 in terms of which the Court considered, among other questions, the following:

 The Court of Rovigo (1st August 2016) confirms that the debtor shall regularly perform obligations arising after the concordato filing from an existing contract, when the debtor elects not to apply to the Court to terminate it

The case

 The Court of Milan (18 April 2016) sticks to its own precedents mandating automatic termination, notwithstanding the recent decision of the Court of Cassation (19 February 2016, No. 3324) requiring that an actual prejudice for the creditors be ascertained

The case

The consequences for cross-border insolvencies will largely depend on how Brexit is implemented, but will not affect schemes of arrangement

Foreword

Understanding and mastering cross-border insolvency requires a thorough knowledge of the different domestic insolvency regimes, all of which have distinctive procedures and rules on jurisdiction and recognition of foreign proceedings. Creditors and debtors look for the most favourable system: in this framework, the UK insolvency system is usually considered “creditor-focused”.

It is now generally accepted that the Companies Act, No 71 of 2008 (Act) is an overhaul of our corporate law landscape. This shift is even more evident with the introduction of a new business rescue regime and along with it, the general moratorium on legal proceedings against a company in business rescue.

Section 133 of the Act provides that no legal proceedings including enforcement action may commence or continue against a company undergoing business rescue, save where amongst other exceptions, consent is granted by the court or obtained from the business rescue practitioner.

Prescription is one word which every creditor (and attorney) dread. Prescription extinguishes a debt and there is very little a creditor can do once that proverbial ship has sailed.

The Prescription Act, No 68 of 1969 (Prescription Act), on a good day, has its challenges, but the situation is even more uncertain when an insolvent estate is concerned.

Rogers J, with Nuku J concurring, in the recent judgment of Van Deventer and Another v Nedbank Ltd 2016 (3) SA 622 (WCC) shed some very needed light on this issue.

In Hattingh v Roux NO & Others 2011 (3) SA 135 (WCC), the plaintiff, Hattingh, sought to show that the defendant, Roux junior, intentionally and unlawfully injured Hattingh by executing an illegal and highly dangerous manoeuvre during a scrum in an Under 19 rugby match between two Western Cape high school teams.

Among other issues considered by the court was the delictual ground of intent: whether Roux junior, if he had in fact executed the manoeuvre which injured Hattingh, acted negligently or intentionally in doing so.

The case of Kythera Court v Le Rendez-Vous Café CC trading as Newscafé Bedfordview case number 2016/11853 GLDJ reiterated the Supreme Court of Appeal (SCA) decision in Cloete Murray NO & another v Firstrand Bank Ltd T/A Wesbank 2015 (3) SA 438 (SCA) that an agreement can be cancelled during business rescue as the unilateral act of cancellation does not constitute enforcement action in terms of s133(1) of the Companies Act, No 71 of 2008 ( Act).

The Italian Supreme Court (5 July 2016, No. 13719) issues a maiden decision on the conditions for theprotection afforded by restructuring plan to stand if the plan fails and bankruptcy is declared

The case

The Court of Cassation (13 June 2016, No. 12120) confirmed that a limited liability company can bedeclared bankrupt, if it is found that the company is a partner of an insolvent de facto partnership

The case