22 August 2017: Business rescue has started to yield some positive results in South Africa, as the procedure has started to gain credibility in the country. This according to Neil Miller, Director and Senior Business Rescue Practitioner at Mazars Recovery and Restructuring, who adds that many companies however still do not understand the process well enough.
Speaking at the Mazars Breakfast Seminar on Business Rescue: Practical Challenges and Developments in Case Law attended by legal professionals earlier this month, Miller took the time to explain the process and dispel the misconceptions. Miller noted that, while great strides are being made in business rescue in South Africa, there are still many in the business sector who have misguided expectations or who misuse the process.
“The first issue that needs to be addressed is the fact that the vast majority of companies in distress, do not apply for business rescue soon enough. One of the reasons for this is that business owners think that business rescue is an alternative to liquidation. The fact is that liquidation and business rescue are not interchangeable. By the time that liquidation is a likely outcome, the opportunity to apply business rescue has come and gone. If a business owner sees that he will start having difficulty to pay creditors in the ensuing six months, he is obligated to consider whether or not to place the company in business rescue and, if not, why not” he says. It is a forward-looking test and one which should be applied when the company still has some capacity to restructure its affairs.
Justine Hoppé, Senior Legal Counsel at Mazars Recovery and Restructuring adds that many creditors view business rescue as a frustrating delay tactic employed by companies in order to stave off liquidation or litigation. “While there are some exceptions, creditors are generally not allowed to take any legal action against a company in business rescue. It certainly is a fact that many businesses and unscrupulous business rescue practitioners have abused the process as a way to buy time. It is also true that when used inappropriately, business rescue often drags out the process which inevitably ends up in liquidation leaving creditors with less money than a simple liquidation would have” she says.
According to Miller, it is vital that companies know exactly what to expect when they apply for business rescue. “The very first thing that any reputable business rescue professional has to do, is to manage the business owner’s expectations.”
Miller explains that business rescue plans can, on occasion achieve the complete turnaround of a company. “However more often than not, more value is achieved from the company through a sale or structured wind down which results in a better outcome for affected persons, particularly the employees” he says.
To this, Hoppé adds that directors and company owners often expect to retain control of their companies during business rescue. “Directors and owners need to be aware that when they enter business rescue, they relinquish control of their companies. The process is designed with primarily the interests of employees, creditors and shareholders in mind. There are instances where company owners have partnered with business rescue professionals whom they are able to dictate to, but these arrangements are unscrupulous and usually end with the business rescue failing completely,” she says.
Lastly, Miller says that partnering with a reputable business rescue practitioner is vital. “This is an industry that is still coming into its own in South Africa, and it is important for a business to know that it is dealing with a skilled and ethical practitioner,” he says.
“Understanding where to find a good practitioner, when to apply, what to expect of the business rescue process will mean the difference between success and failure for a business in distress,” Miller concludes.