Abstract:
This mini-dissertation explores the implications of Lagoon Beach Hotel (Pty)
Limited v Lehane 2016 (3) SA 143 (SCA) for the South African cross-border
insolvency dispensation, as this case deals with the various problems that
arise in cross-border insolvency. As a result of these problems and a certain
amount of uncertainty when it comes to dealing with cross-border insolvency
issues, many investors are reluctant to invest cross-border. This is due to the
fact that multiple countries, each with their own laws concerning cross-border
insolvency, are involved. Thankfully, the United Nations Commission on
International Trade Law has provided a set of guidelines in this regard,
namely the Model Law on Cross-Border Insolvency. Although South Africa
has enacted the Cross-Border Insolvency Act 42 of 2000, and most of the
provisions provided for in the Model law have been included in the legislation,
the Act still remains inoperative.
Throughout this dissertation the Lagoon Beach case will therefore be critically
analysed. The analysis will start off with a discussion of the common law, as it
is currently the legal position in South Africa. Thereafter a detailed analysis
will be conducted of the various orders of court of the Lagoon Beach case and
how the courts differed or agreed in their approach. Finally, the Lagoon Beach
case will be discussed in light of the Act and the issues in the case will be
solved hypothetically by applying the Act to the problems discussed
throughout the dissertation.
