The 2008 Companies Act 71 of 2008 introduced a new business rescue regime into South
African company law, bringing it into line with trends in developed countries, particularly
the United States. Indeed, it appears that the United States Chapter 11 model was
followed in this process, introducing the business rescue concept as a legal transplant.
Corporate law is well suited to legislative borrowing, but there are important caveats
to bear in mind when doing so. In particular: the context and legal culture of the
country of origin may differ from those of the destination country. South Africa's
commercial environment is different from that of the United States, problematising
a transplant of Chapter 11's concepts. Post-commencement finance will be used as a
micro-study of this broader phenomenon, and this topic will be investigated with comparative
reference to the position in the United States. It will be argued that an essential
difference between the two procedures is the lack of legislatively mandated court
oversight in South Africa. This impacts on the interests of creditors, as well as
on the availability of fresh finance. This results in problems in the implementation
of the post-commencement finance provisions, which threaten the viability of this
particular legal transplant.