No abstract available. / Dissertation (LLM)--University of Pretoria, 2010. / Mercantile Law / unrestricted

LL.M. (Commercial Law) / South African company law has seen many changes in respect of corporate rescue, due to inter alia globalisation, increase in open trade, instant and freer communication and the need for better regulation of companies and stakeholders. As a result, the previous rescue mechanism of judicial management was widely criticised and poorly implemented. The Companies Act 71 of 20081 has however now replaced judicial management with business rescue. Business rescue encompasses many facets, most importantly the moratorium in section 133. Section 133 has already, and will even more so in future, have a dramatic impact on the launching or continuation of any legal or enforcement proceedings against a company undergoing business rescue, the status and enforceability of its contracts and the rights of affected parties (ie creditors, shareholders and directors). This study will discuss the general nature and effects of rescue moratoria and the moratoria (or lack thereof) created under the Companies Act 61 of 1973,2 the 2008 Companies Act and the administration procedure in England. The moratorium under each relevant rescue procedure will be analysed according to its purpose, nature, effects and procedure. As such, this study will attempt to set out why the section 133 moratorium is the cornerstone to the business rescue procedure and vital in securing the turnaround of the company. The section 133 moratorium will, to a great extent, determine whether business rescue is a saving grace in South Africa. I will discuss why I welcome business rescue (and its moratorium) and consider it an improvement on judicial management, but also what I regard as its inherent weaknesses. This study will conclude with my proposals regarding prudent amendments that have to be made to the 2008 Companies Act.

LL.M. (Commercial Law) / The introduction of Chapter 6 of the Companies Act No 71 of 2008 into the South African corporate insolvency setting had a noteworthy impact on procedures as we knew it and replaced its predecessor, judicial management in terms of the Companies Act no 61 of 1973. Chapter 6 provides for business rescue proceeding, its main function being to assist and rehabilitate financially distressed companies. The significance of this chapter is that it promotes proactive action to be taken by companies in initiating business rescue proceedings when possible financial distress becomes apparent. Business rescue proceedings can commence by making use of S 129 of the Companies Act No 71 of 2008 or of S 130 of the Companies Act No 71 of 2008. S 129 allows for the board of directors of the company to pass a resolution permitting business rescue proceedings to apply to the relevant company. S 130, on the other hand, makes provision for an affected person to apply to the High Court with a query regarding a company and business rescue proceedings. A remarkable number of new provisions were introduced relating to business rescue procedures and with their introduction came the responsibility of our Courts to interpret its rightful place within our law. As a result, the valuable question of when our courts should aim to rescue a company and when to liquidate the company’s assets in order to settle its debts, must be asked. Both proceedings have the same aim; that is helping the financially distressed company pay its debts. However, both also employ vastly different methods to achieve their aims and with different consequences. Business rescue aspires to rescue the company by restructuring its financial arrangements in order to allow for the business of the company to be sold as a going concern. Business rescue further aims to help the company settle all its claims against it in full. Liquidation, on the other hand, aspires to sell all the company’s assets and divide the profit of the sale to settle the claims of the company’s creditors. The company will thereafter be dissolved. This dissertation aims to analyse the suitability of business proceedings compared to liquidation proceedings by purposefully examining the requirements for both proceedings as well as their advantages. Furthermore, this dissertation will provide for a comparative study between the Australian and South African business rescue proceedings respectively.

LL.M. (Commercial Law) / Please refer to full text to view abstract

No abstract available Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

No abstract available Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

This work comprises a critical analysis of the section 48 acquisition of shares. Various predicaments inherent to such distributions are noted, and the financial, accounting, economic and statistical aspects pertaining to such distributions are used as yardstick in an effort to come to terms with the provisions of the Companies Act 71 of 2008. Initially, the section 48 distributions are analysed from a capital-related perspective in order to describe the application of the solvency and liquidity test, the fiction of beneficial interest in the current Act, as well as the effect of the exclusion of shareholder-specific distributions. Apart from capital rules, the internal actions’ description extends to the iusta causae of and minority protection relating to the section 48 distributions. Specific attention is given to board resolutions, the capacity of management to effect such transactions, as well as the duties of directors that have been rendered ineffective due to a change in the role of principal in the principal-agency problem underlying companies. Shareholder protection (specifically the effect of substituting shareholder’s resolutions with impractically phrased board resolutions) and creditor protection (specifically the cumbersome inclusion of “debt instruments” and its illogical nature) are discussed and, where possible, solutions are submitted. As a pragmatic step as an addition to director’s duties, targeted share repurchases have also been discussed. Apart from discussing the common misperceptions inherent to some common terminology, an indication to the meaning of “acquisition of own shares” in section 48(2)(a) is sought, and the different forms that such distributions can take are briefly discussed (including the possibilities pertaining to introducing equity derivatives to create synthetic share repurchases). As for take-overs and fundamental transactions, the relevant scheme of arrangement provisions are taken note of, and themes underlying that topic – disclosure to shareholders, mandatory offers and share repurchases in order to deter take-overs – are included. The section 48(2)(b) subsidiaries’ acquisition of shares in a holding company is not only compared to its version in the 1973 Act, but is also discussed from the perspective of the subsidiaries and of the holding company. Central to the latter is also the possibility of treasury shares and the liberal approach to financial assistance in the current Act. Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

Please read the abstract in the dissertation Copyright / Dissertation (LLM)--University of Pretoria, 2012. / Mercantile Law / unrestricted

No abstract available / Dissertation (LLM)--University of Pretoria, 2010. / Mercantile Law / unrestricted

No abstract available. Copyright / Dissertation (LLM)--University of Pretoria, 2010. / Mercantile Law / unrestricted