The fiduciary duties of the BRP (business rescue practitioner) are defined by legislation and by the many roles the BRP plays in the business rescue proceedings. These duties include acting with the utmost trust, loyalty, good faith and confidence, to the benefit of all stakeholders in the business rescue process. It is accepted that the BRP is held to a standard of conduct and trust higher than that expected from the casual business person.

Section128(1)(d) of the Companies Act provides a definition of the business rescue practitioner: “a person appointed, or two or more persons appointed jointly, in terms of this Chapter to oversee a company during business rescue proceedings …”.

Section 128 also defines a business rescue as: “proceedings to facilitate the rehabilitation of a company that is financially distressed by providing for –

(i) the temporary supervision of the company, and of the management of its affairs, business and property; [and]

(ii) …

(iii) the development and implementation, if approved, of a plan to rescue the company by restructuring its affairs, business, property, debt and other liabilities, and equity in a manner that maximises the likelihood of the company continuing in existence on a solvent basis or, if it is not possible for the company to so continue in existence, results in a better return for the company’s creditors or shareholders than would result from the immediate liquidation of the company.”