Making Your Intentions Known in Contract: Complex Formulae

As project finance becomes more widespread in Africa, government officials, bankers and developers will all become exposed to the complex documentation that comes with it. Some of the payment mechanisms can be very complicated and lawyers are often asked to include “worked examples” in the documentation. A recent case looked at the use of worked examples in contracts governed by English law. The court concluded the following:

  • worked examples are integral parts of finance and other commercial contracts;
  • it is often only when narratives and formulae are worked through that their true effect can properly be seen;
  • where there is more than one worked example, consistency among the examples (in this case the inclusion of a missing step), strongly suggests that this was a deliberate choice by the drafter; and
  • it is inherently more probable that the parties’ true bargain is to be found in the worked examples.

Important Takeaways from This Case

  • English law legal drafters should strongly consider including worked examples where complex formulae are used;
  • they should include more than one worked example; and
  • boilerplate construction clauses should be carefully drafted to ensure they do not contribute to any confusion concerning the precedence of worked examples.

One of the issues that the case does not address is that parties in a project financing also often rely on agreed and audited computer models when determining whether or not loans can be drawn or dividends paid. This case gives no guidance on what should happen if that computer model does not accurately reflect the terms of the loan documentation. This issue should be specifically addressed in the relevant documentation.

Case reference: Altera Voyageur Production Ltd v Premier Oil E&P UK Ltd [2020] EWHC 1891 (Comm) (17 July 2020)

If you have any questions concerning the material discussed in this client alert, please contact the following members of our Project Development and Finance Practice:

Steven Gamble                                  +27 823 305 689                    sgamble@cov.com
Graham Vinter                                   +44 20 7067 2062                  gvinter@cov.com

 

An Update on South Africa’s 2013 Protection of Personal Information Act

President Cyril Ramaphosa announced on June 22, 2020, that certain sections of the Protection of Personal Information Act, 2013 (Act 4 of 2013) (“POPIA”) would become effective on July 1, 2020.  POPIA gives effect to the right to privacy in section 14 of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).  POPIA will impact all responsible parties that collect, store, process and / or disseminate personal information as part of their business activities.  POPIA defines a responsible party as “a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information”.  The commencement of these essential provisions contained in POPIA, now position South Africa in line with global best practice on data protection and privacy.  The commencement of POPIA signifies a great advance for the South African data protection and privacy legal landscape.

Background

Since 2013, POPIA has been put into operation incrementally, with a number of sections of POPIA having been implemented in April 2014 (i.e. the definitions; legislation pertaining to the establishment and operation of the South African Information Regulator (“Information Regulator”); the power for the Minister of Justice and the Information Regulator to make and publish Regulations to give effect to POPIA and the procedural sections relating thereto).  The incremental implementation of POPIA was largely due to the publication of the draft EU General Data Protection Regulations (“GDPR”) in 2013 and its commencement thereafter in May 25, 2018, which guided and informed the South African legislature in the drafting of POPIA.  The South African legislature has ensured that POPIA mirrors the essential provisions contained in the GDPR.  For example, under the GDPR, as under POPIA, individuals have a right to request the deletion of their information or request a limitation of the processing of their information in certain instances, and all businesses now have a duty to report any data breach to the Information Regulator within 72 hours of becoming aware of the breach, where practicable.

POPIA provisions effective as of July 1, 2020

The POPIA provisions effective as of July 1, 2020 pertain to:

  • the conditions for the lawful processing of personal information.;
  • the regulation pertaining to the processing of special personal information;
  • codes of conduct issued by the Information Regulator;
  • procedures for dealing with complaints;
  • provisions regulating direct marketing by means of unsolicited electronic communication and the general enforcement of POPIA; and
  • all forms of processing of personal information must, within 1 year after the commencement of the section, be made to conform to POPIA.  In other words, all private and public entities will need to ensure compliance with POPIA by July 1, 2021 (see section 114(1) of POPIA)

See No. R. 21 of 2020 in Government Gazette no. 11136, Vol. 660 No 43461 dated June 22, 2020 sections 2 to 38; sections 55 to 109; section 111; and sections 114 (1), (2) and (3).

