Aspects of tax pertaining to insolvency law in South Africa

This paper seeks to briefly analyse the somewhat convoluted provisions contained in South African tax legislation that apply to insolvent entities in South Africa. While South Africa has modern and effective taxation laws, the provisions, when applied to insolvent entities, are often exposed as cumbersome and ineffective. Tax legislation in South Africa does not take proper cognisance of the unique nature of insolvency, often placing a heavy burden on the trustee or liquidator who is required to administer the estate as speedily and effectively as possible. In addition, there are different rules that apply to consumer and corporate insolvency regarding the assessment of income tax pre‐ and post‐liquidation. The recent introduction of a capital gains tax has placed an additional burden on insolvency practitioners, especially considering the lack of clarity as to how these provisions should be applied in practice. Although the Value‐Added Tax Act was introduced more than a decade ago, its provisions continue to pose problems for insolvency practitioners during the administration process of insolvent estates. Despite these difficulties, the South African revenue authorities are to be lauded for the sensible manner in which problems are addressed in practice. Copyright © 2005 John Wiley & Sons, Ltd.     

Treatment of a Debtor's Home in Insolvency: Comparative Perspectives and Potential Developments in South Africa

A debtor's home is frequently a source of conflict between the debtor and his family members and his creditors. Treatment of forced sale of a debtor's home is not uniform. Some legal systems provide for formal, statutory ‘homestead exemptions’ the monetary limits of which are in many cases capped. In a number of jurisdictions, statutory provisions regulating, inter alia, the civil process, family law, bankruptcy law, or the recognition of human rights afford a measure of protection to the debtor and his family. This occurs either through the imposition of procedural requirements before forced sale is allowed or protecting the interest in the home or the occupational rights of a spouse or partner of the debtor against creditors' claims, or by delaying the forced sale of the home in certain circumstances. Recently, in South Africa, recognition by the courts of every person's constitutional right to have access to adequate housing has impacted upon the substantive and procedural requirements for execution against a debtor's home. However, no consideration has been given to whether realisation of an insolvent debtor's home by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936 involves similar constitutional imperatives. Consideration of the treatment of a debtor's home, especially in the context of insolvency, in various jurisdictions may provide valuable guidance for future developments in South Africa. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd.     

Jurisdiction concerning annex actions in the context of the insolvency and Brussels Ibis regulations

The legislation of the European Union has addressed the private international law aspects of civil and commercial matters and those of insolvency cases separately. While the Brussels Ibis Regulation (and its predecessors) focuses on “classic” civil of commercial cases, insolvency proceedings are subject to the (recast) Insolvency Regulation. However, the close interference between the two related areas of law—commercial and insolvency—results in a category of cases that are commercial and contentious in nature, and so they would tend to gravitate towards the Brussels regime, but yet they are so closely connected to the insolvency proceedings that justifies a special approach. This article focuses on the question of international jurisdiction regarding these “annex actions” in the context of the EU law. It will attempt to explore the historical roots of the current provisions and the evolution of both the European legislation and the relevant case law. The examination of this progression provides a better understanding of the current legislation and answers some questions apparently left open in the recast Insolvency Regulation.     

A case of constitutional apples and oranges: a functional comparison of pension priority and benefit guarantees in U.S., U.K. and Canadian insolvency and pension law regimes

Canada's insolvency law reform increased the priority granted to employer‐sponsored pension claims. The article compares the treatment of such claims in the U.S., the U.K. and Canada. A comparison of the legislative provisions concerning pension funding shortfalls from contribution arrears or economic underperformance in relation to the assumptions used for investment income or liability valuations finds that insolvency law has been used to address contribution arrears, but risks from economic underperformance have been addressed by pension benefit insurance. Post‐insolvency priority for contribution arrears provides appropriate incentives to discourage pre‐insolvency preferences for payments to other creditors, while shortfalls from economic underperformance do not involve issues of preference between creditors. The absence of any insolvency rationale for changing priority for shortfalls from economic underperformance and the likely disparity between the assets available to satisfy clams and the much larger amounts of such shortfalls makes the use of insolvency law to address this risk much less effective than insurance. Canada, however, has not adopted the insurance policy instrument used in the U.S. and U.K. to mitigate the impact of pension funding shortfalls. The constitutional inability of Canada to legislate in respect of matters of pension regulation that would allow it to control the well‐known insurance problems of moral hazard and adverse selection may explain why it has only chosen to adopt an insolvency policy instrument. However, a change in priorities in insolvency may generate incentives for secured creditors that either undermine or reinforce this policy choice. Secured creditors could attempt to circumvent the new priority scheme through private arrangements with the debtor or to increase their monitoring activities to ensure the debtor is current in its pension contributions. Secured creditors choices will be influenced by the bankruptcy courts' interpretation of the preference provisions in the insolvency legislation. Copyright © 2009 John Wiley & Sons, Ltd.     

