LL.M. / Tydens die ontwikkeling van die verskeie besigheidsondernemingsvorme in Suid-Afrika is groot aandag geskenk aan statutere regulering van hierdie ondernemingsvorme, asook interaksie tussen hierdie statutere reguleringsmaatreels en harmonisering daarvan met bestaande wetgewing wat daarop van toepassing mag wees. Dit wil egter voorkom dat statutere regulering in Suid-Afrika ten aansien van sekere ondernemingsvorme ver tekort skiet, aangesien daar geen onafhanklike wetgewing in Suid-Afrika bestaan ten aansien van byvoorbeeld vennootskappe nie, anders as in ander werelddele. Daar kan derhaiwe tereg gese word dat die vennootskapsreg beskou kan word as die "stiefkind" van die Suid-Afrikaanse reg. Alhoewel daar steeds verskeie Ieemtes en anomaliee bestaan ten aansien van statutere gereguleerde ondernemingsvorme en harmonisering van sekere statutere bepalings daarop van toepassing, met bestaande wetgewing, wil dit voorkom asof die bestaande verwysingsbronne ten aansien van die vennootskapsreg en ander wetgewing ernstige anomaliee teweegbring, wat vervolgens selektief bespreek gaan word, met spesifieke verwysing na anomaliee wat bestaan in die toepassing van sekere bepalings van die Insolvensiewet ten aansien van vennootskappe.

Thesis (MBA)--Stellenbosch University, 2001 / ENGLISH ABSTRACT: The subject of prediction of business failure from an academic point of view dates back to the turn of the century with the development of a single ratio, the current ratio, as an evaluation of credit-worthiness. Subsequently studies conducted have become complex using different statistical techniques and more than one variable to predict failure. The challenge in these studies has been to establish a reliable model to predict failure. The aim of this report was to find out which financial factors best predicted failure in the South African environment using a matched study by refining some elements of the study conducted by Court (1993). The data used was similar to that of Court (1993), which was independently obtained from the Bureau of Financial Analysis of the University of Pretoria. The variables used in the study were then computed from this raw data. The variables were then imputed into the stataΤΜ statical software package to run a conditional logistic regression model. As a result of a small sample size and a substantial number of missing variables in the sample size, the study did not reveal an accurate indication of the important variable. It was also found that with the instability and general complexity of conditional logistic regression the study need not have been a matched study. The recommendation is that future research be done with a larger sample size using the same methodology. It is also recommended that the data include non-financial variables. / AFRIKAANSE OPSOMMING: Die voorspelling van besigheidsmislukkings as 'n akademiese onderwerp, dateer vanaf die begin van die vorige eeu met die ontwikkeling van 'n enkele verhouding, die bedryfsverhouding, as maatstaf van kredietwaardigheid. Die toepassing van statistiese tegnieke en inkorporasie van meerdere veranderlikes het aan verdere studies 'n hoë mate van kompleksiteit verleen. Die gevolglike uitdaging was om 'n betroubare model te ontwikkel om besighiedsmislukkings akkuraat te kan voorspel. Die doel van hierdie verslag is om aan te dui welke finansiele faktore mees gepas sal wees om besigheidsmislukkings in die Suid Afrikaanse omgewing te voorspel. Die verslag gee weer die bevindinge van 'n gepaarde studie wat gegrond is op 'n verfyning van sekere elemente soos geneem uit die Court studie van 1993. Die data gebruik, is baie soos die wat die Court studie onderlê en is onafhanklik verkry vanaf die Bureau vir Finansiele Analise (Universiteit van Pretoria). Die veranderlikes wat in die studie gebruik is gebaseer op hierdie rou data en is ingesleutel en verwerk deur die stataΤΜ statistiese sagteware program na 'n kondisionele, logiese regressie model. As gevolg van 'n klein steekproef en 'n beduidenswaardige aantal ontbrekende veranderlikes in hierdie steekproef, kon die studie nie 'n belangrike veranderlike met akkuraatheid aandui nie. Dit is ook bevind dat die onstabiliteit en algemene kompleksiteit van die kondisionele, logiese regressie model die gebruik van 'n gepaarde studie onnodig gelaat het. Die aanbeveling is dat verdere navorsing dieselfde metodologie sal toepas op 'n groter steekproef. Dit word ook aanbeveel dat nie-finansiele veranderlikes by die data ingesluit word.