Sections 110 and 114(4) of POPIA will take effect June 30, 2021.  The delay in relation to the commencement of sections 110 and 114(4) is as a result of the fact that these sections pertain to the amendment of laws and the effective transfer of functions of the Promotion of Access to Information Act, 2000 (Act 2 of 2000) (“PAIA”) from the South African Human Rights Commission to the Information Regulator, which is yet to be concluded.

Key POPIA Provisions

With the commencement of POPIA, businesses operating within this space must demonstrate that they have implemented measures prescribed under and in terms of POPIA and its regulations, to ensure that personal information in its possession are protected from any unauthorized access, loss and/or use.  For example, Regulation 4 (Responsibilities of Information officers) read together with sections 55 to 56 of POPIA make provision for the appointment of an information officer, who must ensure that:

  • “a compliance framework is developed, implemented, monitored and maintained;
  • a personal information impact assessment is done to ensure that adequate measures;
  • and standards exist in order to comply with the conditions for the lawful processing of personal information;
  • a manual is developed, monitored, maintained and made available as prescribed in sections 14 and 51 of the PAIA;
  • internal measures are developed together with adequate systems to process request for information or access thereto; and
  • internal awareness sessions are conducted regarding the provisions of POPIA, regulations made in terms of POPIA, codes of conduct, or information obtained from the Information Regulator”.
  • POPIA also requires businesses to incorporate suitable technical and security measures to protect personal information, in line with the volume, nature, and sensitivity of the personal information in a business’s possession.

POPIA provides data subjects who are affected by a data breach the right to institute a claim against a business that has inadequately stored information.  Data subjects will not be required to prove that the business storing and/or processing the information was negligent in doing so.  This means that, POPIA empowers data subjects to institute claims against parties responsible for their personal information on a strict liability basis.

Furthermore, section 114(1) is of particular importance as it states that all forms of processing of personal information must, within 1 year after the commencement of the section, be made to conform to POPIA, which means that both public and private entities must ensure compliance with the POPIA by July 1, 2021.  However, it stands to reason that all entities subject to POPIA should attempt to comply with the provisions of the POPIA as soon as possible in order to give effect to the right of privacy.

Businesses should note that once POPIA is in full force and effect, non-compliance with POPIA may result in administrative fines of up to R10 million, imprisonment, civil damages and most importantly, reputational harm.

 

For further information on POPIA, please contact Robert Kayihura at RKayihura@cov.com or Shivani Naidoo at SNaidoo@cov.com.

 

 

 

South Africa Prepares to Further Ease Lockdown Restrictions

On June 17, 2020 South African President Cyril Ramaphosa announced government’s intention to further ease the lockdown restrictions imposed due to COVID-19, allowing more industries to re-open fully under stringent health and safety protocols. This announcement comes two weeks after the government de-escalated the country from Alert Level 4 to Alert Level 3 pursuant to the Risk Adjustment Strategy on June 1, 2020. The de-escalation of the Alert levels is partly in response to the negative impact that the prolonged National State of Disaster—announced on March 11, 2020, has had on the economy, as well as on individual livelihoods.

Following discussions with industry representatives, the COVID-19 National Command Council (“NCC”), Cabinet and Premiers, the following will now be permitted:

  • Sit-down meals in restaurants;
  • Accredited and licensed accommodations, (but still no home sharing such as AirBnB);
  • Conferences and meetings for business purposes in line with restrictions on public gatherings;
  • Cinemas and theatres, to be aligned to limitations on gathering of persons;
  • Casinos;
  • Personal care services, including hairdressers and beauty services;
  • Non-contact sports such as golf, tennis, cricket and others. Contact sports will be allowed only for training and modified activities with restricted use of facilities.

The government will in due course issue details regarding such measures, including the date from which these industries will be permitted to reopen.

