werksmans basics of business rescue

7/25/2019 Werksmans Basics of Business Rescue

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BASICS OF BUSINESS RESCUE


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Restructuring of companies in financial distress is on the increaseglobally. In line with this trend, Chapter 6 of the new Companies Act,No. 71 of 2008 (the Act) introduces business rescue to the South Africanbusiness landscape.

South African companies that are financially distressed in South Africa

now have an opportunity to reorganise and restructure. This has farreaching effects on creditors, financial institutions, shareholders,employees and restructuring specialists.

This document highlights some of the Frequently Asked Questionsaround business rescue.

INTRODUCTION


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1. What is business rescue?

Business rescue proceedings are proceedingsaimed to facilitate the rehabilitation of a companythat is financially distressed by providing for

the temporary supervision of the company,and the management of its affairs, business

and property, by a business rescue practitioner; a temporary moratorium (stay) on the rightsof claimants against the company or in respectof property in its possession; and

the development and implementation, ifapproved, of a business rescue plan to rescuethe company by restructuring its business,property, debt, affairs, other liabilities andequity (section 128(1)(b)).

2. What is the aim of business rescue?

The aim of business rescue is to restructurethe affairs of a company in such a way thateither maximises the likelihood of the companycontinuing in existence on a solvent basis orresults in a better return for the creditors of thecompany than would ordinarily result from theliquidation of the company (section 128(1)(b)(iii)).

3. What is a business rescue practitioner?

A business rescue practitioner is a personappointed, or two or more persons jointlyappointed, to oversee a company during businessrescue. While the Act defines a business rescuepractitioner as one or more persons, the business

rescue provisions of the Act do not necessarilyrefer to or support joint appointment. Further, theword person in the Act includes a juristic person.It is therefore arguable that a company can takeappointment as a business rescues practitioner(section 128(1)(d)).

4. What is an affected person?

Affected persons are important role players inthe business rescue process. An affected personis a shareholder, creditor, employee (or theirrepresentative) or a registered trade unionrepresenting employees of the company.Affected persons have various rights throughoutthe business rescue process (section 128(1)(a)).

5. What is the test for business rescue?

The test for whether or not a company should be

placed in business rescue is whether or not thecompany is financially distressed. TheAct defines the words financially distressed(section 128(1)(f)) to mean that

it appears to be reasonably unlikely thatthe company will be able to pay all of itsdebts as they become due and payablewithin the immediately ensuing six months(commercial insolvency); orit appears to be reasonably likely thatthe company will become insolvent within theimmediately ensuing six months

(factual insolvency).


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BUSINESS RESCUE

PROCEEDINGS


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1. When should a company commencebusiness rescue?

A company should commence business rescueproceedings at the first signs of it beingfinancially distressed, within the meaning ofthe Act. That is, either when it is reasonably

unlikely that a company will be able to pay itsdebts when they fall due for payment in theimmediately ensuing six months or when it islikely that the company will become insolventin the immediately ensuing six months.

In a recent decision of the South GautengHigh Court, in the case of Welman v MarcelleProps 193 CCJDR 0408 (GST), the courtstated that business rescue proceedings

are not for terminally ill close corporations.Nor are they for chronically ill. They are forailing corporations, which given time will berescued and become solvent. This statementsupports the contention that at the first signsof financial distress, a company should applyfor business rescue. Once a company is morethan financially distressed, options otherthan business rescue become more attractivefor ailing companies, such as liquidations orcompromises.

2. How is a company placed in businessrescue?

There are two main ways in which a companycan be placed in business rescue, namely

when the board of directors of a companyresolves that the company voluntarily

commence business rescue proceedingsand be placed under the supervision of abusiness rescue practitioner (section 129 ofthe Act); and

when an affected person makes a formalapplication to court for an order placing

the company under supervision andcommencing business rescue proceedings(section 131 of the Act), provided thecompany has not already been placed underbusiness rescue in terms of section 129, onthe basis that

the company is financially distressed; the company has failed to pay over any

amount in terms of an obligation underor in terms of a public regulation, orcontract, with respect to employmentrelated matters; or

it is otherwise just an equitable to doso for financial reasons, and there isa reasonable prospect of rescuing thecompany.

3. How does a company practicallyvoluntarily commence business rescueproceedings?

The company must file Form CoR123.1 withthe Companies and Intellectual PropertyCommission (CIPC) and this must beaccompanied by the resolution of the board ofdirectors of the company (in which it resolvesto commence business rescue proceedings, andif it has a business rescue practitioner in mindat the time, to appoint a certain person as the

A company should commencebusiness rescue proceedingsat the first signs of it beingfinancially distressed, withinthe meaning of the Act.


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practitioner) together with a statement settingout the facts upon which the resolution wasfounded. Thereafter, the company must complywith a number of notice and publicationrequirements prescribed by the Act.

4. What preliminary actions are required

of a company that commencesvoluntary business rescue?

In terms of section 129(3) & (4), once acompany has commenced business rescueproceedings, pursuant to the passing of aboard resolution in terms of section 129, thecompany must

within five business days of filing theForm CoR123.1, resolution and statement,with CIPC,

publish notice of the resolution,together with a sworn statement asto the reasons why the company isfinancially distressed, detailing theprospects of rescuing the company, toall affected persons; and

appoint a business rescue practitioner; after appointing a business rescue

practitioner, file a notice of the appointment of the

business rescue practitioner withintwo business days with CIPC; and

publish a notice of the appointment ofthe business rescue practitioner withinfive business days after the notice isfiled.

5. What happens if the time periods inrespect of voluntary business rescuesare not adhered to?

With regard to voluntary business rescues,in terms of section 129(5)(a), if a companyfails to comply with the provisions of sections

129(3) and (4), the resolution lapses and is anullity and the company may not file a furtherresolution for a period of three months afterthe date on which the resolution was adopted,unless a court, on good cause shown, approvesof the company filing a further resolution(section 129(5)(b).

Further, an affected person can makeapplication to court in terms of section130(1)(a)(iii) to set aside the resolution onthe grounds that the company has failed tosatisfy the procedural requirements set outin section 129.

