CRS Business Rescue
In-depth analysis of the business rescue provisions contained in the Companies Regulations, 2011

Regulation 127: Restrictions on practice

See s. 138 (3)(b)

Regulation 127 amplifies Section 138: Qualifications of practitioners of the Companies Act, 2008, which deals with qualifications of business rescue practitioners.

(1) This regulation––

(a) applies to any person who is eligible to be appointed as a business rescue practitioner in terms of section 138 (1)(a) and (b), irrespective of whether that eligibility arises in terms of a license issued by the Commission, or otherwise as contemplated in section 138 (1)(a); and

(b) is subject to any more restrictive condition imposed by the Commission in terms of Regulation 126 (6)(b), in the case of a licensee contemplated in section 138 (1)(b).

(2) For the purposes of this regulation, and in Regulation 128––

(a) “business turnaround practice” means activities of a professional nature engaged in before the effective date, that are comparable to the functions of a business rescue practitioner in terms of the Act;

(b) Companies undergoing business rescue proceedings are classified in the following three groups:

(i) “large companies”, being any company, other than a state owned company, whose most recent public interest score, as calculated in terms of Regulation 26(2), is 500 or more;

(ii) “medium companies” being––

(aa) any public company whose most recent public interest score, as calculated in terms of Regulation 26 (2), is less than 500; or

(bb) any other company, other than a state owned company, whose most recent public interest score, as calculated in terms of Regulation 26 (2), is at least 100 but less than 500; and

(iii) “small companies” being any company, other than a state owned or public company, whose most recent public interest score, as calculated in terms of Regulation 26 (2), is less than 100; and

(c) Persons eligible to be appointed as practitioners are classified in the following three groups:

(i) “senior practitioner” means a person who is qualified to be appointed as a business rescue practitioner in terms of section 138 (1) and who, immediately before being appointed as practitioner for a particular company, has actively engaged in business turnaround practice before the effective date of the Act, or as a business rescue practitioner in terms of the Act, for a combined period of at least 10 years.

(ii) “experienced practitioner” being a person who is qualified to be appointed as a business rescue practitioner in terms of section 138 (1) and who, immediately before being appointed as practitioner for a particular company, has actively engaged in business turnaround practice before the effective date of the Act, or as a business rescue practitioner in terms of the Act, for a combined period of at least 5 years;

(iii) “junior practitioner” means a person who is qualified to be appointed as a business rescue practitioner in terms of section 138 (1) and who, immediately before being appointed as practitioner for a particular company, has either––

(aa) not previously engaged in business turnaround practice before the effective date of the Act, or acted as a business rescue practitioner in terms of the Act; or

(bb) has actively engaged in business turnaround practice before the effective date of the Act, or as a business rescue practitioner in terms of the Act, for a combined period of less than 5 years.

(3) A junior practitioner––

(a) may be appointed as the practitioner for any particular small company; but

(b) may not be appointed as the practitioner for any medium or large company, or for a state owned company unless as an assistant to an experienced or senior practitioner.

(4) An experienced practitioner––

(a) may be appointed as the practitioner for any particular small or medium company; but

(b) may not be appointed as the practitioner for any large company, or for a state owned company unless as an assistant to a senior practitioner.

(5) A senior practitioner may be appointed as the practitioner for any company.

References

Academic articles

Bradstreet, R. (2010, September). Exploring the Possibility of a Composite Business Rescue Practitioner. De Rebus.

Bradstreet, R. (2010). The Leak in the Chapter 6 Lifeboat: Inadequate Regulation of Business Rescue Practitioners May Adversely Affect Lenders' Willingness and the Growth of the Economy. SA Mercantile Law Journal, 22(2), p. 195-213.

Professional web sites

King, B. (2010, October 21). Good News for the Derivatives Business in South Africa. Deneys Reitz Attorneys.

Business Rescue. (2010, June). Tomlinson Mnquni James Attorneys.

CIPRO to Establish Companies and Intellectual Property Commission. (2010, November 2). Deneys Reitz Attorneys.

Levenstein, E. (2010). Skills Are the Critical Success Factor in Business Rescue. Werksmans Attorneys.

Van der Walt, J. (2011). Section 138: Qualifications of Business Rescue Practitioners. CRS Business Rescue.

Media articles

Crotty, A. (2009, December). Expertise Central To Business Rescue. Business Report.

Steyn, L. (2011, May 20). Bring Out the Rescue Remedy. Mail & Guardian Online.

Temkin, S. (2010, March 3). Business Rescuers Will Need Special Skills. Business Day.

Temkin, S. (2010, February 1). State Plan Hinges on Business Rescue Practitioners. Business Day.

Temkin, S. (2009, July 30). Turnaround Specialists Need Skills Criteria from Government. BusinessDay.

Weavind, T. (2011, July 9). Creditors Aim to Cash in on New Business Rescue Provisions. Business LIVE.

Weavind, T. (2011, July 9). Turnarounds: Does Business Rescue Have the Right Remedy. Times LIVE.


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