President Ramaphosa further announced a breakthrough in the treatment of COVID-19, led by the University of Oxford in the United Kingdom. The study found that the drug dexamethasone, has been shown to reduce deaths among patients on ventilation by one-third. Therefore, South Africa’s Department of Health and the Ministry Advisory Committee have since recommended the use of dexamethasone for patients diagnosed with COVID-19.

As Chair of the African Union, President Ramaphosa highlighted South Africa’s involvement in forging a common approach across the continent to ensure, among other things, the effective mobilization of resources and the implementation of associated strategies. These include the ground-breaking Africa Medical Suppliers Portal: a single continental marketplace where African countries can access critical medical supplies (including test kits), from suppliers and manufacturers in Africa and across the world, in the necessary quantities, and at competitive prices.

Over the next few days, we anticipate that government will announce further details on the dates on which the easing of further restrictions will take effect, including the necessary regulations and/or amendments to existing regulations, to give effect to and provide directives to affected sectors.

The NCC will continue to make determinations on the applicable Alert Level based on an assessment of the infection rate and the capacity of our healthcare system to provide care to infected patients.

For further information, please reach out to Covington’s COVID-19 Task Force at COVID19@cov.com, Robert Kayihura at RKayihura@cov.com or Mosa Mkhize at MMkhize@cov.com

 

 

South African High Court rules COVID-19 Lockdown Regulations Unconstitutional

Following the declaration of the National State of Disaster on March 15, 2020, a number of regulations have been enacted to contain and minimise the spread of COVID-19 in South Africa. On June 2, 2020, Judge Norman Davis of the South African High Court found the regulations issued in terms of section 27 of the Disaster Management Act, 2002 (Act No. 57 of 2002) (the “Act”) under Government Gazette No. 43258 (the “Regulations”), unconstitutional and invalid. See De Beer and Others v. The Minister of Cooperative Governance and Traditional Affairs (“De Beer”).

In this piece, we provide an overview of the Court’s analysis pursuant to the rationality test.

The Rationality Test

The rationality test requires an evaluation of the relationship between the means and the end. It is not designed to determine whether some means will achieve the purpose better than others, but only whether the means employed are rationally related to the purpose for which the power was conferred. Where the measure is not rationally connected to a permissible objective, a lack of rationality would result in such a measure not constituting a permissible limitation of a constitutional right in the context of section 36 of the Constitution.

In employing the rationality test, the Court found that the declaration of a National State of Disaster was rational because measures to curb the spread of COVID-19 were urgently required to convert an ailing and deteriorated public health care system into a state of readiness, able to cope with previously unprecedented demand for high and intensive care facilities. Among the issues challenged were: the limitation on exercise; who may attend funerals; and the practicalities of distributing aid relief. The Court found that the Regulations (in a substantial number of instances) are not rationally connected to the objectives of slowing the rate of infection or limiting the spread of COVID-19. However, other restrictions did pass constitutional muster, including those pertaining to: education; prohibitions against evictions; initiation practices; the closure of night clubs; fitness centres; and the closure of borders (See Regulations 36, 38, 39(2)(d) – (e), and 41). The issue relating to the ban of the sale and trade of tobacco was not addressed in any level of detail, owing to separate court cases pending on that subject.

Conclusion

Acknowledging the separation of powers doctrine, the Court ordered the Minister of Cooperative Governance and Traditional Affairs—vested with the power to implement regulations under the Disaster Management Act—in consultation with other relevant ministers, to take appropriate remedial action, amendment, and review. The order has been suspended for 14 days, leaving the Regulations in place for the moment.

De Beer highlights the delicate balance required in the policymaking process. First, a balance must be struck between the proper exercise of public powers and/or functions within the ambit of the enabling legislation. Second, this should be done in a manner in which fundamental human rights are respected and upheld. Where Government actions do not satisfy the rationality test, their encroachment on and limitation of fundamental human rights (even during a pandemic), will not be justifiable.

In a statement issued on June 4, 2020, Cabinet decided to appeal the De Beer judgment on an urgent basis. The Minister of Cooperative Governance and Traditional Affairs will be joined in this application by the President and the Minister of Health.

For further information, please reach out to Covington’s COVID-19 Task Force at COVID19@cov.com, Robert Kayihura at RKayihura@cov.com, and/or Mosa Mkhize at MMkhize@cov.com.

Register Now: Law and Crisis Management Event with The Honorable Eric Holder, Wednesday June 3rd

Join us tomorrow, June 3, 2020, from 10:00 a.m. – 11:30 a.m. for a webinar featuring The Honorable Eric Holder, 82nd Attorney General of the United States, to discuss the topic of Law and Crisis Management: Working with Lawyers in Business, Government, and Society to Manage the Challenges of COVID-19. You may register for this event at VirtualConferenceAfrica.com.

Drawing on insights from leading lawyers across Africa, this webinar focuses on how the law connects businesses, governments, and societies. Understanding Africa through this lens provides a unique perspective on Africa’s short, medium, and long-term response and strategy. In a time of legal uncertainty, this webinar also explores some of the substantive questions facing legal practitioners, as well as the developmental and social challenges the pandemic presents for African societies.

Mr. Holder will be joined by the following astute individuals on this webinar:

  • Professor David Wilkins, Lester Kissel Professor of Law, Vice Dean for Global Initiatives on the Legal Profession, and Faculty Director, Center on the Legal
  • Profession, Harvard Law School
  • Gerald Abila, Founder and Executive Director BarefootLaw
  • Prof Ruth L. Okediji, Harvard Law School and Co-Director of Berkman Klein Center at Harvard
  • Dr. Myma, Belo-Osagie Co-Founder Udo Udoma Belo-Osagie Michel
  • Sandie Okoro, Senior Vice President and Group General Counsel, World Bank Group
  • Michel Brizoua, Partner, Bilé-Aka, Brizoua-Bi & Associés
  • Thandi Orleyn, Chairperson Legal Resources Trust South Africa
  • Stephen Chege, Chief Corporate Affairs Officer Safaricom
  • Dr. Godfred Penn, General Counsel & Director African Development Bank
  • Prof. Vincent O. Nmehielle, SJD Secretary-General, African Development Bank Group

South Africa Prepares to Ease Lockdown Restrictions

On May 13, 2020 South African President Cyril Ramaphosa announced the government’s intention to ease restrictions imposed to curb the spread of COVID-19. This announcement comes seven weeks after South Africa first announced a national state of disaster in accordance with the Disaster Management Act, 2002 (Act No. 57 of 2002) (the “Act”). This decision to ease restrictions was informed by evidence presented by the National Command Council (“NCC”) which indicated that the early implementation of the nationwide lockdown had successfully limited the spread of COVID-19. The significant strain placed on the South African economy as a result of the nationwide lockdown necessitated a considered approach to systematically resuming commercial activity to uphold the health related gains.

The nationwide lockdown period is governed by a robust Risk Adjusted Strategy; a 5 level system of alerts aimed at defining permissible levels of general movement, travel and economic activity. In his national address on May 13, 2020, President Ramaphosa announced that government is contemplating further easing the lockdown regulations for certain provinces to move from Alert Level 4 to Alert Level 3 by the end of May. We anticipate that over the next few days, government will issue further regulations and/or amendments to existing regulations, that will outline the guidelines and directives that govern the easing of trade and permitted commercial activities, while maintaining appropriate health and safety measures.

An example of a recently published regulation is Government Gazette No. 11113 issued on May 14, 2020 which provides directives and protocols which must be observed by retailers, couriers or delivery services and customers in relation to goods transacted through e-Commerce during Alert Level 4. Until May 14, 2020, all commercial activities have been limited to ‘essential services’ and ‘essential goods’ as defined by Government Gazette No 43258 (the “Regulations”) (e.g. supermarkets, medical facilities and pharmacies etc.). Under the newly published e-Commerce Regulations, all goods may be transacted through e-commerce platforms, except for goods prohibited for sale in terms of regulations 26 and 27 of the Regulations (such as liquor, tobacco, tobacco products, e-cigarettes and related products).