A fresh start for individual debtors: the role of South African insolvency and consumer protection legislation

During the last two decades South Africa has witnessed not only a sharp increase in consumer debt but also a strong increase in the granting of credit to individuals. This paper briefly examines the philosophy underlying the contemporary South African insolvency law and also highlights some of the practical problems stemming from its creditor oriented philosophy. In May 2001 INSOL International published a report which is of the view that the solution to over‐indebtedness is to be found, inter alia, in the idea that prevention is better than cure. This paper therefore also investigates the extent to which existing measures of the South African consumer protection law are aimed at the prevention of problematic debt situations. In conclusion we suggest that the existing insolvency and consumer protection legislation is not equal to the task of combating over‐indebtedness and overspending by individuals and that law reform is therefore essential. Copyright © 2005 John Wiley & Sons, Ltd.     

Set‐off under the European insolvency regulation (and English law)

This paper addresses critically the meaning and effect of the set‐off provisions in the European Insolvency Regulation. The Regulation sets out the authority of EU Member States to open insolvency proceedings and provides that, subject to exceptions, the law of the State that opens insolvency proceedings shall apply to those proceedings. Setoff is one such exception for the opening of insolvency proceedings does not affect the rights of creditors to demand the set‐off of their claims against the insolvent debtor. Set‐off is intended to perform a guarantee type function for creditor claims. Nevertheless, the Regulation does not define what is meant by set‐off nor clarify whether set‐off rights under the law of a third country (such as English law) may be relied upon. The paper provides valuable clarification and critical analysis.     

New legislative measures in South Africa aimed at combating over‐indebtedness—are the new proposals sufficient under the constitution and law in general?

The National Credit Bill codifies a number of fundamental rights of consumers in the credit market. It provides inter alia for a right to information to enable consumers to make informed choices and thereby contributes to one of the purposes of the proposed legislation, namely to provide mechanisms to combat over‐indebtedness. The main purpose of this research is to evaluate the proposed measures in the Bill aimed at combating over‐indebtedness and also to determine to which extent these measures comply with the general constitutional consumer protection demands. In order to achieve this, the relevant guidelines of the INSOL Consumer Debt Report and measures in other jurisdictions will also be considered. Since the South African Constitution does not directly obligate the state to enact specific credit laws and as the Bill seeks, in the spirit of the supreme law, to codify certain basic consumer rights, the new legislative initiatives are to be welcomed. It is, however, submitted that the Bill does not go far enough in achieving its particular aims and objectives and that more could be done to bring South African legislation in line with measures in other jurisdictions. Copyright © 2006 John Wiley & Sons, Ltd.     

Various Aspects to Consider with Regard to Special Insolvency Rules for Small and Medium‐Sized Enterprises in South Africa

The notion of special insolvency rules for small and medium‐sized enterprises (SMEs) has attracted attention in international spheres, and within the ambit of some international and comparative approaches, same is considered in this article with particular focus on the South African position. In particular, we show that the South African insolvency regime does not, at present, cater for financially distressed small businesses in a specific and viable manner. In South Africa, although attention has been paid to the development and support of small businesses, similar considerations have not been observed with regard to the insolvency side of small business concerns. No comprehensive and focused process of dealing with financially distressed small businesses exists in the South African insolvency framework. This scenario prevails, notwithstanding that there are existing foreign and international policy guidelines, rules and regimes in developed jurisdictions that can serve as pointers in this regard. The purpose of this article is to first highlight the need for special treatment of small businesses by focusing on the shortcomings in the South African system, and, as a natural sequential development, policy proposals as unavoidable foundations to address these shortcomings. In the premises, the focus is on the principles and policies that are relevant to any discussion regarding insolvent businesses that fall within the scope of the SME category. Therefore, this paper deals with the concept of the small business, the South African insolvency regime and the international position pertaining to small businesses. In particular, the need for special treatment of SMEs under insolvent circumstances is discussed, consideration is given to the existing South African mechanisms available to small businesses in distress and the lack of suitable contextual provisions for small businesses in distress is noted. A core component of this article is the position in South Africa viewed against the backdrop of some international developments, international documents and principles that are relevant to an insolvency and rescue/rehabilitation regime within the context of the small business. As a logical conclusion, recommendations for reform of the South African regime are made. Copyright © 2015 INSOL International and John Wiley & Sons, Ltd     

