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)

Text in Afrikaans / Die doel van saaklike sekerheidstelling is om 'n saak as eksekusievoorwerp tot die beskikking van die kredietgewer te stel. Vorderingsregte as sekerheidsobjekte voldoen hieraan en moet daarom as deel van die saakbegrip beskou word. Vorderingsregte word in die praktyk as sekerheidsobjekte aangewend of by wyse van sekerheidsessies of deur middel van die registrasie van 'n notariele verband daaroor. Alhoewel die regspraak by sekerheidsessies voorkeur gee aan 'n verpandingskonstruksie, is Scott van mening dat 'n algehele sekerheidsessie nog moontlik is. Die toepassing van die verpandingskonstruksie lewer aanvaarbare resultate en voldoen meestal aan die kontrakterende partye se behoeftes. Die vereiste van publisiteit by pandreg sal egter in sekere gevalle nie vir die partye aanvaarbaar wees nie en kan algehele sekerheidsessies hier 'n oplossing bied. By notariele verbande is die bestaande posisie ingevolge waarvan 'n onderskeid gemaak word tussen liggaamlike en onliggaamlike sake as sekerheidsobjekte, onuithoudbaar en is wetgewing in die verband nodig. The aim of real security is to have objects available to a creditor for execution. Personal rights may be used for this purpose and should therefore be included in the definition of property. In practise claims (personal rights) are used as security objects by way of a security cession or through the registration of a notarial bond over the claims. Although the courts give preference to personal rights in security by way of pledge, Scott is of the opinion that these decisions do not exclude out-and-out security cessions. The results that application of the law of pledge causes, are acceptable and will mostly fulfil the need of the parties. In certain situations the requirement of publicity will however be unacceptable in which instance out-and-out security cessions may be the solution. The current position where a distinction is made between corporeal and incorporeal property as security objects, is unacceptable and legislation is needed in this regard. / Private Law / LL.M.

A real security right improves a creditor’s chances of recovering a debt owed to him by the debtor. In the case of an ordinary pledge, the pledgor delivers physical control of his movable property to his creditor to serve as security for the repayment of the principal debt. The increasing value and use of movable property as an object of security coupled with technological advancement have resulted in many countries calling for legal reform of real security rights over movable property. In South Africa this led to the introduction of the Security by Means of Movable Property Act 57 of 1993 which makes provision for a pledge without possession. The Act regulates only special notarial bonds and does not apply to general notarial bonds. The real security right vests in the bondholder upon registration of the bond, provided that the movable property encumbered is described in a notarial bond in a way that makes it readily recognisable. The Act has substituted delivery with registration in the Deeds Registry. Registration of the notarial bond in the Deeds Registry is questioned as to whether it complies with the publicity principle. This is because movable property can be shifted from one place to another without any knowledge on the part of the creditor due to the inaccessible and costly registration system. The third party then receives the property subject to the real security right of the creditor. The substitution of delivery with registration is the controversial feature in this study. Linked to the legal problems regarding compliance with the publicity principle, is the description and identification requirement as provided for under the Act, the exclusion of general notarial bonds from the application of the Act, and the question of whether it is appropriate to regard special notarial bonds as pledges without possession. This study questions whether the current land registry system should be used for the registration of notarial bonds and suggests that a new system designed specifically for the registration of real security rights over movables be considered. I compare the position in the Belgian legal system as regards developments in real security rights over movables to identify possible solutions and recommendations for the South African approach. / Private Law / LL. M.

Gauteng, one of the nine provinces of South Africa, has a high number of households as compared to the other provinces. Geographically the province has the smallest land size, however it forms the central part of the South African economy. From the total value of credit granted in all provinces, Gauteng has the highest. The province has a high number of registered debt counsellors and an increasing number of consumers who apply for debt counselling because of over-indebtedness. The high number of the registered debt counsellors and consumers seeking debt counselling service gave rise to the purpose of the study. The purpose of the study was to assess the role of debt counselling services provided by debt counsellors to consumers on the one hand, and to also assess whether debt counselling has had a positive effect on the personal financial well-being of consumers who participated in the debt counselling process on the other hand. Furthermore, the study aimed at developing a framework that will empower consumers to be self-sufficient with their finances. From the purpose of the study, two research questions were proposed: (1) How does the debt counselling service provided by debt counsellors assist consumers to manage their finances effectively? (2) Which role does the debt counselling service provided by debt counsellors play in terms of the personal financial well-being of consumers? In an attempt to answer research questions, the theoretical framework of both personal finance and debt counselling were studied. The importance of personal finance, personal financial planning, the evolution of debt counselling, the effectiveness and the ineffectiveness of debt counselling services were identified. A two-phased sequential design (qualitative and quantitative) was used. Fifteen debt counsellors were selected (for the first phase of the study) by making use of a purposeful sampling. These debt counsellors were interviewed and further requested to identify and send questionnaires to consumers whom they have rendered debt counselling service between the years 2007 and 2013. In the second phase of the study, 300 over-indebted consumers were surveyed through a snowball non-probability sampling technique and a response rate of 61% was realised. Data was analysed using ATLAS.ti and the Statistical Package for Social Science (SPSS) for the first and the second data collected respectively. Furthermore, the exploratory factor analysis was used to analyse the data, and the factorability of the data was assessed by means of two statistical measures, namely Bartlett’s test of sphericity and Kaizer Meyer-Olkin. It was observed that most debt counsellors lack financial management knowledge and do not have mechanisms to verify their clients’ financial well-being after debt counselling service had been completed. In addition, there was no evidence that consumers who received debt counselling improved in their financial well-being and that consumers also lacked personal financial management skills. The study concluded that, although debt counselling is essential, it does not necessarily assist consumers to effectively manage their finances. The study purports to suggest the following: Debt counsellors should be subjected to formal financial management training prior to their registration, debt counsellors should provide personal financial management education to their clients, and assess the financial management conduct of their clients once debt counselling process is complete, and debt counsellors should establish debt counsellors’ forums. The South African government (in conjunction with the Department of Education and Training) should introduce and implement personal financial management education in both primary and high schools’ curricula. Personal financial management should continue to be offered at adult learning centres as well as other institutions of higher learning. Employers should appoint employee wellness officers who will provide personal finance training to employees. Credit providers should take the responsibility of educating their clients on how to manage their accounts and the importance of paying debts on time. The South African media should also be used by the government and the NCR to educate and inform consumers about finance-related matters. Finally consumers should seek guidance and advice before making financial commitments. The study concluded by suggesting a framework that should help consumers to manage and sustain their financial well-being. / Business Management / DCOM (Business Management)