For further information, please reach out to Covington’s COVID-19 Task Force at COVID19@cov.com, Robert Kayihura at RKayihura@cov.com or Mosa Mkhize MMkhize@cov.com.

 

 

It’s Time to Help Africa Fight the Virus

If COVID-19 spreads across Africa, it would not only be a human catastrophe for the continent, but one that threatens the Northern Hemisphere with future outbreaks and further human and economic losses. What is true in the United States, where people in poor and minority neighborhoods are dying in disproportionate numbers, is true for the world as a whole: No one will be safe so long as anyone is at risk.

If the United States, Europe, and others succeed in containing the virus in the coming months, there is no way contagion throughout Africa could be contained there. A second wave rising in Africa would almost surely crash on U.S. shores. In this way, the coronavirus pandemic has laid bare the world’s interdependence; the future safety of every U.S. community therefore depends on the success of every community in Africa and elsewhere.

While giving priority to the fight here at home is essential, the time to help Africa fight the virus is now.

Click here to view the full article co-written by Witney Schneidman as it appeared in Foreign Policy (April 29, 2020).

South Africa’s Economic Response to the Covid-19 Pandemic (Part III)

As part of his ongoing response to the COVID-19, President Ramaphosa announced on April 21 that the South African Government was launching a further R500 billion (approximately $26.3 billion) social and economic stimulus package – the biggest ever once-off stimulus injection in South African history. The President described this giant stimulus as constituting the second phase of the Government’s response, intended to stabilize the economy, address the supply and demand side shocks, and to protect jobs. As he acknowledged, “millions of South Africans in the informal economy are struggling to survive.”

The first phase of the economic response, according to the President, was the declaration of a National State of Disaster, and implementation of the economic support measures we outlined in our two previous articles, while the third phase of the economic support measures will seek to ignite economic growth, including a substantial infrastructure build program, the speedy implementation of structural economic reforms, and the transformation of the South African economy.

Key features of the proposed R500 billion social and economic stimulus package include:

    1. Funding: The stimulus package will reprioritize roughly R130 billion (approximately $6.8 billion) from within the current budget, with the balance to be raised from local and international sources, including the World Bank, the International Monetary Fund (“IMF”), and the New Development Bank;
    2. Budget: Minister of Finance, Tito Mboweni, will table a revised budget – his original budget for the current fiscal year having been tabled on 26th February, 2020. The new budget will prioritize spending against the coronavirus pandemic;
    3. Government’s fight against Covid-19: R20 billion (approximately $1,05 billion) will be fully dedicated to the Government’s fight against the pandemic. This will fund, amongst other things, community screening, testing, and personal protective equipment for health workers;
    4. Social grants: The Government will direct R50 billion (approximately $2.6 billion) towards relieving the plight of those most desperately affected by the pandemic: child-support grant beneficiaries will receive an extra R300 (approximately $15.7) in May and a further R500 (approximately $26.3) per month from June to October. All other grant beneficiaries will get an extra R250 (approximately $13.1) per month for the next six months, whilst individuals who are unemployed and who do not receive any other forms of grants or Unemployment Insurance Fund (UIF) payments will receive R350 (approximately $18.4) per month for the next six months;
    5. Municipalities: Municipalities will receive R20 billion (approximately $1.05 billion) to provide emergency water supplies, increased disinfection of public transport and facilities, and food and shelter for the homeless;
    6. Job protection and creation: R100 billion (approximately $5.2 billion) will be set aside to protect existing jobs, and for the creation of new jobs. To date, the UIF’s special Covid-19 benefit has paid out R1.6 billion (approximately $84 million), assisting over 37,000 companies and 600,000 workers. This funding will also be used to support Small, Medium and Micro-sized Enterprises, spaza shop owners and other informal businesses;
    7. Bank Guarantee Fund: A R200 billion (approximately $10.5 billion) loan guarantee scheme has been announced, designed to help banks and hundreds of thousands of smaller businesses (with an annual turnover of less than R300 million) survive the economic fallout of the coronavirus pandemic. This guarantee fund will enable banks to extend facilities to distressed businesses that they would otherwise be able to lend to; and
    8. Tax relief: President Ramaphosa announced a broad array of tax relief measures, which he claims will provide at least R70 billion (approximately $3.68 billion), either in the form of cash flow relief or direct payments, to individuals and businesses. Included in these relief measures are: (i) a four-month holiday for companies’ skills development levy contributions; (ii) fast-tracking of VAT refunds; (iii) a three-month deferral for filing and payment of carbon taxes; (iv) an increase in the turnover threshold for tax deferrals for businesses to R100 million (approximately $5.2 million) per year; and (v) increasing the portion of PAYE payments that may be deferred to 35%. Additionally, no penalties will be levied on payments if taxpayers are able to show they were disadvantaged by the coronavirus pandemic, while taxpayers who donate to the Solidarity Fund will qualify for a tax rebate of an additional 10%.

