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BACKGROUND AND OVERVIEW
Corporate rescue culture has finally found a home in South Africa with the introduction of Chapter 6 of the new Companies Act 71 of 2008 (the “2008 Companies Act”) on 1 May 2011.
Chapter 6 replaced the outdated judicial management provisions of the old Companies Act 61 of 1973 (the “1973 Companies Act”) and introduced the concept of business rescue proceedings for companies that are trading in a position of financial distress.
This study revisits the reasons for the failure of judicial management in South Africa and the development of South African insolvency law and its impact on, and the need for reform in, business rescue practice, prior to the final incorporation of Chapter 6 into the 2008 ompanies Act. The development of rescue regimes applicable in foreign jurisdictions set the tone for the development of rescue practice in South Africa. By adopting many of the international core rescue principles applicable in foreign jurisdictions, South Africa has created a modern business rescue regime, which mirrors similar systems applicable abroad, and which is aimed at saving financially distressed companies, preserving employment and restructuring the discharge of debt.
This study will examine the practical challenges of business rescue implementation in South Africa and particularly the development of legal precedent, thinking, and interpretation of the provisions of Chapter 6 of the 2008 Companies Act. Weaknesses of the current legislation and the future of the business rescue process in South Africa will also be considered, together with recommendations for change.
PART 1 – GENERAL INTRODUCTION.
CHAPTER 1 : INTRODUCTION .
1.1 BACKGROUND AND OVERVIEW
1.2 RESEARCH QUESTIONS
1.3 RESEARCH OBJECTIVES .
1.4 RESEARCH METHODOLOGY.
1.5 OVERVIEW OF CHAPTERS
1.6 SIGNIFICANCE OF STUDY .
1.7 LIMITATIONS OF STUDY .
1.8 DEFINITIONS AND REFERENCES
CHAPTER 2 : THE DEVELOPMENT OF INSOLVENCY LAW IN SOUTH AFRICA : A SHIFT FROM A PRO-CREDITOR TO A PRO-DEBTOR CULTURE? .
2.1 INTRODUCTION
2.2 HISTORY AND BACKGROUND .
2.3 ADVANTAGE TO CREDITORS AND ITS INFLUENCE ON THE DEVELOPMENT OF A PRO-CREDITOR CULTURE
2.4 THE SOCIO-POLITICAL IMPLICATIONS OF DEBT IN SOUTH AFRICA AND THE SHIFT FROM A LIQUIDATION (PRO-CREDITOR) TO A RESCUE (PRO-DEBTOR) CULTURE
CHAPTER 3 : THE FAILURE OF JUDICIAL MANAGEMENT, THE CONTRIBUTION OF INFORMAL CREDITOR WORK-OUTS AND THE NEED FOR A CORPORATE RESCUE MODEL FOR SOUTH AFRICA, PRIOR TO THE 2008 COMPANIES ACT
3.1 INTRODUCTION .
3.2 THE FAILURE OF JUDICIAL MANAGEMENT
3.3 INFORMAL CREDITOR WORK-OUTS AND THEIR CONTRIBUTION TO BUSINESS RESCUE
3.4 THE NEED FOR A CORPORATE RESCUE MODEL IN SOUTH AFRICA
PART 2 – INTERNATIONAL BEST PRACTICE, RESCUE INSTRUMENTS, THE
DEVELOPMENT OF CORPORATE RESCUE CULTURE AND COMMON
RESCUE THEMES
CHAPTER 4 : INTERNATIONAL STANDARDS OF BEST PRACTICE AND INTERNATIONAL INSTRUMENTS USED IN INSOLVENCY AND CORPORATE RESCUE
4.1 INTRODUCTION
4.2 INTERNATIONAL STANDARDS OF BEST PRACTICE (UNCITRAL LEGISLATIVE GUIDE ON INSOLVENCY LAW)
4.3 INTERNATIONAL INSTRUMENTS
CHAPTER 5 : COMPARATIVE CORPORATE RESCUE CULTURE AND COMMON RESCUE THEMES
5.1 INTRODUCTION .
5.2 MODERN RESCUE REGIMES
5.4 CREDITORS AND THE COMPROMISE OF DEBT
5.5 COMMON RESCUE THEMES
PART 3 – SOUTH AFRICA’S BUSINESS RESCUE REGIME .
CHAPTER 6 : THE ESTABLISHMENT OF A BUSINESS RESCUE REGIME FOR SOUTH AFRICA
6.1 THE RECOGNITION OF THE FAILURE OF CORPORATE RESCUE IN SOUTH AFRICA .
6.2 THE LAW REFORM PROCESS IN ITS POLITICAL CONTEXT
6.3 THE DEVELOPMENT OF A SOUTH AFRICAN CORPORATE RESCUE CULTURE
CHAPTER 7 : THE NEW SOUTH AFRICAN RESCUE REGIME – A LEGAL ANALYSIS OF CHAPTER 6 OF THE ACT
7.1 INTRODUCTION
7.2 CHAPTER 6 OF THE COMPANIES ACT 73 OF 2008
7.3 ELIGIBILITY, ENTRY AND DURATION OF BUSINESS RESCUE
7.4 GENERAL MORATORIUM ON LEGAL PROCEEDINGS .
7.5 MANAGEMENT OF THE COMPANY IN THE RESCUE PROCESS – THE BUSINESS RESCUE PRACTITIONER
7.6 TREATMENT OF CREDITORS, EMPLOYEES AND CONTRACTS
7.7 FINANCING THE RESCUE – POST-COMMENCEMENT FINANCE
7.8 THE BUSINESS RESCUE PLAN
7.9 DISCHARGE OF DEBTS AND CLAIMS
PART 4 – APPRAISAL, RECOMMENDATIONS AND CONCLUSION
CHAPTER 8 : AN APPRAISAL OF THE NEW BUSINESS RESCUE REGIME, RECOMMENDATIONS FOR FURTHER REFORM AND CONCLUSION . BIBLIOGRAPHY
CASE LAW .
LEGISLATION
