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[2014] ZAGPJHC 142
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Murgatroyd v Van Den Heerver N.O. and Others (20456/2014) [2014] ZAGPJHC 142; [2014] 4 All SA 89 (GJ); 2015 (2) SA 514 (GJ) (29 July 2014)
REPUBLIC
OF SOUTH AFRICA
HIGH
COURT, SOUTH GAUTENG LOCAL DIVISION (JOHANNESBURG
Case
No. 20456/2014
Date:
29 July 2014
In
the matter between:
TREVOR
JOHN
MURGATROYD
...............................................................................................................................................................................................
Applicant
and
THEODOR
WILHELM VAN DEN HEEVER
N.O
............................................................................................................................................................
First
Respondent
KGASHANE
CHRISTOPHER MONYELA
N.O
.........................................................................................................................................................
Second
Respondent
NANO
ABRAM MATLALA
N.O
....................................................................................................................................................................................
Third
Respondent
NOMVUYO
YVONNE SERITI
N.O
............................................................................................................................................................................
Fourth
Respondent
SEGOPOTJE
SHEILA MPHAHLELE
N.O
.......................................................................................................................................................................
Fifth
Respondent
NIMBLE
RISK SERVICES, a division of
NORMAN
BISSETT &ASSOCIATES GROUP (PTY)
LTD
............................................................................................................................................
Sixth
Respondent
ACCOUNTANTS
AT LAW (PTY)
LTD
.......................................................................................................................................................................
Seventh
Respondent
RUDOLPH,
BERNSTEIN &
ASSOCIATES
...................................................................................................................................................................
Eighth
Respondent
Case Summary:
Companies Act 71 of 2008
– Business Rescue Proceedings –
Whether
business rescue practitioner of a
company in business rescue is entitled to be reimbursed for expenses
incurred and disbursements
made – whether the expenses were
reasonably necessary to carry out the practitioner’s
functions and facilitate the conduct of the company’s business
rescue proceedings as contemplated in subsections 143(1) and (6) and
regulation 128(3)
of the
Companies Act 71 of 2008
.
JUDGMENT
MEYER,
J
[1]
This application concerns the entitlement of a business rescue
practitioner to be reimbursed for expenses incurred and disbursements
made during business rescue proceedings.
[2]
Subsection 143(1) of the
Companies Act 71 of 2008
provides that
‘[t]he practitioner is entitled to charge an amount to the
company for the remuneration and expenses of the
practitioner in
accordance with the tariff prescribed in subsection (6)’.
Subsection (6) in turn provides that ‘[t]he
Minister may make
regulations prescribing a tariff of fees and expenses for the purpose
of subsection (1).
[1]
Regulation 128
(under subsections 143(1) and (6)) of the Companies
Regulations, 2011 reads as follows:
‘
(1) The basic
remuneration of a business rescue practitioner, as contemplated in
section 143(1), to be determined at the time of
the appointment of
the practitioner by the company, or the court, as the case may be,
may not exceed-
(a) R1 250 per hour,
to a maximum of R15 625 per day, (inclusive of VAT) in the case of a
small company.
(b) R1 500 per hour,
to a maximum of R18 750 per day, (inclusive of VAT) in the case of a
medium company; or
(c) R2 000 per hour,
to a maximum of R25 000 per day, (inclusive of VAT) in the case of a
large company, or a state owned company.
(2) Sub-regulation
(1) does not apply to, limit or restrict any “further
remuneration” for a business rescue practitioner,
as
contemplated in section 143(2) to (4).
(3)
In addition to the remuneration determined in accordance with section
143(1) to (4), and this regulation, a practitioner is
entitled to be
reimbursed for the actual cost of any disbursement made by the
practitioner, or expenses incurred by the practitioner
to the extent
reasonably necessary to carry out the practitioner’s functions
and facilitate the conduct of the company’s
business rescue
proceedings.’
