One of the liquidators of a former Gupta company has attacked the wide discretion afforded to business rescue practitioners (BRPs), in court papers supporting an application for the liquidation of the Optimum Coal Mine.
This allegedly leads to abuse, with some creditors preferred at a cost to others and the manipulation of voting rights for the approval of the business rescue plan.
Optimum Coal Mine has been in business rescue since February 2018 and the application has the support of the Optimum creditors committee. The business rescue practitioners have not yet filed a response.
Chavonnes Cooper is an insolvency practitioner at CK Trust and one of the liquidators of Westdawn Investments, a former Gupta company that performed the actual mining activities at Optimum. It is also one of Optimum’s creditors.
Cooper’s attack comes against the background of an increase in companies going into business rescue as a result of low economic growth, coupled with the impact of the Covid-19 pandemic.
In December South Africa Airways (SAA) became the first state-owned company to be placed in business rescue, followed by SA Express earlier this year. The SAA business rescue is ongoing, with questions about funding, while SA Express has since been placed in provisional liquidation.
In several instances stakeholders have turned to the courts to challenge decisions by BRPs, despite limitations on such litigation.
Cooper in an affidavit argues that the Companies Act is unconstitutional and in conflict with natural justice, to the extent that it fails to provide mechanisms for business rescue stakeholders to be heard or it leads to unconstitutional results.
This is in stark contrast to the liquidation process, which is overseen by the Master of the High Court and to whom creditors can turn if they believe they have been unfairly prejudiced, Cooper argues.
He alleges that the Optimum business rescue practitioners’ conduct unfairly benefits Eskom and another big creditor Centaur, to the detriment of Westdawn and other creditors. The Optimum BRPs are opposing the application.
According to Cooper, BRPs are often appointed by shareholders of the company in distress, while the Master, who is an independent third party, decides who will be appointed as liquidators.
BRPs have the sole discretion to accept and quantify claims and classify creditors. If they dispute the BRP’s decisions, the only recourse is to litigate, which can be onerous on creditors who are already suffering financial pressure due to the fate of the distressed company.
The Companies Act does not provide for creditors to be heard and thereby contravenes the ‘audi alteram partem’ principle (to hear the other side). This renders the Act unconstitutional in this regard, Cooper argues.
A creditor’s voting rights are determined by the value of its claim and it is easy for the BRP to manipulate the process to ensure acceptance of the business rescue plan that will be binding on all creditors, by a majority.
Even more so because the meeting of creditors for voting purposes is led by the BRP.
Cooper argues that such manipulation creates a false impression of the company’s finances and creditors are expected to vote for or against the business rescue plan without having the whole and accurate picture. The hurdle for acceptance is a mere majority of votes.
In a liquidation process the meeting is led by an independent third party form the Master’s office and creditors are afforded an opportunity to object to the treatment of their own or another party’s claim. Over and above that, there is a legal obligation on liquidators to investigate claims.
Liquidators have to get the approval of the Master, or publish the liquidation and distribution account for stakeholders to object, before they are allowed to pay liquidation dividends.
They further need the approval of other creditors to settle any claims for damages, which is not the case in business rescue.
Liquidators act under the guidance and supervisions of the Master and further must furnish security upon appointment to the value of the company’s assets, which is not the case with BRPs, Cooper states.
Werner Human, deputy CEO for legal affairs at the trade union Solidarity agrees that there are gaps in the current business rescue regime and the way it is applied.
He says while Westdawn stops short of asking for a declaration of unconstitutionality, a finding in its favour could pave the way for such a challenge.
He points out that the Companies Act does provide for the board or liquidators of a distressed company to settle directly with creditors without a business rescue practitioner, noting: “That can save time and resources in the interest of all stakeholders.”
Recent instances of stakeholders challenging BRP decisions:
This article first appeared on Moneyweb and was republished with permission.
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