From subordination to parity: an international comparison of equity securities law claims in insolvency proceedings

Securities law claims in insolvency proceedings raise important questions of allocation of risk and remedies. In the ordinary course of business, equity claims come last in the hierarchy of claims during insolvency. What is less clear is whether this should encompass claims arising from the violation of public statutes designed to protect equity investors. Discerning the optimal allocation of risk is a complex challenge if one is trying to maximize the simultaneous advancement of securities law and insolvency law public policy goals. From a securities law perspective, there must be confidence in meaningful remedies for capital markets violations if investors are to continue to invest. From an insolvency perspective, creditors make their pricing and credit availability choices based on certainty regarding their claims and shifting those priorities may affect the availability of credit. The critical question is the nature of the claim advanced by the securities holder and whether subordination of securities law claims gives rise to inappropriate incentives for corporate officers within the insolvency law regime. A comparative analysis reveals that the U.S. has provided a limited statutory exception to complete subordination through the fair funds provision of the Sarbanes-Oxley Act by allowing SEC claims for penalties and disgorgement to rank equally with unsecured claims even though the funds are distributed to shareholders. The U.K. and Australian schemes permit shareholders to claim directly as unsecured creditors for fraudulent acts and misrepresentation by the issuer. In contrast, Canadian law is underdeveloped in its treatment of such claims. The paper canvasses the policy options available to reconcile securities law and insolvency law claims, including a discussion of the appropriate gatekeeping role for regulatory authorities and the courts, and the need for a framework that offers fair and expeditious resolution of such claims. If the public policy goal of both securities law and insolvency law is to foster efficient and cost-effective capital markets, it seems that the systems need to be better reconciled than currently. The paper also examines the codified response to the time and resources consumed in various common law tracing claims by customers in a securities firm insolvency. Copyright © 2007 John Wiley & Sons, Ltd.     

Cross-border insolvency law in India: Are the principles of comity of courts and inherent common law jurisdiction relevant?

Deliberations are in the final stages for enacting a cross-border insolvency law in India based on the UNCITRAL Model Law on Cross Border Insolvency 1997 (‘Model Law’). The cross-border insolvency regime in India will provide an avenue for recognising foreign insolvency proceedings in India. Although it is a matter of time before India adopts the Model Law, it is important to examine whether there remains an independent basis in addition to the Model Law for recognising and providing assistance to cross-border insolvency proceedings in India. This is crucial on account of the following reasons: first, the Model Law does not provide that it is the exclusive pathway for foreign creditors to seek remedies under domestic law. The Model Law, as reflected in Article 7, was intended by its drafters to be an additional gateway to those provided under local laws. The proposed Indian law in Article 5 of Draft Part Z of the Insolvency and Bankruptcy Code 2016 also does not depart expressly from this principle. Second, there may be instances where neither the ‘Centre of Main Interests’ nor an establishment of a corporate debtor is situated in India; therefore, assistance and cooperation in respect of such cross-border insolvency proceeding can only be based on the inherent common law jurisdiction, if available. Third, the cross-border insolvency framework in India will be premised on the requirement for reciprocity and, therefore, countries that do not meet the reciprocity requirement may find it beneficial if such an independent basis for recognition exists in India. This article argues that foreign representatives should be encouraged to explore the possibility of seeking assistance from the commercial courts in India under the common law principles governing cross-border insolvency and that the courts in India should be open to this possibility.     

