Die vertrouensverpligtinge van ondernemingsreddingspraktisyns: ’n regsvergelykende studie

English: When the Companies Act 71 of 2008 came into effect it brought about a new era of corporate rescue for South African companies. Chapter 6 of the Act provides for a new corporate rescue scheme, known as business rescue. Business rescue replaces the previous South African rescue model, judicial management, contained in the Companies Act 61 of 1973. The key role player in the rescue scheme is, however, the business rescue practitioner. The practitioner is afforded with extensive powers and rights. He takes over control of the management of the company and the duty to rescue the company rests on his shoulders. It is, however, possible that the purposes of chapter 6 to protect the interests of all stakeholders can be frustrated through the incompetence, partiality and carelessness of the practitioner. The practitioner is placed in a position of confidence with a number of stakeholders including the company, shareholders, employees and creditors of the company. Section 140(3)(b) of the Act states that the practitioner has the responsibilities, duties and 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 and 77. These sections contain the quasi-codified fiduciary duties of directors and therefore make them applicable to the practitioner. The practitioner is therefore a fiduciary. There is, however, uncertainty regarding the legal position of the practitioner as fiduciary. For this reason it was necessary to establish the nature and extent of these duties. This study examined the practitioner’s duty to act with good faith as well as his duty to act with care and skill. In conclusion it is found that the practitioner is in a unique position and that his fiduciary duties are sui generis in nature. He owes his fiduciary duties to all the affected persons according to a ranking. It became clear that the protection of these parties’ interest will involve a careful balancing of interests. The study culminates in a code of conduct for South African business rescue practitioners. The code of conduct could act as a compass when the practitioner is confronted with a difficult ethical decision or dilemma.