Summary of the Business Rescue Plan
The business rescue plan is crucial for business rescue proceedings, serving as the practitioner's strategy to save the company. This plan must outline how to restructure the company's affairs, business operations, property, debt, and equity, with the aim of ensuring the company's viability or providing creditors and shareholders with a better return than they would receive through immediate liquidation (s 128(1)(b)(ii)). While an application for business rescue must demonstrate the potential for such a plan, it does not need to include the actual proposal at the outset, as formulating the plan is the practitioner's duty (Oakdene Square Properties (Pty) Ltd & others v Farm Bothasfontein (Kyalami) (Pty) Ltd & others 2013 (4) SA 539 (SCA) 552–3).
Prior to drafting the plan, the practitioner is required to consult with creditors, affected parties, and the company's management (s 150(1)). This consultation process is more than just informing these parties; it involves meaningful engagement where ample time is given for advice to be provided and considered before decisions are made (Hlumisa Investment Holdings (RF) Ltd v Van der Merwe NO 2015 JDR 2231 (GP) para 22, referencing Scalabrini Centre & others v Minister of Home Affairs & others 2013 (3) SA 531 (WCC) 553). Additionally, an affected person's right to consultation is independent of their voting ability at the meeting regarding the plan (Hlumisa Investment Holdings (RF) Ltd & another v Van der Merwe NO & others (supra) para 25).