Full Text Available
Note: Clicking the button above will open the full text document at the original institutional repository in a new window.
Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law
Includes bibliographical references.
Saved in:
| Main Author: | |
|---|---|
| Other Authors: | |
| Format: | Thesis |
| Language: | English |
| Published: |
Department of Commercial Law
2015
|
| Subjects: | |
| Tags: |
No Tags, Be the first to tag this record!
|
| _version_ | 1867613344148488192 |
|---|---|
| access_status_str | Open Access |
| author | Ofwono, Frederick Ian |
| author2 | Bradstreet, Richard |
| author_browse | Bradstreet, Richard Ofwono, Frederick Ian |
| author_facet | Bradstreet, Richard Ofwono, Frederick Ian |
| author_sort | Ofwono, Frederick Ian |
| collection | Thesis |
| description | Includes bibliographical references. |
| format | Thesis |
| id | oai:open.uct.ac.za:11427/12904 |
| institution | University of Cape Town (South Africa) |
| language | eng |
| last_indexed | 2026-06-10T12:34:39.078Z |
| license_str | Not specified — see source repository |
| provenance_str_mv | Harvested via OAI-PMH from UCTD — University of Cape Town Open Access Repository |
| publishDate | 2015 |
| publishDateRange | 2015 |
| publishDateSort | 2015 |
| publisher | Department of Commercial Law |
| publisherStr | Department of Commercial Law |
| record_format | dspace |
| source_str | UCTD — University of Cape Town Open Access Repository |
| spelling | oai:open.uct.ac.za:11427/12904 Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law Ofwono, Frederick Ian Bradstreet, Richard Commercial Law Includes bibliographical references. In 1926, the South African Parliament introduced a procedure known as judicial management. It was housed in the Companies Act 46 of 1926 (hereafter Companies Act 1926). The purpose of judicial management was to enable a failing company to restructure thus providing an alternative to liquidation. Companies play an important role in an economy and their demise affects not only creditors but also different groups of people that have a working relationship with the company. These include employees, suppliers, shareholders and other stakeholders. The legislature recognised the need to save this relationship in as far as was possible. They attempted to do so by amongst other things, providing for judicial management. Judicial management provided breathing space to companies on the brink of collapse in order to allow them to re-organise their affairs. It tried to achieve this by providing for a moratorium against creditors, divesting the control of the company from previous management who assumedly had run it aground, and by providing for the appointment of a judicial manager who attempted to turn the company around. Due to several factors, judicial management was not much of a success as will be discussed in this paper. Some of the reasons are related to weaknesses in the legislation, the attitude of the courts and in my view, the lack of local precedents initially, for the courts to follow (seeing that judicial management was the first of its kind in South African law) as well as companies themselves, who might have lacked an idea of how the procedure was to be utilised. In order to address the shortfalls in the legislation, a number of amendments were made through the years. One such shortfall was the fact that many companies that applied for judicial management had no real chance of rehabilitation and only did so to avoid a liquidation that was subject to the winding-up provisions of the 1926 Act. Some notable amendments that were made include those in 1932 under s 196(1) that provided for a moratorium to be placed on all actions against the company while it was undergoing judicial management. Section 197(A) introduced the concept of voidable dispositions as it applied in insolvency law. This provision aimed to ensure that companies did not apply for judicial management because they did not want the company to be wound up subject to the rules of insolvency law. 2015-05-27T04:07:24Z 2015-05-27T04:07:24Z 2014 Thesis Postgraduate Diploma PGDip http://hdl.handle.net/11427/12904 eng application/pdf Department of Commercial Law Faculty of Law University of Cape Town |
| spellingShingle | Commercial Law Ofwono, Frederick Ian Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title | Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title_full | Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title_fullStr | Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title_full_unstemmed | Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title_short | Suggested reasons for the failure of judicial management as a business rescue mechanism in South African law |
| title_sort | suggested reasons for the failure of judicial management as a business rescue mechanism in south african law |
| topic | Commercial Law |
| url | http://hdl.handle.net/11427/12904 |
| work_keys_str_mv | AT ofwonofrederickian suggestedreasonsforthefailureofjudicialmanagementasabusinessrescuemechanisminsouthafricanlaw |