6. How can one object or oppose abusiness rescue resolution?

Section 130 provides that at anytime afterthe adoption of a business rescue resolution,an affected person may apply to court for anorder

setting aside the resolution on the groundsthat (i) there is no reasonable basis forbelieving that the company is financiallydistressed; (ii) there is no reasonableprospect for rescuing the company; or(iii) the company has failed to satisfy theprocedural requirements in section 129;

setting aside the appointment of thepractitioner on the grounds that thepractitioner (i) does not satisfy therequirements of section 138; (ii) is notindependent of the company or itsmanagement; or (iii) lacks the necessaryskills, having regard to the companyscircumstances; or

requiring the practitioner to providesecurity (in an amount and on termsand conditions that the court considersnecessary to secure the interests of thecompany and any affected person).

A director of a company that votes in favourof a resolution may not apply to court to setaside the resolution or the appointment of the

business rescue practitioner unless such personcan satisfy the court that he acted in good faithon the basis of information that has since beenfound to be false or misleading (section 130(2)).

Each affected person has a right to participatein a hearing contemplated by this section(section 130(47)).

7. What goes into the papers for anapplication to court for business

rescue?The decision of the Western Cape High Court,Cape Town, in the case of Southern PalaceInvestments 265 (Pty) Ltd v Midnight StormInvestments 386 Ltd2012 (2) SA423 (WCC) wasinstructive about the nature of the evidencethat must be placed before a court in order to


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ensure that an applicant indicates that there isa reasonable prospect that the company can berescued and to ensure that an application forbusiness rescue is successful.

Judge Eloff dismissed the application forbusiness rescue. He held that ...it is difficult

to conceive of a rescue plan that will have areasonable prospect of success of the companyconcerned continuing on a solvent basis unlessit addresses the cause of the demise or failureof the companys business, and offers a remedytherefor that has a reasonable prospect of being

sustainable. A business plan which is unlikelyto achieve anything more than to prolong theagony... by substituting one debtor for anotherwithout there being light at the end of a not too

lengthy tunnel, is unlikely to suffice. The courtwent on to state that the applicant must dealwith concrete and objectively ascertainabledetails in support of business rescue and which

facts are beyond mere speculation.These factsshould include -

the likely costs of rendering the companyable to commence with its intendedbusiness or to resume the conduct of its corebusiness;

the availability of cash resourcesto enablethe company to meet its daily expensesand the nature of the funding on which thecompany will rely;the availability of any other necessary

resources, such as raw materials and humancapital; and

the reasons why the proposed businessrescue plan will have a reasonable prospectof success.

The court went on to state that without suchdetails, a court is not only unable to considerthe prospects of the company continuing in

existence on a solvent basis but is also unableto consider the alternative aim of securing abetter return for the creditors of the companythan would arise from a liquidation.

Similar sentiments were expressed by thecourts in the case of Koen & Another vWedgewood Village Golf & Country Estate (Pty)Ltd & Others 2012 (2) SA 378 (WCC), Swart vBeagles Run Investments 25 (Pty) Ltd & Others(four creditors intervening) 2011 (5) SA 422(GNP) and Kovacs Investments 571 (Pty) Ltd vInvestec Bank Ltd & Another(unreported case no25051/2011, 22 February 2012).

The extent to which it is reasonably possible toinclude all the information that the court setsout in the case of Southern Palace Investments265 (Pty) Ltd v Midnight Storm Investments 386(Pty) Ltdin all business rescue applications is amatter that will need to be dealt with in time

by our courts.8. How does one oppose a business rescue

application to court?

Business rescue proceedings are generallylaunched on an urgent basis and thus the timeperiods ordinarily applicable to applications willgenerally not apply.

A business rescue plan that is likelyto merely prolong the agony of acompany by substituting one debtfor another without any glimmerof hope is not likely to suffice.


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Any affected person on whom an applicationfor business rescue has been served, mayoppose such application in the manner in whichany other application is ordinarily opposedby serving and filing a notice of intention tooppose the application and thereafter servingan answering affidavit on the applicant inaccordance with the time periods set out in thenotice of motion.

Any affected person opposing a business rescuemay either request the court to dismiss theapplication together with any other appropriateorder, including an order placing the companyunder liquidation.

9. How long do business rescueproceedings last?

Section 132 provides that business rescueproceedings should last for a period of threemonths. It is not clear what the words businessrescue proceedings intend to cover but it isunderstood that during the three months, thebusiness rescue practitioner must do his jobby convening meetings for affected persons,consulting on the the business rescue planand thereafter implementing the plan if it is

approved in accordance with the Act.If business rescue proceedings have not endedwithin three months after the start of thoseproceedings, or such longer time as the court,on application by the practitioner, may allow,the practitioner must

prepare a report on the progress of thebusiness rescue proceedings, and update itat the end of each subsequent month untilthe end of those proceedings; and

deliver a report and each update in theprescribed manner to each affected personand to (i) the court (if the proceedings havebeen the subject of a court order); or (ii)CIPC, in any other case.

The reporting requirements that come withextending the time frames are burdensome.These provisions provide business rescuepractitioners with an incentive for conductingthe process and implementing the plan, in theshortest possible time, but in any event withinthe three month period.

10. When does business rescue begin?

In terms of section 132 of the Act businessrescue proceedings commence when

the company (i) files a resolution to placeitself under supervision in terms of section129 of the Act; or (ii) applies to court forconsent to file a resolution in terms ofsection 129(5)(b) (i.e. if a company fails tocomply with the provisions of subsections

(3) and (4) it must approach the court forleave to file another resolution if it wishesto do so within the three month restrictedperiod); or

a person applies to court for an orderplacing the company under supervision interms of section 131(1); or

a court makes an order placing a companyunder supervision during the course ofliquidation proceedings or proceedings toenforce a security interest (section 131(7)).

11. How does the business rescue processunfold?

Once a company commences business rescueproceedings either voluntarily (by way of aresolution in terms of section 129) (and in sucha case, the preliminary actions have been taken)or by an order of court (on application by anaffected person in terms of section 131), thefollowing actions are prescribed by the Act -

the practitioner must investigate the affairsof the company as soon as possible afterthe commencement of business rescue

(section 141); within ten business days after being

appointed, the practitioner must convenea meeting of the creditors and a meetingof the employees and advise the meeting,among other things, of the prospects ofrescuing the company (section 147 and148);

the business rescue plan must be publishedby the company within twenty five days

after the date on which the business rescuepractitioner was appointed (section 150);and

the business rescue practitioner mustconvene a meeting of the creditors and anyother holders of a voting interest, for thepurpose of considering the proposed plan,


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within ten business days of the publicationof the business rescue plan (section 151).

