Insolvency, Business Rescue & Restructuring

Insolvency, Business Rescue & Restructuring

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

South African companies which are financially distressed or which trade in insolvent circumstances in South Africa now have an opportunity to reorganise and restructure. This has far-reaching effects on creditors, financial institutions, shareholders, employees and restructuring specialists.

Our Insolvency, Business Rescue & Restructuring team has close familiarity with the legislation and the manner in which business rescue proceedings are to be implemented. This includes advising on the manner in which companies should file for business rescue proceedings, the appointment of business rescue practitioners to supervise business rescue proceedings, as well as the duties and liabilities of all parties involved in the business rescue process.

The purpose of business rescue in South Africa is to maximise the likelihood of the company continuing in existence on a solvent basis. The key to business rescue will be the successful development and implementation, if approved by creditors, of a business rescue plan to rescue the company by restructuring its affairs, business, property, debt, other liabilities and equity. In the event that this is not possible, the implementation of a business rescue plan should result in a better return for the company’s creditors or shareholders, than would result from an immediate liquidation of the company.

Werksmans is able to advise business rescue directors, stakeholders, employees and creditors during all stages of the business rescue process. This includes providing guidance to creditors in respect of strategic decisions (such as whether or not to vote in favour of a business rescue plan or whether or not to embark on the winding up process as an alternative to business rescue) and advice on protecting their security; particularly when it comes to financing and lending transactions in the business rescue scenario.

Speed is of the essence in the business rescue process. Very short time periods are set out in the Act and it is important that all stakeholders have proper legal support to call upon at short notice.

Werksmans approach to business rescue is proactive and focuses on advising creditors in a way that ensures that they achieve maximum returns in the business rescue process.

If business rescue is not recommended, or fails, our Insolvency, Business Rescue & Restructuring team is able to assist directors, stakeholders, liquidators and creditors during the liquidation process. This includes advising on the commencement of winding-up proceedings as an alternative to litigation and providing support in the conduct of insolvency enquiries.

In insolvency matters, cross-border recovery skills are key. The team’s expertise in this field extends across the African continent and into international jurisdictions, with proceedings having been successfully instituted in many countries around the world.

Services include:

  • advising directors of companies trading in what may be insolvent circumstances
  • advising on whether or not a company should pass a resolution for business rescue
  • advising on whether or not creditors should make application for business rescue as opposed to liquidation
  • advising creditors whether or not to oppose business rescue proceedings
  • assisting creditors in attending meetings and dealing with their claims and securities in business rescue
  • liaising with the business rescue practitioner and existing directors
  • advising in relation to the provision of post-commencement finance
  • advising on the general moratorium on legal proceedings against a company which has filed for business rescue.
  • protection of property interests
  • advising on the effect of business rescue on contracts
  • advising on whether or not to vote in favour of remuneration arrangements made by the business rescue practitioner
  • advising on the structure, implementation and approval of the business rescue plan
  • dealing with the section 155 compromise between the company and its creditors
  • advising on the commencement and administration of the insolvency process including proof of claims
  • advising on cross-border recognition of liquidators and the attachment of assets in foreign jurisdictions
  • advising on directors’ liability issues in terms of the new provisions relating to trading recklessly and in insolvent circumstances
  • providing support in forensic legal issues arising from liquidation proceedings
  • recovery of assets in the liquidation scenario
  • advising on sequestration proceedings
  • assistance with insolvency enquiries

Contact Director Eric Levenstein, Head of our Insolvency, Business Rescue & Restructuring practice area.

Download our Insolvency, Business Rescue & Restructuring practice area overview

Download our Business Rescue pocket guide

Download our Business Rescue toolkit

Download A review of the King IV Report on Corporate Governance

Download the Werksmans Director Duties and Liabilities Guide.

Download Nastascha Harduth’s article on The Legal Impact of Social Networks – International Trends reproduced with permission from INSOL World

Download Dr. Eric Levenstein’s Special Report on Financing the Rescue Process – A Comparative Analysis of the Financing Regimes in Australia, Canada, South Africa, United Kingdom and United States of America. This report has been reproduced with permission of INSOL International, published October 2018.

Download Dr. Eric Levenstein’s latest Corporate Report on Business rescue in South Africa: shortcomings, suggestions and possible amendments to Chapter 6 of the 2008 Companies Act

Download Dr. Eric Levenstein’s article on An appraisal of the new South African Business Rescue procedure.