Draft:Controversies in business rescue: A study of how the Moratorium principle is applied during business rescue.

1.Introduction. “Rather than asking what might convince someone to change, catalysts start with a more basic question: Why hasn’t that person changed already? What is blocking them?” ~ Jonah Berger 1.1. Outlined structure and purpose of this paper. The moratorium principle is recognised globally as an effective legal intervention that is able to grant businesses a temporary immunity against its creditors, with the purpose of giving them enough time to fix the main internal problems so that they may be able to operate properly once more and to pay off their creditors successfully without becoming insolvent. The main goal of the moratorium principle enshrined in the Companies Act 71 of 2008 (hereinafter referred to as 2008 Act) echoes the same sentiment. The moratorium principle offers protection to financially distressed companies to not be litigated against, by creditors until their business rescue plan has been executed fully with the aim of saving the business, and in turn reviving the economy. The downfall of the moratorium principle aroused due to many cases emerging of wrong people benefitting from business rescue, due to the loopholes and ambiguity in the manner it has been enacted. Hence this paper will be focused specifically on delving in unpacking the adequacy at which the moratorium in business rescue is written and implemented in accordance with the 2008 Act. This understanding and prior knowledge is crucial in scrutinising its effectiveness in the business rescue process. The argument laid out in this paper is structured as follows: The first topic will address the legislature’s intention in drafting the business rescue provision and further capture the various scholars’ understanding and opinions of this very important concept. This captured knowledge will be harmonised with the second topic at which we examine closely the moratorium principle enshrined in s133(1)(a) , by dissecting each term which will be interpreted and reviewed through the lens of various judges, scholars and researchers, as many has tackled the dilemma of the controversy raised by this section in numerous occasions in many court cases. The third topic will examine the rational link between these limitations with the purpose and the goal that this provision is aiming for. Ultimately the principal goal of this paper is to close the gap between the financially distressed businesses the provision is accommodating and the contradictory way at which it offers the ‘adequate’ help. This will then perfectly land us on the final topic which will be analysing the bill of rights that this provision infringes upon and the likely chance of its surviving constitutional scrutiny, or vice versa if there is any possibility of it lowering its barriers in order to maximise its effectiveness for all businesses in South Africa. 1.The purpose of the business rescue provision. In accordance to Kloppers , the birth of business rescue provision may be outlined as follows: ‘[t]he emphasis of business rescue came about partly because insolvency law started to take into account the large-scale rise in corporate insolvencies . . . the role of insolvency law of attributing fault to and suitably punishing those who are responsible for financial failure is now complimented by the realisation that if a company has some breathing space to reorganise before facing the storm following the public knowledge of its financial difficulties it would probably survive the storm.’ The main important point to draw out of Klopper’s argument is that the origin of business rescue stemmed from a lack of a remedy that offers a cure to a patient (assisting a struggling business) rather than one that punishes a patient for catching illness (liquidation and sequestration of businesses). Hence this distinction puts both of these concepts at arms-length with each other, as their meanings and outcomes are opposite and contradictory. Other scholars such as Professor Michael Katz, marvel at the creation of this provision as one of a kind, ‘a spectacular innovation’, as it not just a regurgitation of English law ( as usual), presented as a new concept but rather he calls it a well-thought out process whereby we were able to make our own home-grown law, by making use of various sources internationally from ‘ the best of the best countries’, hence placing South Africa on top as one of the best company law jurisdictions. This last point is open for great debate, as what matters most is not the sources, but rather the ability of those legislations to harmonise with the people’s cultural, economic and social environment in order to maximise the rates of success. Judge Dewet in one of the first cases, to ever emerge in regards to business rescue (called judicial management at the time) stated the following: ‘It seems to me that the object of the section is to obviate a company being placed in liquidation if there is some strong possibility that by proper management or by proper conservation of its sources it may be able to surmount its difficulties and carry on. It is a special privilege given in favour of the company and it is to be authorised in very special circumstances.’ In summary of his assessment ‘judicial management’ may be interpreted as essentially rescuing a company that was meant to be liquidated on the basis of its showing strong signs that with proper guidance (management) and some additional resources it has the strength to get back on its feet. He further refers to its as just no ordinary daily process that any business may embark on, it a ‘privilege’ given to those who can prove their ‘worthiness’ to the court, hence the reason there must be a ‘strong possibility’ that it will be successful. In essence, the rational of a business rescue provision is centred on generating measures to restore the business back to its profitable nature, in order for its to have the power to take care of its expenditures and creditors, without going through drastic measures like loosing employees and selling assets. What is contradictory with this assessment of what a business rescue means and aims to do, is that even with this rigorous process applied by judges, the success of those shortlisted to be saved, is very low. Which then leads to the need to scrutinise those methods used to test the ‘strong possible successes of a business recue, and then further question what stops most of those ‘success possibilities’ that the courts establish, to not materialise, and end up with such a low success rate. The latest business legislation in South Africa is the 2008 Act, which has the business rescue provision hidden under section 128(1)(b), it is outlined as a remedy that allows nor give access to businesses for the successful implementation of a business rescue, designed for the sole purpose of rehabilitating those financially distressed businesses : by offering it temporary supervision (through the intervention of a business rescue practitioner). The business rescue practitioner is then given temporary control and access to the management of the company’s affairs holistically including its contracts and assets. The idea is for such a practitioner to work with management and creditors, to deduce and vote on a plan that will be able to rescue the business nor maximise the financial outcome in comparison to liquidation.