12. When do business rescue proceedingsend?

In terms of section 132 of the Act business

rescue proceedings end when the court sets aside the resolution or orderthat began the business rescue proceedingsor when the court converts business rescueproceedings into liquidation proceedings;

the business rescue practitioner files anotice (Form CoR125.2) of termination ofbusiness rescue proceedings with CIPC; and

a business rescue plan has been proposedand rejected and no affected person hasacted to extend the proceedings in anymanner contemplated by the Act or abusiness rescue plan has been adoptedand the business rescue practitioner hassubsequently filed a notice of substantialimplementation of the plan (FormCoR125.3).

13. What happens if a company does notcommence business rescue proceedingswhen it should?

If a company is financially distressed within themeaning of the Act but the board of directorsof the company has not passed a resolutionfor the commencement of business rescueproceedings, then the board must deliver awritten notice to each affected person settingout the test for financial distress and the extent

to which it applies to the company and thereasons why the board has taken a decision notto pass a resolution for the commencementof business rescue proceedings. The notice toaffected persons is commonly referred to as thesection 129(7) notice as it is set out in section129(7) of the Act and the form used to notifyaffected person is Form CoR123.2 (Notice ofDecision Not to Begin Business Rescue).

A decision to send out a section 129(7) noticemust be well considered and exercised withcaution, as such a notice advises the world atlarge that the company is financially distressedand on the verge of insolvency. This noticemay give rise to a number of unintendedconsequences both in respect of directors and

creditors of the company.14. Is business rescue suitable for all

companies?

Business rescue proceedings are not necessarilysuitable for all companies. The type ofcompany is for the most part determinativeas to whether or not a company is a suitablecandidate for business rescue. For instance,companies that are involved in retail are more

suitable for business rescue than companiesthat have been set up for property investmentpurposes, as retail companies have a businessthat can be rescued, while property investmentcompanies may not.

In a recent decision of the South Gauteng HighCourt, Johannesburg, in the case of Oakdene

Square Properties (Pty) Ltd v Farm Bothasfontein(Kyalami) (Pty) Ltd 2012 JPR 0239 (GSJ) thecourt considered the plausibility of businessrescue in an instance where liquidation waspreferable. In this instance, the court dismissedthe application for business rescue and heldthat a liquidation of the company wouldachieve a similar result to that of a businessrescue.

This judgment makes it clear that prior toa company, or an affected person, placing acompany in business rescue, considerationshould be given to the nature of the company,the extent to which business rescue is theappropriate procedure for that companyand the extent to which business rescue

would be more beneficial for the companythan liquidation. If the answer to the latterquestions is in the affirmative, business rescueproceedings are likely to be successful. If not,liquidation may be the preferred alternative.


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BUSINESS RESCUE

PRACTITIONER


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1. What is the role of the businessrescue practitioner?

The business rescue practitioner is required,as soon as possible after appointment, toinvestigate the companys affairs, business,property and financial situation, and

thereafter consider whether there is anyreasonable prospect of rescuing the company(section 141(2)).

During business rescue proceedings, thepractitioner must notify the company, thecourt and affected persons that there is

no reasonable prospect for the companyto be rescued; or

no longer reasonable grounds to believethat the company is financially distressed;

or evidence, in the dealings of the company

before the commencement of businessrescue proceedings, of

voidable transactions or a failureby the company or any director toperform any material obligationrelating to the company andthe practitioner must direct themanagement of the company to take

steps to rectify the problem; or reckless trading, fraud or other

contravention of any law relatingto the company, the practitionermust forward the evidence to theappropriate authority for further

investigation and possible prosecutionand direct the management totake any necessary steps to rectifythe matter (including recoveringany misappropriated assets of thecompany) (section 141(2)).

2. What powers does a business rescuepractitioner have during businessrescue?

In terms of section 140 of the Act the businessrescue practitioner has a number of powers.The business rescue practitioner has fullmanagement and control over the company.He or she may delegate certain functions toa director on the board of the company orto a person who was part of the pre-existing

management of the company. The businessrescue practitioner may also remove anyperson who formed part of the pre-existingmanagement of the company from its officeor appoint a person (who does not have anyother relationship with the company that wouldlead a reasonable and informed third partyto conclude that the integrity, impartialityor objectivity of that person is compromisedby that relationship, or is related to a person

who has such a relationship) as part of themanagement of a company (section 140).In some instances the practitioner will needto obtain the approval of the court for anappointment.

The business rescue practitionerhas full management and controlover the company. He or shemay delegate certain functionsto a director on the board of thecompany or to a person whowas part of the pre-existingmanagement of the company.


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3. How is a business rescue practitionerappointed?

There are a number of ways in which a businessrescue practitioner may be appointed

a company (ie the board) may, withinfive business days after the company has

adopted and filed the resolution with CIPC(or such longer time as CIPC may allow onapplication to it), appoint a business rescuepractitioner (section 129(3));

if the court, after considering an applicationbrought by an affected person, sets asidethe appointment of a business rescuepractitioner, the court must appoint analternate practitioner recommended by, oracceptable to, the holders of a majority of

the independent creditors voting interestswho were represented in the hearing beforethe court (section 130(6));

if a court, on application to it by an affectedperson, grants an order placing a companyunder business rescue the court may makea further order appointing an interimpractitioner who satisfies the necessaryrequirements for appointment and whohas been nominated by the affectedperson who applied to court. However, thisappointment will be subject to ratificationby the holders of a majority of theindependent creditors voting interests atthe first meeting of the creditors (section131(5)); or

the company, or affected person whonominated the practitioner, as the case maybe, must appoint a new practitioner if apractitioner dies, resigns or is removed fromoffice, subject to the right of an affectedperson to bring a fresh application to objectto the appointment and set aside that newappointment (section 139(3)).

4. Does a business rescue practitionerneed to have specific qualifications?

Section 138 of the Act regulates thequalifications required for a business rescuepractitioner. In order to qualify as a businessrescue practitioner a person must be

a member in good standing of a legal,accounting or business management

profession accredited by CIPC (section138(1)(a)); and

be licensed as such by CIPC(section 138(1)(b)).

