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    Judgment clarifies proper interpretation of the words 'binding offer' in business rescue
    2015-05-25

    On 20 May 2015, the Supreme Court of Appeal (SCA) delivered judgment in the matter of African Banking Corporation of Botswana v Kariba Furniture Manufacturers & others(228/2014) [2015] ZASCA 69, dealing, amongst other things, decisively with the proper interpretation of the words 'binding offer' as they appear in s153(1)(b)(ii) of the Companies Act, 71 of 2008 (Act).

    Filed under:
    South Africa, Banking, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, South Africa Supreme Court of Appeal
    Authors:
    Grant Ford , Lucinde Rhoodie
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    The legal nature of the "practitioner's consent" referred to in section 134(1)(C) and section 134(2)
    2015-05-28

    Section 134 of Act 71 of 2008 is extremely important because it is there to protect the interests of both the company in business rescue and the creditors and other third parties related to the company.

    Filed under:
    South Africa, Insolvency & Restructuring, Hogan Lovells
    Authors:
    Keith Braatvedt
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Business rescue provisions of the Companies Act clarified
    2015-06-17

    On 20 May 2015, the Supreme Court of Appeal (in the matter of African Banking Corporation of Botswana v Kariba Furniture Manufacturers & Others) clarified one of the biggest uncertainties arising out of the business rescue provisions of the Companies Act. The Court has now clarified the meaning of the term “binding offer” in a manner which not only brings clarity to the business rescue regime in general, but also will provide greater comfort to banks and other creditors.

    Filed under:
    South Africa, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Fasken, South Africa Supreme Court of Appeal
    Location:
    South Africa
    Firm:
    Fasken
    Business rescue: whom does a ‘binding offer’ bind?
    2015-07-07

    In terms of Section 153 (1)(b)(ii) of the Companies Act, a creditor who votes against the adoption of a business rescue plan runs the risk of having their claim purchased by another party at a value of what the creditor would have received on liquidation of the company.  In the terms of the bankruptcy laws of the United States of America this procedure is referred to as a "cram down" which is imposed on creditors in business rescue situations.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Shepstone & Wylie Attorneys, Common law, South Africa Supreme Court of Appeal
    Authors:
    Andrew Donnelly
    Location:
    South Africa
    Firm:
    Shepstone & Wylie Attorneys
    Distribution of a debit loan account in anticipation of deregistration of a company
    2015-07-17

    The South African Revenue Service (SARS) published Binding Private Ruling No. 198 on 7 July 2015 (Ruling). The Ruling deals with the distribution by a South African resident company (Subsidiary) of its loan account to its South African holding company (Holding Company) in anticipation of the Subsidiary’s deregistration.

    The applicable provisions in the Income Tax Act, No 58 of 1962 (Act) are s10(1)(k), s47, s64D and s64FA(1)(b).

    The relevant facts relating to the Ruling are as follows:

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Tax, Cliffe Dekker Hofmeyr, Holding company
    Authors:
    Mareli Treurnicht
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    Business rescue: a new mechanism to resolve shareholder disputes?
    2015-08-04

    The Business rescue process as set out in Chapter 6 of the 2008 Companies Act (operative since 2011) has opened up new and creative opportunities to resolve complex and protracted shareholders’ disputes.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Werksmans Attorneys, Shareholder
    Authors:
    Eric Levenstein
    Location:
    South Africa
    Firm:
    Werksmans Attorneys
    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
    The “SANKO MINERAL” – claim in rem issued following a court order to sell vessel held to be valid
    2015-02-10

    A party with a statutory right to an admiralty claim in rem, which had issued its claim after the Admiralty court had ordered the sale of a vessel, did not lose its right to enforce the  claim1. The claim in rem could be enforced against the sale proceeds provided that the person  liable in personam was the beneficial owner of the sale proceeds.

    Facts

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Shipping & Transport, Clyde & Co LLP, Admiralty law, In rem jurisdiction
    Authors:
    Peter Ward
    Location:
    South Africa
    Firm:
    Clyde & Co LLP
    Constitutional court changes the application of the common law in duplum rule
    2015-03-30

    The in duplum rule is a common law rule that provides that arrear interest ceases to accrue once the sum of the unpaid (accrued) interest equals the amount of capital outstanding at the time (and not the amount of capital originally advanced). "In duplum" directly translates to "double the amount". 

    Filed under:
    South Africa, Banking, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, Interest, Constitutional court
    Authors:
    Izak Lessing
    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

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