[3]
A practitioner’s claim for remuneration and expenses enjoys
preferential ranking. Subsection 143(5) provides that,
‘[t]o
the extent that the practitioner’s remuneration and expenses
are not fully paid, the practitioner’s claim
for those amounts
will rank in priority before the claims of all other secured and
unsecured creditors.’
[2]
[4]
No provision is made in the
Companies Act for
the taxation of a
business rescue practitioner’s remuneration, disbursements and
expenses. I share the following sentiment
expressed by CJ Claassen, J
in
Oakdene
Square Properties (Pty) Ltd and others v Farm Bothasfontein (Kyalami)
(Pty) Ltd and others
2012
(3) SA 273 (GSJ):
[3]
‘
There is no
provision for the taxation of the fees, costs and expenses of a
business rescue practitioner, whereas a liquidator’s
costs are
subject to taxation. There is, therefore, independent control
over the costs of liquidation, whereas there is currently
none in the
case of a business rescue procedure. This aspect may be for the
legislature to consider when further amendments
to the Act are
proposed.’
And I also agree
with the comment by the learned authors of
Henochsberg
on the
Companies Act
71
of 2008
[4]
that-
‘…
it
seems unwise not to make provision for the amounts claimed to be
scrutinized by an independent party in order to ensure that
there is
no abuse by practitioners claiming excessive fees’.
[5]
The factual matrix within which the issues to be decided in this
application arose, is essentially uncontroversial. On
29 May
2012, Sanyati Civil Engineering and Construction (Pty) Ltd (currently
in liquidation) (Sanyati) voluntarily commenced business
rescue
proceedings pursuant to a resolution of its board. On 6 June 2012 the
applicant was appointed as business rescue practitioner
of Sanyati
(the practitioner). He concluded, on 4 July 2012, that there
was no reasonable prospect that Sanyati could be
rescued. An
application to this court for an order discontinuing the business
rescue proceedings and placing Sanyati into
liquidation was lodged on
9 July 2012: the order was issued on 11 July 2012. The
first to fifth respondents were appointed
as provisional liquidators
of Sanyati on 20 July 2012, and they were subsequently appointed as
its joint liquidators (the liquidators).
[6]
Sanyati conducted business throughout South Africa and it was
involved in approximately 50 projects at the time its business
rescue
proceedings commenced. Approximately 14 persons were involved
in its management and It had in excess of 2 700 employees
and 1 500
creditors. It had 5 guarantee providers with an exposure to
loss of almost R383 million. Its balance sheet
reflected
liabilities of approximately R832million and assets of R516 million.
A number of sale transactions were contemplated
in an attempt to
rescue Sanyati and detailed financial analyses of the effect of such
contemplated sale transactions needed to
be undertaken.
[7]
The sixth respondent, Nimble Risk Services (Nimble),
[5]
was formally appointed on 6 June 2012 (but with effect from 28 May
2012), the eighth respondent, Rudolf Bernstein & Associates
Inc
(Rudolph Bernstein) on 5 June 2012, and the seventh respondent,
Accountants at Law (Pty) Ltd (Accountants), on 21 June 2012
to assist
the practitioner in the carrying out of his duties as business rescue
practitioner of Sanyati and to facilitate the conduct
of Sanyati’s
business rescue proceedings. They rendered their services and
invoiced the practitioner. The business
rescue proceedings were
superseded by the liquidation order and the amounts owing to Nimble
(R1 219 332.28), Accountants (R428
414.74) and Rudolph Bernstein
(R272 523) have not been paid.
