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Formal Debt-Relief, Rescue and Liquidation Options for External Companies in South Africa

https://doi.org/10.21684/2412-2343-2020-7-4-85-126

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Abstract

This article discusses how foreign companies doing business in South Africa during periods of financial distress and registered locally as external companies are, as a recent High Court decision confirms, denied the formal debt-relief measures of business rescue and therefore a compromise with creditors because of being excluded by the definition of “company” in the Companies Act 71 of 2008. Nor, for the same reason, may these companies, if solvent, rely on the current liquidation procedures. But they may possibly use the procedure preserved in the otherwise repealed Companies Act 61 of 1973 for liquidation as far as the transitional arrangements in the Companies Act 71 of 2008 allow. The purposive solution suggested in this article for the interplay between the two Acts may need legislative attention. This article surveys other possibilities relevant to these companies such as informal voluntary arrangements, applications for winding-up, ordinary debt collection, and perhaps compulsory sequestration applications. Finally, it raises the policy issue for the legislature to consider why these companies should be denied business rescue and/or a compromise with their creditors when these formal debtrelief measures might help them survive their financial stress and emerge stronger, to the advantage of themselves, their creditors, their stakeholders and communities, and the entire nation. It is submitted that these issues could and should be considered as part of the current law reform process of South African insolvency law.

About the Author

A. Boraine
University of Pretoria
South Africa

Andre Boraine - Professor, Department of Private Law, University of Pretoria.
Private Bag X20, Hatfield, Pretoria, 0028.



References

1. Bertelsmann E. et al. Mars: The Law of Insolvency in South Africa (10th ed., Cape Town: Juta, 2019).

2. Blackman M.S. et al. Commentary on the Companies Act (Cape Town: Juta, 2012).

3. Boraine A. & Evans R. The Law of Insolvency and the Bill of Rights in The Bill of Rights Compendium (Durban: LexisNexis, 2014).

4. Boraine A. & Van der Linde K. The Draft Insolvency Bill - An Exploration (Part 1), 4 Journal of South African Law 621 (1998).

5. Boraine A. & Van der Linde K. The Draft Insolvency Bill - An Exploration (Part 2), 1 Journal of South African Law 38 (1998).

6. Boraine A. & Van Wyk J. The Application of ‘Repealed' Sections of the Companies Act 61 of 1973 to Liquidation Proceedings of Insolvent Companies, 46(3) De Jure 644 (2013).

7. Brewis T. & Cornelius E. More Foreign Investment and Economic Growth - Less Red Tape, 20(2) Without Prejudice M&A Feature 14 (2020).

8. Cassim F.H.I. et al. Contemporary Company Law (2nd ed., Cape Town: Juta, 2012).

9. Cassim F.H.I. The Companies Act 2008: An Overview of A Few of its Core Provisions, 22(2) South African Mercantile Law Journal 157 (2010).

10. Delport P et al. Commentary on the Companies Act of2008 (Durban: LexisNexis, 2019).

11. Forsyth C. Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the Supreme Court (3rd ed., Cape Town: Juta, 1996).

12. Forsyth C. Private International Law: The Modern Roman-Dutch Law Including the Jurisdiction of the High Courts (5th ed., Cape Town: Juta, 2012).

13. Holmes O.W., Jr. The Common Law (first published 1881, P.J.S. Pereira & D.M. Beltran (eds.), Toronto: University of Toronto Law School Typographical Society, 2011).

14. Kunst J.A. et al. Henochsberg on the Companies Act 61 of 1973 (Durban: LexisNexis, 2011).

15. Kunst J.A. et al. Meskin: The Law of Insolvency (Durban: LexisNexis, 2019).

16. Levenstein E. South African Business Rescue Procedure (Durban: LexisNexis, 2017).

17. Loubser A. & Joubert T. The Role of Trade Unions and Employees in South Africa's Business Rescue Proceedings, 36(1) Industrial Law Journal 21 (2015).

18. Smith A. & Boraine A. The Grab Rule Foils the Foreign Liquidator in His Own Jurisdiction, 14(3) South African Mercantile Law Journal 566 (2002).

19. Van Wyk de Vries J. et al. Commission of Inquiry into the Companies Act: Supplementary Report and Draft Bill (Pretoria: government Printer, 1972).

20. Williams R.C. Companies in The Law of South Africa. Vol. 4. Part 1 (W.A. Joubert (ed.), 2nd ed., Durban: LexisNexis, 2012).

21. Yeats J.L. et al. Commentary on the Companies Act of 2008 (Cape Town: Juta 2017).


For citation:


Boraine A. Formal Debt-Relief, Rescue and Liquidation Options for External Companies in South Africa. BRICS Law Journal. 2020;7(4):85-126. https://doi.org/10.21684/2412-2343-2020-7-4-85-126

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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)