Our Finance team is recognised as one of the leading finance practices in South Africa.
The team provides the highest quality legal, transactional advice and services to a broad spectrum of clients, including corporate borrowers, commercial banks, investment banks, other financial institutions, funds, state-owned entities and governments.
The team’s practice focuses both on intricate domestic banking and finance deals as well as complex cross-border transactions. Such varied focus ensures that its lawyers possess both global and local perspectives. From a multi-jurisdictional asset-financing and currency-hedging transaction to a more straightforward domestic lending transaction, our lawyers are committed to prioritising that transaction and ensuring it is concluded successfully.
Our Finance team regularly advises on asset financing, leveraged financing and syndicated lending, and team members have significant experience in the issuance of preference shares and subordinated debt.
Within our Finance team, we have a Tradeand Commodities team, with a particular focus on agricultural commodities.
“Bowman Gilfillan has an impressive record on some of Africa’s ground-breaking projects, both for banks and sponsors.” LEGAL 500 - 2009
Bowman Gilfillan is ranked in band 1 for Project Finance by Chambers & Partners 2009 and has won several awards. The firm operates within one of the most globally dynamic markets, offering a gateway into the African continent.
The Bowman Gilfillan Project Finance and Infrastructure team specialises in providing high-quality, relevant and cost-effective legal services for major infrastructure and other projects in sub-Saharan Africa. The team offers in-depth knowledge and understanding of the sub-Saharan Africa environment and a substantial skills base, having been involved in several of Africa’s ground-breaking project finance transactions, including, for example, the Gautrain Rapid-Rail Link project, where they advised the Lenders to the project. The Project Finance and Infrastructure team advises domestic and international corporations, banks and financial institutions, state-owned enterprises and government departments in major projects.
The Project Finance team currently comprises three directors and four associates, with the capability to conclude transactions governed by either South African or English law.
The Project Finance and Infrastructure team track record of clear and concise legal advice, financial negotiation and structuring expertise offers clients the necessary expertise to successfully conclude negotiations on complex projects.
The Project Finance and Infrastructure team has relevant and extensive experience having acted for both public and private sector entities in different infrastructure project financings and other finance transactions. In particular, we advise on:
Our Debt Capital Markets team has experience in issues of all types – from commercial paper to Tier II, convertibles, high-yield debt and medium-term note programmes, in both domestic and foreign markets. We regularly act for issuers (corporates and parastatals), arrangers, dealers and rating agencies. Our team is recognised for its particular expertise in domestic medium-term note programmes and inward listings. Our team members have been members of the Listings Technical Advisory Committee of The Bond Exchange of South African Limited (“BESA”) and following the merger of BESA with JSE Limited (“JSE”) on 1 July 2009, and have subsequently been appointed to the JSE Listing Advisory Committee.
Recent transactions include the update of the Mobile Telephone Networks Holdings (Pty) Limited ZAR10 Billion Domestic medium- term Note Programme and the issuance of Notes thereunder and the establishment of the African Bank Limited USD$1 Billion European Medium-term Note Programme.
Our team members have acted for clients such as: FirstRand Bank Limited, The Standard Bank of South Africa Limited, Absa Bank Limited, Nedbank Limited (Nedbank Capital), Investec Bank Limited, African Bank Limited, Deutsche Bank AG, Johannesburg Branch, Merrill Lynch, Calyon, JP Morgan, Export and Import Bank of United States, Goldman Sachs, BNP Paribas, African Development Bank, Eskom Limited, Transnet Limited, Airports Company of South Africa, Denel (Pty) Ltd, City of Johannesburg, City of Cape Town, Mercedes Benz (Pty) Limited, Barloworld Limited and Bidvestco Limited.
We have a strong Derivatives team, which, for a number of years, has advised international and domestic financial institutions on all aspects of ISDA and ISMA agreements as they relate to South Africa. The Derivatives team has been successfully involved in making representations to various industry bodies on behalf of financial institutions for the amendment of South African insolvency law insofar as it relates to post-insolvency set off and closeout netting. In addition, our team has a wealth of experience with complex structured products.
