Cross-border insolvencies as a global economic problem

As a result of the continuing expansion of international trade and investment, there has been an increase in the occurrence of cross-border insolvencies. National insolvency laws have not kept pace with the trend, and there is a need to develop an efficient and fair system for the administration of cross-border insolvencies. The lack of predictability in the handling of cross-border insolvency cases impedes capital flow and constitutes a disincentive to cross-border investment. The object of the Cross-Border Insolvency Act is to create provisions for a fair framework to address instances of cross-border insolvency effectively. It is based on UNCITRAL’s Model Law on Cross-Border Insolvency. The practitioner-inspired solutions that the South African legislation offers are satisfactory and definitely an improvement on the common law position. The only contradiction is that the South African approach towards solving the complicated problems of cross-border insolvencies improves the position of foreign creditors, foreign representatives and foreign courts, while it is still doubtful how foreign courts will treat South African creditors. From this point of view the lack of predictability in the handling of cross-border insolvencies is still subject to criticism as a disincentive to cross-border investment

Die beskerming van skuldeisers ingevolge artikel 34 van die Insolvensiewet na ’n skikkingsooreenkoms

Uit teks: Artikel 34 van die Insolvensiewet 24 van 1936 handel oor die nietige verkoop van ’n besigheid. Artikel 34(1) bepaal dat indien ’n handelaar ’n besigheid wat aan hom behoort, of die klandisie van so ’n besigheid, of goedere of eiendom wat ’n deel daarvan is, oordra ingevolge ’n kontrak (behalwe in die gewone loop van daardie besigheid of tot die versekering van die betaling van ’n skuld), en so ’n handelaar publiseer nie die kennisgewings wat in die artikel voorgeskryf word nie, dan is so ’n oordrag nietig teenoor sy skuldeisers vir ’n tydperk van ses maande na die oordrag en nietig teenoor die kurator van sy boedel indien sy boedel te enige tyd binne daardie ses maande tydperk gesekwestreer word. Vir hierdie doeleindes beteken “oordrag” ook die werklike of fiktiewe oordrag van besit: Die handelaar hoef dus nie fisies besit van die bedoelde goed aan die ander party oorgedra het nie (a 34(4)). Sodra ’n kennisgewing ingevolge artikel 34(1) gepubliseer word, word elke gelikwideerde skuld van die handelaar in verband met die bedoelde besigheid wat op ’n toekomstige dag invorderbaar sou word, dadelik invorderbaar as die betrokke skuldeiser betaling van die skuld eis (a 34(2))

Het ‘n eerste verbandhouer werklik ‘n “vry hand”-voorkeur ten opsigte van sy sekuriteit as vervreembare goed kragtens artikel 8(b) van die Insolvensiewet? Absa Bank Ltd V Collier 2015 4 Sa 364 (WCC)

Uit teks: Met ‘n vlugtige lees van die opsomming van hierdie saak was die skrywers van mening dat die uitspraak nie juis noemenswaardig is nie, maar met nadere ondersoek het dit geblyk dat dit uiters belangrike kwessies aanroer

Kernaspekte rondom die voeging van gades en vennote by 'n aansoek vir verpligte sekwestrasie

Core aspects pertaining to the joining of spouses and partners in an application for compulsory sequestration Joining parties as respondents in an application for compulsory sequestration is possible beyond instances where spouses are married in community of property or in cases involving partnerships. The practice in the Gauteng Division of the High Court is that several respondents are not allowed in a joint application for their individual sequestration, unless there is a complete identity of interests. The correctness of this established practice, as supported by the decision in Ferela (Pty) Ltd v Craigie and Others 1980 3 SA 167 (W) and Breetveldt and Others v Van Zyl and Others 1972 1 SA 304 (T), was drawn into question by the findings in Business Partners Ltd v Vecto Trade 87 (Pty) Ltd and Others 2004 5 SA 296 (SE) and Maree and Another v Bobroff and Another [2017] ZAGPJHC (7 March 2017), where the requirement of a “complete identity of interests” was substituted for a “substantial coincidence in the interests” of the respondents. With the 2017 decision in Strutfast (Pty) Ltd v Uys and Another 2017 6 SA 491 (GJ), there is a return to the former practice. The authors analyse this case and contend that it was correctly decided. However, the authors also draw attention to what the Strutfast case did not decide, and postulate that this implies that joining is also possible in alternative situations

Die bepaling van die ‘sentrum van hoofbelange’ by oorgrens insolvensies: Is die Parmalat-benadering voldoende om die behoeftes van moderne handel te bevredig?

Despite various viewpoints on the determination of the centre of main interest (COMI), the legal question in this investigation is whether, and to what extent, the approach in In re Eurofood IFSC Ltd (the Parmalat case) brings about an effective solution for the determination of the location of the COMI of individual companies, either unattached or as part of a group (in contrast with companies forming a so called economic unit). There exists a presumption that the COMI is situated there where the company’s registered office is. This is the physical factor in determining the COMI. There is also a mental or psychological factor. The COMI must correspond with the place which third parties (including foreigners) regard as the place where the debtor ordinarily manages its business and most prominent interests on a regular basis. If the registered office is situated at one place and the judgment of third parties with regard to the COMI is elsewhere, the presumption will not come into operation and the ordinary onus of proof will rest on the party concerned. If the subsidiary’s registered office and the opinion of third parties point to the same location (in order for the presumption to come into operation) the holding company should lead more substantial evidence so as to rebut the presumption. The presumption shall not be rebutted easily. An essential and delicate process of weighing up relevant factors should take place. The COMI must be identified with reference to criteria which are objectively foreseeable by all parties involved

“Some of them are afraid of the language”: Perceptions of TVET college staff about the relationship between English language proficiency and academic performance among Engineering students

Despite the fact that Technical and Vocational Education and Training (TVET) colleges are seen as instrumental in addressing South Africa’s labour market skills shortages and high youth unemployment rate, the extremely low throughput and certification rates at these institutions prevent colleges from achieving this goal. The vast majority of students enrolled at TVET colleges come from lower socioeconomic backgrounds and speak English as a second or additional language, yet English is the language through which teaching is conducted at all South African TVET colleges. Prior research has shown that there is a definite relationship between poor academic performance (AP) and learning in an additional language. Existing research of this nature has focused on schools and universities, but there is a dearth of research about the relationship between AP and English Language Proficiency (ELP) in the TVET sector. In order to address this gap, a mixed method study was conducted at one Eastern Cape TVET College to investigate whether the poor AP of National Vocational Certificate (NC (V)) Level 2 Engineering students can be related to their ELP. The initial quantitative phase of the study confirmed prior research by showing that NC (V) students’ ELP is indeed significantly associated with their throughput rate and their performance in each specific subject. This article reports in particular on the second qualitative phase of the study, which was based on interviews with TVET college staff involved in teaching Engineering students. The most significant finding is that teaching staff, who daily work at the proverbial coal face of TVET training, are from their practical experience, very well aware of the fact that there is a crucial link between the ELP and AP of their students, that they employ a variety of strategies to address associated problems, but that they feel these are often insufficient and ineffective in the face of students trying to learn in a second language. This study extends the research about the role of language as a cognitive tool in learning in the Engineering disciplines. It also provides an opportunity to rethink the hegemonic, normalised position of English in Engineering studies and consider possibilities to mobilise indigenous languages as resources for epistemological access in higher education