 

In addition, the Unites States has recently also stepped up its financial assistance to South Africa, with the United States Agency for International Development making a further R250 million (approximately $13.1 million) available to South Africa to aid its fight against the pandemic, bringing the total value of U.S. commitments to South Africa to R410 million (approximately $21.5 million).

South Africa’s social and economic stimulus package has been largely welcomed by South Africans, although concerns have been raised that the announcement is lacking in detail, such as the specifics of exactly how the package will be funded, and how “implementable” some of the relief measures will actually prove to be. Moreover, the announcement that the Government will seek funding from the World Bank and the IMF is controversial, given that the ruling ANC party and its alliance partners previously rejected the notion of South Africa seeking funding from these institutions.

As at the date of publication of this article, the number of Covid-19 cases in South Africa had increased to 3,635 officially reported cases, and President Cyril Ramaphosa will address the public again on Thursday 23rd April, 2020, when he is expected to announce a risk-adjusted approach to the lockdown, with partial lifting of some of the restrictions possible.

If you are operating a business in South Africa and need advice or guidance on how any of the above-mentioned might relate to you or your organization, please contact Mike McLaren, mmclaren@cov.com, Chloë Taylor, cataylor@cov.com, or Mosa Mkhize, mmkhize@cov.com.

COVID-19: Business Rescue, a Viable Option for South African Companies

As South African businesses are left reeling in the wake of the escalating coronavirus crisis and the imposition of a 35-day lockdown , we look at the implications for South African companies and how those in financial difficulty may find some relief under the Companies Act 71 of 2008 (Companies Act).

On Friday, March 27 2020, South Africans began a 21-day nation-wide Government-imposed lockdown aimed at slowing the coronavirus pandemic sweeping across the nation. This initial lockdown was extended by South African President, Cyril Ramaphosa, on April 9, 2020 for a further period of 14 days.

As consumers are forced to stay home, and with many businesses being forced to keep their doors shut, business revenues and cash flows will plummet, in some cases to zero (see our article on which South African businesses can operate during the nation-wide lockdown). While there has been a very gradual easing of the lockdown restrictions for some businesses during the extension of the lockdown, most businesses remain fully shut.  This stagnation in economic activity will permeate the country as companies wrestle with the reality of laying off workers, potentially defaulting on their payment and contractual obligations, and closing their doors for good.

In addition to navigating the indirect effects of the anticipated global recession, South African companies will need to take into account their already fragile local economic environment.  The recent news that rating agency Moody’s had cut South Africa’s sovereign credit rating to sub-investment grade (with a negative outlook) or “junk” is a further blow to business confidence.  The collapse in consumer and business spending, domestic policy uncertainty, increasing borrowing costs, Rand volatility within a downward trend, and a significant decline in export demand have many companies rethinking their financial viability.  Edcon Holdings, South Africa’s second-largest clothing retailer, which has been in financial difficulty for some time and already undertaken numerous restructurings in an attempt to reestablish its competitiveness in the market, recently announced that it would only have sufficient liquidity to pay salaries and wages in the near-term and would be unable to discharge its payment obligations to other creditors.  This announcement came after the retailer found itself unable to meet its March sales target in the wake of Covid-19’s accelerating spread across South Africa, coupled with an expected drop in debtor’s book collections.