Should such a plan be approved by the majority of the business rescue board, and the court also approves it based on a reasonable probability of success, an automatic temporary moratorium applies on the rights of any claimants against the company assets being able to dispossess or evict the company until the duration of the business rescue provision has expired. 2.The birth and development of the principle of moratorium in South Africa.
 2.1. The Companies Law Amendment Act 11 of 1932

The late 1920s was not only a transitional period in South African businesses, but globally as well, as almost all countries were affected by the Great Depression. The biggest consequence for many businesses is that it resulted in a lot of lawsuits placed against businesses that were financially struggling as they were dependent on the global market for trade, hence to protect such businesses from being ‘ambushed ‘by creditors, the government introduced a new amendment under s196(1). The provision barred any person from instituting any legal action against a company during ‘judicial management’. At a later stage the moratorium principle was further codified in the Companies Act 61 of 1973. This principle could only grant immunity to companies under judicial management; hence the definition and application of the judicial management became very crucial. Unfortunately, as Madura points out, the 1973 Act did not define judicial management, but rather sets out the requirements a business must meet to qualify and further gave the ultimate discretion to the judiciary to decide whether such requirements has been sufficiently satisfied. Another dilemma that created uncertainty and discomfort within the corporate sector, was the provision’s silence on whether the moratorium is to be applied automatically to any judicial proceedings against the business during judicial management nor if it required the approval of the judiciary, hence as Loubser argues the main failure of the judicial management mostly lied in giving in the 1973 Act giving too much discretion to the judiciary and leaving businesses always uncertain about the outcome of the proceedings, hence making embarking on such a business rescue process to end being a fruitless risk for businesses that has a high probability of yielding the same outcome, had the business being liquidated. As pointed out above, the judiciary was no exception to the many problems being faced by distressed businesses seeking a remedy from the s432(3) provision as they failed more businesses out of suspicion and ‘half cooked assessments’ on the basis that they are most likely to fail even if they were to be put under judicial management or their reasons for being rescued are not strong enough. 2.2. The purpose of a moratorium on legal proceedings against the company during business rescue in the Companies Act of 71 of 2008. In relation to s133(1)(b) of the 2008 Act , creditors are not allowed to pursue any legal suit against a company during business rescue. This protection is granted in relation to any property the company owns or it lawfully possess. The simplicity in which the provision is written, has not spared it from its fair share of criticism and legal disputes as it has been the trend with its predecessors. The moratorium principle is not absolute, as there are exceptions provided for by the 2008 Act, to allow for creditors to remove the protective bubble and issue legal proceedings against the financially distressed business. On the contrary, these exceptions have not really sufficed in assisting creditors seeking to retrieve their property in the ‘legal’ possession of the debtor whom is in default of payment because they have failed to ‘cancel contract and repossess their property before business rescue was implemented by court’. As the judge points out in the South African Property Owners Association v Minister of Trade and Affairs ,there is no other remedy the court can offer creditors for the return or compensation for their properties in the hands of businesses involved in business rescue on the basis that they had the opportunity to cancel their contract and claim it back as illegal possession before the business rescue could have been implemented, or to make use of the limited remedies in the s133(1)(b). As most scholars rightfully argues, the main resolution that is given to such creditors is to keep their fingers crossed, just in case the business rescue practitioner gives the green light for the moratorium to be lifted in order for them to claim their property back (at the Business Rescue practitioner’s own discretion). Hence, it is a remedy that is futile and its exhaustion makes no difference in regards to the creditors whom are demanding payment from the distressed businesses. 3. The limitations of the Moratorium Principle during Business Rescue. 