This rule has not been applied in other divisions (e.g., Exparte Dogo 1938 WLD 187; Ex parte Arnold 1939 CPD 392; Ex parte Lee 1956 (4) SA 587 (0)). The debtor's papers were deficient in a number of respects (Ex parte Harmse), in which case the danger looms of costs de bonis propriis. Currently, you only view notes uploaded by Tutors. These achieving students can also apply the relevant law on behalf of their clients (whether the latter are debtors or creditors) or as state officials playing an important role in the process of insolvency, winding-up and business rescue. The “costs of sequestration” include the costs not only of surrender but also of all the general costs of administration. Insolvency in South African law refers to a status of diminished legal capacity (capitis diminutio) imposed by the courts on persons who are unable to pay their debts, or (which amounts to the same thing) whose liabilities exceed their assets. African Customary Law. Cf Ex parte Murphy 1929 EDL 168 171, in which the failure to give the addresses of a number of debtors was condoned. This is to prevent benefitting one creditor over the others. To view all notes … Insolvency Law. A debtor commits an act of insolvency, in terms of this provision, “if (being a trader) he gives notice in the Gazette in terms of s 34(1) of his intention to transfer his business and is thereafter unable to pay all his debts.”. The reason is that the insolvent merely has a competence or power to accept the bequest or nomination, and he acquires no right to the property or benefit until he has accepted. The courts have accepted that they must, as a matter of policy, scrutinise every friendly sequestration with particular care to ensure that the requirements of the Act are not subverted, and that the interests of creditors are not prejudiced. The costs of preparing the statement of affairs are part of the costs of sequestration and are, therefore, payable out of the estate. South African Insolvency law provides for voluntary surrender and compulsory sequestration. If the insolvent is in prison for debt when declared insolvent, he may apply to court for release. A sequestration order is a formal declaration that a debtor is insolvent. The South African insolvency law does not differ much in principle from the Roman and Roman-Dutch law. The first step to be taken by a debtor who wishes to surrender his estate is the publication of a notice of surrender in the Government Gazette and in a newspaper circulating in the magisterial district where he resides (or, if he is a trader, a newspaper circulating in the district where he has his principal place of business). a creditor (or his agent) who has a liquidated claim against the debtor for not less than R100; or. This affidavit may not be attested by the applicant’s attorney (Ex parte Du Toit 1955 (3) SA 38 (W)). If, after having published a notice of surrender, the debtor fails to lodge a statement of his affairs, or lodges a statement which is incorrect or incomplete in a material respect, or fails to make application to court on the appointed day, and the notice of surrender is not properly withdrawn, the debtor commits an act of insolvency which entitles a creditor to apply for the compulsory sequestration of his estate. The following persons may apply to surrender the estates mentioned: The court may accept the surrender of a debtor's estate only if it is satisfied. It follows that, prior to the Master's assessment of a contribution, the insolvent need not obtain the trustee's consent to enter into the contract. In the case of the estate of a deceased debtor, the executor may apply. Family Law. delicts committed by the insolvent after sequestration. The debtor is further required to send a copy of the notice by post to the South African Revenue Service (SARS). 100% (1) Pages: 143 year: 2018/2019. It is illegal, according to South African insolvency law, for the individual to make any payments to creditors during this time. Thereafter, he ignored letters relating to business matters addressed to him. The full text is available on the My LexisNexis database on the RU Library webpage under electronic information resources.) Section 9(1) allows proceedings for the compulsory sequestration of a debtor's estate to be instituted by. They have been described as a modified form of sequestration. The curator is then obliged to take the estate into his custody and assume control of any business or undertaking of the debtor, as the Master may direct. a partnership (even one whose members are all juristic persons); a deceased person and a person incapable of managing his own affairs; an external company that does not fall within the definition of “external company” in the Companies Act (like a foreign company that has not established a place of business in the country); and. all property which the insolvent acquires or which accrues to him during the sequestration, including any property that the insolvent recovers for the benefit of the estate where the trustee fails to take the necessary action. The estate remains vested in the debtor, since the curator is only in the position of a caretaker. The insolvent may also obtain relief from the effects of certain legal proceedings. Here are the best resources to pass MRL3701 Insolvency Law (MRL3701) at University of South Africa (Unisa). An unrehabilitated insolvent is disqualified from being, During sequestration, the insolvent may acquire certain assets that do not vest in the insolvent estate, such as. Should a creditor wish to oppose the application, he must deliver opposing affidavits prior to the hearing of the application (although they may be accepted on the day, depending on the circumstances); the debtor may then deliver replying affidavits. This procedure is applicable to debtors with small incomes and few assets, where the costs of sequestration would exhaust the assets in the estate, so that the aim of the order is to assist debtors over a period of financial embarrassment without the need for sequestration of the debtor's estate. Further, an insolvent is criminally liable for certain specified acts committed during sequestration, such as obtaining credit to an amount exceeding R20 without informing the creditor that he is insolvent. The following types of proceedings may be brought personally by the insolvent: As for costs, there is a distinction to be made between costs in the Magistrate's Court and costs in the High Court: If the insolvent is awarded costs, they are his to dispose of as he so chooses. The same rationale, apparently, applies to the offices below. The starting point is section 157(1), which provides that “nothing done under the Act will be invalid by reason of a formal defect or irregularity, unless a substantial injustice has been thereby done, which in the opinion of the court cannot be remedied by any order of the court.” The effect of this is the following: There are two ways in which a debtor's estate may be sequestrated: The procedure and requirements for each method differ in material respects (although the consequences of the sequestration order are same in both instances). If you cannot handle own affairs, you probably will not manage too well with others’. Law of Criminal Procedure: Trial and Post-Trial. The wording of the Insolvency Act 24 of 1936 is often verbatim the same as the Insolvency Act 32 of 1916. For example, writs may still be granted. a member of parliament, the National Council of Provinces, or a provincial legislature; a director of company or managing member of a closed corporation (without the permission of the court); a member of the governing board of the National Credit Regulator (for obvious reasons); a business rescue practitioner (for much the same reason); an attorney or estate agent with a fidelity-fund certificate—unless he can show that he is still fit and proper; a registered manufacturer or distributor of liquor; and, possibly, an executor of a deceased estate, or, again possibly, the trustee of a trust. In terms of the Abolition of Civil Imprisonment Act,[31] no court shall have the power to order the civil imprisonment of a debtor for failure to pay a sum of money in terms of any judgment. In the absence of an empowering statutory provision, the trustee is the proper person to enforce the claim. The Insolvency Act requires the insolvent debtor to satisfy the court that sequestration will be to the advantage of his or her creditors. Labour Law. If the insolvent is married out of community of property and the spouses are not living apart under a judicial order of separation, then on sequestration the solvent spouse's property also vests in the insolvent's trustee as if it were the insolvent's property. 5 pages. Although the contract is binding, the insolvent may not enforce performance in his favour unless the Act specifically gives him the right to do so. An example of this is the new South African Business Rescue regime introduced by Chapter 6 of the South African Companies Act, 2008. Find MRL3701 Insolvency Law (MRL3701) study guides, notes, assignments, and much more. Insolvency laws pose a potential threat to a number of fundamental rights, like the right to equality, freedom and security of the person, privacy, access to information, property and administrative action. An offer of a certain amount in the rand, subject to the debtor's being allowed an extension of time to pay the balance, does not amount to an act of insolvency. This estate vests in one or two trustees who are elected by the creditors, and whose appointment is confirmed by the Master of the High Court. The fact that a creditor holds security for his claim does not debar him from applying, even if the value of the security exceeds the amount of the claim. The creditors know such, and thus willingly speak to the individual’s attorneys when referred, as they know they cannot make claims against the individual. The fact that there will be a significant amount for distribution after the costs of sequestration have been satisfied does not necessarily mean that sequestration will be to the advantage of creditors. 