Die vertrouensverpligtinge van ondernemingsreddingspraktisyns: 'n regsvergelykende studie

[摘要] English: When the Companies Act 71 of 2008 came into effect it brought about a new era ofcorporate rescue for South African companies. Chapter 6 of the Act provides for a newcorporate rescue scheme, known as business rescue. Business rescue replaces theprevious South African rescue model, judicial management, contained in theCompanies Act 61 of 1973.The key role player in the rescue scheme is, however, the business rescuepractitioner. The practitioner is afforded with extensive powers and rights. He takesover control of the management of the company and the duty to rescue the companyrests on his shoulders. It is, however, possible that the purposes of chapter 6 to protectthe interests of all stakeholders can be frustrated through the incompetence, partialityand carelessness of the practitioner.The practitioner is placed in a position of confidence with a number of stakeholdersincluding the company, shareholders, employees and creditors of the company.Section 140(3)(b) of the Act states that the practitioner has the responsibilities, dutiesand liabilities of a director of the company for the duration of the rescue proceedings.The responsibilities, duties and liabilities of directors are set out in sections 75, 76 and77. These sections contain the quasi-codified fiduciary duties of directors andtherefore make them applicable to the practitioner.The practitioner is therefore a fiduciary. There is, however, uncertainty regarding thelegal position of the practitioner as fiduciary. For this reason it was necessary toestablish the nature and extent of these duties.This study examined the practitioner's duty to act with good faith as well as his duty toact with care and skill.In conclusion it is found that the practitioner is in a unique position and that his fiduciaryduties are sui generis in nature. He owes his fiduciary duties to all the affected personsaccording to a ranking. It became clear that the protection of these parties' interest willinvolve a careful balancing of interests. The study culminates in a code of conduct for South African business rescuepractitioners. The code of conduct could act as a compass when the practitioner isconfronted with a difficult ethical decision or dilemma.

[发布机构] University of the Free State