From this it appears that a person must satisfyboth the above requirements for appointment.But regulation 126 of the Act states that aperson who is part of an accredited professionneed not be licensed by CIPC (Regulation126(2)). CIPC has further indicated that theyare not, at least for the meantime, accreditingcertain professions for the purposes of businessrescue appointments and instead are appointingand licensing business rescue practitioners onan ad hoc basis in accordance with section138(1)(b).


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In addition to the aforesaid, in terms of section138, a prospective business rescue practitioner -

must not be subject to an order ofprobation;

must not be disqualified from acting as adirector of a company in terms of section69(8) of the Act;

must not have any relationship with thecompany that would lead a reasonableand informed third party to conclude thatthe integrity, impartiality or objectivityof that person is compromised by suchrelationship; and

must not be related to a person who has arelationship as contemplated above.

5. Are there certain categories of

companies for which business rescuepractitioners may take appointment?

Regulation 127 of the Act distinguishesbetween different categories of companiesfor the appointment of business rescuepractitioners.

A person will be appointed as a seniorpractitioner if immediately before beingappointed as a practitioner, he or she actively

engaged in business turnaround practice beforethe effective date of the Act or as a businessrescue practitioner in terms of the Act, fora combined period of at least ten years. Asenior practitioner can take appointment fora medium company (company with a publicinterest score between 100 and 500) or of a

large company (company with a publicinterest score of 500 or more).

An experienced practitioner is one whoimmediately before being appointed as apractitioner, actively engaged in businessturnaround practice before the effective date

of the Act or as a business rescue practitionerin terms of the Act, for a combined periodof at least five years. Such person can takeappointment for a small company (companywith a public interest score of less than 100) orfor a medium company (company with a publicinterest score between 100 and 500).

A junior practitioner is one who immediatelybefore being appointed as a practitioner either(i) has not previously engaged in businessturnaround before the effective date of theAct or acted as a business rescue practitionerin terms of the Act; or (ii) has actively engagedin business turnaround practice before theeffective date of the Act or as a business rescuepractitioner in terms of the Act for a combinedperiod of less than five years. Such person cantake appointment for only small companies(company with a public interest score of lessthan 100) or as an assistant to an experienced

or senior practitioner.

6. How is the public interest scorecalculated?

Regulation 26(2) of the Act sets out the mannerin which the public interest is calculated. Itprovides that at the end of each financial year,


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the public interest score is calculated as thesum of the following a number of points equal to the average

number of employees of the companyduring the financial year;

one point for every R1 million (or portionthereof) in third party liability of thecompany, at the financial year end;

one point for every R1 million (or portionthereof) in turnover during the financial

year; and one point for every individual who, at the

end of the financial year, is known by thecompany

in the case of a profit company, todirectly or indirectly have a beneficialinterest in any of the companys issued

securities; or in the case of a non-profit company,

to be a member of the company, ora member of an association that is amember of the company.

7. Can a business rescue practitioner beremoved from office?

In terms of section 139 of the Act, a businessrescue practitioner may be removed from office

either -by order of the court in terms of section130(1)(b) on the basis of an affectedperson applying to court to set asidethe appointment of a business rescuepractitioner who has been appointed interms of the board resolution on the basis

that the business rescue practitioner either(i) does not satisfy the requirements forappointment (in terms of section 138);(ii) is not independent of the company orits management; or (iii) lacks the necessaryskills, having regard to the companyscircumstances; or

upon the request of an affected person,by way of an application to court, or ofthe courts own accord, if the businessrescue practitioner is (i) incompetentor fails to perform his duties; (ii) fails toexercise the proper degree of care in theperformance of his functions; (iii) engagesin illegal acts or conduct; (iv) no longersatisfies the requirements for appointmentin section 138; or (v) if the practitioner is

incapacitated and unable to perform thefunction of his office, and is unlikely toregain that capacity within a reasonableperiod of time (section 139).

8. Can a business rescue practitioner,who has engaged with the company,creditors or shareholders, prior to thecommencement of business rescue,take appointment as a practitioner?

Section 138 of the Act sets out therequirements for qualification as a businessrescue practitioner. Section 138(1)(e) providesthat A person may be appointed as the businessrescue practitioner of a company only if the

person...(e) does not have any other relationshipwith the company such as would lead a

In terms of section 139 of the Act,a business rescue practitioner maybe removed from office.


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reasonable and informed third party to concludethat the integrity, impartiality or objectivity ofthat person is compromised by that relationship.This is supported by section 130(1)(b) andsection 139(2)(e) of the Act which makeprovision for the removal of a business rescuepractitioner if he is either not independentof the company or its management or has aconflict of interest or lack of independence,respectively.

The words independent and conflict ofinterest are not defined by the Act and theinterpretation will need to be elaboratedupon by our courts. However, while there isno definition for these words, the Act doesdefine the word related or inter-related in

section 2. If our courts rely on the definitionin section 2 of the Act to ascertain whetheror not a practitioner is independent, then abusiness rescue practitioner will not, merely byvirtue of his prior engagement with creditorsor shareholders, be held to lack independence.Something more, some other relationship willneed to exist.

We are of the view that prior consultation withthe creditors and shareholders of the company

will not necessarily preclude such a personfrom taking appointment later on as a businessrescue practitioner of the company and doesnot affect the business rescue practitionersindependence.

A business rescue practitioner should engagewith the creditors and shareholders beforetaking appointment in order to ensure thatthere is a reasonable prospect that thecompany can be saved. Without engaging withsuch stakeholders, it is difficult to see how thepractitioner would come to the conclusionthat there is a reasonable prospect of rescuingthe company if he or she is not certain as towhether or not the creditors or shareholderswould support a business rescue plan and thusthe rescue of a company.

9. How is a business rescue practitionerremunerated?

In terms of section 143 the business rescuepractitioner is entitled to charge the companyfor the remuneration and expenses incurred bythe practitioner in accordance with the tariffprescribed by the Act.

The basic remuneration of a business rescuepractitioner is to be determined at the timeof the appointment of the practitioner by thecompany, or the court, as the case may be, andmay not exceed - R1,250 per hour (maximum of R15,625 per

day) (inclusive of VAT) for a small company; R1,500 per hour (maximum of R18,750

per day) (inclusive of VAT) for a mediumcompany; or


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R2,000 per hour (maximum of R25,000 perday) (inclusive of VAT) for a large companyor a state-owned company.