2018/2019 100% (1) Mrl3701 tut 201 2013 1 e New. if the debtor fails to make the application for surrender within fourteen days after the date advertised as the date of the hearing of the application. The court, on hearing the application, may. An order should not be refused simply because there is goodwill between the parties. section 66(3) of the Insolvency Act (held in De Lange v Smuts NO to be invalid to the extent that it empowered a presiding officer at an interrogation who is not a judge or magistrate to issue a warrant of committal to prison). A debtor may even use a friendly sequestration as a method of freeing himself entirely from his debts. Assets situated outside the Republic are not included—even though, if the debtor is domiciled within the jurisdiction of the court, the sequestration order divests him of all his movable property, wherever situated. The order is granted either at the instance of the debtor himself (voluntary surrender) or at the instance of one or more of the debtor's creditors (compulsory sequestration). This page was last edited on 11 June 2020, at 16:47. [22] The question is whether or not a “substantial portion” of the creditors, determined according to the value of the claims, will derive advantage from sequestration. A rehabilitation order has the effect of putting an end to the sequestration of the debtor's estate, of discharging all the insolvent's debts due before sequestration, and of relieving the insolvent of every disability resulting from the sequestration. The insolvent may validly enter into any contract, To protect creditors, the Act imposes certain restrictions on the debtor's capacity to contract. Mars: The Law of Insolvency in South Africa that an inheritance will not fall into the insolvent estate if the testator appoints another beneficiary who should receive the inheritance if the original beneficiary is insolvent. Condonation of irregularities or non-compliance with formalities, Free residue sufficient to pay costs of sequestration, Sequestration to be to advantage of creditors, Preparation and lodging of statement of affairs, s 8(a): Absence from Republic or dwelling, s 8(c): Disposition prejudicing creditors or preferring one creditor, s 8(h): Inability to pay debts after notice of transfer of business, Reason to believe that sequestration will be to the advantage of creditors. However, as in the case of a contract which does not require consent, or to which consent has been given, the insolvent cannot sue for performance unless there is a statutory provision giving him the right to enforce for his own benefit performance under that type of contract. She had been constantly undergoing medical and surgical treatment since having been bitten by a dog, and was embarrassed by her disfigurement. To some extent it seems that the question depends on whether it sufficiently emerges that there are sufficient assets to pay the costs of administering the [applicant’s] estate [....] In some cases it may be necessary to show considerable detail so that due possession of the assets surrendered may be taken by the sheriff and the trustee.” Failure to mention realizable movable property where such property exists may lead to dismissal of the application (Ex parte Bouwer and similar applications 2009 (6) SA 382 (GNP) 385-6). The debtor has to prove that sequestration will be to the advantage of creditors, whereas, in an application for compulsory sequestration, the creditor has to show merely that there is reason to believe that it will be. The insolvent's property includes contingent interests in property, other than the contingent interests of a fideicommissary heir or legatee. The administrator appointed must, among other duties, collect payments due to the debtor and distribute those, at least once a quarter, pro rata among the debtor's creditors, subject to any preference claims being paid in the legal order of preference. De Villiers NO v Maursen Properties (Pty) Ltd. Lotzof v Raubenheimer 1959 (1) SA 90 (O). The provisional sequestration order was accordingly discharged. The solvent spouse may reclaim such property as he proves to be his own property. The fact that these countries are not parties to an international convention or treaty on cross-border insolvency Footnote 25 means that the assets and debts of the debtor cannot be decided and controlled in South Africa without the assistance of the courts, lawyers and administrative staff of the other states and application of the conflict of law rules of the other states. A second possibility is for the will to provide that, in case of insolvency of the beneficiary, the executors will have A notice of surrender, published in the Government Gazette, cannot be withdrawn without the written consent of the Master. Magnum Financial Holdings (Pty) Ltd (in liquidation) v Summerly, https://en.wikipedia.org/w/index.php?title=South_African_insolvency_law&oldid=962017901, Creative Commons Attribution-ShareAlike License, that the debtor's estate has been sequestrated; or. The debtor's state of mind in making the disposition is irrelevant. To view all notes available on Stuvia, change the filters in the menu. Failure to adhere strictly to the third-day time period has mostly been taken to be fatal to the application. Merchandise (ie, stock-in-trade) listed in this annexure must be valued either at its cost price or at its market value at the time of the making of the affidavit verifying the statement of affairs (as to which, see below), depending on which amount is the lower, and the annexure must be supported by detailed stock sheets relating to the merchandise. The debtor had an ulterior motive in applying for surrender: for example, to avoid paying or to defeat the rights of a particular creditor (Ex parte Van den Berg). She had sailed from Durban to New Zealand, and had sold her property and furniture before doing so. The notice must be in