[8]
The practitioner and the liquidators are ad idem that Sanyati is a
‘large company’ within the meaning of
regulation 128(1)
and that the practitioner’s remuneration is regulated in terms
thereof. There is no dispute in relation to the amount
of the
practitioner’s claim for remuneration in the sum of R714 488
for his services in connection with the business rescue
proceedings
of Sanyati. There is also no longer any dispute about the
practitioner’s claim for expenses incurred by
him in relation
to Rudolph Bernstein in the sum of R272 523. On the contrary,
these claims were proved and admitted at the
first meeting of
creditors of Sanyati without challenge by the creditors’
concursus. The practitioner did not prove
his claim for
expenses incurred by him in relation to Nimble and Accountants,
because the liquidators raised issues of principle
against his claim
and he was invited to approach this court for declaratory relief.
[9]
The primary relief which the practitioner seeks in terms of his
notice of motion, is formulated as follows:
‘
1. declaring
the applicant entitled to full recovery from the estate of Sanyati
Civil Engineering and Construction (Pty) Ltd (In
Liquidation)
(“
Sanyati”
) of such moneys owing to him, in
respect of the services rendered by him as duly appointed business
rescue practitioner of Sanyati
in priority before the claims of all
other secured and unsecured creditors in terms of
section 143
as read
with
section 135
and
regulation 128(1)
© of the
Companies Act 71
of 2008
;
2.
declaring the applicant entitled to full recovery from the estate of
Sanyati of such moneys owing by him to the sixth, seventh
and eighth
respondents, in respect of business rescue support, legal and
advisory services rendered by the sixth to eighth respondents
to the
applicant in his capacity as business rescue practitioner of Sanyati
in priority before the claims of all other secured
and unsecured
creditors in terms of
section 143
as read with
section 135
of the
Companies Act 71 of 2008
;’
[10]
The liquidators concede the relief claimed in prayer 1 of the notice
of motion and in prayer 2 thereof insofar as Rudolph Bernstein
(the
eighth respondent) is concerned. They dispute the claims in
relation Nimble and Accountants on the basis that these
claims are
not expenses incurred by him to the extent reasonably necessary to
carry out his functions qua practitioner and facilitate
the conduct
of Sanyati’s business rescue proceedings as contemplated in reg
128(3).
[11]
They argue that a practitioner must himself perform his functions and
he has no authority to delegate them to ‘other
(outside)
professionals’ or persons. A practitioner, so they argue,
may only ‘delegate any power or function’
of the
practitioner to a person who was part of the board or pre-existing
management of the company as contemplated in subsec 140(1)(b).
[6]
This subsection is the only express provision in Chapter VI
that provides a practitioner with the power to delegate
his powers or
functions. It must be inferred, so the liquidators argue, from
the failure to provide for the power to delegate
to other (outside)
persons that the legislature did not intend there to be any
delegation otherwise than in accordance with
s 140(1)(b).
They
argue that the rule of construction of written instruments,
expressio
unius est exclusio alterius
,
[7]
finds application as far as a practitioner’s power to delegate
his powers or functions is concerned.
[12]
The objection raised by the liquidators is not that the practitioner
abdicated or delegated his powers to Nimble or to Accountants,
but
rather that he delegated some of his functions to them contrary to
the provisions of the
Companies Act. The
practitioner states in
his founding affidavit that he was ‘confronted with an
effective breakdown of the management of Sanyati
and an overall
incapacity in effectively assisting him through the business rescue
process’ and that ‘the services
rendered by the sixth to
eighth respondents were essential in the performance of [his]
functions as business rescue practitioner
and facilitated the conduct
of Sanyati’s business rescue proceedings’. He
further states that-
‘
[t]he
magnitude of claims against Sanyati and the number of affected
persons to be notified and consulted, coupled to the extremely
short
time periods in which to notify all affected persons, hold the
necessary meetings with management, creditors, shareholders,
employees and guarantee providers and formulate and publish the
business rescue plan, necessitated [his] procurement of the services
of the sixth to eighth respondents to assist [him] in the performance
of [his] functions as business rescue practitioner and to
facilitate
the conduct of Sanyati’s business rescue proceedings.
