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 this article we investigate whether, in South African law, a subordination agreement could constitute a "voidable disposition" as defined in section 26 of the Insolvency Act 24 of 1936 (the Act).
Section 26 of the Act provides that every disposition of property not made for value may be set aside by the court, if the disposition was made by an insolvent (whether an individual, company or close corporation) either:
Although business rescue may be a good tool for the purpose of turning around financially distressed businesses, it also opens the door for abuse by unscrupulous debtors.
A business rescue application may be brought at any time during liquidation proceedings, even after a final winding-up order has been granted, right up until the point where a final liquidation and distribution account is confirmed by the Master of the High Court.
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".
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.
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:
With the global recession still being felt, times are tough and many companies are struggling to collect debts from errant customers or clients. In these cases, a winding-up application is arguably the most effective way to collect substantial debt as the following example shows.
In terms of section 64B(5)(c) of the Act the following amounts will be exempt when distributed in the course of or in anticipation of the liquidation, winding up, deregistration or final termination of the corporate existence of a company or close corporation, provided that certain steps are taken within 18 months from the date of the liquidation distribution, namely;
In the 2011 budget speech, the Minister of Finance announced that the Government will consider exempting taxable capital gains or ordinary revenue imposed on an insolvent debtor if the debt owing by the debtor is cancelled or reduced.
Another important judgement for Business Rescue was handed down in the North Gauteng High Court by his Honorable Justice Legodi in the matter of P T van Staden v Angel Ozone Products CC (In Liquidation) & others on the 12th of October 2012.
The Applicant (member) of a Close Corporation named Angel Ozone Products CC (First Respondent) brought an application in terms of Section 131 of the Companies Act, Act 71 of 2008 (“new Act”) more than a year after the Magistrates Court of Pretoria had granted a final liquidation order.