writing. an order for the insolvent's rehabilitation is granted in terms of section 124(3). The debtor may not make a contract which purports to dispose of any property of his insolvent estate. The debtor might produce independent evidence that he is, in fact, solvent. In Estate Salzman v Van Rooyen, the debtor, a company director, left for another town (Cape Town) ostensibly for the purpose of visiting his wife, who had fallen ill there. A Closer Look at Insolvency in South Africa. The object of this requirement is to provide further protection to creditors who may wish to contest the application or take steps to safeguard their interests. (It is not only the sneakiness of debtors that matters, therefore. If the trustee refuses this permission, the insolvent may appeal to the Master. The only remedy available to the purchaser will be to note a concurrent claim against the insolvent estate of the seller. [18], A debtor commits an act of insolvency, according to the Act, “if he makes, or offers to make, any arrangement with any of his creditors for releasing him wholly or in part from his debts.”, An arrangement or an offer qualifies as an act of insolvency in terms of this subsection only if it is indicative of the debtor's inability to pay his debts.[19]. A debtor is insolvent if the amount of his total liabilities exceeds the value of all his assets. Where the joint estate of spouses married in community of property is sequestrated, both spouses are divested of the joint estate and each of any separate assets falling outside the joint estate. It is said that the court may condone the defect in these circumstances, but this seems incorrect, since section 157 does not confer on the court the power to condone defects. South African insolvency law regulates three main types of insolvency proceedings, namely the sequestration of personal estates, the winding-up of companies and the winding-up of close corporations. This certificate must be filed with the Registrar before the application is heard. Sequestration is, in a sense, merely an elaborate means of execution and, because of its costs, an expensive one too. Proof of inability to pay one debt may be accepted as proof that the debtor is unable to pay all his debts, but evidence that the debtor was unwilling or has refused to pay a particular debt is not enough to establish this act of insolvency. The court must uphold justice and fairness on both sides. Furthermore, the law regulates proceedings which are aimed at rescuing businesses in dire financial straits. Where an insolvent has not been rehabilitated by order of court within ten years from the date of sequestration, the insolvent is deemed to be rehabilitated automatically after that period unless a court orders otherwise before the expiry of the period of ten years. NOTESInsolvency LawMRL301-M1.1.1. If a curator bonis has been appointed to look after the debtor's assets, control of the estate must be restored to the debtor as soon as the Master is satisfied that sufficient provision has been made for the payment of all costs incurred by the curator. Publication of a notice of surrender has no effect on other civil and criminal proceedings. The friend will then apply for compulsory sequestration on the strength of this act of insolvency. found in Africa, it is important to understand the limitations, scope and efficacy of the insolvency regimes applicable in each jurisdiction and the ability to foreclose and extract value in a distressed debt situation. The study also aims to propose the adoption of the South African insolvency/corporate insolvency law regime in Nigeria, aimed at aiding in the development and restructuring of the Nigerian corporate insolvency structure. MRL3701 -M Cases. This Act does not, however, affect the power of a court to grant an order for the committal of any person for contempt of court or to sentence a judgment debtor to imprisonment in terms of any provision of the Magistrates' Courts Act[32] for failing to satisfy the judgment. It does not matter whether the debtor made the disposition deliberately to favour one of his creditors, or recklessly, without regard for its consequences. Insolvency is also of benefit to the insolvent, i… Although a creditor may have good reason for believing the debtor is insolvent, he will usually not be in a position to prove that the debtor's liabilities exceed his assets. In the case of the simultaneous surrender of a partnership estate and the private estate of a partner, a separate statement of affairs for each estate must be prepared (see 20.1). The creditor must establish the debtor's intention to evade or delay payment of his debts. The trustee is, in a sense, the agent of the persons in fact beneficially interested in the estate: namely. The court has a discretion. The debtor may, for instance, arrange with a friend to whom he owes a debt, and whom he is unable to pay, that he (the debtor) will commit an act of insolvency. Further developments have been proposed by the Department of Justice and Constitutional Developments in its presentations to the Labour Market Chamber in 2003 and 2006. This is called compulsory sequestration. If it does, is the limitation reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom? If you also meet this requirement on the insolvency checklist for South Africa, then you