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    What constitutes 'financial assistance'?
    2016-03-18

    Section 44 of the Companies Act 71 of 2008 governs the instances when a company may provide financial assistance for the purchase of the company's securities. (It is important to note that section 44(1) carves out the application of the entire section 44 for financial assistance given in the ordinary course of business by a company whose primary business is lending money.)

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Hogan Lovells, Shareholder, Security (finance)
    Authors:
    Warren Drue , Darryl Jago
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Jurisdiction: insolvent corporates - the untold story
    2016-03-30

    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?

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr
    Authors:
    Belinda Scriba
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    Business rescue proceedings superseded by liquidation order: no proof of costs, no claim!
    2016-04-13

    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.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, Liquidation
    Authors:
    Lucinde Rhoodie , Mari Bester
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    The lazy bird can still catch the worm -perfecting notarial bonds under business rescue
    2016-05-04

    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.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Cliffe Dekker Hofmeyr, Bond (finance), Personal property
    Authors:
    Tobie Jordaan
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    Employment contracts are suspended from date of provisional order of liquidation
    2016-05-13

    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.

    Filed under:
    South Africa, Employment & Labor, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, Liquidation
    Authors:
    Julian Jones , Roxanne Wellcome
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    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
    Effects of reinstatement of a deregistered company
    2015-12-15

    Use of cookies on this website We use cookies to deliver our online services. Details of the cookies we use and instructions on how to disable them are set out in our Cookies Policy. By using this website you agree to our use of cookies. To close this message click close. December 15, 2015 Since the promulgation of the Companies Act 2008 (the Act), there has been a lack of clarity regarding the effect of the reinstatement of a deregistered company in terms of the Act.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Dentons
    Location:
    South Africa
    Firm:
    Dentons
    Bond restructurings Implementation mechanisms: schemes vs. exchange offers
    2015-12-17

    Bond restructurings Implementation mechanisms: schemes vs. exchange offers December 2015 ■ a principal haircut; ■ extended maturity; and / or ■ a change in coupon (rate and/or whether the coupon is cash-pay or PIK). Exchange offers are based entirely on voluntary participation. They can only succeed if a critical mass of bondholders agrees to participate. A “carrot and stick” approach is used to incentivise participation and penalise holdouts. For background on the use of schemes of arrangement as restructuring tools, see here.

    Filed under:
    South Africa, Ukraine, USA, Insolvency & Restructuring, Litigation, Weil Gotshal & Manges LLP, Bond (finance)
    Location:
    South Africa, Ukraine, USA
    Firm:
    Weil Gotshal & Manges LLP
    Revisiting Chetty
    2015-12-22

    Section 133 of the Companies Act 71 of 2008 provides for a general moratorium on legal proceedings against a company in business rescue.

    I wrote an article published in the June issue of Without Prejudice in which this question was considered. I criticised the then binding judgment of Chetty t/a Nationwide Electrical v Hart NO and Another (12559/2012) [20141 ZAKZDHC 9 (25 March 2014), as it was held in that case that arbitration proceedings do not constitute legal proceedings for purposes of section 133 of the Act.

    Filed under:
    South Africa, Arbitration & ADR, Insolvency & Restructuring, Litigation, Hogan Lovells
    Authors:
    Alex Eliott , Kylene Weyers
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Business rescue – where will it end?
    2015-08-13

    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.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr
    Authors:
    Lucinde Rhoodie , Mongezi Mpahlwa
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr

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