In addition to its remuneration as determinedby the tariff, the business rescue practitionermay also conclude a contingency agreement

with the company for further remuneration ifthe business rescue plan is adopted or if it isadopted within a certain period of time or ifany particular result or combination of resultsis attained.

This contingency agreement will only bebinding if it is approved by (i) the holders ofa majority of the creditors voting interests,present and voting at a meeting called toconsider the agreement; and (ii) the holders

of a majority of the voting rights attached toany shares of the company that entitle theshareholder to a portion of the residual valueof the company on winding-up, present andvoting at a meeting called for the purposeof considering the proposed agreement. Anycreditor who votes against such an agreementmay make application to court, within tenbusiness days after the date on which a votewas taken, for an order setting aside the

proposed agreement on the basis that theagreement is not just and equitable or notreasonable having regard to the financialcircumstances of the company.

During business rescue the businessrescue practitioner is an officer of thecourt and is therefore obligated toreport to the court in accordance withany applicable rules or orders.

In addition to remuneration, a practitioner isalso entitled to be reimbursed for the actualcosts of any disbursements incurred by thepractitioner, or expenses incurred by thepractitioner, to the extent reasonably necessaryto carry out the practitioners functions andto facilitate the conduct of the companys

business rescue proceedings.

10. What are the liabilities of a businessrescue practitioner during businessrescue?

Section 140(3) provides that during businessrescue the business rescue practitioner

is an officer of the court and is thereforeobligated to report to the court inaccordance with any applicable rules or

orders;has the responsibilities, duties and liabilitieswhich are incumbent upon directors, interms of sections 75, 76 and 77 of the Act;and

will not be liable for any act or omissionperformed in good faith in the course ofthe exercise of the powers and duringthe performance of his functions as apractitioner but may be held liable in terms

of any law for any act or omission thatamounts to gross negligence.


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EFFECTS OF

BUSINESS RESCUE


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1. What happens to the directors duringbusiness rescue?

The directors of the company remain thedirectors. However, their powers and dutiesare constricted in that the business rescuepractitioner has full management control over

the company in substitution for the board ofthe company and its pre-existing management.In terms of section 137, the directors of thecompany

must continue to exercise the functions ofa director, subject to the authority of thepractitioner;

have a duty to exercise any managementfunction within the company in accordancewith the expressed instructions or direction

of the practitioner, to the extent that it isreasonable to do so; remain bound by the requirements

concerning the personal financial interestsof the directors or related persons; and

to the extent that the director acts inaccordance with subsections (b) and(c) of this section, are relieved from theduties of a director as set out in section76 (standards of directors conduct), andthe incurrence of personal liability set outin section 77 (liability of directors andprescribed officers), other than section 77(3) (a), (b) and (c).

If any director of the company purports totake any action on behalf of the company thatrequires the approval of the practitioner, that

action is void unless it is approved bythe practitioner (section 137(4)).

The directors of the company have a generalduty to co-operate with, assist and attendto the requests of the practitioner at alltimes during business rescue and to provide

the practitioner with any information aboutthe companies affairs as may be reasonablyrequired (section 142).

As soon as practically possible after thecommencement of business rescue proceedings,the directors of the company must deliver allbooks and records that relate to the companyto the practitioner and which are in thedirectors possession. Within five businessdays after the commencement of businessrescue proceedings, or such longer period asthe practitioner may allow, the directors mustprovide the practitioner with a statementof affairs containing certain information asprescribed by the Act (section 142).

In terms of section 137(5) the practitioner mayapply to court for an order to remove a directorfrom his office if the director has failed to comply with the duties imposed

on him by the provisions of chapter 6; or by and act or omission, has impeded, or

is impeding, (i) the practitioner in theperformance of his powers and functions;(ii) the management of the company bythe practitioner; or (iii) the development orimplementation of the business rescue plan.

The directors of the company have ageneral duty to attend to the requestsof the practitioner at all times duringbusiness rescue and to provide thepractitioner with any informationabout the companys affairs as maybe reasonably required.


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2. What effect does business rescue haveon employees?

Section 136 of the Act regulates the interestsof employees during business rescue. It providesthat employees who were, immediately priorto the institution of business rescue, employees

of the company will remain employed by thecompany on the same terms and conditionson which they were employed prior to thecommencement of business rescue proceedingsexcept to the extent that changes occur inthe ordinary course of attrition or if differentterms and conditions are agreed between theemployee and the company in accordance withlabour laws.

3. What effect does business rescue have

on shareholders?

During business rescue proceedings, analteration in the classification or status of anyissued securities of a company, other than byway of a transfer of securities in the ordinarycourse of business, is invalid except to theextent that the court, or the business rescueplan, directs otherwise (section 137).

4. What effect does business rescue have

on a creditor?When business rescue proceedings commence,the company continues to operate as before,but under the supervision of the business rescuepractitioner and the creditors will need to

comply with their obligations to supply goodsor services to the company in the same mannerin which they did prior to the commencementof business rescue proceedings, unless theagreement between the company and thecreditor regulates the relationship between theparties in the event of an insolvency or businessrescue.

However, it is understandable that unsecuredcreditors and lenders during business rescuewould be wary of continuing to service orsupply goods to the company on the same basison which they did prior to a business rescue astheir claims will be satisfied last in accordancewith the order of preference for the payment ofclaims prescribed by the Act (S135(3)(a)(ii)).

Further, if a companys obligations towardsanother have been suspended, or cancelled onapplication by the practitioner to court , theagreement regulating the relationship betweenthe company and its creditor may prescribethe way in which the relationship betweenthe parties will ensue in the event of aninsolvency or the commencement of businessrescue. Failing this, it is likely in practice, thatthe reciprocal party to an agreement will notperform its obligations if the practitioner hassuspended the performance of the companysobligations or cancelled the agreement and theother party will have a claim for damages interms of section 136(3).


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5. Can a company be sued during businessrescue?

Section 133 of the Act regulates the institutionof legal proceedings against the companyand the enforcement of any action againstthe company during business rescue. This

is commonly referred to as the statutorymoratorium or stay that is placed on acompany from the moment that businessrescue proceedings commence.

During business rescue proceedings, no legalproceedings (legal or arbitration proceedings),including enforcement action (execution of acourt or other order) against the company orin relation to its property, that belongs to itor which is lawfully in its possession, may be

commenced or proceeded with in any forum(court or arbitral forum).

