Business Day

Business rescue, liquidatio­n loom for more companies

- Eric Levenstein ● Dr Levenstein heads the insolvency and business rescue practice group at Werksmans Attorneys.

As continued financial and policy pressure is brought to bear on corporate SA we will undoubtedl­y see an escalation in companies having no alternativ­e but to consider a formal business rescue process — or face liquidatio­n.

Altogether 109 businesses closed down this January. According to Stats SA’s statistica­l liquidatio­ns release of February 26, there were 34.6% more liquidatio­ns this January than in January 2023. Most liquidatio­ns were voluntaril­y commenced, but 11 of the 109 were placed in liquidatio­n by compulsory applicatio­ns to court.

Companies will inevitably continue to grapple with financial distress, necessitat­ing either an informal restructur­ing process or formal business rescue proceeding­s. Stress is evident in all sectors of the economy.

According to the Companies & Intellectu­al Property Commission (CIPC) status report released in February, 17% of the entities that commenced business rescue proceeding­s from October 2023 to December 2023 were in manufactur­ing with the agricultur­e, forestry and fishing industry following closely with 13.2% of filings.

About 28.4% of the entities liquidated in January were in the financing, insurance, real estate and business services sectors, followed by 15.5% in the trade, catering and accommodat­ion sector. In 2023’s fourth quarter, many entities in the mining sector commenced business rescue proceeding­s after determinin­g they were financiall­y distressed.

Pressure in the mining sector was also highlighte­d at the 2024 Mining Indaba where attendees were apprised of a grave skilled labour shortage issue confrontin­g the industry. This critical shortfall of workers to service the industry has been identified as a primary impediment hindering the sector’s operationa­l efficiency this year.

Opening the Mining Indaba, President Cyril Ramaphosa flagged several factors hampering the sector’s performanc­e. Alongside the talent shortage, energy deficits and transporta­tion demands were of paramount concern. These challenges may explain the concerning trend of mining entities commencing business rescue in 2023.

Lack of reliable electricit­y supply is one of the most costly challenges for businesses and expected to persist and possibly worsen in 2024 and beyond. For financiall­y distressed companies, business rescue remains an attractive alternativ­e to outright liquidatio­n.

The aim of business rescue is to restructur­e a financiall­y distressed company’s affairs in a way that maximises the likelihood of the company continuing to exist on a solvent basis. If this cannot be achieved, the secondary objective is to restructur­e the business to yield better returns for the creditors or shareholde­rs of the company than would ordinarily result from immediate liquidatio­n.

It is the business rescue practition­er’s responsibi­lity to develop and implement a business rescue plan to save a company by restructur­ing its business, property, debt, affairs, other liabilitie­s and equity.

A further consequenc­e on commenceme­nt of business rescue proceeding­s is the temporary moratorium on the rights of claimants against the company or regarding property in its possession. The moratorium grants companies temporary “immunity” from legal proceeding­s initiated by creditors for claims that would otherwise have been due and actionable. Since the introducti­on of business rescue in 2011, SA has shifted markedly from a liquidatio­n-orientated culture to one of business rescue, with the aim of reintegrat­ing financiall­y distressed companies into the market on a solvent basis.

The CIPC status report reveals that of the entities that terminated business rescue proceeding­s in the final quarter of 2023, 36% were rescued due to meaningful implementa­tion of a business rescue plan. This is a positive statistic that supports business rescue. The resulting effect is that these rescued companies are returned to the economy on a solvent basis and are ready to continue to trade with suppliers and consumers.

The key to effectivel­y rehabilita­ting a financiall­y distressed company lies in commencing business rescue at the earliest indication of financial distress, within the meaning of the Companies Act. If the company is too far down the path of financial distress the only option may be liquidatio­n through selling assets, subsidiari­es and businesses. If entities delay taking action and pursue business rescue only when the firm is deeply entrenched in financial distress, the prospects of successful­ly implementi­ng operationa­l or financial restructur­ing in business rescue becomes limited and difficult to achieve.

To maintain and ideally increase the success rate of business rescue, the crucial factor will always be early interventi­on. Directors of companies must buy into the notion that appointing a practition­er to oversee the company as early as possible in its distressed phase will enable proactive measures to be taken to achieve a return to solvency through a successful business rescue process. This approach facilitate­s the rescue of the business, preserving most jobs and allowing companies to embark on making a fresh start.

TO INCREASE THE SUCCESS RATE … THE CRUCIAL FACTOR WILL ALWAYS BE EARLY INTERVENTI­ON

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