Insolvencies and Liquidations
In South Africa, there are two types of liquidation: voluntary liquidation, which is initiated by the company's directors or shareholders, and involuntary liquidation, which is initiated by the company's creditors or the court.
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Fortunately, South African employees have certain rights and protections under the law when their employer becomes insolvent. Additionally, the Companies Act and the Insolvency Act provide for the appointment of a liquidator to oversee the winding up of the company's affairs and to ensure that employees are treated fairly.
Understanding the different types of insolvencies is important for individuals and businesses who are struggling to meet their financial obligations, as it can help them choose the best course of action to address their financial difficulties.
As a law firm specializing in insolvency and liquidation in South Africa, we know how important it is for individuals and businesses to understand the differences between these three terms. In this blog, we'll provide a clear definition for each, as well as an explanation of the key differences between insolvency, liquidation, and bankruptcy.
When an entity cannot pay the debts they owe as and when they become due, or where their liabilities exceed their assets, such party is considered insolvent in South African law.
In the latter case this effectively means, even if the party were to liquidate all their assets to settle liabilities, it would still not be enough.
Declaration of insolvency status is done by the Courts.
While in most cases it suffices to refer a party as insolvent where they are unable to pay their liabilities as and when they become due, it becomes necessary at times to distinguish and specify the state of such insolvency especially when it comes to companies. In that case the difference between factual and commercial insolvency becomes an important one.
Liquidation, Business Rescue, or Compromise? This needs to be answered in the clearest of terms to avoid any confusion. While the circumstances that invite any of these procedures are the same, the actual situation determines which option is suitable to be implemented.
There are various reasons why a business may not perform well, and this will likely have an impact on its financial soundness. In this time of the COVID-19 pandemic there are indeed a lot of unprecedented challenges being faced by businesses the world over, necessitating the need to adopt and adapt to the new normal.
Most insurance products are designed in such a way that whilst they provide cover for loss, the insurance company itself remains viable as a business. To attain this balance, most insurance products have a list of strict requirements and exclusions which are consulted whenever a claim is processed.
While the business rescue procedure is aimed at rehabilitating financially distressed companies so that they can return to solvency, liquidation is aimed at winding the company upon realisation that the situation is so dire, and liquidation is the only option left.
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