M. Tech. Business Administration / Financial distress and bankruptcy is one of the most significant threats to the going concern of many businesses, irrespective of their size and nature of operations. Research in corporate financial distress and corporate failure prediction dates back to the mid-sixties, and the bulk of the studies have been conducted within the context of highly developed market economies. Very little research has been conducted within the context of emerging markets, and using small and medium-sized firms. This therefore encouraged the author of this research report to conduct a study, applying a model specifically developed for emerging economies to predict financial distress of small and medium-sized South African listed firms. The main purpose of this study is to examine whether a model designed for financial distress prediction and credit scoring in emerging markets is reliable, and can be accurately applied in South Africa.

The Insolvency Act 24 of 1936 regulates the debtor’s estate when sequestrated for the benefit of creditors. The debtor must prove that sequestration will be to the advantage creditors and as such creates a stumbling block in the way of the debtor when applying for the voluntary surrender of his estate. Sequestration is viewed as a drastic measure due to the consequences attached to it. The sequestration procedure is often used by debtors as a form of debt relief as, subsequent to the sequestration procedure, the debtor may become rehabilitated. The effect of rehabilitation is that it discharges the debtor of all pre-existing debts and disabilities resulting from sequestration. Compulsory sequestration is often used as a debt relief measure by the debtor in the form of the so-called ‘friendly sequestration’. One of the reasons for this is that the onus of proof is much less burdensome as compared to the onus required in voluntary surrender by the debtor of his estate. South African law provides for alternative debt relief measures falling outside the scope of the Insolvency Act, including debt rearrangement in terms of section 86(7)(b) or debt restructuring in terms of section 86(7)(c) as a result of debt review in terms of the National Credit Act 34 of 2005 (NCA). However this procedure does not offer the debtor the opportunity of any discharge from his debts as the order expires only after the administration costs and all of the listed creditors have been paid in full. Further the NCA does not mention the Insolvency Act and this has led to problems in the application of both Acts and inconsistencies between them. An application for debt review by the debtor has been held to constitute an act of insolvency. Thus the creditor can use this very act of the debtor to have the debtor’s estate sequestrated. This is possible as an application for the sequestration of the debtor’s estate is not considered to be an enforcement of a debt by legal proceedings for the purposes of section 88(3) of the NCA and such actions by the creditor are not prohibited by the NCA. This was stated in Investec Bank Ltd v Mutemeri 2010 (1) SA 265 (GSJ) and was subsequently confirmed by Naidoo v ABSA Bank 2010 (4) SA 597. The consequence of this is that a debtor’s estate may be sequestrated even where he has applied for debt review. Currently, as stated by Van Heerden and Boraine, there is no explicit regulation by the legislature of the interaction between the provisions of theInsolvency Act and the NCA. In terms of FirstRand Bank v Evans 2011 (4) SA 597 (KZD) a debtor’s estate may be sequestrated even after a debt rearrangement order has been confirmed by a court in terms of the NCA. This clearly operates to the disadvantage of a debtor. Comparing the position with that in foreign jurisdictions such as the United States of America and England and Wales shows a lack of balance between the interests of the creditor and the debtor. South African insolvency law is not aligned with internationally acceptable standards because it is too creditor orientated and debtors are not provided with effective remedies to deal with their financial difficulties. This research paper will focus on reform in South African law to assist debtors in need of debt relief. There is a need for a system to be put into place to regulate application for debt review by a debtor and the application for the sequestration of the debtor’s estate by the creditor. In addition there is a need for the introduction of new legislation or amendment to the NCA which could be effective in redressing the current situation. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2013.