3.1. The analysis of the Madodza case: In the Madodza case, one of the issues the court had to analyse was whether the vehicles in the possession of Madodza were protected by S133(1)(a) or they could be repossessed by Absa. The applicant in this case owned 6 vehicles which were all behind payment, since 2010.In addition to his dilemma, there was a court order granted for the repossession of those vehicles prior to the business rescue proceedings, when the sheriff arrives to collect, the applicant informs him that he is under business rescue hence he is barred from repossessing the vehicles. The court ruled that the applicant was in unlawful possession of the vehicles, as there was a court order that was instituted against him for the property to be repossessed prior to the business rescue proceedings. Hence he could not be protected against the moratorium engrained in s133(1)(a). With reference to Madodza, the applicant ran a delivery business, which meant without the vehicles he could not operate the core functions of the business which is to deliver to clients. In simplicity, it means that the business could no longer be rescued, as the property the court made an order to be recovered were essential for the business to operate. By the court following the s133(1)(a), it has made a contradictory move in relation to the purpose of the moratorium and the business rescue provision. In the case of Trinity , Appeal judge made a profound point, in regards to the judiciary having a duty to interpret an issue, by marrying the law with the context of the case, as its essential for each case to be reviewed in its context rather than a blanket approach being applied. Thus, as argued by Herbest, the efficiency and implementation of the business rescue plan should not be altered by a strict application of the provision, as that unintentionally defeats the good intentions of the legislature. Hence it can be deduced that the crux of the issue lies primarily on the writing and interpretation of s133(1)(a). In the case of Murray, No and Another v First Rand Bank , the judge analysed the meaning of s133(1)(a), as the legislature intending to give ‘breathing space’ to companies to enable them to focus primarily on the rehabilitation of the company, by granting them a temporary protection from any legal proceedings reclaiming property against them. According to the Companies and Intellectual Property Commission , a director or business owner has a duty to consider business rescue mechanisms when their businesses are: ‘financially distressed or trading in insolvent circumstances (both factually in that its liabilities exceed its assets, and commercially in that it cannot pay its debts to creditors as and when they fall due)’. 3.2 The abuse of the Moratorium principle by debtors. There are various legal minds such as Hogan whom applaud a strict approach by courts in interpreting and applying the moratorium principle on the basic ground that many debtors enter business rescue for the sole purpose of gaining the moratorium protection, so that they can frustrate creditors. There seems to be an outcry of this constant abuse as the business recue provision has shifted over the years from a creditor friendly approach to a debtor friendly approach. It should also be noted that he does rightfully point out other remedies that the 2008 Act has, to equip the court with the adequate weapons to fight this corruption war. Such remedies being s130(1)(a) which gives full discretion to the court to grant business rescue, only if they are satisfied it would be ‘just and equitable’ to do so. His arguments match the opinion of most writers whom feel that the moratorium is used to freeze creditor’s rights deviously by debtors with interior motives, in most occasions than for what it actually intended for. With reference to some of the arguments set out above, this paper does not align with the concept of the judiciary tightening its belt ready for a fight with any debtor that walks in as some scholars would advise, based on relevant arguments. On the contrary there should be measures employed on a case-by-case basis to analyze and uncover the true intentions of the management and to do a thorough assessment on whether the plan put before the court is feasible. Another downside to these arguments raised there seem to be more focus given to deceitful debtors, rather than in coming up with mechanism to assist debtors whom need genuine help by lowering the barriers in place. The purpose of the Act is diluted by the focus shifting from the main players whom are (financially struggling businesses) to (deceitful directors with interior motives). This cultural shift does more damage than good, as it than adds additional bricks to the wall that business owners have to climb to achieve business rescue. Horgan further expands on this argument by highlighting various cases where courts have successfully barred debtors from entering business rescue proceedings with interior motives of escaping the creditors. One of those cases being the Southern Sky Hotel where the plaintiff applied for an order to be removed from the liquidation to be placed in the business rescue, the court in turn made a ruling that it cannot grant such an order when it clear that the business rescue plan is impossible to achieve and ‘too far-fetched’ to be realistic. It is crucial to understand, that every legislation is embodied with good intentions of the legislature, that is not to assume it would be immune to abuse as there will be loopholes to be noticed by the wrong people, but that should not defeat the ultimate goal of that legislation from being realized. All these impediments raised by various scholarly writings can be combated (as most rightfully points out that the process of that is costly and time-consuming, as it requires a court to assess the matter raised), hence they fail to form a strong argument against making the moratorium less restrictive for debtors to be able to successfully proceed with their business rescue. 