News update - coffee with michael

2010-11-29T04:10:00.000-08:00

Recently appointed as a director of Venn Nemeth & Hart, Michael Swanepoel is part of our specialized High-Balance Recoveries Team. The work requires an energetic, results-orientated approach … which suits Michael perfectly.

We focus on big commercial debt. This means recovering anything from commercial property rentals, to recovering on loans and abused credit facilities. We are often involved in liquidation and sequestration proceedings, as well as the litigation that flows from insolvency.

You could say that I've got rooi miere (or red ants). I like action. I can't sit still, so I like the urgency of high-balance recoveries. If a commercial tenant is in arrears, then the outstanding amount will be growing with alarming speed. You need to move fast before the tenant causes significant problems for your client. I enjoy pushing hard to get summons issued and then getting in my car to make sure that it is served on the debtor as soon as possible.

I find tangible, positive results very rewarding. In difficult economic times, many of our clients are under financial pressure because their own debtors haven't paid. I like the fact that we can get real relief for our clients by unlocking their debtors. Cash flow is king and never more so than for a business starved by defaulting creditors.

High-balance recoveries is very strategic. I recently dealt with a difficult tenant who had defaulted regularly on the rental for a prime beachfront commercial property. We entered into a settlement agreement setting out the basis on which the arrears would be paid, but the tenant's cheque promptly bounced. We had, however, made the settlement agreement an order of court. When we threatened to ask the court for eviction, we immediately received an electronic funds transfer of the outstanding amount.

We also use every opportunity to fish for information. When a business faces liquidation, the directors or members of the company or close corporation concerned have to attend a compulsory enquiry. We use these enquiries to obtain critical information, including whether or not the insolvent business has unlawfully transferred money or assets to a shareholder or related person. We are currently acting for the liquidators of an insolvent company and are pursuing a director who has fled to the United States. We are in the process of asking the court of the state of Florida to recognize a South African court order liquidating the company and appointing liquidators. This will enable us to institute proceedings for the recovery of property and to conduct an enquiry into the affairs of the liquidated company.

You need to be a good negotiator. A defended eviction, for example, can take up to a year to finalise. It is much better if you can use persuasion to conclude a good settlement agreement. The agreement should provide a clear repayment plan, allow for acceleration of the outstanding debt in the event of default and should include a 'consent to judgement' enabling you to immediately ask the court for an eviction if the debtor defaults on the repayment plan.

An ability to judge people is helpful. I recently dealt with a debtor who claimed that half the equity in his insolvent business was about to be bought by a world-renowned Indian businessman. My suspicions were aroused when he told me that he was phoning from India. I called his landline a moment later to find that he was at his office in Pretoria! The lies continued and he has most recently claimed that he has been in a coma for several days. The company is now in provisional liquidation and the liquidation will hopefully be confirmed in the next few days. Honesty in dealing with creditors is important - one can always make a plan with a debtor who has a real problem and who interacts honestly with your client.

I enjoy golf and squash. They are very different games, but I suppose that that they harness my enjoyment of strategy and action. Golf is all about careful, strategic play. It is a mental game, played against yourself. I like the fact that you can't blame anyone else for a poor performance - you are the one who has the golf club in your hand. Squash, on the other hand, is an opportunity for the explosive exercise. Half an hour on the squash court really gives those rooi miere a work out!

Venn Nemeth and Hart Attorneys

News update - coffee with michael