Perpetuating Uncertainty: The Anti‐Deprivation Principle and Contractual Rights in the Post‐Lehman World

This article considers the anti‐deprivation principle under English insolvency law, an issue which has received significant attention in the courts over the past couple of years, culminating most recently in the Supreme Court decision in Belmont Park Investments Pty Limited v BNY Corporate Trustee Services Limited [2011] UKSC 38. The article begins by observing that the evolution of the anti‐deprivation principle has resulted in the precise nature and scope of the rule becoming confused, particularly when applied to property comprising contractual rights. In response to this confusion, the article outlines a three‐pronged framework for the anti‐deprivation principle, derived from an empirical study of the case law up to and including Belmont. First, it is necessary to identify the asset that is being deprived. This involves two subsidiary questions, namely the extent to which individual contractual rights may constitute property capable of being deprived and determining whether specific contractual provisions either define the scope of the right or constitute dealing with the right. The second element involves determining whether there has been a deprivation. In the context of contractual rights, this includes any action that results in the insolvent company being deprived of the benefit of the right, whether that is by way of transfer, extinguishment or modification of the right. Finally, consideration must be given to whether there are any defences which apply to validate that deprivation. Four such defences are postulated — where the insolvent company receives fair value for the deprivation; where the deprivation is an unavoidable consequence of some other valid action; where the asset deprived is the quid pro quo for some other unperformed obligation of the insolvent company; and where the arrangements were entered into in good faith for a bona fide commercial purpose and without any intention to avoid the insolvency law. Copyright © 2011 John Wiley & Sons, Ltd.     

Disclaiming onerous property in insolvency: A comparative study

Insolvency practitioners in charge of certain insolvency procedures have a facility open to them to disclaim property deemed to be onerous and whose retention as part of the debtor's estate may affect the mass of creditors. This article takes a comparative survey of a number of jurisdictions in the common‐law and civil‐law worlds. Its purpose is to assess whether work carried out at international level seeking to benchmark insolvency procedures generally should be revised to take into account enviornmental concerns in relation to such disclaimed property. Copyright © 2010 John Wiley & Sons, Ltd.     

Universalism and the recognition of group proceedings under the UNCITRAL Model Law in Montenegro

Among the most topical insolvency issues in 2017 was the Croatian “Lex Agrokor”—a controversial “tailor‐made” law providing a unique restructuring opportunity for the largest Croatian conglomerate, the parent company of which was otherwise facing bankruptcy. Soon after the “extraordinary administration procedure” began, the appointed administrator started filing motions for the recognition of the alleged group insolvency as foreign insolvency proceedings in a number of neighbouring and other European countries, most of which have adopted the UNCITRAL Model Law on Cross‐Border Insolvency. It was an attempt to save the conglomerate's property from being seized in a disorderly fashion by various secured creditors, most noticeably, the largest Russian financial institution Sberbank, which contested these motions with varying success. This article, however, does not present an effort to comprehensively analyse the ongoing legal battle but rather adopts a broader approach to examining the Lex Agrokor to establish grounds for more general conclusions. More precisely, the purpose of this article is twofold. First, to offer strong arguments that, from the standpoint of typical insolvency legislation based on the Model Law, such as that of Montenegro, both the actual and future group proceedings initiated under the Lex Agrokor should fail to meet recognition requirements. Second, based on the preceding case study, to offer conclusions on how to further promote universal approach regarding group insolvencies by emphasizing exactly what the national laws regulating group insolvency should not feature so as to have the proceedings introduced therewith recognized in countries adopting the Model Law.     

Is the Unequal Treatment of Debtors in Natural Person Insolvency Law Justifiable?: A South African Exposition

The South African natural person insolvency system has remained largely creditor‐orientated and excludes many honest but unfortunate debtors from its ambit. This is despite the worldwide trend to accommodate all such debtors. Although the system does provide for three different statutory natural person debt relief procedures, the cumulative effect of these measures' entry requirements results in differentiation on financial grounds. This is as all statutory measures require the debtor to have some form of disposable assets or income available – thereby drawing a distinction between those debtors with and those without assets and or income (the so‐called no income no asset debtors). The main aim of this article is to measure the South African natural person insolvency system against the right to equality in terms of both the South African Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act. The article may benefit legislatures and policymakers in constitutional jurisdictions that subscribe to the equality principle and that directly or indirectly exclude some debtors from debt relief while providing others therewith. Copyright © 2016 INSOL International and John Wiley & Sons, Ltd.     

Cross‐border assistance in insolvency under Jersey law

As an off‐shore financial centre, Jersey has not been immune from the global recession, which has brought consideration of cross‐border insolvencies and whether the right tools exist in domestic law to manage proceedings of this nature. It is the purpose of this article to outline the Jersey law relating to cross‐border assistance in insolvency. Copyright © 2011 John Wiley & Sons, Ltd.     