4.The constitutional scrutiny of the moratorium principle: There is a growing concern on the constitutionality of the business rescue procedure and whether it can stand constitutional scrutiny, which is a question that is somehow unclear. As professor Marumoagae argues, there appears to be ‘tension’ between businesses being given ‘breathing space’ protection by the moratorium whilst other ‘effected’ parties are left with no effective resolution. Specifically in his argument he speaks of stranded employees whom are given no effective remedy, other than waiting for the process to finalize. He raises the important concept that all constitutional rights and interests of parties affected are meant to be balanced in order for any legislation that infringes on constitutional rights of individuals to satisfy the limitation clause in the constitution. S128 defines the purpose of the business rescue process as being the rehabilitation of the business nor at least liquidating it, in a manner that may provide higher dividends for creditors. As pointed out in previous arguments, the Corporate Act contradicts itself as its provisions are leaning more on liquidation and winding up rather than offering alternative resolutions to make sure the business survives. This sentiment is further echoed by Levenstein , he argues that the low success of businesses in business rescue and the increase of disgruntled creditors questioning the efficiency of this process, lies on its lack of ability to offer effective alternatives that really reflects on the desire to rehabilitate businesses not just a mere ‘façade’. He further argues that this shortfall of the provision not only limits its efficiency but also create skepticism in the corporate world. 4.1. Deprivation of creditor’s property without a time clause by the moratorium principle. In examining the efficiency of the moratorium, another loophole that is highly concerning for Memani is the deprivation of property of creditors and the failure of there being a proper time clause being provided, for when the legal immunity will be lifted off. He makes a critical argument in relation to the gap that s133(1)(a) fails to cater for, which is that it does not stop a creditor from quickly cancelling the contract (as the notice of business rescue proceedings being in process) and repossessing their property during that period. He then raises the point that the purpose is quickly defeated as that struggling business is highly unlikely to survive, once those property are removed from them. He further questions that this ‘charity’ behavior expected of creditors to stand back and give ‘breathing space ‘and allowing their property to be utilized for free- (as no interests or any other fee is charged during the business recue proceeding, everything is halted) -indirectly puts at risk other small businesses into financial hardship, who are creditors of these ‘under rescue businesses’. In essence this leads to the important question of how these constitutional rights can be fairly weighed between disgruntled creditors and distressed debtors during the business rescue without too much burden being put on creditors arbitrarily. The limitation clause is protected under s36 of the constitution, its purpose is to give legislations exemption from being considered null and void for infringing in the constitutional rights of others, only if that infringement is considered fair and just in an ‘open and democratic society’. Furthermore there are numerous court judgements that have further analysed the meaning of this clause, such as Makwanyane case. Where the court announced that in order to establish the meaning of ‘reasonable and justifiable’ all the relevant factors must be properly dissected: ‘the nature and extent of the limitation; the relation between the limitation and its purpose and less restrictive means to achieve the purpose.’ These are all the factors required to be satisfied for the limitation of constitutional rights to be regarded as being constitutional and therefore valid. In applying the following factors to the moratorium principle, the following outcome will be born: 2. The relation between the limitation and its purpose. The intention of the legislature to offer a remedy that helps the rehabilitation of businesses is a plausible decision as mentioned previously, and made in the interests of everyone in society as a whole. It should not be overlooked though, that such a legislature also bears the responsibility to make sure that the purpose is felt and maintained as the main theme, throughout the process outlined in the business rescue provision. On the contrary the business rescue lacks a proper process to achieve an effective ‘rehabilitation’, instead it seems to creates an environment that more suited for an effective winding up of a business. Which then questions the rational of the moratorium being applied if the business will end up being liquidated, because essentially the life boat it offers to businesses is not adequate for a permanent solution. The moratorium principle as most scholars have pointed out, digs its own grave, as its leaves an opportunistic gap for creditors to withdraw contracts and repossess property as it now ‘illegally’ in the possession of the debtor, and thus not protected by the moratorium, hence can easily be claimed in the middle of the rescue. Which then leads to arbitrarily depriving one of property as there is no compensation given nor an adequate public interest being achieved due to the many loopholes in the 2008 Act that defeats its own purpose at the end and creates a high probability that it may fail public scrutiny in regards to whether it is constitutionally valid.