[13]
As far as the appointment of Nimble is concerned, the liquidators
state in their answering affidavit that ‘… its
scope of
services relate to matters which should be performed by the business
rescue practitioner himself, as required in terms
of the Act.’
And as far as Accountants is concerned ‘… that there is
no reason why the directors and management
of Sanyati could not have
assisted the Applicant in performing these functions’, that the
practitioner ‘… does
not say that he could not get
internal assistance in Sanyati and that he was therefore compelled to
appoint forensic accountants
to perform these functions’, and
‘… that the services that were rendered were not
reasonably necessary, as the
very same functions could and should
have been performed by the Applicant as business rescue practitioner,
duly assisted by the
directors and management of Sanyati, where
necessary.’
[14]
The liquidators are factually incorrect in saying that the
practitioner does not say why he could not get internal assistance.
The practitioner explained the complexities he encountered. He
also inter alia states that the management was dysfunctional
and
could not be relied upon by him, that the financial information in
the possession and under the control of the directors was
limited in
extent and that the accuracy and currency thereof were ‘…
highly suspect and required consolidation, critique
and analysis’.
Furthermore, Accountants’ services included ‘an on-site
review’ of Sanyati’s
business units in Bloemfontein ‘…
in anticipation of the resignation and exodus of key employees’.
[15]
‘Business rescue’ is defined in
s 128(1)
[8]
as certain proceedings by the provision inter alia of ‘(i) the
temporary supervision of the company, and the management of
its
affairs, business and property’. ‘Supervision’
again, in terms of
s 128(1)(i)
, is the ’oversight imposed on a
company during its business rescue proceedings’.
[16]
After his appointment a practitioner has the powers and functions set
out in
s 140
‘in addition to any other powers and duties set
out in this Chapter’. They include ‘(a) full
management
control of the company in substitution for its board and
pre-existing management’.
[9]
Because of the provisions of subsec 140(1)(a) there might be some
doubt whether the ‘pre-existing’ management
retains any
powers and what the powers of the practitioner in this respect are.
The practitioner has ‘full management
control’, but
what about the old management? The practitioner may remove them and
appoint new managers (subsec 140(1)(c)),
but in accordance with the
maxim
delegatus
non potest delegare
[10]
he may not delegate his powers unless authorised to do so, either
expressly or by necessary implication. Thus, to remove
any
uncertainty,
ex
abundanti cautela,
subsec 140(1)(b) provides for a delegation to the old management.
[11]
The words of subsec 140(1)(b), therefore, do not have a bearing
on delegation generally or on the meaning of the other provisions
in
Chapter VI.
[17]
A practitioner has various other powers and duties embodied in
Chapter VI ‘in addition to’ those enumerated in
s 140.
There is no indication in Chapter VI that all the functions of a
practitioner are required to be undertaken and discharged
by the
practitioner personally. The provisions of Chapter VI are not
unduly prescriptive or restrictive as far as a practitioner’s
functions and duties are concerned. His functions and duties
are broad and require a variety of steps to be taken.
The every
nature of a practitioner’s powers implies that he may in
appropriate circumstances appoint advisors, valuators,
auctioneers,
forensic accountants, lawyers and other experts or persons to assist
him in the carrying out of his plenary functions
.
Al
though no specific provision is made for the
power of a practitioner to appoint advisors,
s 140(2)
prohibits a
practitioner from appointing certain persons as advisors. A
practitioner, therefore, by necessary implication
has the power to
appoint advisors. Furthermore, a forensic audit or the
undertaking of other forms of work or services which
fall within the
ambit of a practitioner’s functions and duties may well be
required of the advisor in order for him or her
to give advice to the
practitioner or to the company. To distinguish between advice
per se and the undertaking of any other
service seems to me to be
unduly artificial in this context. Furthermore, in addition to
his own remuneration,
s 143(1)
entitles a practitioner
to
charge an amount for his expenses.
Regulation 128(3)
expressly
provides for the recovery of disbursements and expenses.