Our Securitisation team has the requisite experience and expertise in advising and assisting in all aspects ofsecuritisations, including conduits, mortgage bond and instalment card programmes and issues of notes there under. Members of our Securitisation team have assisted arrangers and dealers, including rating agencies, in advising on and/or reviewing securitisation transactions for OntheCards, ABACUS, Freestone, SA Home Loans, etc.
Our Islamic Finance team has advised various banks, insurance companies, asset managers and other entities on the structuring of Islamic law compliant financial products, including murabahah (sale and resale – used for funding structures, especially trade finance and home loan structures), musharakah (participation structures – used for investment structures and some of the more advanced home loan structures), takaful (insurance structures) and collective investment scheme structures (involving a form of musharakah). The focus of this work has been providing advice on the South African regulatory implications for these structures, the implementation of these structures in the local context, the detailed workings of products based on these structures and supervisory structures.
Liquidations are no longer just about companies that cannot pay their debts. Liquidation has become a sophisticated tool of commercial strategising and restructuring, and the need for advice will increase with the introduction of the Business Rescue Dispensation. Our Insolvency, bankruptcy and Restructuring team comprises six partners and several associates who dedicate most or a significant part of their time to liquidations, insolvency (bankruptcy) and restructuring-related matters.
The Bankruptcy, Insolvency and Debt Restructuring team covers all aspects of liquidations and insolvency, both corporate and personal, and ranging from applications to liquidate companies (whether listed, public or private) both in South Africa and abroad, sequestrations and the voluntary surrender of an individual’s estate, advising shareholders on the voluntary winding up of companies, compositions, cross-border insolvency, insolvency-related litigation matters, judicial management, offers of compromise, schemes of arrangement, proof of claims, through to the implications of insolvency on commercial transactions and industry. The team also advises on the forthcoming Business Rescue dispensation in the proposed major revision of the South African Companies Act.
Areas of specialisation include:
We have extensive litigation experience and can advise clients on the most expedient method of corporate recovery, such as by utilising the mechanism of a liquidation or sequestration application. In particular, we are able to offer focused advice to financial institutions, and other creditors on the advantages to be obtained by utilising the winding-up procedure as an alternative to instituting action in the event of default. We also advise clients regarding the efficacy and ranking of any securities that they or other parties hold and any steps which should be taken to improve their position.
We are able to advise clients on the various implications of schemes of arrangement and offers of compromise, both from the perspective of a creditor faced with an offer of compromise and from the perspective of a client wishing to utilise the mechanism of a scheme of arrangement to acquire or restructure a business. We are also able to advise on the implications of such schemes of arrangement regarding the workforce, on existing contracts and in respect of the possible tax consequences of any proposed schemes.
Too often, parties to a commercial transaction do not give sufficient consideration to the consequences of one of the parties being liquidated or sequestrated during the course of the contract. We have the expertise to advise on and to deal with all implications that insolvency may have for a contract or proposed transaction. This includes advising on whether a contract itself may be set aside as an impeachable transaction, whether or not certain clauses in a contract may be enforceable, and the efficacy and enforceability of specific security arrangements in the event of the liquidation or sequestration of one of the parties. We also advise industry-specific clients such as long-term life insurers, banks and investment schemes, financial services companies, professional indemnity insurers, parastatals and the like on the impact of insolvency on specific aspects of their contracts, governing legislation and business. We also have expertise in the insolvency implications of structured finance and related transactions (local and cross border) and those utilising ISDA and related master agreements.
We have conducted numerous investigations on behalf of creditors and liquidators to assess and advise on the validity of claims submitted by creditors, the possibility of proceedings against directors and others personally, the setting aside of undue preferences and other impeachable transactions. Our team has dealt with some of the major corporate collapses, involving companies both in South Africa and off-shore. We have the expertise in-house to be able to undertake forensic investigations, and to prepare and run enquiry proceedings where witnesses testify under oath. This is an effective mechanism to be used with a view to establishing claims which will ultimately lead to a recovery of assets or funds for the benefit of creditors. We also have considerable expertise in advising on the ranking of security and preferences, and possible challenges to security and preferences claimed by creditors.