SA Express, the second and smaller of the state-owned airlines which was placed in involuntary business rescue on 6 February 2020, saw its business rescue practitioners launch an urgent application at the Johannesburg High Court on 25 March 2020 in an attempt to have the airline liquidated due to them being of the view that the airline had no reasonable prospect of being rescued. Moreover, the future of SAA, South Africa’s National Airline, which was placed into voluntary business rescue on 5 December, 2019, appears in doubt after the South African Department of Public Enterprises announced over the weekend that the South African Government cannot support SAA’s request for further funding of R10 billion or provide any future funding to sustain the business rescue process.

Similar headlines are unfortunately likely to continue hitting the market in the coming days and weeks.  Numerous other retailers have followed suit in announcing that they would be unable to discharge their rental obligations for at least the period of the lockdown. As recently as last week Wednesday, South Africa’s e-commerce giant Takealot announced that it is likely to take a R350 million revenue hit during the lockdown, leaving the company in distress.

Chapter 6 of the Companies Act allows financially distressed South African companies an opportunity to reorganize and restructure their financial affairs through the business rescue process. The Companies Act considers a company to be financially distressed if, within the immediately ensuing six months: (i) it appears to be reasonably unlikely that the company will be able to pay all of its debts as they fall due and payable; or (ii) it appears to be reasonably likely that the company will become insolvent.

Business rescue proceedings aim to facilitate the rehabilitation of a financially distressed company by providing for, amongst other things: (i) the temporary supervision and management of the company’s affairs, business, and property by a business rescue practitioner; (ii) a temporary moratorium on the rights of claimants against the company or in respect of property in its possession; (iii) the ability for the company to obtain post-commencement financing, which may be secured to the financier by utilizing any asset of the company that is not otherwise encumbered; and (iv) the development and, if approved, implementation of a business rescue plan to restructure its business, debt, property, equity, affairs, and other liabilities.

A company’s board of directors can initiate voluntary business rescue proceedings by resolving that the company is financially distressed and that there appears to be a reasonable prospect of rescuing the company. A company can be placed into involuntary business rescue proceedings by an affected person (shareholders, creditors, employees or registered trade union representatives) making a formal application to court where: (i) the company is not already in voluntary business rescue; (ii) the company is financially distressed; (iii) the company has failed to fulfill a payment obligation under or in terms of a public regulation or contract, with respect to employment related matters; or (iv) it is otherwise just and equitable to do so for similar financial reasons, and there is a reasonable prospect of the company being rescued. Business rescue provides a moratorium on insolvency or legal actions against the company, affording it much needed “breathing space” to reduce its debt burden and deliver the best possible outcomes for business owners, creditors, employees, and shareholders alike.

As the economic shock of the coronavirus pandemic devastates local businesses, companies will need to consider how to best navigate these truly unprecedented times. Business rescue, and the opportunity it affords companies to restructure its financial affairs, may provide a much needed safety net for companies being battered by the prevailing local and global economic storms.

South Africa’s Economic Response to the Covid-19 Pandemic (Part II)

On 6 April, 2020, we published an article outlining South Africa’s initial economic response in support of its already ailing economy against the adverse economic effects of the coronavirus pandemic.  Two weeks have passed since we first published that article, and we think it is prudent to provide this follow-up, outlining the latest developments in South Africa.

The number of Covid-19 cases in South Africa has increased steadily, with, as of midday on April 20, 3,158 officially reported cases. President Cyril Ramaphosa announced as a consequence an extension of the initial 21-day lockdown period, adding a further 14 days until April 30.