[18]
The appointment, in appropriate circumstances, of auditors or other
professionals or persons to assist a practitioner in the
carrying out
of his functions and in facilitating the
conduct of the
company’s business rescue proceedings
involves
no delegation of the practitioner’s powers, but such power
merely follows from the powers given to him under Chapter
VI.
In
Johannesburg Municipality v Davies and another
1925 AD 395
,
Stratford AJA said the following:
‘
Here
it may be as well to remark that the rule that a power is to be
implied to do that which is reasonably incidental to what has
been
expressly authorised is no new rule of construction of statutes, it
is merely an example of a proper implication to draw.’
[19]
The liquidators further argue that all expenses incurred prior to
confirmation of the practitioner’s appointment on 6
June 2012
and subsequent to 4 July 2012 (the day when the practitioner
concluded that there was no prospect of rescuing Sanyati)
are, as a
matter of principle, not recoverable under reg 128(3). There is
no merit in this contention.
[20]
The business rescue proceedings commenced on 29 May 2012 and ended on
11 July 2012 when Sanyati was placed in liquidation.
There is
no reason why a practitioner cannot accept the services that were
rendered prior to his appointment and assume the responsibility
for
the payment thereof. Expenses incurred and disbursements made
after a conclusion
that there is no reasonable prospect for
the company to be rescued
and before the business
rescue proceedings ended may or may not, depending on the facts of a
given case, be proved to have been
reasonably necessary as
contemplated in reg 128(3). A practitioner cannot simply
abandon ship before the business rescue
proceedings are ended and he
may conceivably still require assistance during that time.
[21]
The test for a business rescue practitioner’s entitlement to
reimbursement for expenses and disbursements is whether
they were
reasonably necessary to carry out the practitioner’s
functions and facilitate the conduct of the company’s business
rescue proceedings. The question is a factual one which must be
assessed on the facts and circumstances of each case with
reference
to factors such as the size of the company, the functionality of its
management, the accuracy and currency of its financial
and accounting
data, the complexities involved and the scope of the work required to
be undertaken by the business rescue practitioner.
It is also
implicit in the reasonableness requirement of reg 128(3) that a
business rescue practitioner is not entitled to reimbursement
to the
extent to which the charges of the service providers are not
market-related, in other words reasonable.
[22]
Nimble rendered services in connection with the
preparation of a business rescue plan after it had been concluded
that there was no reasonable prospect for Sanyati to be
rescued
. The practitioner accepts that those
expenses do not necessarily meet the requirement of reg 128(3) and
he, correctly in
my view, abandoned that portion of his claim.
Nimble also rendered services after the business rescue proceedings
of Sanyati
had ended, which expenses are obviously not recoverable in
terms of subsecs 143(1) and (6) and reg 128(3). The order which
I propose to make will limit the practitioner’s entitlement to
reimbursement of his expenses to work undertaken during the
period of
Sanyati’s business rescue proceedings.
[23]
The liquidators have not refuted the case put up by the practitioner
that Nimble and Accountants were appointed for justifiable
reasons;
that their charges were market related and for work actually
performed; and that the expenses incurred in relation to
them (other
than the costs of continuing with the preparation of a business
rescue plan after it had been concluded
that there was no
reasonable prospect for Sanyati to be rescued and the expenses
incurred after Sanyati had been placed liquidation)
were
indeed reasonably necessary to have carried out his functions and
facilitate the conduct of Sanyati’s business rescue
proceedings. The liquidators contest the practitioner’s
entitlement to reimbursement rather on issues of principle.
Real disputes of fact disentitling the granting of final relief to
the practitioner have not been raised.
[24]
Finally, the matter of costs. The liquidators contend that no
order as to costs should be made by virtue of the novelty
of the
questions raised in this application (‘…delegation and
whether the costs are reasonably necessary’) and
the fact that
both sides were entitled to seek guidance from this court. I
am, however, not persuaded that the circumstances
of this case
warrant a deviation from the general principle that costs should
follow the event. The practitioner is substantially
successful.