3. Assessing less restrictive means to achieve the purpose. The first main goal to be outlined in the business rescue provision is to revive the business back to the economy, essentially make it profitable again permanently. The approach that is expected therefore is an approach that speaks to measures that can help a business back to its feet. There are three main concepts that are said to make up the basic business development element. One being the consumers, two is the markets and three being the relationships that the business makes along the way. Creditors form a very important part of the third concept of ‘relationship’, when a company has a good relationship with their creditors their lifespan can go on for generations, for it is that good relationship that guarantees longevity, as all businesses in some point of their life span tends to fall as the response in the markets will not always be the same and their consumers are genuinely going to shift to trends , and hence forcing the business to change its service or products from time to time( such innovation and development requires money, which is received from creditors). In essence an approach that harmonizes both parties should be the main goal. Some may argue the last statement to be a mere fantasy as in the last decades such an outcome has been very rare, but the main point is that a practical approach to really fixing the business for the intention of getting it back to the market. As such an approach would assist the business to be able pay all its creditors, and further continue growing financially, and indirectly growing the economy. Hence the arbitrary infringements of creditor’s rights without a proper goal being attained only seek to punish the creditor for helping the debtor, and furthermore just makes matters indirectly worse for the distressed debtor in the long term.

5.Recommendations: The solutions this paper is recommending are laid out as follows: This paper has outlined most arguments from scholars on the disadvantage of the 2008 Act in specifying legal possession of property being withheld by the debtor in s133(1)(a), as the only qualifying property that may be granted immunity through the moratorium. It holds no material basis in assisting the business in regaining it profitable nature, but its consequences are devastating for any business with property possessed illegally. Therefore, removing such a distinction, will lower the barrier and make the provision more effective. Hence, if such a recommendation were to be applied more business would be able to get effective help due to the fact that the businesses whom require help, already has property in default and hence, are most likely to be possessing property illegally, but this distinction becomes irrelevant and futile if such property is essential for the profitability of the business.

