Insolvency refers to the inability of a company to pay off its debts. Cash flow insolvency refers to when a business is unable to pay debts as they fall due, and balance sheet insolvency refers to when the business’s liabilities exceed their assets. 

When insolvency is inevitable, the strategy becomes one of minimising the company’s loss, maximising returns for the various creditors, and constructing and administering a recovery strategy for any viable business activities. Restructuring of companies in financial distress has been on the increase for a number of years now. Chapter 6 of the new Companies Act, No. 71 of 2008 introduced business rescue to South African businesses. Business rescue involves the re-modelling of the financial and organisational structure of the businesses’ debtors resulting in the rehabilitation and subsequent liquidity of the business.

Shepstone & Wylie provides legal services and advice relating to:

  • Administration of the insolvency process

  • Attachment of assets in foreign jurisdictions

  • Attending creditors meetings

  • Business reconstruction

  • Business rescue duties and liabilities

  • Business rescue fillings

  • Commissions of inquiry

  • Court applications for liquidations and business rescue

  • Creditors claims and securities

  • Cross-border recognition of liquidators

  • Cross-border recovery

  • Dealing with the section 155 compromise between the company and its creditors

  • Debt restructuring and securitisation

  • Directors of companies trading in what may be insolvent circumstances

  • Directors’ liability issues

  • Perfection of securities

  • Post commencement finance

  • Proof of claims

  • Protecting companies’ security

  • Protection of property interests

  • Risk management of business rescue process

  • Schemes of arrangement in terms of the Companies Act

  • Structure, implementation and approval of the business rescue plan

  • The effect of business rescue on contracts

  • The sequestration of individuals, partnerships and trusts

  • Viability assessments

  • Whether or not creditors should make application for business rescue as opposed to liquidation

  • Whether or not to oppose business rescue proceedings

  • Whether or not to vote in favour of rescue plans

  • Winding-up proceedings as an alternative to litigation

Andrew Donnelly
 Partner