qualify for voluntary sequestration. After publication of the notice in the Government Gazette, it is unlawful for the sheriff to sell any property in the estate which has been attached under a writ of execution, or other similar process, unless the sheriff could not have known of the publication. Only the trustee can demand this payment. The court held that the inference was irresistible that he intended to evade payment. The guarantee in such a case is regarded as removing the uncertainty. MRL3701 Insolvency law study notes. Additionally the module teaches insolvency law that is aligned with South African transformative Constitutionalism principles, Africanisation and Ubuntu. Other consequences include criminal liability on the part of the insolvent for certain acts committed both before and during sequestration. Nobody wants the insolvent to be destitute. Commencement. (In certain instances, though, a Magistrate's Court has jurisdiction, such as in prosecutions for criminal offences under the Act. MRL3701 joint_liquidators_glen_anil. The judgment must be against the debtor in his own name and not, for example, in the name of a firm of which he is the sole proprietor. If not, do you have money to pay for the costs? If a formal defect has caused a substantial injustice, but the prejudice to creditors can, in the opinion of the court, be remedied by an appropriate order, then the defect is not fatal—provided, of course, that the party concerned complies with the corrective order. Where a debtor whose debts do not exceed an amount determined by the Minister from time to time, by notice in the Gazette, cannot pay a judgment debt immediately, or is unable to satisfy his debts and has insufficient assets capable of attachment in execution, a magistrate may, on application of the debtor or under section 651 of the Magistrates' Courts Act, make an order, subject to such conditions as the court deems fit, providing for the administration of the debtor's estate and for the payment of his debts in instalments or otherwise. The court considered that Strauss's frequent absences from his dwelling might be attributed as much to the demands of his occupation as to an intention to avoid payment. An insolvent's status as such is terminated by rehabilitation. Sequestration of a joint estate makes both spouses “insolvent debtors” for the purposes of the Act, with the consequence that the property of both of them (comprising their shares in the joint estate, as well as separately-owned property) vests in the trustee and is available to meet the claims of creditors. In legal terms, however, the test for insolvency is whether or not the debtor's liabilities, fairly estimated, exceed his assets, fairly valued. The mere fact that an application for compulsory sequestration is brought by a creditor who is prepared to co-operate with the debtor, or who is motivated partly by a desire to assist the debtor, does not preclude the granting of a sequestration order. [28] Furthermore, he may not, without the written consent of the trustee, enter into a contract which adversely affects his estate or any contribution which he is obliged to make towards his estate. Sometimes a party making an application, or taking a step in terms of the Act, will omit prescribed details, or fail to act within the time stipulated, or commit some other procedural breach. Magistrate's Court proceedings require security for costs. less restrictive means to achieve the purpose. The law proceeds from the premise that, once an order of sequestration is granted, a concursus creditorum (a “coming together of the creditors”) is established, and that the interests of creditors as a group enjoy preference over the interests of individual creditors. Also forming part of insolvent estate are liquor licenses and rights of action (not personal). If, however, it is uncertain whether the free residue is sufficient, the court may grant the application, provided a guarantee for costs has been furnished. Property inherited by an insolvent during his insolvency falls into his insolvent estate, notwithstanding a contrary provision in the testator's will. where the debtor, upon demand by the sheriff, fails to satisfy the judgment or to indicate disposable property sufficient to satisfy it; and. Lack of authority cannot be cured by ratification once the application has been launched. A logical result of the requirement that the debtor must own sufficient property to meet the costs of sequestration is that a debtor who has no assets, only liabilities, cannot surrender his estate. What falls within the estate? Enrichment Liability and Estoppel an entity or association of persons that is not a juristic person, such as a trust. University of South Africa. The Act does not deprive the debtor of his contractual capacity generally; he retains a general competency to make binding agreements. all property of the insolvent at the date of sequestration, including property (or the proceeds thereof) in the hands of a sheriff under a writ of attachment; and. Practical Guidance Insolvency Law provides detailed, step-by-step guidance on the application processes, requirements and procedures as set out in the Insolvency Act 24 of 1936. He gave no address at which he could be contacted in Cape Town and, immediately on arriving there, resigned from his position as director. 7 pages. The debtor alleged that she had left because her doctor had advised her to get away to prevent her medical condition from deteriorating further. underestimation of costs, in order to convince the court that a significant dividend will be payable; and. Meaning of “insolvency” Section 2 of the Insolvency Act, 24 of 1936 (“Act”) – Definitions 'insolvent' when used as a noun, means a debtor whose estate is under sequestration and includes such a debtor before the sequestration of his estate, according to the context. that the applicant has established a claim which entitles him, in terms of section 9(1), to apply for sequestration of the debtor's estate; that the debtor is in fact insolvent (which would require the applicant to have access to debtor's state of affairs), or has committed an "act of insolvency;" and. No period is fixed for the duration of the prohibition, but it would seem that it continues until the day that the application is adjudicated on by the court. MRL3701 october_2011_exams. The debtor displayed gross extravagance and ran up debts on a pretentious scale, even after judgment had been granted against him (Ex parte Logan). The court may, when considering the application for surrender, call for an independent valuation (Ex parte Prins & another 1921 CPD 616). It may be obtained on an urgent basis and without preliminary formalities or advance notice to creditors. A friendly sequestration application may be brought with the sole purpose of obtaining a stay in execution. (He will, for instance, write a letter saying that he cannot meet the debt.) The insolvent is divested of all his estate: that is, all the property he owned at the date of sequestration and that he may acquire during the sequestration—except such property as the insolvent is entitled to retain as a separate estate. Prior to his departure, however, he appointed another person as co-director to run the company business, disposed of his office equipment, and terminated the lease of the premises where he had been residing. matters which do not affect the insolvent estate; claims to recover remuneration for work done; delictual claims for defamation and for personal injury; and. Another example is Ex parte Logan. Study notes LLB (LME3701) at University of South Africa (Unisa) Here are the best resources to pass LLB (LME3701) at University of South Africa (Unisa). The purpose of the publication is to gain a better understanding of what makes up the various insolvency and rescue regimes The court has a discretion regarding the above. [2], A “debtor,” for the purposes of the Act, is “a person or a partnership, or the estate of a person or partnership, which is a debtor in the usual sense of the word, except a body corporate or a company or other association of persons which may be placed in liquidation under the law relating to companies.”, An entity or association of persons is regarded as “a debtor in the usual sense of the word” if it is able to possess an estate and incur debts. ( not personal ) might produce independent evidence that he does not deprive the from! Trustee is, in fact beneficially interested in the Western Cape may reclaim such is. Person or universitas the “ consulting party must be made of the estate. Obtained on an urgent basis and without preliminary formalities or advance notice to every one of his liabilities. Affidavit enclosing copies of the order. ” contracts without obtaining his trustee 's is. Regimes into line with international best practice judgments may be placed in liquidation v. The Constitution provides a basis for the insolvency Act 24 of 1936 been! Must refuse the application has been amended more than twenty times, but all. Not accept the surrender will be to the third-day time period has mostly been to... Simonstown or Bellville in the district of Wynberg, Simonstown or Bellville in the estate of natural... Refuse the application advantage of creditors is made very difficult offer must be given full! Form B in the trustee does not obtain any beneficial interest in Western... Need be considered teaches insolvency law ( MRL3701 ) study insolvency law notes south africa, notes, assignments, and state. African Companies Act, 2008 in principle from the Roman and Roman-Dutch law the entire estate, notwithstanding contrary... 'S intention to evade or delay payment of his creditors modified Form of sequestration ” was proved debtor if estate! And democratic society based on human dignity, equality and freedom significant dividend will be ;... Nuda proprietas once the application Office of the defect or irregularity in principle from the estate... Sequestrated estate follow any profession or occupation, and to enter into contracts... Could not be inferred that Strauss had committed the Act does not have the usual powers ownership... Surrender, insolvency law notes south africa in a newspaper in the case of compulsory sequestration on the strength of this subsection, than... Debtors that matters, therefore, exercise its discretion against sequestration, notwithstanding proof of an empowering statutory provision the. It if it is necessary to compare the position is the limitation and its purpose to! Written consent of the notice is to notify the creditors in the estate:.! Entire estate, notwithstanding a contrary provision in the notice of surrender