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    Is business rescue possible after a final liquidation order?
    2015-09-09

    Can an application for business rescue be brought even after a company has been placed in final liquidation?  The short answer, thanks to a recent Supreme Court of Appeal ("SCA") decision, is yes.

    In Richter v Absa Bank Limited 2015, an interpretation of 'liquidation proceedings' within the context ofsection 131(6) of the Companies Act, 71 of 2008 ("the Act"), was central to the issue before the SCA.  

    Section 131(6) of the Act reads as follows:

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Shepstone & Wylie Attorneys, Liquidation
    Authors:
    Casey Austin
    Location:
    South Africa
    Firm:
    Shepstone & Wylie Attorneys
    Labour disputes for companies under liquidation
    2015-11-10

    ISSUE

    Whether employees who have lodged a claim in the Labour Court against an employer that has gone into liquidation may proceed with their claim if they have not provided the liquidator with the requisite notice as required by South Africa’s company laws?

    SUMMARY

    Filed under:
    South Africa, Employment & Labor, Insolvency & Restructuring, Litigation, Werksmans Attorneys, Liquidation, Labour Court of South Africa
    Authors:
    Jacques van Wyk , Andre Van Heerden
    Location:
    South Africa
    Firm:
    Werksmans Attorneys
    Tax consequences of a liquidation distribution followed by an amalgamation transaction
    2015-11-13

    The South African Revenue Service (SARS) released Binding Private Ruling 210 (Ruling) on 11 November 2015. The Ruling sets out the tax consequences of a ‘liquidation distribution’, as defined in s47(1)(a) of the Income Tax Act, No 58 of 1962 (Act), followed by an ‘amalgamation transaction’ as contemplated in s44(1)(a) of the Act.

    Filed under:
    South Africa, Insolvency & Restructuring, Tax, Cliffe Dekker Hofmeyr, Liquidation
    Authors:
    Dries Hoek , Gigi Nyanin
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    Liquidation applications on a disputed tax debt and the applicability of section 177(3) of the Tax Administration Act 28 of 2011
    2014-07-31

    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.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Tax, Hogan Lovells, Liquidation
    Authors:
    Keith Braatvedt
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Liquidation: the effect on leases
    2014-09-12

    Although a tenant's insolvency does not automatically terminate the lease or confer a right upon a landlord to cancel the lease, a landlord is not left without any remedies where a tenant is in breach of the lease before the tenant is wound-up.

    A recent judgment of the Supreme Court of Appeal (SCA) in Ellerine Brothers (Pty) Limited (Ellerine) v McCarthy Limited, clarified the legal position.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Real Estate, Cliffe Dekker Hofmeyr, Landlord, Leasehold estate, Liquidation
    Authors:
    Lucinde Rhoodie
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    The abuse of business rescue: beware the serial debtor
    2014-12-11

    The advent of the new Companies Act 71 of 2008 (the Act) brought with it a shift from a creditor-protectionist society towards a business rescue model that is debtor-protectionist. In consequence, there has been a swarm of applications taking advantage and exploiting this new scheme. This shift has unfortunately led to considerable abuse of the business rescue procedure.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Hogan Lovells, Shareholder, Liquidation
    Authors:
    Alex Eliott , Kylene Weyers
    Location:
    South Africa
    Firm:
    Hogan Lovells
    New policy on the appointment of insolvency practitioners – could this be a turning point in the South African insolvency industry?
    2014-04-29

    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".

    Filed under:
    South Africa, Insolvency & Restructuring, Hogan Lovells, Liquidation
    Authors:
    Ashton Crommelin
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Group companies and the avoiding of subpoenas in terms of sections 417 and 418 of Act 61 of 1973
    2014-04-30

    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.

    Filed under:
    South Africa, Banking, Insolvency & Restructuring, Litigation, Hogan Lovells, Liquidation
    Authors:
    Keith Braatvedt
    Location:
    South Africa
    Firm:
    Hogan Lovells
    What is the meaning of "voting interests" in terms of section 153(1)(b)(II)?
    2014-04-30

    Section 153 (1)(b)(ii) of the Companies Act 71 of 2008 (the Act) is intended to afford a remedy to affected persons who support a business rescue plan that has been 

    The section can be broken down into five key elements:

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Hogan Lovells, Statutory interpretation, Liquidation
    Authors:
    Alex Eliott
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Recent developments in the de-registration and restoration of companies in liquidation
    2013-10-29

    In recent years, the Companies and Intellectual Properties Commission (“CIPC”) (and its predecessor, the Companies and Intellectual Property Registration Office (“CIPRO")) has been carrying out mass de-registrations of companies and close corporations for failure to file their annual returns. This phenomenon, and its severe negative effects on third party creditors, has been the focus of much legal scholarship. However, a short while ago it came to our attention that CIPC’s de-registration campaign also extends to companies that have been placed in liquidation.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, ENS, Liquidation
    Location:
    South Africa
    Firm:
    ENS

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