Abstract

This case note examines the treatment of post-commencement creditors in business rescue proceedings in South Africa, following the Supreme Court of Appeal ruling in Mashwayi Projects v Wescoal and Others [2025] 2 All SA 57 (SCA). Business rescue, regulated by Chapter 6 of the Companies Act 71 of 2008, aims to rehabilitate financially distressed companies. Attempts at rescuing the company must, in terms of section 7(k) of the Companies Act, also consider the interests of other stakeholders such as creditors. The main issue in Mashwayi was whether post-commencement creditors have voting rights in relation to a proposed business rescue plan in terms of section 152(2) of the Companies Act. Pre-commencement creditors argued for their exclusion, citing the absence of explicit legislative reference to post-commencement creditors. The Supreme Court of Appeal rejected this interpretation, holding that the term ‘creditor’ bears its ordinary meaning — any person to whom a debt is owed — and that the Companies Act does not distinguish between pre- and post-commencement creditors. This article aligns with the court’s view and asserts that equal recognition of creditors not only fosters confidence in the post-commencement credit market but also reinforces the principle of equitable stakeholder treatment.