It has already been five years since the South African legislature introduced business rescue, a corporate restructuring procedure, which given the current economic climate is a concept that most corporates should now be familiar with. Despite its progressive intentions and increasing popularity, business rescue is often abused, usually by directors and stakeholders who have in-depth knowledge of the affairs of the company, the causes and consequences of the financial demise of the company, and who are often the initiators of the process.

Ever since the Companies Act, 2008 came into force, the courts have been inundated with cases pertaining to the interplay between the moratorium established by business rescue, the creditors’ claims and the effect of the business rescue plan.

Affirmative action measures were introduced in South Africa to reconcile the injustices of the past. Although policies have been implemented for the achievement of equality for persons previously disadvantaged, at what point do these policies unjustifiably infringe the rights of persons affected by them?

In Freshvest Investments (Pty) Ltd v Marabeng (Pty) Ltd (1030/2015) [2016] ZASCA 168, the Supreme Court of Appeal (SCA) was afforded the opportunity to pronounce on the so called Badenhorst rule which assumes its name from Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T).

Creditors face daily uphill battles when trying to collect money from debtors. Not only has the National Credit Act, No 34 of 2005 made it more onerous on creditors to recover debts due to them, but creditors must constantly be aware of the threat of a claim prescribing.

The Prescription Act, No 68 of 1969 (Act) provides that a debt is extinguished by prescription after the period set out in the Act.

In the case of BP Southern Africa (Pty) Ltd v Intertrans Earl SA (Pty) Ltd & Others (34716/2016) [2016] ZAGPJHC 310 (25 November 2016), the court had to consider two important issues: firstly, whether suspension of a contract by the business rescue practitioner in terms of s136(2)(a)(i) and (ii) of the Companies Act, No 1971 of 2008 (Act) suspends not only the obligations of the business rescue practitioner to perform in terms of the contract entered into between the parties, but whether it also suspends the obligations of the other contracting parties.

It is now generally accepted that the Companies Act, No 71 of 2008 (Act) is an overhaul of our corporate law landscape. This shift is even more evident with the introduction of a new business rescue regime and along with it, the general moratorium on legal proceedings against a company in business rescue.

Section 133 of the Act provides that no legal proceedings including enforcement action may commence or continue against a company undergoing business rescue, save where amongst other exceptions, consent is granted by the court or obtained from the business rescue practitioner.

The collapse of Hanjin, the world's seventh largest shipping container carrier, and its immediate impact in South Africa and its shipping industry, remains to be seen. As far as we can ascertain, there has been no attempt to date to apply to a South African Court for the recognition of the Korean rehabilitation proceedings.

On 21 September 2016, the Western Cape High Court (Court) handed down judgement in the case of Tyre Corporation Cape Town (Pty) Ltd and Others v GT Logistics (Pty) Ltd and Others (Rogers J) [2016] ZAWCHC 124 in terms of which the Court considered, among other questions, the following:

Sometimes different bits of legislation are, on the face of it, in conflict with each other. This is specially so when new law is introduced. The impact of new law on old law sets up contradictions, which the courts have to sort out. An interesting recent example arose in the context of business rescue.

The issue in this case was whether a payment of R389 593.49 by Ditona – a company being wound-up – to another company Eravin, was recoverable by Ditona’s liquidators as a void disposition or unrecoverable because, it was a pre-business rescue debt, which may not be enforced.