Rights in rem,Article 5 and the EC Insolvency Regulation: an English perspective

The treatment of security interests is central to any insolvency régime, national or transnational. Under Article 5 of the EC Regulation on Insolvency Proceedings (E.C. 1346/2000) extensive protection is given to a security interest—or right in rem—over assets of the debtor situate in a Member State other than one in which insolvency proceedings have been opened. The absence, thus far, of any significant body of European case law on Article 5, allows commentators to put forward a range of views on how Article 5 ought to be applied. This article aims to examine the scope of Article 5 protection both conceptually and in terms of illustrations drawn largely from English insolvency law and practice. Particular attention is given to the following issues: what is meant by the ‘opening of insolvency proceedings’ with reference to Article 5; when a liquidator may pay off the holder of a right in rem; whether the rules under the Regulation for determining the situs of an asset alter the English common law position; whether Article 5 prohibits the discharge of an underlying debt by way of a restructuring plan; the position of unsecured creditors who attempt to acquire rights in rem prior to the opening of insolvency proceedings; and whether the English court's equitable jurisdiction to enforce a charge which does not comply with the lex situs, survives the coming into force of the Regulation. Through the discussion of these topics, this article seeks to identify an approach to the interpretation of Article 5 which is consistent not only across the wide range of issues identified but also with the broad policy objectives underlying the treatment of in rem rights in the Regulation. Copyright © 2006 John Wiley & Sons, Ltd.     

Towards adoption of the United Nations Commission on International Trade Law Model Law on cross‐border insolvency in Kenya

Kenyan Insolvency Bill has been in the Kenyan government website since 2010. The analysis of the Bill reveals that if it were to be passed into law, it will have significant implications for the Kenyan insolvency legal regime. The regime which is currently in use is based on the law that was inherited from the colonial administration. This review article focusses on the potential implication that the Bill is, if it were to be passed into law, likely to have for cross‐border insolvency reform and proceedings. The analysis is informed by the international insolvency benchmarks, particularly the United Nations Commission on International Trade Law Model Law on cross‐border insolvency and the emerging trends of its adoption in various countries including in sub‐Saharan Africa. Copyright © 2013 INSOL International and John Wiley & Sons, Ltd     

Chinese cross-border insolvency laws: Recent developments and international implications

The present Chinese insolvency law is under the process of legislative reform, and one focus point among legislators and academics is cross-border issues. China is slowly opening up its market to foreign insolvency proceedings, as demonstrated by the 2021 Chinese Mainland-Hong Kong cross-border insolvency cooperation mechanism. This first attempt, however, is only available in three trial cities in the Mainland and does not apply to jurisdictions other than Hong Kong. Nevertheless, it does not undermine the intention of the Mainland to advance its cross-border insolvency framework. Based on a thorough examination of Chinese legislation and judicial practices, this article submits that China would be willing to accept international standards and be a more active player in international insolvencies.     

Harmonising European Insolvency Law: The Emerging Role of Stakeholders

In recent years, the European Commission has given increased room for stakeholder involvement in the area of insolvency and restructuring. In revising the European Insolvency Regulation in 2012–2015 and preparing the proposal for a directive on preventive restructuring frameworks 2016, the role and direct influence of stakeholders has been noteworthy. In these efforts, the Commission touched upon a field of law characterised by diverse stakeholders with strongly opposing interests. Following the active involvement of all stakeholders by the Commission, this study examines what relevant stakeholders are, what their positions are with respect to European Union insolvency legislation and what their role has been and can be in legislative processes in the area of insolvency and restructuring. Copyright © 2018 INSOL International and John Wiley & Sons, Ltd.     

The Environmental Liabilities of a Bankruptcy Estate

The conflict between the bankruptcy creditors and the environmental responsibilities of a bankruptcy estate is discussed globally. The creditors' receivables are usually included in the protection of property rights regulated by Constitution. On the other hand, one can ask whether the bankruptcy estate is breaking the law as an operator by refusing to abolish the harmful environmental pollution. The bankruptcy estate is deemed to be an operator when it has the legal and factual possibility of taking the necessary environmental actions. Accordingly, the costs of the environmental measures taken by authorities instead of the bankruptcy estate must be paid with a super priority from the assets of the bankruptcy estate. Instead, the question concerning the priority status of private environmental damages is a political matter. The argumentation presented in the article may contribute new legislation concerning the environmental liabilities of bankruptcy estates. Copyright © 2017 INSOL International and John Wiley & Sons, Ltd.