[25]
In the result the following order is made:
1.
The applicant is declared entitled to full recovery from the estate
of Sanyati Civil Engineering and Construction (Pty) Ltd (in
liquidation) (Sanyati), in priority before the claims of all other
secured and unsecured creditors in terms of
section 143
as read with
section 135
and
regulation 128(1)(c)
of the
Companies Act 71 of 2008
,
of:
1.1 such moneys
owing to him in respect of the services rendered by him as duly
appointed business rescue practitioner of Sanyati;
1.2. such moneys
owing by the applicant to the sixth and seventh respondents in
respect of business rescue support and advisory
services rendered by
them to the applicant in his capacity as business rescue practitioner
of Sanyati during the period of its
business rescue proceedings from
29 May 2012 until 11 July 2012, but excluding
the
expenses incurred in connection with the business rescue plan after
it had been concluded on 4 July 2012
that there was no
reasonable prospect for Sanyati to be rescued;
1.3 such moneys
owing by the applicant to the eighth respondent in respect of
business rescue support, legal and advisory services
rendered by it
to the applicant in his capacity as business rescue practitioner of
Sanyati.
2.
The first, second, third, fourth and fifth respondents are ordered to
pay the applicant’s costs of suit, including the
costs of
senior counsel.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
29
July 2014
Date
of Hearing: 6 – 8 May 2014
Date
of Judgment: July 2014
Counsel
for Applicant: Adv A Subel SC
Attorneys
for Applicant: Baker & McKenzie, Sandton
Counsel
for 1
st
to 5
th
Respondents: Adv PF Rossouw SC
Attorneys
for 1
st
to 5
th
Respondents: De Vries
Incorporated, Sandton
[1]
Subsections (2) to (4), which contemplate ‘further
remuneration’ for the business rescue practitioner, do not
apply
in this instance.
[2]
Also relevant is
s 135
of the
Companies Act, which
provides as
follows:
‘
(1)
To the extent that any remuneration, reimbursement for expenses or
other amount of money relating to employment becomes due
and payable
by a company to an employee during the company’s business
rescue proceedings, but is not paid to the employee-
(a)
the money is regarded to be post-commencement financing; and
(b)
will be paid in the order of preference set out in subsection 3(a).
(2)
During its business rescue proceedings, the company may obtain
financing other than as contemplated in subsection (1), and
any such
financing-
(a)
may be secured to the lender by utilizing any asset of the company
to the extent that it is not otherwise encumbered; and
(b)
will be paid in the order of preference set out in subsection
(3)(b).
(3)
After payment of the practitioner’s remuneration and expenses
referred to in
section 143
, and other claims arising out of the
costs of the business rescue proceedings, all claims contemplated-
(a)
in subsection (1) will be treated equally, but will have preference
over-
(i)
all claims contemplated in subsection (2), irrespective of whether
or not they are secured; and
(ii)
all unsecured claims against the company; or
(b)
in subsection (2) will have preference in the order in which they
were incurred over all unsecured claims against the company.
(4)
If business rescue proceedings are superseded by a liquidation
order, the preference conferred in terms of this section will
remain
in force, except to the extent of any claims arising out of the
costs of liquidation.
[3]
Para [49].
[4]
Vol 1 at 499
[5]
Nimble is a division of Norman Bissett & Associates Group (Pty)
Ltd.
[6]
Section 140
reads as follows:
‘
(1)
During a company’s business rescue proceedings, the
practitioner, in addition to any other powers and duties set out
in
this Chapter-
(a)
has full management control of the company in substitution for its
board and pre-existing management;
(b)
may delegate any power or function of the practitioner to a person
who was part of the board or pre-existing management of
the company;
(c)
may-
(i)
remove from office any person who forms part of the pre-existing
management of the company; or
(ii)
appoint a person as part of the management of a company, whether to
fill a vacancy or not, subject to subsection (2); and
(d)
is responsible to-
(i)
develop a business rescue plan to be considered by affected persons,
in accordance with
Part D
of this Chapter; and
(ii)
implement any business rescue plan that has been adopted in
accordance with
Part D
of this Chapter.
