With many South African businesses considering or undergoing business rescue due to tough economic times – especially during and in the wake of COVID-19 – UKZN’s Law graduates are playing a role to assist those in need by contributing knowledge for business rescue statutory regimes and labour relations processes.
An example is Dr Simphiwe Phungula’s PhD research study supervised by Professor Robert Williams titled: The Evolution of an Effective Business Rescue Statutory Regime in South Africa 1926 – 2021.
It is a critical study of the evolution of the statutory regime for so-called “business rescue” in South Africa, approached from the angle of historical influences, judicial contributions and legislative developments in South Africa from the Companies Act of 1926 to the present day.
‘The thesis discusses whether the current business rescue provisions of the Companies Act 71 of 2008 are achieving their policy and commercial objectives while identifying issues of current concern. It also pinpoints residual weaknesses in the legislation and unresolved issues in case law, making recommendations about how to address deficiencies and uncertainties,’ said Phungula.
Having started his academic career at UKZN’s School of Law which inspired his PhD journey, Phungula aims to use this qualification as a stepping stone towards a professorship.
‘This PhD is going to help me reach that goal,’ he said. ‘It has already started to enhance my career because I am now a senior lecturer at the School of Law’s Department of Commercial Law at the University of Cape Town (UCT). I have also published articles based on my PhD research and believe that getting the qualification as a Black man will improve my intellectual status given the fact there are so few Black doctoral graduates in South Africa.’
Another example of knowledge contribution is research by Master of Laws in Labour Studies graduates Ms Nqobile Nkosi and Master of Laws in Business Law Ms Lusanda Mthembu – both supervised by Dr Darren Subramanien.
Nkosi investigated procedural fairness in large-scale retrenchments during business rescue proceedings while Mthembu delved into a South African perspective of business rescue abuse.
Nkosi’s research questioned whether business rescue practitioners should first publish the rescue plan before issuing the S189 (3) notice of the Labour Relations Act 66 of 1995.
‘I actually thought of my topic before I applied to do a master’s degree. I was listening to the news on the radio when a discussion came on about SAA’s business rescue proceedings and retrenchment issues. The debate piqued my interest and I decided to explore the rights and obligations of employers and employees resulting from pieces of legislation that govern these processes,’ said Nkosi.
She added that COVID-19 had impacted many South African businesses adversely leading to some plummeting into business rescue proceedings and retrenchments. Hence, as an Industrial Relations specialist for a manufacturing company, expanding literature to existing knowledge is important for her. ‘The research will help business rescue practitioners understand what is expected of them should they want to retrench as part of the business rescue process,’ said Nkosi. ‘Having a good understanding of labour law is important in my role – the master’s has made me more knowledgeable, enabling me to achieve career growth within the labour law field.’
Mthembu’s research was titled: A South African Perspective of Business Rescue Abuse: Protecting the Sanctity of the Business Rescue Process Without Losing Sight of its Purpose.
Words: Thandiwe Jumo
Photograph: Abhi Indrarajan