However, there are certain instances in whichone would be able to commence or proceedwith any legal proceedings or enforcementaction against the company, in terms of section133(a) to (f), namely -

with the written consent of the practitioner; with the leave of the court (and in

accordance with any terms the courtconsider suitable); as a set-off against any claim made by

the company in any legal proceedings,irrespective as to whether thoseproceedings commenced before or after the

business rescue proceedings began; criminal proceedings against the company

or any of its directors or officers; or proceedings concerning any property or

right over which the company exercises thepowers of a trustee; or

proceedings by a regulatory authority

in execution of its duties after writtennotification to the business rescuepractitioner.

6. Can one enforce a suretyship orguarantee during business rescue?

Section 133(2) provides that during businessrescue proceedings, a guarantee or suretyprovided by the company in favour of anyother person may not be enforced by any

person against the company except with theleave of the court and in accordance with anyterms that the court considers to be just andequitable.

In a recent decision of the Western Cape HighCourt, in the case of Investec Bank Ltd v Bruyns2011 JDR 1563 (WCC) the court consideredthe meaning of section 133 and the status of asurety and guarantee provided by the company,or by another person or entity in favour of the

company, during business rescue. It held that section 133(2) is unambiguous in that itprohibits a third party from enforcing asuretyship or guarantee, provided by thecompany, against the company, duringbusiness rescue; and

the statutory moratorium that arisesfor the benefit of a company does notautomatically arise for the benefit of asurety provided in favour of the companyon the basis that the statutory moratoriumis a personal defence that arises for thebenefit of the principal debtor (ie the

distressed company) and not for the benefitof a surety.

7. What effect does business rescue haveon contracts?

Section 136 also aims to regulate the positionof the company in respect of its obligations interms of any existing contracts that may applyat the time the business rescue proceedingscommence.

Section 136(2) provides that the businessrescue practitioner may, during business rescueproceedings, and despite any provision to thecontrary in an agreement, - entirely, partially or conditionally suspend,

for the duration of the business rescueproceedings, any obligation of the companythat

arises under an agreement to whichthe company was a party at the

commencement of business rescueproceedings; and

would otherwise become due duringthe proceedings;


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apply urgently to a court to entirely,partially or conditionally cancel, on anyterms that are just and reasonable inthe circumstances, any obligation of thecompany contemplated above.

The proviso to the above is that, in terms of

section 136(2A), a business rescue practitionermust not, suspend or cancel respectively, anyprovision of an employment contract or anagreement to which section 35A or 35B ofthe Insolvency Act 24 of 1936 (transactionson exchange and agreements providing fortermination and netting) would apply ifthe company had been liquidated. Further,if a practitioner suspends a provision of anagreement relating to security granted by thecompany to a creditor, that provision continuesto apply for the purposes of section 134.

8. Does the party to the contract that hasbeen suspended or cancelled, have anyclaim against the company?

Section 136(3) provides that any party toan agreement that has been suspended orcancelled, or any provision which has beensuspended or cancelled, may assert a claimagainst the company only for damages.

9. What effect does a distribution duringliquidation have on a subsequentbusiness rescue?

Section 141(2)(c) provides that if at any timeduring the business rescue proceedings the

practitioner concludes thatthere is evidence,in the dealings of the company before thebusiness rescue proceedings began, of voidabletransactions, or the failure by the company orany director to perform any material obligationrelating to the company, the practitioner musttake any necessary steps to rectify the matter and

may direct the management to take appropriatesteps.The phrase voidable transaction isnot defined by the Act and it is not yet clearwhether or not such a phrase will take on themeaning ascribed to impeachable dispositionsin terms of the Insolvency Act 24 of 1936. Itis also not clear for what period of time priorto the commencement of business rescueproceedings transactions will be held to bevoidable.

We believe that the distribution of money orthe sale of assets, in the ordinary course ofliquidation proceedings (and particularly in theorder of preference to the creditors), and priorto a business rescue commencing, would not beheld to be a voidable transaction in the businessrescue unless a business rescue practitioner canidentify an element of fraud or dishonesty inthe process. It would appear that a practitionerwould act upon a voidable transaction which

occurs prior to a business rescue (and not inthe ordinary course of a liquidation) and whichbecomes known to him during business rescue.

Section 136(3) provides that anyparty to an agreement that hasbeen suspended or cancelled,or any provision which hasbeen suspended or cancelled,may assert a claim against thecompany only for damages.


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POST-COMMENCEMENT

FINANCE


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1. What is post-commencement finance?

Post-commencement finance is financeprovided to the company once business rescueproceedings have commenced.

Section 135(1) of the Act also providesthat any remuneration, reimbursement for

expenses or other amount of money relatingto employment that becomes due andpayable by a company to an employee duringbusiness rescue, is also considered to be post-commencement finance.

2. Who can provide post-commencementfinance?

Section 135(2) of the Act provides that duringbusiness rescue proceedings, the company mayobtain financing other than as contemplated in

subsection (1)... From this it appears that the

Act does not prescribe who in fact may providethe finance.

3. Can post-commencement financiersobtain security for their finance?

Any finance provided by a post-commencementfinancier may be secured by utilising any assetof the company to the extent that it is notalready encumbered (section 135(2)).

Post-commencement finance isfinance provided to the companyonce business rescue proceedingshave commenced.


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BUSINESS RESCUE

PLAN


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1. What is a business rescue plan?

A business rescue plan is a plan developedand, if approved, implemented by the businessrescue practitioner, which details the mannerin which the practitioner envisages that thecompany will be rescued. The plan is the

culmination of the business rescue process.2. What must a business rescue plan

contain?

Section 150 of the Act provides a frameworkfor what the business rescue plan should looklike. It provides that a business rescue planmust contain sufficient detail to assist affectedpersons in deciding whether or not they wishto accept or reject the plan. The business rescueplan must contain

background (including a list of assets,which assets are secured, list of creditorsindicating secured, statutory preferent andconcurrent creditors in terms of the lawsof insolvency, probable dividend shouldinsolvency ensue, list of all holders ofthe companys securities, a copy of thewritten agreement concerning the businessrescue practitioners remuneration and astatement whether the business rescue plan

includes a proposal made informally by acreditor of the company);

A business rescue plan is a plandeveloped and if approved,implemented by the businessrescue practitioner, whichdetails the manner in which thepractitioner envisages that thecompany will be rescued.


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proposals (including the nature andduration of any specific moratorium, extentto which the company is to be releasedfrom payment of debts, the extent to whichany debt is proposed to be converted toequity in the company or another company,the ongoing role of the company and the

treatment of any existing agreements,property of the company available to paycreditors claims in terms of the businessrescue plan, the order of preference inwhich the proceeds of the property willbe applied to pay creditors if the businessrescue plan is adopted, the benefits ofadopting the business rescue plan asopposed to the benefits that would bereceived by creditors of the company if the

company were to be placed in liquidationand the effect that the business rescue planwill have on the holders of each class of thecompanys issued securities); and

assumptions and conditions (includinga statement of the conditions that mustbe satisfied for the business rescue planto come into operation and be fullyimplemented, effect on employees andtheir conditions of employment, thecircumstances in which the business rescueplan will end and a projected balancesheet for the company and a statement ofincome and expenses for the ensuing three

years).

3. How is a business rescue plan adopted?

A proposed business rescue plan will beapproved on a preliminary basis if it issupported by the holders of more than 75% ofthe creditors voting interests that were votedand when the votes in support of the proposed

plan included at least 50% of the independentcreditors voting interests, if any, that werevoted (section 152(2)).

4. What happens if a business rescue planis adopted?

A business rescue plan that is adopted isbinding on the company, the creditors of thecompany and every holder of the companyssecurities whether or not such a person waspresent at the meeting, voted in favour of theadoption of the plan or, in the case of creditors,had proven their claims against the company(section 152(4)).

Section 154 reiterates the binding effect of anapproved plan. It provides that once a businessrescue plan is implemented in accordance withits terms, a creditor will lose its right to enforcethe relevant debt or a part of it on the basisthat it has acceded to the discharge of the

debt. The creditor will also be precluded fromenforcing a debt that arose prior to businessrescue, against the company, unless thebusiness rescue plan provides otherwise.

5. What happens if a business rescue planis rejected?

Section 153 of the Act deals with the instancein which a plan is rejected. If a business rescueplan is rejected the practitioner may seek avote of approval from the holders of voting

interests to prepare and publish a revised planor advise the meeting that the company willapply to court to set aside the result of thevote on the grounds that it was inappropriate.If a practitioner does not take the aforesaidaction, an affected person may take suchaction (section 153(1)(a) and (b)), failingwhich the practitioner must file a notice of thetermination of the business rescue proceedings(Form CoR152.2).

Further, any affected person or combination ofaffected persons may make a binding offer topurchase the voting interests of one or morepersons who opposed the adoption of theplan, at a value independently and expertlydetermined, on the request of the practitioner,to be a fair and reasonable estimate of thereturn to that person or those persons, if thecompany were to be liquidated(section 153(1)(b)(ii)).


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CLAIMS


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1. How are claims submitted for proof tothe business rescue practitioner?

It is not necessary to prepare a claim in thesame format as with liquidation proceedings (ieby deposing to an affidavit) but standard proofof claim forms have been used to submit claims

to the business rescue practitioner. It is notnecessary to file a formal affidavit. A statementdetailing the claim together with supportingcertificates of balance and documents would besufficient proof of the claim.

The Act does not specify a time by when aclaim should be submitted. However, section147(1)(a)(ii) refers to the business rescuepractitioner being in a position to receive

proof of claims by creditorsat the first meeting

of creditors. The business rescue practitionerwould then either accept or reject such claims.All claims that have been accepted by thebusiness rescue practitioner would be includedin the plan (section 150(2)(a)(ii)). The onlyvoting which would occur by creditors wouldbe in terms of section 152(2) on the businessrescue plan and at a meeting convened for thatpurpose in terms of section 151.

2. What is the order of preference for thepayment of claims during a businessrescue?

During business rescue proceedings, the claimsof creditors rank in the following order ofpreference and will accordingly be paid out inthis order -

practitioners remuneration, expensesand claims arising out of the costs ofthe business rescue proceedings (section135(1));

remuneration, reimbursement for expensesor other amounts of money relating toemployment, due and payable by thecompany to an employee during businessrescue (post-commencement finance);

the claims of secured lenders or creditors

before business rescue. The Act is not clearabout where those creditors should fall inthe ranking of claims and this has given riseto some debate;

secured claims by post-commencementfinanciers, lenders or creditors in the orderin which the claims were incurred (section135(3)(a)(i));

claims in respect of the Insolvency Act 24of 1936;

unsecured claims by post commencementfinanciers, lenders or creditors duringbusiness rescue in the order in which theywere incurred (section 135(3)(b));

remuneration of employees which becamedue and payable before business rescuecommenced; and

unsecured claims of lenders or creditorsbefore business rescue(section 135(3)(a)(ii)).

3. What happens if business rescueproceedings are superseded byliquidation proceedings?

If business rescue proceedings are supersededby a liquidation order, the preference conferredin terms of section 135 will remain in force,

except to the extent of any claims arisingout of the costs of liquidation. That is, thatthe liquidators fees and expenses will rankin priority to that of the business rescuepractitioners fees (section 135(4)).


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INTERPLAY BETWEEN

BUSINESS RESCUE

AND LIQUIDATION


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1. Are liquidations still an option?

Business rescue is recognised as a valuable partof the Act. Section 7(k) of the Act states thatamong the objectives of the Act is the aim toprovide for the efficient rescue and recovery of

financially distressed companies, in a manner

that balances the rights and interests of allrelevant stakeholders.

There has been a move away from a culture ofliquidation to a culture of rescue, in that if acompany is not able to be restored to a positionof solvency, then the next best option is for it toat least achieve a better result for the creditorsthan would arise from liquidation. Liquidation isstill an option, but it is the last resort.

2. What is the interplay between businessrescue proceedings and liquidationproceedings?

If liquidation proceedings have alreadycommenced, an application to court forbusiness rescue will suspend the liquidationproceedings until the court has adjudicatedon the application or when business rescueproceedings end when the court grants an orderapplied for (section 131(6)).

