The ‘dual jurisdiction’ regime has long been entrenched in South Africa’s corporate insolvency law. This principal arises from the provisions of the Companies Act, No 61 of 1973 (Old Act), which provides that jurisdiction over a company is determined by the location of both its registered address and its principal place of business with the creditor having the choice of jurisdiction.

With the enactment of the Companies Act, No 71 of 2008 (New Act), the question that then follows is: Does this principle of jurisdiction continue to apply under the New Act?

There has always been a degree of uncertainty when it comes to a business rescue practitioner’s costs and expenses incurred in the business rescue proceedings of an entity when the business recue proceedings are, for whatever reason, converted to liquidation proceedings.

Section 133 of the Companies Act, No 71 of 2008 places a general moratorium on legal proceedings, while the company is under business rescue. This provides a company with time and resources to be rehabilitated through the implementation of a business rescue plan. As a result, there is some debate as to whether creditors are precluded from perfecting their security, such as a notarial bond, under business rescue.

Employment contracts were previously deemed to be suspended on the date of liquidation, being the date that the application for liquidation of the company is presented and issued at court in terms of s348 of the Companies Act, No 61 of 1973 (Old Companies Act). However, this position has since changed.

The commercial landscape in South Africa was forever changed when business rescue was introduced by Chapter 6 of the Companies Act, No 71 of 2008 (Act).

The proverbial "blind leading the blind" comes to mind when one recalls the great uncertainty which existed, and to an extent still exists, in the minds of business owners, creditors, employees and even business rescue practitioners as to the meaning of certain of the provisions of Chapter 6 of the Act.

On 8 July 2015, the Western Cape High Court, in the matter of University of Stellenbosch Legal Aid Clinic and Others v Minister of Justice And Correctional Services and Others, found section 65J(2)(b)(i) and section 65J(2)(b)(ii) of the Magistrates Court Act 32 of 1994 (“MCA”) inconsistent with the constitution and invalid to the extent that they fail to provide for juducial oversight over the issuing of an emolument attachment orders (“EOA”) /garnishee order against a judgement debtor.  This decision has serious i

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:

There have been a myriad of decisions on business rescue proceedings since the inception of the new Companies Act 71 of 2008 (“the Act”).  More recently, our courts have considered section 153(1)(b)(ii) of the Act which introduces the concept of a ‘binding offer’.

INTRODUCTION

This section allows one affected person to make an offer to purchase at liquidation value, the voting interests of those persons who opposed the adoption of the business rescue plan.

On 12 October 2015, the Deputy Minister of Justice and Constitutional Development, the Honourable John Jeffrey indicated that we are shortly to receive a revised and consolidated unified Insolvency Bill (“Bill”).

Insolvency Law, as we know it presently is, in addition to substantial case law precedent, governed by –

The Policy Framework Behind Section 34 of the Insolvency Act 2 Of 1936 ("the Act")

The policy of this section of the Act is to afford protection to a trader's creditors against his dispossessing himself of his property without paying his debt before the disposition or from the proceeds thereof.  This framework policy is well set out in the case of Paterson vs Kelvin Park Properties CC 1998: