Chapter 6 of the Companies Act 2008 (Act 71 of 2008) provides for the efficient rescue and recovery of financially distressed companies, in a manner that balances the rights and interests of all relevant stakeholders.
All businesses that are financially distressed and want to take a decision to start rescue proceedings can file a notice to start business rescue proceedings with the CIPC.
Business rescue can be initiated by:
- The board of directors;
- By an application to court when the business is financially distressed;
- Various affected persons by application to court (including shareholders, creditors, registered trade unions and employees).
The decision by a board to pass a resolution for business rescue needs to be done urgently to enable the business rescue practitioner to take control for the purposes of having a business rescue plan approved and thereafter implemented.
A business rescue practitioner will be appointed to oversee and supervise on a temporary basis the management, affairs and business of the company and to devise, prepare, develop and implement a business rescue plan. The plan will be implemented if approved by creditors and shareholders to the extent that the rights of the shareholders will be affected.
A director or a member would have a duty to pass a resolution for a company’s business rescue or alternatively resolve to wind up or liquidate as soon as he or she becomes knowingly aware that the company is either:
- financially distressed or
- is trading in insolvent circumstances (both factually in that its liabilities exceed its assets, and commercially in that it cannot pay its debts to creditors as and when they fall due
During the company’s business rescue proceedings, each director of the company:
- would continue to exercise the functions of a director subject to the authority of the practitioner duly appointed
- must assist the practitioner that is expected to operate the company and to continue to run its business
- may delegate any power or function to the practitioner duly appointed that would have full management control of the company in substitution for its board and pre-existing management.
Important: No liquidation proceedings must have commenced against the company when a decision is taken to start business rescue proceedings.
To file for business rescue, follow these steps:
To view information on how to register as a customer, click here. If you are already registered as a customer, and know your customer code and password, proceed to step 2.
- Print and complete form CoR 123.1
- Scan and e-mail the completed and signed documents together with supporting information firstname.lastname@example.org
The following supporting documents must be included in your e-mail:
- Sworn statement with reasons for resolution set out in detail.
- Indication of primary business activities, PI Score break down and total
- Resolution by company (directors)
- Practitioner Nomination letter by company
- Acceptance letter of the nomination from Practitioner (A business rescue practitioner has to be licensed as a practitioner before he can be appointed. See “Application for License as Business Rescue Practitioner”.
- If the board decides not to adopt a resolution commencing business rescue proceedings, after considering the financial state of the company, the notice of decision not be begin business rescue (CoR123.3) must be filed with CIPC by emailing it to email@example.com together with a statement of the criteria for being financially distressed and the reason for not adopting a business rescue resolution.
File and Publish Notice of Appointment of Practitioner
Within five days after filing a resolution, the company must appoint a business rescue practitioner, conditionally licensed for the project.
Click here to view a list of Licensed Business Rescue Practitioners.
Once the nominated practitioner received a registration certificate, then the company applying for business rescue must print and complete form CoR 123.2.
- The CoR123.2 must be accompanied by a consent letter of the practitioner accepting the appointment.
Scan and e-mail the completed and signed documents to firstname.lastname@example.org
- The company must also inform all affected parties of the appointment.
File a status report with CIPC
The Practitioner must file a status report (CoR125.1) with CIPC after three months by e-mailing it email@example.com. If business rescue proceedings are not concluded within 3 months, or within the time extension granted by court, the business rescue practitioner must file monthly report updates with the CIPC or to the court, in the case of a court-ordered business rescue process, until the proceedings are concluded.
File Notice of Substantial Implementation of business rescue plan or business rescue termination
E-mail the completed form to firstname.lastname@example.org.