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    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
    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
    Business rescue in the new Companies Act of 2008
    2013-09-17

    The New Companies Act No. 71 of 2008 replaced the old Companies in May 2011. Pursuant to the Amendment of the Old Companies Act, Chapter 6 of the new Companies Act introduces the Business Rescue Procedure (BRP). Business Rescue is a procedure that facilitates the rehabilitation and restructuring of a company that is undergoing financial difficulties. The business rescue procedure aims to maximise the possibility of the business to remain solvent.

    The definition of financial distress in the Act is as follows:

    Filed under:
    South Africa, Insolvency & Restructuring, Emery Mukendi Wafwana & Associates, Shareholder
    Authors:
    Linda Gieskes
    Location:
    South Africa
    Firm:
    Emery Mukendi Wafwana & Associates
    Le redressement d’entreprise de la Nouvelle Loi des Sociétés en tant qu’alternative à la gestion judiciaire
    2013-10-01

    La nouvelle loi des sociétés d’Afrique du Sud (The New Companies Act No. 71  of 2008) a remplacé l’ancienne loi des sociétés (The Old Companies Act) en mai 2011. Conformément à l'amendement de l’ancienne loi des sociétés, la nouvelle loi introduit le redressement d'entreprises. Le redressement d'entreprises est une procédure qui facilite la réhabilitation d'une entreprise en difficultés financières. La procédure de redressement d'entreprise vise à maximiser les possibilités de l'entreprise à demeurer solvable.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Emery Mukendi Wafwana & Associates
    Authors:
    Linda Gieskes , Willy Bashiya Mbayi
    Location:
    South Africa
    Firm:
    Emery Mukendi Wafwana & Associates

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