Item 9 of Schedule 5 to the Companies Act, 2008 (the Act) provides that the provisions of Chapter 14 of the repealed Companies Act 61 of 1973 apply as if it had not been repealed, until a date to be determined by the Minister responsible for companies.
In terms of Item 2(3) of Schedule 5 to the Act, sections 49(5) to 49(7) of Act 61 of 1973 apply to the description of companies that were engaged in any winding-up or judicial management procedures immediately before 1 May 2011. Therefore, where deeds are lodged for registration in instances where a company is in liquidation, voluntary liquidation or under judicial management, the words “in liquidation”, “in voluntary liquidation” or “under judicial management” must still form part of the description of the name of such a company, if such proceedings were started before 1 May 2011.
The Act (transitional arrangements) only refers to companies where the liquidation procedure was initiated while Act 61 of 1973 was in operation. However, the words “in liquidation”, “in voluntary liquidation” must still be added to the description of a company that is in liquidation or in voluntary liquidation after 1 May 2011.
The following descriptions must be followed:
|“in liquidation”||ABC (Pty) Ltd. (in liquidation) Registration number 2011/000123/07||Before or after 1 May 2011|
|“in voluntary liquidation”||ABC (Pty) Ltd. (in voluntary liquidation) Registration number 2011/000123/07||Before or after 1 May 2011|
|“under judicial management”||ABC (Pty) Ltd. (under judicial management) Registration number 2011/000123/07||If placed under judicial management before 1 May 2011|
Section 155 of the Act deals with a compromise between a company and its creditors irrespective of whether or not it is financially distressed as defined in section 128(1)(f), unless it is engaged in business rescue proceedings in terms of Chapter 6 of the Act.
Proof of the appointment of a business rescue practitioner, as referred to in section 129 of the Act, must be lodged where business rescue proceedings are applicable.
The power of attorney to pass transfer, must read along the following lines:
Jan van der Merwe, in my capacity as business rescue practitioner of ABC (Pty) Ltd.
Registration number: 2008/049786/07,
duly appointed by the board of directors on ………………………………… in terms of *
section 129(3)(b) of the Companies Act 71 of 2008 / court order in terms of section 131(5) of the
Companies Act) 71 of 2008,
As will appear from Notice of Appointment of business rescue practitioner filed with the CIPC
*Delete whichever is inapplicable
• The vesting clause of a deed must not make reference to the fact that the company is under business rescue proceedings.
Should you require more assistance, please do not hesitate to contact us.
TONKIN CLACEY PRETORIA
012 346 1278