LL.M. (Commercial law) / This dissertation seeks to explore the fundamental differences between the rights of employees in terms of windiqg-up procedures and that of business rescue proceedings. I will be specifically looking at each procedure, winding-up and business rescue proceedings, and the effect that each of these procedures have on the rights of employees. In terms of the analysis of the procedures, I will be looking at the history of both insolvency law and labour law, as well as a look at the old Companies Act of 1973 and specifically at judicial management. By looking at the history we can gain an outlook on the problems we encountered then and how they can be improved today. I will then move on to look specifically at the specific proceedings of winding-up in Chapter 14 of the old 1973 Act and Chapter 6 of the new 2008 for the provisions on business rescue. Through analysing the proceedings I will also look at the legal position in other jurisdictions on the specific matter into account. Specifically I will look to the UK and Australia. Additionally, I will be looking at the International Labour Organisations position on employees' rights in terms of insolvency law. The specific rights of employees that I will be considering are employees rights to commence proceedings, their right to be informed, their right to be consulted, the effect on their employment contracts, retrenchments, claims which they may have against the company as well as the specific rights of employees in the case of a transfer of the business. In analysing all of the above aspects, I will come to conclude from my findings that the rights afforded to employees under business rescue and Chapter 6 of the 2008 Act are extremely beneficial to the employees and are so extensive that they cover almost all rights of employees. In comparison with the rights afforded to employees' in terms of winding-up procedures under Chapter 14 of the 1973 Act these rights are stiII beneficial to employees but they are not as extensive. Both procedures afford employees a significant amount of protection.

A research report submitted by In partial fulfilment of the Degree: Master of Commerce School of Accountancy 2016 / Given the seemingly low rate of success of the current business rescue regime (at just 13.6% as at June 2015), this study sought to identify whether the current business rescue regime in South Africa realises its intended objectives and why this meeting of objectives or failure to do so may be the case. It focuses on practical issues and the investigation is undertaken through interviews with business rescue practitioners who are the facilitators of business rescue. The findings show that there is a lack of clarity in the definition of success which may be cause for concern and that, despite its consistency with other jurisdictions, in the views of practitioners, the success rate is expected to improve. The study finds that there is a lack of prompt action when signs of financial distress are noted and a lack of funding for companies in business rescue. The experience of the practitioner has a significant impact on the success or failure of the rescue and may be one of the reasons for the current low rate of success of the regime, while the specific qualifications of the practitioner play a smaller role. The plan is imperative but there is often a lack of information and insufficient time allocated to its preparation. Consistency of Court judgements also has a bearing on success of business rescue, while consistency with provisions of other jurisdictions is not considered to be important. / MT2017

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.

This doctoral submission represents over ten years of focused research that has resulted in a unique collection of academic and professional articles. The epithet "unique" is adopted to reflect that over those years this area of study has been relatively untouched by other academic researchers. This submission presents a total of eight academic and seven professional journal publications that chronicle the major output of numerous research projects undertaken between 1992 and 2002. The publications adhere to a central aim - to investigate the practical use and complex interactions between stakeholders of the individual insolvency rescue vehicle the Individual Voluntary Arrangement (IVA). The research projects employed a variety of relevant methodologies to populate an emerging conceptual model of the prime factors affecting the incidence, usage and outcomes of IVA cases. The first five articles report and develop the data collected during the various projects. The articles build on each other, analysing results and comparing these with previous studies to underline reliability in the data. The final three articles draw threads from the research data and develop the conceptual model further. As a research progression this submission contains all of the necessary ingredients of a doctoral thesis. It focuses on a discrete body of knowledge, builds on a conceptual model, gathers valuable data and tests it, draws strong conclusions and, finally, establishes and contributes new theory in this area of study.

Mercantile Law / LL. M. (Corporate Law)

South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime. / Mercentile Law / LLD (Mercentile Law)

South African company law has provided for the rescue of financially distressed companies since 1926 when the statutory procedure of judicial management was introduced by the Companies Act 46 of 1926. Unfortunately, judicial management has never been regarded as a successful corporate rescue procedure and for most of its existence it has been severely criticised on many grounds. The Companies Act 61 of 1973 that replaced the Companies Act 46 of 1926 did very little to improve this situation and judicial management remained underutilised. As a result, the Companies Act 71 of 2008 now introduces two newly-created corporate rescue procedures in the form of business rescue proceedings and the compromise with creditors. This study analyses judicial management and the new corporate rescue procedures to establish whether the identified weaknesses of judicial management have been adequately and effectively addressed in the new procedures. A comparative study with similar procedures in England and Germany is undertaken to determine whether the South African legislature has delivered on its promise to create a system of corporate rescue that will meet the needs of a modern South African economy. Several weaknesses in the new procedures are identified and a number of recommendations are made to improve the relevant provisions and to assist in providing South African company law with an efficient and acceptable corporate rescue regime. / Mercentile Law / LLD (Mercentile Law)

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