A research report submitted to the Faculty of Commerce, Law and Management, University of the Witwatersrand, in partial fulfilment of the requirements for the degree of Master of Management, specialising in Entrepreneurship and New Venture Creation Johannesburg, 2017 / This study examined the relationship between business failure and macroeconomic fluctuations within business cycles of South Africa’s economy for the time period 1980 to 2016. The study also sought to understand where, if any, immediate and lag correlations between fluctuations and business failure could be established. To understand this connection, this study used longitudinal data sets of different macroeconomic factors and studied their influence on business failure. The vector error correction model (VECM) was used to determine the long-term relationship between failure and each of the other variables. Additionally, Granger Causality was applied to establish whether the macroeconomic variables investigated in this study can be constructed to predict the probability of business failures. Three classes of macroeconomic predictor variables were considered. Firstly, well-known international variables in the form of GDP and CPI were used. Secondly, the study incorporated the three Composite Business Cycle indicators- leading, coincident and lagging. Lastly, behavioural indicators were used to incorporate the views of the actual businesses and their customers, which for this the study were the Business and Consumer Confidence Indices. After examining the effects the 7 macroeconomic variables had on business failure, the study found that there is a long-run relationship between the Composite Lagging Business Cycle indicator, the Business Confidence and Consumer confidence, which influenced Business Failure. Additionally, it was noted that Business Failure influence the Composite Lagging Business Cycle indicator in the long-run. The study additionally found that Business Failure may Granger Cause the Composite Leading Business Cycle indicator Outcomes of the study are potentially vital for entrepreneurs to understand the timing of entry into markets based on macroeconomic fluctuations through their cycles in certain industries. Business owners can make proactive financial and strategic decisions vital for survival of their business through the expansion and especially in the contraction cycles of the macroeconomic environments. / MT2017

Business failure should be of concern in most industralised countries and the importance of accurately evaluating the phenomenon from a management and investment point of view is enormous. Were it possible to predict failure with a certain degree of confidence, steps could be taken to rectify the situation and the benefit would accrue to all of the stakeholders in the macroenvironment. In essence, the profitability of a business is influenced by two sets of variables. In the first instance, it is influenced by a variety of internal (microeconomic) variables which are firm- specific and which management is generally able to control. A further distinction in this regard may be made between the financial and non-financial variables. In the second instance, it is generally accepted that profitability will be influenced by a number of external (macroeconomic) variables which are generally beyond the control of management. In the main, however, the profitability of the firm is generally determined by a combination of both sets of factors. To date, a great deal of research has been undertaken in an attempt to establish a reliable model which may be used to predict failure. This has mainly been confined to the microeconomic variables which can be used to predict failure and attempts have been made to isolate either a single financial ratio or a number of financial and non-financial variables which can be used to model corporate failure. The research has met with a certain degree of success although this appears to be confined to the economic environment to which the models have been applied. The models are less successful when applied to other macroenvironments. Limited research has been undertaken into the macroeconomic variables which contribute to business failure or to a combination of the two types of variables. It is appropriate therefore that further consideration be given to the establishment of a model incorporating ALL the variables which could contribute to corporate failure. The purpose of this research is to undertake an investigation of micro- and macroeconomic variables that are freely available to reserachers and which may be used in a failure prediction model. The intention is to obtain a comprehensive, yet simple model which can be used as an overall predictor of PENDING failure.

Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2007. / The freedom to transfer an undertaking is part of the employer’s freedom of contract. The transferee of an undertaking under the common law has the right to choose whether he wants to contract with employees or not. By the implementation of section 197 of the Labour Relations Act (1995) and the amended sections 197, 197A of the Labour Relations Act (2002) the legislator provides for an automatic transfer in cases where the undertaking is transferred as a going concern. The former accordance with the regulations of the insolvency law and the fact that sequestration or the winding-up of an insolvent undertaking had to be to the advantage of the creditors was lost after the legislative steps of 1995. The effects of the above-mentioned sections and especially the problems regarding the transfer of insolvent undertakings shall be analysed in this thesis. It is the aim of this thesis to examine how sections 197, 197A of the Labour Relations Act and section 38 of the Insolvency Act should be applied and interpreted to achieve social justice. This makes it necessary to examine the history and development of the South African law of transfer of an insolvent undertaking too. Section 197 of the Labour Relations Act is mostly based on European law. Although it is not the intention of this thesis to compare the European law with the South African law, several South African aspects will be examined from a European and especially German perspective.

Regulatory bodies must function properly in order for their duties to be performed. The performance of the regulatory body impacts the entire insolvency system. Academics have noted that the Master does not meet the standards of what is expected of an insolvency regulator. The Constitution requires that the power of the state be defined and regulated by the law to ensure the protection of the interests of society. State regulation must comply with the underlying values of the Constitution which also includes the protection of the interests of society. The state has a constitutional duty to protect societal interests, ensure that justice is promoted and ensure that just administrative action is achieved. The Master also has the requisite duty to protect societal interests. Academics have found that the objectives and outcomes of the regulation of insolvency law are still not in line with the Constitution and the values and principles it enshrines. Criticisms of the Master’s office include the lack of resources and institutional capacity, the lack of sufficient investigative powers and insufficient guidelines for the Master when applying their administrative discretion when appointing provisional insolvency practitioners. The lack of regulation of insolvency practitioners in South Africa has also been criticised which has a negative impact on the performance of the insolvency industry. Academics have proposed suggestions to reform the regulation of insolvency law in South Africa. However, none of these suggested proposals have been implemented as yet. The most recent development is the draft policy on the regulation of insolvency practitioners that has been submitted to NEDLAC in 2012. The policy aims to provide guidelines relating to the appointment of provisional insolvency practitioners. The policy also includes a code of conduct which insolvency practitioners must adhere to in order to be appointed as a provisional insolvency practitioner. The policy has the potential to provide sufficient guidelines to the Master when appointing insolvency practitioners. The precise guidelines in the policy reflect the need for transformation of the industry and the need for administratively fair decision making. Thus, the provisions of the proposed policy will be effective in countering the criticisms and transforming the insolvency industry and profession. Foreign jurisdictions have also encountered the problem of lack of regulation of insolvency practitioners. To circumvent this problem some foreign jurisdictions have made the recent development of adopting (or considered adopting) self-regulation or co-regulation of insolvency practitioners. In comparison to South Africa, they have made more progress towards improving the regulation of insolvency practitioners. The result of this is that South Africa is out of step with foreign jurisdictions. It is imperative that South Africa adopts reform initiatives to strengthen the regulation of insolvency law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.

LL.M. (Commercial Law) / When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.

LL.M. (Commercial Law) / The Companies Act 71 of 2008 (hereinafter referred to as the Act) was passed by Parliament on 19 November 2008 and assented to by the President on 8 April 2009. The Act came into force on 1 May 2011 and contains the provisions regulating the new business rescue proceedings that replace judicial management under the Companies Act 61 of 1973. However, since the introduction of Chapter 6 of the Act, the courts South Africa still appear to be finding their feet with regard to many of the Act’s provisions. In spite of this, the new business rescue practice has become an important part of the South African corporate framework. The outbreak of recent case law has started to shape the direction, which business rescue, as interpreted by the Courts, is taking. An important debate among the courts is whether the courts should rescue a business entity or liquidating the businesses assets in order to settle claims against it. While a liquidation aims to divide the profit from the sale of assets amongst creditors and to dissolve the company, business rescue legislation provides for a restructuring of the financial structure of a distressed debtor to save the business as a going concern and to assist the settlement of claims against the business in full. The business rescue proceedings have been provided for by legislation in the Act, however, the result of the vast recent court decisions show that the Act may not be relied upon unconditionally without proper regard to the circumstances of each case. This research analyses the appropriateness of business rescue as opposed to liquidation by specifically looking at the requirements for a successful business rescue order. This research further analyses whether the decisions of the courts in present case law are on the correct path when interpreting the business recuse provisions in terms of the Act.