Our Insolvency and Restructuring team advises foreign multi-nationals who wish to wind-up a local South African subsidiary as part of a group restructuring. We advise on the necessary corporate actions that need to take place to wind-up the local subsidiary voluntarily, in both solvent and insolvent circumstances. Foreign shareholders may appoint their local directors to the board of directors of a South African subsidiary, and this has implications of personal liability, upon which we are able to offer detailed advice. We are also able to advise on the circumstances when a deregistration of the local subsidiary may be considered as an alternative.
All too often, companies experiencing cash flow or solvency constraints view consulting with an insolvency practitioneras a remedy of last resort, the final steps to lay the company to rest. However, if the warning signs are appreciated early enough, steps can be taken to restructure the company’s operations, to recapitalise the company and, if necessary, refinance its liabilities, so as to avoid the looming insolvency. However, undertaking such an exercise while a company is staring down the barrel of technical or actual insolvency, requires skilful handling of issues such as whether or not the directors or shareholders could be accused of trading recklessly within the meaning of section 424 of the Companies Act, or whether the restructuring could constitute a voidable preference or impeachable transaction as contemplated in the Insolvency Act.
The Bankruptcy, Insolvency and Debt Restructuring team works hand in hand with other practice areas such as Banking and Finance and Tax, in order to give the client complete and comprehensive advice. The team prides itself on being at the forefront of new developments and trends within the insolvency common law, as well as relevant legislation. Members of the team take an active interest in commenting on amendments to the insolvency legislationand new legislation, such as the proposed Business Rescue dispensation which will have a material impact oninsolvency law in South Africa. Members of the team are members of and serve on the International Board of the International Association of Restructuring, Insolvency and Bankruptcy Professionals (INSOL), are members and councillors of the Association of Insolvency Practitioners of South Africa (AIPSA), and are also members of the International Bar Association. The team also takes an active interest in training both its junior professionals as well as clients on general and topical insolvency issues and would be happy to tailor-make a series of lectures pertaining to a client’s specific needs. For example, the team designed and lectured a course on insolvency law for the second year students at CIDA City Campus University.
Our Banking Regulatory and Financial Services team regularly advises a broad range of clients on all aspects of South African regulatory work – including advising domestic and foreign banks on South African banking law, advising on all aspects of financial services in South Africa and providing specialist advice on structured products, derivatives and the development of Islamic investment products. Our team is recognised in the South African market for its exchange control expertise. Our Investment Management team advises on the establishment of collective investment schemes, hedge funds and other structured funds, drafting and negotiating investment management and advisory agreements and advising on custodial arrangements on the local exchanges.
Our Tax team, which consists of seven experienced partners and their assistants, provides high quality transactional tax advice to local and international financial institutions and corporates. Our Tax team works closely with the Banking and Finance practice to provide efficient tax solutions for our clients.
Our Tax team offers a wide range of services to clients all of which are provided by tax partners who specialise in the particular field. Examples of the type of services that we provide include:
Clients which the Tax and Banking and Finance teams have assisted recently include Goldman Sachs, Morgan Stanley, Macquarie, Ethos, Trilantic and Standard Bank.
The Dispute Resolution team has considerable experience in dealing with contentious issues arising from transactions in the Banking and Finance sector. The team has acted for numerous local and offshore corporates and financial institutions. The team’s experience includes:
Our aviation team provides a full range of aviation services and has an appreciation and understanding of the aviation industry, based on a proven track record of involvement in major aviation transactions. Our team has experience in all types of aviation-related work, whether in the context of financing aircraft for financiers and airlines, sale and purchase agreements, financial and operating leases, wet and dry leases and structured permanent financing transactions.
Transactions in which members of our team have been involved include acting as South African counsel to Airbus in connection with the acquisition (sale and leasing) of new aircraft by SAA; counsel to Bombadier in relation to SA law issues relating to sales of aircraft into South Africa; representing the financiers of a number of the new Airbus aircraft and Boeing 737-800 acquired by SAA; and acting as counsel to the financiers of aircraft for Air Namibia, Comair, 1Time Airlines and SA Express Airways. Relevant experience includes:
