Business Rescue: Adapt Or Die - SciELO

Page 3 of 13 petitioners to pay compensatory and/or punitive damages if it finds that the petition was filed in bad faith (Mindlin 2013:2). However, Chapter 11 also allows a company experiencing financial difficulty substantial protection against its creditors. This protection is in the form of a moratorium on payments, which is effective until a plan of reorganisation is adopted by the company (Bharath, Panchaegesan & Werner 2013:1). The ‘debtor in possession’ under Chapter 11 refers to management of the distressed firm, who work together with the business rescue practitioner to produce a plan for the bankruptcy court to ratify (Burke-le Roux & Pretorius 2017). A key focus of Chapter 11 is the preservation of the going concern value over the liquidation value by means of a plan of reorganisation (Jones Day 2007:6). This mechanism allows management to maintain control over and continue to operate the business. Therefore, Chapter 11 provides managers of a distressed firm with an unparalleled ability to control the reshaping of the firm’s capital structure (Baird 2014:1). United Kingdom rescue mechanism The UK formal mechanism to rescue a financially distressed company is referred to as ‘administration’, which is legislated according to the Enterprise Act of 2002. According to Pretorius and Rosslyn-Smith (2014:116), this act is considered the best contender to rank with Chapter 11. The Enterprise Act aims to achieve a successful resurrection of a financially distressed company by the creation of breathing space, during which a company is given time to formulate a plan for reorganisation (Jones Day 2007:8). The primary goal of administration is to rescue a financially distressed company as a going concern (Museta 2011:57). If this primary goal is not achievable, then administration seeks a better result for the creditors or the distribution to secured or preferential creditors in the event of a liquidation. Loubser (2010:56) noted that administration is only possible when approved by the courts and that such approval relies heavily on the information supplied by the prospective administrator. The notification process does not require the general body of creditors to be informed and is limited to the company, the applicant and the prospective administrator, who must be appointed before the application. The strictly regulated system of appointment of the administrator is an important feature of the success of the process (Loubser 2010:197; Museta 2011:59). An administrator who is not a member of a professional body or authorised by the Secretary of State is strictly prohibited (Loubser 2010:198). Acting as an administrator without the required qualification is an offence, which may be sanctioned by imprisonment or a fine (Museta 2011:59). Management of a company in administration is required to carry out their statutory duties during the administration period (Museta 2011:61). Within 8 weeks of the administrator’s appointment, a proposal for achieving a rescue of the business is presented and such a proposal requires a simple majority vote of those creditors present. An administration http://www.sajems.org Original Research expires after 12 months unless the court approves an extension (Jones Day 2007:15). A key difference to the USA’s Chapter 11 is that the UK system involves the appointment of an administrator to oversee the process and therefore utilises a ‘practitioner in possession’ principle, as opposed to the USA’s debtor in possession (Pretorius & Rosslyn-Smith 2014:116). South Africa’s rescue mechanism The former regime of rescuing financially distressed businesses was handled under judicial management as provided for under the section ‘Compromises and Arrangements’ in the Companies Act 61, 1973. However, this was overhauled by Chapter 6, ‘Business Rescue and Compromise with Creditors’, as provided for under the Companies Act of 2008, which defines ‘business rescue’ as measures to facilitate the rehabilitation of a financially distressed company through the temporary supervision of the affairs, business and property of the company. The supervision of affairs is carried out by a business rescue practitioner, who is appointed either by the directors in voluntary filings or by court appointments as per Section 131. Therefore, financially distressed businesses can prevent liquidation or forced closure by enacting an informal turnaround or a legislated business rescue. One of the main objectives of Section 7 of the Companies Act (2008) is to provide for the efficient rescue and recovery of financially distressed companies, in a manner that balances all relevant stakeholders’ rights and interests. Thus, the Companies Act of 2008 provides for two preinsolvency proceedings, namely Section (s.) 129, ‘Business Rescue’, and s. 155, ‘Compromise with Creditors’. Although both pre-insolvency proceedings provide an ailing debtor trying to evade liquidation with access to corporate reorganisation, its procedures are drawn from the international rescue mechanisms discussed in the sections above. The s. 129 business rescue provisions are considered more traditionally like the administration procedure under the UK system (Bradstreet 2014), because under business rescue, the company’s management loses decision-making abilities and is displaced by the business rescue practitioner (Bradstreet 2014). In contrast, the provisions in Section 155 for compromise with creditors, although simpler, are similar to those of the USA’s Chapter 11 debtor in possession, where the debtor maintains control of its affairs and a compromise is reached between the company and the majority of its creditors (Bradstreet 2014). Therefore, the ‘debtor-friendly’ system under the Companies Act (2008) that allows the debtor company’s participation in the rescue sharply diverges from the traditional creditororiented approach under the previous Companies Act 61 (1973) (Bradstreet 2014). However, the study by Pretorius (2016) found a debtor-friendly fallacy after an examination of the legislative tension and its practical outcome posited a de facto creditor-friendly regime. Calitz and Freebody (2016) posit that a sudden 180-degree change to a debtor-friendly Open Access

Page 4 of 13 system after having a creditor-friendly regime in South Africa for so long may not yield positive effects in the short term. Notably, irrespective of who initiates the business rescue, the process would only continue if more than 75% of the creditors accept the business rescue plan (Kastrinou & Jacobs 2017). Therefore, dissenting minority creditors are bound by the majority of the creditors who approve the business rescue plan in rescue proceedings (Kastrinou & Jacobs 2017). Another feature of the Companies Act (2008) is Section 135, which allows post-commencement financing to ailing companies that have filed for business rescue. Postcommencement financing is funding available to companies after filing for administration or reorganisation, and it is used to enable the companies to pay for rehabilitation fees, carry on trade and pay for fixed costs (Mkhondo & Pretorius 2017). According to Mkhondo and Pretorius (2017), many regimes use post-commencement financing in some form, which is typically legislated or otherwise regulated. This type of financing is akin to the USA’s debtor in possession financing (Mkhondo & Pretorius 2017). Section 134 of the Companies Act (2008) deals with protection of property interests, apart from sale of assets as part of the business rescue plan; the business under rescue can dispose of assets in the ordinary course of business, at arm’s length and for a value approved by the business rescue practitioner. According to Mkhondo and Pretorius (2017), the Companies Act (2008) does not cater for prepackaged sales, which encompasses new or existing funders acquiring a (further) equity in the company or the formation of a new company to acquire the assets of the company. Success factors of the US rescue mechanism Business rescue process The study by Warren and Westbrook (2009:629) concluded that a key success factor of a Chapter 11 rescue is the speed at which cases are resolved. Their study highlighted that a typical Chapter 11 turnaround was resolved in about 9 months and that the average time for the resolution of a case was about 11 months. In contrast, the study by Conradie and Lamprecht (2015) identified key indicators for evaluating success, namely the going concern status on exiting business rescue and the comparison of the creditors’ actual return as opposed to the liquidation return. Furthermore, the findings showed a need to establish indicators that would measure the short- to long-term economic viability of the business after reorganisation. Additionally, the study by Conradie and Lamprecht (2018) illustrated that experts in the sample reached a high level of consensus on several indicators of a successful business rescue – notably, the need to compare the actual number of jobs saved as opposed to the numbers estimated in the business rescue plan. This study also found that 64% of the experts agreed that a success indicator based on the public interest (PI) score should be used but recommend that a customised PI scorecard or verifier be researched and developed. http://www.sajems.org Original Research Business rescue practitioner The study by Loubser (2010:246) noted similarities between the Chapter 6 rescue legislation and the UK system of administration, such as the appointment of a practitioner or administrator. Loubser (2010) recommended the use of changes in the South African legislation to address current shortfalls to the appointment of a business rescue practitioner, in particular the absence of a system of accreditation for business rescue practitioners. Likewise, Pretorius’ (2015) study also found a need to address issues such as the accreditation, regulation and competencies of the practitioner. Furthermore, Pretorius (2015) highlighted the dominant role of the business rescue practitioner, referred to as a ‘disproportionate influencer’, which refers to the power and influence exercised in a business rescue. Burke-le Roux and Pretorius (2017) also examined the role of business rescue practitioners as disproportionate influencers. However, this study focused on entrepreneurial learning during a formal business rescue by examining three key content dimensions, namely, rescue process, business-related and personal learnings. Interestingly, entrepreneurs within the sample that had positive experiences of business rescue were able to gain more knowledge in all the criteria tested in comparison with entrepreneurs with negative experiences. Therefore, this study’s key finding was that the behaviour of the business rescue practitioner was a significant driving or restraining factor on entrepreneurial learning. Courts Mindlin (2013:18) stated that bankruptcy judges are experienced specialists who possess sound commercial judgement as they have handled thousands of cases and have practised as bankruptcy lawyers for many years. However, the study by Joubert (2013) found that there was uncertainty experienced by the courts regarding the meaning of ‘reasonable prospect’ when permitting an order of business rescue to be examined through case law. Joubert (2013) established that Eloff A.J. in the Southern Palace case applied the criteria of restoring the company to ‘a successful one’, which set a precedent that subsequent judges used. This criterion of ‘a successful one’ set a high threshold akin to the burden of proof that was required in terms of judicial management (Joubert 2013). Although there has not been a development of a clear definition of the recovery requirement as yet, the high threshold has been lowered and a more constructive approach applied, as seen in the ensuing Propspec case decision (Joubert 2013). Prepackaged funding Bracewell and Giuliani (2012:24) highlighted the use of prepackaged plans as a success indicator. This involves an arrangement whereby the debtor’s plan, on the first day of court proceedings, is accompanied by votes confirming the plan. This arrangement is achieved as the debtor coordinates with major creditor groups prior to filing for Chapter 11 and a plan is agreed to in advance. This concurs with Mindlin’s Open Access