(1A)
The practitioner must, as soon as practicable after appointment,
inform all relevant regulatory authorities having authority
in
respect of the activities of the company, of the fact that the
company has been placed under business rescue proceedings and
of his
or her appointment.
(2)
Except with the approval of the court on application by the
practitioner, a practitioner may not appoint a person as part
of the
management of the company, or an advisor to the company or to the
practitioner, if that person-
(a)
has any other relationship with the company such as would lead a
reasonable and informed third party to conclude that the
integrity,
impartiality or objectivity of that person is compromised by that
relationship; or
(b)
is related to a person who has a relationship contemplated in
paragraph (a).
(3)
During a company’s business rescue proceedings, the
practitioner-
(a)
is an officer of the court, and must report to the court in
accordance with any applicable rules of, or orders
made by, the
court;
(b)
has responsibilities, duties and liabilities of a director of the
company, as set out in
sections 75
to
77
; and
(c)
other than as contemplated in paragraph (b)-
(i)
is not liable for any act or omission in good faith in the course of
the exercise of the powers and performance of the functions
of
practitioner; but
(ii)
may be held liable in accordance with any relevant law for the
consequences of any act or omission amounting to gross negligence
in
the exercise of the power and performance of the functions of
practitioner.
(4)
If the business rescue process concludes with an order placing the
company in liquidation, any person who has acted as practitioner
during the business rescue process may not be appointed as
liquidator of the company.’
[7]
See:
Gentiruco
AG v Firestone SA (Pty) Ltd
1972
(1) SA 589
(A) at 602E-F;
Beaver
Marine (Pty) Ltd v Wust
1978
(4) SA 263
(A) at 277D;
South
African Roads Board v Johannesburg City Council
1991
(1) SA 1
(A) at 16G;
National
Automobile and Allied Workers’ Union (now known as National
Union of Metalworkers of SA) v Borg-Warner SA (Pty)
Ltd
1994
(3) SA 15
(A) at 26G.
[8]
Section 128(1)(b)
reads as follows-
‘”
business
rescue” means proceedings to facilitate the rehabilitation of
a company that is financially distressed by providing
for-
(i)
the temporary supervision of the company, and of the management of
its affairs, business and property;
(ii)
a temporary moratorium on the rights of claimants against the
company or in respect of property in its possession; and
(iii)
the development and implementation, if approved, of a plan to rescue
the company by restructuring its affairs, business,
property, debt
and other liabilities, and equity in a manner that maximizes the
likelihood of the company continuing in existence
on a solvent basis
or, if it is not possible for the company to so continue in
existence, results in a better return for the
company’s
creditors or shareholders than would result from the immediate
liquidation of the company;’
[9]
A
practitioner has various other powers and duties in terms of Chapter
VI ‘in addition to’ those enumerated in
s 140.
[10]
In
Attorney
General OFS v Cyril Anderson Ivestments (Pty) Ltd
1965
(4) SA 628
(A), at 639, Botha JA said this:
‘
The
maxim
delegatus delegare non potest
is based upon the
assumption that, where the legislature has delegated powers and
functions to a subordinate authority, it intended
that authority
itself to exercise those powers and to perform those functions, and
not to delegate them to someone else, and
that the power delegated
does not therefore include the power to delegate. It is not
every delegation of delegated powers
that is hit by the maxim, but
only such delegations as are not, either expressly or by necessary
implication, authorised by the
delegated powers.
[11]
See:
Johannesburg
City Council v Tucker’s Land Holdings Ltd and others
1971
(2) SA 478
(W) at A-H.