Letters to the editor – July 2020

July 1st, 2020
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PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

 

Business rescue: Learning opportunities for young practitioners

‘Business rescue’ is a term that has been on the minds of the South African public recently with companies, such as Comair Limited and Edcon applying for business rescue. I could not help but notice that the term appears to be synonymous with ‘liquidation’, however, it is not the same concept. It would seem that the term ‘business rescue’ is the politically correct way of saying ‘liquidation’. It may take time but the public needs to be educated on the ‘rescue’ part of business rescue.

The public are not the only ones who require education pertaining to business rescue, but professionals as well. To be more specific, young legal practitioners – who are looking for business opportunities – would be ideal apprentices for any business rescue practitioner tasked to rescue a company.

I believe the art of business rescue, is just that, an art. Considering the restructuring of the business, as well as stakeholder relations and balancing employee rights, the practice of business rescue is an exciting learning ground. This is where young legal practitioners can be exposed to various elements of business, learn how things can go wrong in business, as well as understanding the requirements and more often than not the demands of creditors.

Many businesses will close shop due to COVID-19 and most businesses will not be big brands, which would make headlines. However, these will be companies, which may need to restructure, sell or retrench employees and legal expertise will be required. I want to link this call as an opportunity where business rescue practitioners can demonstrate to young legal practitioners the charm and intricacies of the commercial world, even if on a voluntary basis. This could be the stage where business rescue practitioners could afford young legal practitioners to be in the forefront of assisting businesses.

Prior to the pandemic, young legal practitioners found entering the legal profession challenging. Senior legal practitioners have also been known to criticise the educational background of these young legal practitioners. This new era has demanded that we rethink what is normal. This is an opportune time for young legal practitioners to shadow, get their hands dirty and learn from senior business rescue practitioners. There is an added advantage for a student who understands business when representing a commercial client. I believe it would be an incredible boost if legal practitioners could provide students and young legal practitioners with the opportunity to shadow them when they assist businesses in not only business rescue but also professional rescue.

Mapule Pule BCom LLB (Wits) is a legal consultant in Cape Town.

  • See p 9 and 10.

 

Redefining the right to parental care

Article 7 of the United Nations Convention on the Rights of the Child (the convention) declares that a child must have ‘as far as possible, the right to know and be cared for by his or her parents’.

What is missing from the convention, is the definition for the term ‘parent’. Who does the convention consider a ‘parent’ for the purpose of art 7: A genetic/biological/natural parent, a gestational parent, an intended parent, an adoptive parent? The use of the plural ‘parents’ indicates that the article is referring to the genetic parents, as the assumption is that there are more than one parent. Surely, this cannot have been the intention of the article, but rather an oversight in its drafting.

It would be unfair discrimination to the child’s rights to be cared for by genetic parents, regardless of the child’s relationship with the genetic parents.

In order to rectify this problematic article, I would suggest two measures, namely:

  • The first is to amend art 7 to the following: ‘be cared for by their parent or parents (whichever is applicable)’. This wording acknowledges a one parent family structure. I use the term ‘one parent’ instead of ‘single parent’. The latter has associations with the absence of a romantic partner, or relationship status, rather than being relative to the child.
  • The second is to include a definition of ‘parent’ in relation to the context of the convention, as is usually the case in legislation.

I would suggest the following:

  • Any individual who is completely responsible for the child – whether jointly or singly – it must be emphasised that responsibility is not conferred on an individual who has undertaken activities at the request of another. A parent should have had to make sacrifices for the child. A sacrifice is defined as ‘giving something up with no gain for oneself’.

This approach would be in keeping with the best interests of the child. Namely, it is in the child’s best interests to be cared for by a parent, or parents, who takes responsibility for the child, rather than  a parent, or parents, by genetics alone.

Louise Scrazzolo BTech Marketing (Unisa) is situated in Durban.

 

This article was first published in De Rebus in 2020 (July) DR 4.