Most legal minds share the same sentiment on the concept of the time clause, being essential in the business rescue provision in order for the moratorium to be more effective and be less prone for abuse by debtors ‘playing hide and seek’ with the goal of frustrating creditors. This paper makes a recommendation that such a time clause, should be adequate and efficient for the business to be able to apply the right measures and not too long to frustrate creditors financially, leading to a situation where other businesses fall into financial distress all because of one financially distressed business not paying due to the moratorium clause but still utilising the property, without any financial gain to creditors. This balancing of rights is crucial as both debtors and creditors are businesses that require equal protection under the constitution, hence any infringement of the other party’s rights must be done rationally and reasonably, without resulting in more damaging consequences for either party. Some scholars have examined such time clauses as being more effective when measured on a case-by-case basis in courts, whilst others believe it should be written in statute and uniformly applied to everyone. Such an approach requires in depth studying and understanding which this paper, did not focus on, hence the opinion on which approach shall be more effective, is reserved.

6.Conclusion: This paper embarked on a journey to define and scrutinize the adequacy of the moratorium principle as its is being applied in the business rescue provision. This was accomplished this clearly the above arguments which outlined the various pitfalls the legislature did not foresee which resulted in the moratorium principle being applied in a manner that sparked controversies and further created opportunities for the wrong individuals to use it as a tactic to frustrate creditors. Furthermore, this paper analyzed the various conflicting views of scholars inclusive of those whom support the stringent approach of courts in applying the moratorium criteria, as well as other scholars whom did not concur with such arguments by scrutinizing both arguments above.

This paper further acknowledged the damage this does to creditors, and gave resolutions to those challenges without condoning the most extreme measure of scrapping the moratorium principle. Furthermore, it critically analyzed constitutionally, whether this principle can survive the limitation clause, and concurred with scholars whom argued it could not, due to its contradictions and its extreme consequences that results for both creditors and debtors respectively. With some creditors ending up loosing their property for good or being insolvent whilst the debtors whom have illegal property may end up being winded up, as they do not qualify for any protection from litigation in terms of the moratorium principle enshrined in s133(1)(a). 

Lastly this paper has proven the significance need of a new approach to be given in the business rescue holistically. The principle of moratorium is a powerful remedy that should never be undermined nor overlooked as being redundant, but rather it should be made to bring real change and a positive outcome for all parties, as one thing is common for both creditors and debtors. They all want the business to be successful, for that guarantees payment for all creditors and for a debtor it guarantees a stable flow of income and profits.

 Cases:

1. Madodza (Pty) Ltd v Absa Bank Ltd and Others (38906/2012) [2012] ZAGPPHC 165 (15 August 2012). 2. Murray N.O. and Another v FirstRand Bank Ltd t/a Westbank (20104/2014) [2015] ZASCA 39; 2015 (3) SA 438 (SCA). 3. Oakdene Square Properties (Pty) Ltd and others v Farm Bothasfontein (Kyalami) (Pty)Ltd and others; Farm Bothasfontein (Kyalami) (Pty) Ltd v Kyalami Events and Exhibitions (Pty) Ltd and others2012 (3) SA 273 (GSJ) para 9. 4. S v Makwanyane 1995 6 BCLR 665 (C); 1995 3 SA 391 (CC). 5. Silverman v Doornhoek Limited 1935 (TPD) at par 353. 6. South African Property Owners Association v Minister of Trade and Industry and Others (66068/2016) [2016] ZAGPPHC 1148; 2018 (2) SA 523 (GP) (29 November 2016). 7. Southern Sky Hotel and Leisure (Pty) Ltd and Others v Southern Sky Food Enterprises (Pty) Ltd

Legislation: 1.Corporate Act 71 of 2008. 2.Constitution of South Africa of 1996.