Further, the Act provides that a court maygrant an order placing a company underbusiness rescue at any time during the courseof any liquidation proceedings or proceedingsto enforce any security against the company(section 131(7)). This section has given rise to

some debate. It seems to suggest that evena company that has been liquidated, maysubsequently be placed under business rescue.It has been suggested that compelling reasonswould need to be placed before a court beforesuch extreme action is taken.

If business rescue proceedings have commencedby way of an application to court, thecompany may not adopt a resolution for itsliquidation until business rescue proceedingshave terminated. The company must notifyall affected persons of the order of the courtwithin five business days of the date of theorder (section 131(8)).

3. How does the test for financial distressdiffer from the solvency and liquidity

test?Section 4 of the Act sets out the solvencyand liquidity test. It provides that a companywill satisfy the solvency and liquidity test ata particular point in time if considering allreasonably foreseeable financialcircumstances -

the assets of the company, or the aggregateof the assets of the company, fairly valued,equal or exceed the liabilities, or aggregate

liabilities of the company, fairly valued(factual insolvency); andit appears that the company will be ableto pay its debts as they become due in theordinary course of business for a period oftwelve months after the date on which thetest is considered (commercial insolvency).

There has been a move awayfrom a culture of liquidationto a culture of rescue.


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The difference between the test for financialdistress and that of solvency and liquidity isthat a company will be financially distressedif it is either factually or commercial insolventwhile a company will be said to be solvent andliquid if it satisfies both factual and commercialsolvency. Further, for financially distressed

companies, the question is whether or notthe company will be factual or commerciallyinsolvent in the immediately ensuing sixmonths.

4. What is the difference between aninsolvency practitioner and a businessrescue practitioner?

Insolvency practitioners and business rescuepractitioners are not the same. Each is

appointed to fulfil different roles, which can besummarised as follows - insolvency practitioner a liquidator in any

winding-up shall recover and reduce intotheir possession all the assets and propertyof the company, movable and immovable,and shall apply the proceeds so far as theyextend in satisfaction of the costs of thewinding-up and the claims of creditors, andshall distribute the balance among thosewho are entitled thereto (section 391 ofthe Companies Act 61 of 1973); and

business rescue practitioner a businessrescue practitioner is responsible forinvestigating the companys affairs,business, property and financial situationin order to consider whether there is a

reasonable prospect of the company beingrescued (section 141(1)).

Thus, a different skill set is required for aninsolvency practitioner. Prior to the enactmentof the Act there was some debate as to whetheror not insolvency practitioners could takeappointments as business rescue practitioners.Although there are many insolvencypractitioners who qualify for appointment asbusiness rescue practitioners, a new professionwas created. Only licensed practitioners may beappointed.

5. Can a business rescue practitionerbe appointed as a liquidator and viceversa?

Section 140(4) of the Act provides that to the

extent that business rescue proceedings areterminated by a court placing the distressedcompany into liquidation, any person who actedas a business practitioner during the businessrescue may not be appointed as a liquidator.This section is unambiguous. A business rescuepractitioner may not act as a liquidator.

However, the Act does not suggest that aliquidator may not be appointed as a business

rescue practitioner if a company goes intobusiness rescue subsequent to liquidation.It seems as though the liquidator could takeappointment as a business rescue practitionerif he satisfies the requirements for qualificationunder section 138 of the Act.


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GENERAL

CONSIDERATIONS


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1. Are companies filing for businessrescue or making application to court?

Business rescue is well underway. CIPC,established in terms of section 185 of the Act,is tasked with the administration of voluntarybusiness rescue filings (section 129) andmatters related therewith and has to datereceived many filings for voluntary businessrescue. A number of formal applicationshave also been made to court (section 131).Although there have been very few instancesin which the courts have granted ordersfor business rescue, the judgments thathave emanated from the courts have beeninformative and instructive in paving the wayfor the efficient application of business rescue.

Although there have been veryfew instances in which the courtshave granted orders for businessrescue, the judgments that haveemanated from the courts havebeen informative and instructivein paving the way for the efficient

application of business rescue.

2. Does business rescue interruptprescription?

If a person has a claim against the companyand the enforcement of the claim is subject toa time limit, the time limit prescribed for theenforcement of such a claim will be suspendedfor the duration of the business rescueproceedings (section 133(3)).

3. Can a close corporation be placedunder business rescue?

Section 66 (1A) of the Close Corporations Act69 of 1984 provides that the business rescueprovisions of the Act apply equally to closecorporations as they do to companies.


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CONTACT DETAILS


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Eric LevensteinTitle: Director and joint practice

area head

Office: JohannesburgDirect line: +27 (0)11 535 8237Fax: +27 (0)11 535 8787Switchboard: +27 (0)11 535 8000Email: [email protected]

Eric has been a director of Werksmans Attorneyssince 1993 and is currently the joint headof the firms Insolvency, Business Rescue &Restructuring Practice.

He specialises in litigation and disputeresolution with a particular focus on bankingand finance, forensics and intellectual propertyin addition to business recovery, insolvencyand restructuring. His expertise extends toconsumer protection and director liability.He regularly delivers seminars and writes forvarious publications on these topics amongothers.

He is a member of the Association of InsolvencyPractitioners of South Africa (AIPSA) andof INSOL, a worldwide group of insolvencypractitioners and attorneys who specialise ininsolvency and restructuring matters. He alsocurrently sits on the editorial committee ofINSOL World.

He is named as a recommended lawyer inrestructuring and insolvency by PLC WhichLawyer and has BCom and LLB degrees, HigherDiplomas in Company Law and Tax and aDiploma in Insolvency Law.

About the Authors


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Lauren BarnettTitle: AssociateOffice: Johannesburg

Direct line: +27 (0)11 535 8196Fax: +27 (0)11 535 8796Switchboard: +27 (0)11 535 8000Email: [email protected]

Lauren joined Werksmans Attorneys as acandidate attorney at the beginning of 2010.She has completed her articles of clerkship withthe firm and has been appointed as an associatein the firms Insolvency, Business Rescue &Restructuring Practice.

Lauren has been exposed to the legal aspects ofthis field of law as well as the provisions of theNational Credit Act and the new Companies Act.

Lauren received the Philip Friedland Prize forthe Most Successful Candidate in the AttorneysAdmission Examination (2009) and wasacknowledged for the Best Overall Performanceat the School for Practical Legal Training (2009).

Lauren has a BA and LLB degree, both awardedwith distinction, from the University of theWitwatersrand.


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