Includes bibliographical references / The status of a creditor has always been vitally important in South African law. Our law contains numerous provisions - amongst others in the law of insolvency - to protect creditor's rights, that is, the ability of creditors to collect from debtor s what they are owed. Traditionally secured creditors - that is, creditors who hold some form of real security for their claim - rank higher in priority when it comes to repayment of their claims by a defaulting debtor, both in individual and collective debt enforcement procedures, and as such are, in the vast majority of cases, able to recover full or at least partial repayment of their claims. Business rescue was introduced into South African l aw with the commencement of the Companies Act 71 of 2008, which became effective on 1 May 201 1. Business rescue is a relatively new collective debt enforcement mechanism applicable to corporate debtors. There has been considerable uncertainty with regards to the interpretation of some of its provisions, mainly due to important concepts and terms not being defined. This uncertainty has extended to the provisions dealing with the extension of finance to a corporate debtor after commencement of the business rescue proceedings (so-called 'post-commencement finance') and the ranking of priority of creditors of such corporate debtor during the business rescue proceedings. The dissertation firstly seeks to explain the concept of business rescue, with specific emphasis on post-commencement finance. The relevant provisions relating to post-commencement finance are interpreted along the lines of recent principles governing statutory interpretation. An apparent conflict in the interpretation of these provisions is identified through specific reference to the limited number of judicial pronouncements on this subject matter to date. In attempting to resolve the apparent conflict in the interpretation of the relevant provisions, the dissertation then briefly considers the background to business rescue in South Africa. The Companies Act itself is considered, with specific reference to its stated purpose and objects, along with a look at the historical development of the specific provisions in question. A brief review is then undertaken of the role and f unction of real security in a collectively debt enforcement procedure such as business rescue under South African law, with specific reference to the existing distribution rules in insolvency la w. A comparative review of relevant foreign jurisdictions is then carried out. The dissertation concludes with a suggested approach to the interpretation of the ranking of priorities under business rescue.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:uct/oai:localhost:11427/16728 |
| Date | January 2015 |
| Creators | Prins, Deon |
| Contributors | Stoop, Helena |
| Publisher | University of Cape Town, Faculty of Law, Department of Commercial Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Master Thesis, Masters, LLM |
| Format | application/pdf |
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