Gauteng, one of the nine provinces of South Africa, has a high number of households as compared to the other provinces. Geographically the province has the smallest land size, however it forms the central part of the South African economy. From the total value of credit granted in all provinces, Gauteng has the highest. The province has a high number of registered debt counsellors and an increasing number of consumers who apply for debt counselling because of over-indebtedness. The high number of the registered debt counsellors and consumers seeking debt counselling service gave rise to the purpose of the study. The purpose of the study was to assess the role of debt counselling services provided by debt counsellors to consumers on the one hand, and to also assess whether debt counselling has had a positive effect on the personal financial well-being of consumers who participated in the debt counselling process on the other hand. Furthermore, the study aimed at developing a framework that will empower consumers to be self-sufficient with their finances. From the purpose of the study, two research questions were proposed: (1) How does the debt counselling service provided by debt counsellors assist consumers to manage their finances effectively? (2) Which role does the debt counselling service provided by debt counsellors play in terms of the personal financial well-being of consumers? In an attempt to answer research questions, the theoretical framework of both personal finance and debt counselling were studied. The importance of personal finance, personal financial planning, the evolution of debt counselling, the effectiveness and the ineffectiveness of debt counselling services were identified. A two-phased sequential design (qualitative and quantitative) was used. Fifteen debt counsellors were selected (for the first phase of the study) by making use of a purposeful sampling. These debt counsellors were interviewed and further requested to identify and send questionnaires to consumers whom they have rendered debt counselling service between the years 2007 and 2013. In the second phase of the study, 300 over-indebted consumers were surveyed through a snowball non-probability sampling technique and a response rate of 61% was realised. Data was analysed using ATLAS.ti and the Statistical Package for Social Science (SPSS) for the first and the second data collected respectively. Furthermore, the exploratory factor analysis was used to analyse the data, and the factorability of the data was assessed by means of two statistical measures, namely Bartlett’s test of sphericity and Kaizer Meyer-Olkin. It was observed that most debt counsellors lack financial management knowledge and do not have mechanisms to verify their clients’ financial well-being after debt counselling service had been completed. In addition, there was no evidence that consumers who received debt counselling improved in their financial well-being and that consumers also lacked personal financial management skills. The study concluded that, although debt counselling is essential, it does not necessarily assist consumers to effectively manage their finances. The study purports to suggest the following: Debt counsellors should be subjected to formal financial management training prior to their registration, debt counsellors should provide personal financial management education to their clients, and assess the financial management conduct of their clients once debt counselling process is complete, and debt counsellors should establish debt counsellors’ forums. The South African government (in conjunction with the Department of Education and Training) should introduce and implement personal financial management education in both primary and high schools’ curricula. Personal financial management should continue to be offered at adult learning centres as well as other institutions of higher learning. Employers should appoint employee wellness officers who will provide personal finance training to employees. Credit providers should take the responsibility of educating their clients on how to manage their accounts and the importance of paying debts on time. The South African media should also be used by the government and the NCR to educate and inform consumers about finance-related matters. Finally consumers should seek guidance and advice before making financial commitments. The study concluded by suggesting a framework that should help consumers to manage and sustain their financial well-being. / Business Management / DCOM (Business Management)

LLM / Department of Mercantile Law / This research examined the mechanisms that were employed by the Companies Act 71 of 2008 in order to protect the interests of creditors in company affairs. At the preamble of the aforementioned Act lies an undertaking from legislature to provide appropriate redress to investors and third parties/creditors. It was on that basis that the researcher sought to establish whether legislature had indeed fulfilled its commitment to provide appropriate redress to creditors. Traditionally, companies have been run to promote the interests of shareholders with little attention given to the interests of other stakeholders such as creditors. It is this research`s findings that South African company law has moved from the traditional view, that is the shareholder value approach, to the enlightened shareholder value approach: a model of corporate governance which permits directors to have regard, where appropriate, to the interests of other stakeholders but with shareholders’ interests retaining primacy. It is thus found that creditors cannot be protected by contract laws alone but that their protection should be enhanced by mandatory corporate laws which regulates the manner and conduct of company controllers in a way that ensures that the interests of all stakeholders, including creditors, are given due regard. Finally, it has been found that much work has been done by legislature in developing the re-enacted creditor protective mechanisms and also in statutorily adopting new mechanisms which are aimed at advancing creditor interests. Recommendations have thus been made to legislature for possible amendments to refine its corporate laws. / NRF