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    Reflections by a court on whether a creditor's vote is appropriate or inappropriate
    2014-08-25

    One of the first cases involving the operation of section 153(1)(a)(ii) of the Companies Act 71  of 2008 is the matter of Copper Sunset Trading 220 (Pty) Ltd t/a Build It Lephalale (In Business Rescue) and Spar Group Limited (First Respondent) and Normandien Farms (Pty) Ltd (Second Respondent).  This matter was decided under case 365/2014 in the High Court of South Africa (Gauteng Division, Pretoria) functioning as Limpopo Division, Polokwane.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Hogan Lovells
    Authors:
    Keith Braatvedt
    Location:
    South Africa
    Firm:
    Hogan Lovells
    Collection and exchange of tax related information by tax authorities
    2014-08-29

    Tax authorities across the globe are working aggressively to collect taxes which they believe are collectable in their respective jurisdictions. States are entering into bilateral and multilateral agreements aimed at assisting each other in the collection of information and taxes. South Africa has actively taken part and in some respects been a regional leader in issues relating to the gathering of information and sharing thereof with other states to ensure that taxes are paid where they should rightfully be paid.

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Tax, ENS, Foreign Account Tax Compliance Act 2010 (USA)
    Authors:
    Mathabo Magolego
    Location:
    South Africa
    Firm:
    ENS
    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
    Big win for banks against sureties in context of business rescue
    2014-12-03

    Ever since the new business rescue regime, contained in Chapter 6 of the Companies Act, No 71 of 2008 came into force in May 2011 there has been much anticipation as to how courts would treat sureties who had stood and provided security for the debts of a company (principal debtor) that subsequently went into business rescue and had a business rescue plan adopted: would such suretyships remain unaffected and enforceable?

    Filed under:
    South Africa, Banking, Insolvency & Restructuring, Litigation, Cliffe Dekker Hofmeyr, Surety, South Africa Supreme Court of Appeal
    Authors:
    Grant Ford , Yaniv Kleitman
    Location:
    South Africa
    Firm:
    Cliffe Dekker Hofmeyr
    A constitutional challenge on the statutory notification provisions of the Insolvency Act: Investec Bank Limited v Stratford and Others
    2014-12-11

    On 2 September 2014 the Constitutional Court heard an appeal against a final order of sequestration granted by the High Court of South Africa (Western Cape High Court) on 14 August 2013 sequestrating the joint estate of Mr Ivor Charles Stratford, the former chairman of the Pinnacle Point Group, and his wife Mrs Sheila Margaret Stratford (the Stratfords). 

    Filed under:
    South Africa, Insolvency & Restructuring, Litigation, Hogan Lovells, Constitutionality
    Location:
    South Africa
    Firm:
    Hogan Lovells
    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
    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

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