Page 5 of 13 Original Research (2013:18) study, which highlighted the active role of creditors, especially large creditors, and noted that an official committee of creditors is appointed in most sizeable Chapter 11 cases. Pretorius (2015) found that over 50% of the respondents in the study supported a bigger role for the creditors in the appointment of a business rescue practitioner. ranking of a common set of factors relating to businesses either in business rescue or intending to file for business rescue. This study aims to contribute to the extant literature by using business rescue experts to identify and rank a collective set of indicators that can contribute towards a successful business rescue. Mindlin (2013) also found that the availability of Chapter 11 funding results in companies having a better chance of meeting their liquidity needs after filing. Many investors are eager to acquire companies that have entered Chapter 11. In addition, there is good access to information. Bharath et al. (2013:10) also emphasised the increase in the availability of funding for a Chapter 11 reorganisation as a success factor. Pretorius (2015) found that in 29% of the cases, business rescue practitioners were able to obtain post-commencement funding, which is thus a limitation to business rescue success. Likewise, the study by Calitz and Freebody (2016) established the significance of post-commencement finance as an important business rescue success indicator. The lack of post-commencement finance in South Africa can be attributed to the underdevelopment of the legislation (Calitz & Freebody 2016). Research methodology In contrast, Mkhondo and Pretorius (2017) established that prepackaged funding is used widely in many regimes and revealed that many of the funding institutions employ a variety of complementary funding mechanisms (prepackaging interchangeably with other post-filing mechanisms). Funding institutions, particularly hedge funds, frequently apply prepackaged funding as an entry to the acquisition of such distressed assets (Mkhondo & Pretorius 2017). Because the acquisition of the distressed assets is usually before the default event, these hedge funds have qualified investment professionals to perform actuarial calculations in order to ensure optimal values for the instruments (Mkhondo & Pretorius 2017). Furthermore, Mkhondo and Pretorius (2017) found that sophisticated funding mechanisms and a vibrant distress funding market are correlated, which forms the foundation of prepacks. Other factors Bharath et al. (2013:10) also highlighted the emergence of key employee retention plans, which enable key, high-earning employees to receive court-approved bonuses to induce them to remain with the firm during the reorganisation. Many creditors have concluded that providing these incentives to management was preferable to the time-consuming and disruptive process of recruiting new managers. Other factors cited include management’s exclusive right to propose a reorganisation plan within 120 days. In summary, the US Chapter 11 and the UK administration procedure highlighted certain factors of success in the evaluation of turnarounds. However, an emerging economy like South Africa cannot rely blindly on the success indicators used by foreign researchers. The literature review has shown that there is an absence of research on the identification and http://www.sajems.org Research objectives and questions The objective of this study was to gauge the consensus on what highly knowledgeable and experienced business rescue practitioners would consider as indicators of a successful business rescue in South Africa. Therefore, the following research questions were formulated in order to achieve the research objective: What are the indicators of a successful business rescue according to turnaround managers? Which indicators, ranked from lowest to highest, contribute to successful business rescues according to the CIPC top 10 practitioners? Research design Saunders, Lewis and Thornhill (2003:96) recommended qualitative research to find out ‘what is happening, to seek new insights, to ask questions and to assess phenomena in a new light’. The three principal methods that they advocated to achieve this objective are to undertake a search of literature, talk to experts, and conduct interviews (Saunders et al. 2003:97). Therefore, a mixed-methods approach was utilised for this study. Sampling The Companies Act (2008) states that a practitioner should be a member of the law, accounting or business management profession (Government Gazette 2009). In addition, the Companies Act (2008) also states that the practitioner should have experience in the practice of business turnaround (Government Gazette 2009). Therefore, because the intention of this study was to obtain insight from expert practitioners, accordingly the practitioners selected for the interview were required to be experienced and possess substantial knowledge of the business rescue process. This requirement is aligned to the Companies Act (2008), which places emphasis on the experience of the business rescue practitioner. Turnaround Management Association (TMA) is an organisation that regulates and sets standards for the rehabilitation of financially distressed companies (Baird 2014:42). In an effort to obtain expert opinion about the business rescue process, 130 registered members of TMA’s local affiliate, Turnaround Management Association – Southern Africa (TMA-SA), were requested to respond to the questionnaire. TMA-SA represents the Southern African region (South Africa, Swaziland, Lesotho, Namibia, Angola, Zimbabwe and Mozambique). Open Access

Page 6 of 13 Furthermore, a list of the top 10 practitioners that was released by the CIPC in March 2015 was used as a sample for the expert interviews conducted. The top seven practitioners are ranked according to the number of business rescue practitioner appointments (Voller 2015). Because of their substantial exposure to business rescues, these practitioners have significantly more practical experience of the business rescue process and can provide valuable insights. All interviewees who participated in the study had served as a business rescue practitioner for more than 3 years and had been appointed to more than five business rescues. The average number of business rescue practitioner appointments per interviewee was approximately 51

translate into a successful business rescue. These factors include the effective planning of a business rescue (Institute of Directors in Southern Africa 2009), the management of the business rescue process (Levenstein 2011), access to funding during business rescue (Du Preez 2012) and effective communication with stakeholders (Van der Burgh 2013).