| (1) |
To the extent that any remuneration, reimbursement for expenses or other amount of money relating to employment becomes due and payable by a company to an employee during the company’s business rescue proceedings, but is not paid to the employee— |
| (a) |
the money is regarded to be post-commencement financing; and |
| (b) |
will be paid in the order of preference set out in subsection (3)(a). |
| (1A) |
To the extent that any amounts due to the landlord, subject to a contract by the company which is placed in business rescue proceedings, are not paid to the landlord during business rescue proceedings, in respect of and not exceeding the aggregate for all public utility services, such as, the company’s share of rates and taxes, electricity, water, sanitation and sewer charges paid by the landlord to third parties during the business rescue period referred to in this section, is regarded as post-commencement financing and will be paid as contemplated in subsection (1). |
[Section 135(1A) inserted by section 17(a) of the Companies Amendment Act 16 of 2024, Notice No 5082, GG50991, dated 30 July 2024 – effective 27 December 2024 per Notice 238, GG51837 dated 27 December 2024]
| (2) |
During its business rescue proceedings, the company may obtain financing other than as contemplated is subsection (1), and any such financing— |
| (a) |
may be secured to the lender by utilising any asset of the company to the extent that it is not otherwise encumbered; and |
| (b) |
will be paid in the order of preference set out in subsection (3)(b). |
| (3) |
After payment of the practitioner’s remuneration and expenses referred to in section 143, post-commencement financing, and other claims arising out of the costs of the business rescue proceedings, all claims contemplated— |
| (a) |
in subsection (1) will be treated equally, but will have preference over— |
| (i) |
all claims contemplated in subsection (2), irrespective of whether or not they are secured; and |
| (ii) |
all unsecured claims against the company, |
in subsection (1A) will rank below the claims contemplated in subsection (1), but ahead of all the secured and unsecured claims against the company;
[Section 135(3)(a) substituted by section 17(b) of the Companies Amendment Act 16 of 2024, Notice No 5082, GG50991, dated 30 July 2024 – effective 27 December 2024 per Notice 238, GG51837 dated 27 December 2024]
| (b) |
in subsection (2) will have preference in the order in which they were incurred over all unsecured claims against the company. |
| (4) |
If business rescue proceedings are superseded by a liquidation order, the preference conferred in terms of this section will remain in force, except to the extent of any claims arising out of the costs of liquidation. |
Electricity Regulation Act, 2006