With the social and economic effects of the extended lockdown having devastating impact on the South African economy –already in a technical recession before the first case of Covid-19 was reported in the country in early March– President Ramaphosa is reportedly considering a R1 trillion (approximately $53.5 billion) stimulus package. This stimulus packaged was discussed and agreed in principle at a meeting of the National Economic Development and Labour Council (Nedlac) on Friday April 17, and is said to be similar to the $2 trillion financial stimulus package recently announced by the United States Government insofar as it will seek to target those sectors hardest-hit by the lockdown by offering assistance to financially distressed companies.  How a stimulus package of this size would be funded remains to be seen, but the imposition of a one-off wealth tax is apparently being considered.  Such a stimulus package might also include further interventions by the Reserve Bank, possibly additional interest rate cuts or bond-market purchases, to inject additional liquidity into the financial markets.

In addition the proposed R1 trillion (approximately $53.5 billion) stimulus package, the following are some of the additional measures announced by the South African Government to support the economy:

  1. Finance Minister, Tito Mboweni, announced that the National Treasury will look to revise the country’s budget, to take into account the effects of Covid-19, and to ensure reallocation of any unnecessary spending to the Government’s anti-Covid-19 measures, as well as to the financing of growth-enhancing initiatives;
  2. The Prudential Authority – a regulator administered by the Reserve Bank – welcomed the measures South African banks had individually taken to support customers during this period of economic turmoil and uncertainty, and announced a raft of measures to support the banking system, including lowering the liquidity cover ratio – a ratio setting out the liquid assets a bank has to maintain in relation to its anticipated outflows – from 100% to 80%.  It is anticipated that these measures could, in theory, free up approximately R540 billion (approximately $29 billion) in reserves for South African banks to deploy in support of their customers;
  3. The Government and the banking sector are looking at establishing a ‘Funding for Lending Scheme,’ in terms of which the South African Government would provide government guarantees to South African banks, thereby enabling them to make facilities available to distressed businesses they would otherwise not be able to lend to. A similar intervention has been implemented in the United Kingdom;
  4. Reserve Bank Governor, Lesetja Kganyago, less than a month after his previous announcement, further cut the repo rate by 100 basis points, lowering the benchmark lending rate in South Africa to 4.25% – the lowest level since the apartheid era.  In making his announcement, Governor Kganyago noted that the Reserve Bank now expects GDP to contract by 6.1%, compared to the 0.2% contraction announced a few weeks ago;
  5. President Ramaphosa, on proclaiming the lockdown extension, also announced that the National Executive (being the Cabinet and deputy ministers), as well as all provincial premiers, will take an immediate 33% salary cut, which they will contribute to the Solidarity Fund. A number of executives from significant South African businesses have since announced large cuts to their remuneration packages which they will contribute to the Solidarity Fund – which now boasts a balance of R2.2-billion (approximately $117 million) since it launched on 23 March – this is a clear sign that business has rallied behind President Ramaphosa;
  6. The exemption of commercial banks from the provisions of the Competition Act to enable them to develop common debt relief approaches has been extended to the retail property sector, the hotel industry and the healthcare sectors; and
  7. It has been proposed that the Government should temporarily top-up welfare grants as a poverty-relief measure for as long as the pandemic lasts.

The United States has recently also stepped up its financial assistance to South Africa, with the United States Agency for International Development making $8.4 million (approximately R158-million) available to South Africa to aid its fight against COvid-19 pandemic.

Notwithstanding these actions, criticism is being levelled at the Government for the speed at which these economic interventions are being implemented.  While the Government was praised for its speed in implementing measures to control the virus, it is now being alleged that indecision and differences in political ideology are hampering the development and implementation of a comprehensive economic stimulus plan.  At a special cabinet meeting held on Wednesday 15th April, failed to agree on a decisive plan, instead resolving to hold another meeting on Monday, April 20. The outcome of that meeting remains unclear.

Despite this criticism, a R1 trillion stimulus package–an amount nearly equivalent to the government’s total spending of R1.95-trillion for the current fiscal year–would be a significant step forward for a country otherwise facing a deep economic recession.

If you are operating a business in South Africa and need advice or guidance on how any of the above-mentioned provisions relate to you, please contact Mike McLaren, mmclaren@cov.com, Chloë Taylor, cataylor@cov.com, or Mosa Mkhize, mmkhize@cov.com.

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