The evolution of an effective business rescue statutory regime in South Africa 1926 – 2021=Inguqukomumo yohlobombuso lokomthetho lokutakula amabhizinisi esebenza ngendlela eNingizimu Afrika 1926-2021.
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2021
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ENGLISH ABSTRACT: An embryonic concept of what is now referred to as “business rescue” was enacted as so-called “judicial management” in the then Union of South Africa by the Companies Act 46 of 1926. It had already become clear that companies were substantial drivers of the country’s economy and a vital source of employment. It was therefore highly desirable that companies with economic potential should not be wound up and liquidated if they encountered financial difficulties that could, potentially, be relatively quickly overcome with a return to solvency and
viability. The legal process of an attempt to achieve the “rescue” of struggling but potentially viable companies raised many difficulties. How was to be determined whether a company in serious financial difficulty had the potential to return to solvency? What legal process was to be set in train in attempting to achieve that objective? Who was to have locus standi to initiate that process? How would a company’s admission to a statutory business rescue regime affect the legal rights of creditors who had claims against the company and whose own solvency might be imperilled if payment to them was deferred? Who would be in managerial control of the company whilst it attempted to regain solvency? How long would the attempt in this regard be
allowed to last? The thesis traces how these and other issues emerged and how potential answers presented themselves and have been refined.
The judicial management provisions of the Companies Act 1926 were the first substantial attempt to provide answers to such questions, but the initial legislation was sketchy, vague, and, in some respects, contradictory. Early reported judgments revealed difficulties, and weaknesses in the statutory process, and divisions of judicial opinion soon became apparent. After a lengthy debate, a modern business rescue regime was incorporated into the Companies Act 71 of 2008. The lessons learned from the shortcomings of judicial management and the positive and negative aspects of the business rescue regimes of other countries had been considered, and important contributions were made by an international advisory team. The thesis traces the development of South Africa’s business rescue regime from its beginnings in the Companies Act of 1926 to the present day and provides a critical review of the present law in this regard with suggestions for improvements and further refinement.
IQOQA LOCWANINGO:
Umqondo osemusha walokho manje osekubizwa ngokuthi i “business rescue” wawushaywe ngokuthi i “judicial managment” endaweni ngaleso sikhathi eyayibizwa ngokuthi i-Union of South Africa ngokoMthetho Wezinkampani 46 ka-1926. Kwase kusobala ukuthi izinkampani zingabashayeli abakhulu bomnotho wezwe kanye nomthombo obalulekile womsebenzi. Ngakho-ke kwakufiseleka kakhulu ukuthi izinkampani ezinamandla kwezomnotho
kwakufanele zingaqedwa uma zihlangabezana nezinkinga zezimali ezazingase, zinqotshwe ngokushesha uma kuqhathaniswa nokubuyela ekukhokheni nasekusebenzeni. Inqubo yezomthetho yomzamo “wokuhlengwa” kwezinkampani ezazidonsa kanzima kodwa
ezazingase zikwazi ukuphumelela yeza nobunzima obuningi. Imibuzo eyavelwa kwabe kungukuthi kwakuzonqunywa kanjani ukuthi inkampani esebunzimeni bezezimaliy yayinalo ithuba lokubuyela kwi-solvency? Iyiphi inqubo engokomthetho okwakumelwe imiswe ukuze kuzanywe ukufeza leyo njongo? Ubani owayezoba ne-locus standi ukuze aqale leyo nqubo?Ukwamukelwa kwenkampani ohlelweni olusemthethweni lokuhlenga ibhizinisi kwakungabathinta kanjani abanamalungelo asemthethweni futhi abakweletwayo izinkampani uma besengozini yokuthi inkokhelo yabo ihlehliswe? Ubani owayengaba sesikhundleni sokuphatha inkampanini ngenkathi izama ukuhlengwa? Kwakuzothatha isikhathi esingakanani
ukuhlenga inkampani? I thesis ilandelela ukuthi lezi zinkinga zavela kanjani nokuthi izimpendulo ezingaba khona ziye zavela kanjani futhi zacwengwa kanjani. Izinhlinzeko zokuphatha kwezobulungiswa zoMthetho Wezinkampani 1926 kwaba umzamo wokuqala omkhulu wokunikeza izimpendulo kuleyomibuzo, kodwa umthetho wokuqala wabe ungacacile, futhi, ngandlela thize, uphikisana. Izahlulelo ezenziwa ngalesenesikhathi zaveza ubunzima, nobuthakathaka enqubweni yomthetho, nokwehlukana kwemibono yenkantolo kwasheshe kwabonakala. Ngemva kwenkulumo mpikiswano ende, uhlelo lwesimanje lokuhlenga ibhizinisi lwafakwa kuMthetho Wezinkampani 71 wezi-2008. Izifundo ezatholwa kumthetho we judicial management kanye nezici ezinhle nezimbi zemibuso yokuhlenga amabhizinisi kwamanye amazwe kwase kucatshangiwe, kanye negalelo elibalulekile lethimba labeluleki bamazwe ngamazwe. Le thesis ilandelela ukuthuthukiswa kombuso wokuhlenga amabhizinisi aseNingizimu Afrika kusukela ekuqaleni kwawo kuMthetho Wezinkampani ka-1926 kuze kube namuhla futhi inikeza ukubukezwa okubalulekile komthetho wamanje mayelana kanye neziphakamiso zokwenziwa kwentuthuko kanye nokuthuthukiswa
okucutshunguliwe.
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Doctoral Degree. University of KwaZulu-Natal, Durban.