Priority issues in business rescue

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dc.contributor.advisorStoop, Helenaen_ZA
dc.contributor.authorPrins, Deonen_ZA
dc.date.accessioned2016-02-03T14:30:54Z
dc.date.available2016-02-03T14:30:54Z
dc.date.issued2015en_ZA
dc.descriptionIncludes bibliographical referencesen_ZA
dc.description.abstractThe 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.en_ZA
dc.identifier.apacitationPrins, D. (2015). <i>Priority issues in business rescue</i>. (Thesis). University of Cape Town ,Faculty of Law ,Department of Commercial Law. Retrieved from http://hdl.handle.net/11427/16728en_ZA
dc.identifier.chicagocitationPrins, Deon. <i>"Priority issues in business rescue."</i> Thesis., University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2015. http://hdl.handle.net/11427/16728en_ZA
dc.identifier.citationPrins, D. 2015. Priority issues in business rescue. University of Cape Town.en_ZA
dc.identifier.ris TY - Thesis / Dissertation AU - Prins, Deon AB - 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. DA - 2015 DB - OpenUCT DP - University of Cape Town LK - https://open.uct.ac.za PB - University of Cape Town PY - 2015 T1 - Priority issues in business rescue TI - Priority issues in business rescue UR - http://hdl.handle.net/11427/16728 ER - en_ZA
dc.identifier.urihttp://hdl.handle.net/11427/16728
dc.identifier.vancouvercitationPrins D. Priority issues in business rescue. [Thesis]. University of Cape Town ,Faculty of Law ,Department of Commercial Law, 2015 [cited yyyy month dd]. Available from: http://hdl.handle.net/11427/16728en_ZA
dc.language.isoengen_ZA
dc.publisher.departmentDepartment of Commercial Lawen_ZA
dc.publisher.facultyFaculty of Lawen_ZA
dc.publisher.institutionUniversity of Cape Town
dc.subject.otherCommercial Lawen_ZA
dc.titlePriority issues in business rescueen_ZA
dc.typeMaster Thesis
dc.type.qualificationlevelMasters
dc.type.qualificationnameLLMen_ZA
uct.type.filetypeText
uct.type.filetypeImage
uct.type.publicationResearchen_ZA
uct.type.resourceThesisen_ZA
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