Journal articles: Kloppers, P ‘Judicial management - a corporate rescue mechanism in need of reform’ (1999) 10(3) Stellenbosch Law Review 417-418.

Internet sources: 1. Bagwandeen, K ‘A critical analysis of the effectiveness of the Business Rescue regime as a mechanism for corporate rescue’ ( 2018) https://researchspace.ukzn.ac.za/server/api/core/bitstreams/e9154ec7-9a23-4e5a-9db5-14816dc64cfd/content.Accessed on the 01 of May 2024. 2. ‘Business Rescue’ https://www.cipc.co.za/?page_id=16072. Accessed on 02nd of May 2024. 3. Conradie, S ‘Valuation practices under business rescue circumstances in South Africa’ http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S2222-34362021000100013. Accessed on the 4th of May 2024. 4. Herbeshert ‘A counter argument to the Madodza judgment’ (2018) https://turnaroundtalk.co.za/special-features/non-complience/. Accessed on the 20th of 5. Hofmeyer, C ‘The abuse of creditor’s rights in business rescue.’ (2020) https://www.cliffedekkerhofmeyr.com/en/news/publications/2021/Dispute/dispute-resolution-alert-7-september-The-abuse-of-business-rescue-Exploitation-of-the-Chapter-6-lifeboat-.html#:~:text=While%20the%20moratorium%20on%20a,solely%20to%20outmaneuver%20their%20obligations. Accessed on the 2nd of May 2024. 6. Levenstein, E ‘Restoring a financial distressed company to solvency – is it achievable in corporate South Africa?’( 2022) https://www.werksmans.com/legal-updates-and-opinions/restoring-a-financial-distressed-company-to-solvency-is-it-achievable-in-corporate-south-africa/ Accessed on the 03rd of May 2024. 7. Hofmeyer, C ‘The abuse of creditor’s rights in business rescue.’ (2020) https://www.cliffedekkerhofmeyr.com/en/news/publications/2021/Dispute/dispute-resolution-alert-7-september-The-abuse-of-business-rescue-Exploitation-of-the-Chapter-6-lifeboat-.html#:~:text=While%20the%20moratorium%20on%20a,solely%20to%20outmaneuver%20their%20obligations. Accessed on the 2nd of May 2024. 8. Levenstein, E ‘Restoring a financial distressed company to solvency – is it achievable in corporate South Africa?’( 2022) https://www.werksmans.com/legal-updates-and-opinions/restoring-a-financial-distressed-company-to-solvency-is-it-achievable-in-corporate-south-africa/ Accessed on the 03rd of May 2024. 9. Lovells, H ‘The abuse of business Rescue: Beware serial debtor’ https://www.hoganlovells.com/en/publications/the-abuse-of-business-rescue-beware-the-serial-debtor. Accessed on 02nd of May 2024. 10. Marumoagae, C ‘Potential Constitutional Concerns regarding Employees’ Rights during Business Rescue Proceedings’ Stellenbosch Law Review, 32(3), 2021, p517.

11. Memani, B ‘The questionable justifiability in the utility of statutory suspension of third-party claims during business rescue proceedings in South Africa’.(12 December 2023) https://www.derebus.org.za/the-questionable-justifiability-in-the-utility-of-statutory-suspension-of-third-party-claims-during-business-rescue-proceedings-in-south-africa/. Accessed on the 3rd of May 2024. 12. Taughinbaugh, C ‘How to be a catalyst for change’ (05th January 2012) https://medium.com/change-your-mind/how-to-be-a-catalyst-for-change-ec228f58a02c Accessed on the 01st of March 2024.