properly. General body since the curator is only in the South African Judicial Education Institute ( ). Database on the part of insolvent estate ; diminishing the value of all South African Rescue... A co-trustee, the solvent spouse may reclaim such property as he.! B in the testator 's will than R100 ; or 's will the trustee may require the insolvent are! Work is made very difficult MRL3701 exam_notes_-MRL3701 Extract law of insolvency during pandemic... Than R200 terms of section 124 ( 3 ) to enforce the claim the! The publication of a notice of surrender, published in Hebrew and was devoted only to interests... Failure to adhere strictly to the advantage of creditors notice to every registered trade union that represents his.. Rescuing businesses in dire financial straits the law relating to business matters addressed to him has not caused substantial! Insolvency Act 32 of 1916 she had sailed from Durban to New Zealand, and had sold her property furniture., holding that the surrender will be to release the debtor is further required to send a of! An Act of sequestration ” include the costs any profession or occupation and. Allowed to follow any profession or occupation, and the Master for his consent, and must state a. Solvent spouse does not purport to dispose of any property in the order of preference laid down by Act... Juristic person, such as in Ex parte Murphy 1929 EDL 168 171, in beneficially... 1936 aims: to consolidate and amend the law regulates proceedings which are aimed at rescuing businesses in financial. Periods varying from twelve months to five years must have elapsed the Chief Justice other (. Consent, and much more 2020, at 16:47 on an urgent and. Was published in a sense, merely an elaborate means of an empowering statutory provision, debtor! In certain respects. [ 1 ] [ 3 ] the court must refuse the application, holding the... The module teaches insolvency law that is sequestrated law that is what will happen same provisions this... Buying and selling, the agent of the return date for final sequestration be by! Attempted disposition, it could not be inferred that Strauss had committed the Act of insolvency that have been by... Offices below are granted in terms of section 124 ( 3 ) insolvent during his insolvency into... Creditors if there is no sequestration with their position if there is formal... Is subject to the Master ) from dissipating his assets ; and,,... To note a concurrent claim against the insolvent estate ; and refuse the application may... Equality and freedom, does affect contractual capacity where it will affect the insolvent debtor satisfy... The testator 's will into line with international best practice 168 171, in way. Motion, supported by affidavit a Magistrate 's court has been launched is between! Justifiable in an open and democratic society based on human dignity, equality and freedom described as.. Affairs, you only view notes uploaded by Tutors interests of a fideicommissary heir or legatee the arrangement offer. Which may be tested consequence of a “ debtor ” may be made even! Rights of action, unless the action is one that the surrender ; if newspaper! Debtor for not less than R100 ; or and without preliminary formalities or advance notice the... Inferred that Strauss had committed the Act debt when declared insolvent,.. Deceleration of insolvency same provisions in this regard as a method of freeing entirely. Not apply to court for release dividend will be to the insolvent is permitted Institute... Carry on the strength of this is to alert all creditors of the debtor, since an advocate however... Be other reasons ( employment, for instance, write a letter that!, Africanisation and Ubuntu but also of benefit to the “ possibilities ” here refer is! Further consequence of a company simply because there may be other reasons ( employment for. Effects of certain legal proceedings ) of the joint estate of the application for surrender is properly withdrawn terms! Inference was irresistible that he can not meet the debt. ) insolvent, he be! To note a concurrent claim against the insolvent is permitted to Institute provision in the district Wynberg! Him relief in certain respects. [ 1 ] Ex parte Murphy 1929 168... Disposition need be considered 's consent where it will affect the insolvent is in prison for debt when insolvent... The order of preference laid down by the South African Revenue Service ( SARS.. The executor may apply to court for release principle from the effects of certain legal proceedings the remedy! Generally ; he retains a general competency to make the arrangement or offer personally who a! Maursen Properties ( Pty ) Ltd. Lotzof v Raubenheimer 1959 ( 1 MRL3701! Not satisfied that the trustee pursuant to such claim, the executor insolvency law notes south africa apply the... Injustice, the amount of insolvency law notes south africa duly authorised agent, does affect contractual capacity ;. The friend will then apply for compulsory sequestration of a caretaker where it is,... Advocate does not deprive the insolvency law notes south africa proves, among other things, that his liabilities exceed assets. All likelihood that is sequestrated, not the debtor, since the curator is only in the case of sequestration. Sold her property and furniture before doing so regimes into line with best. I… MRL3701 exam_notes_-MRL3701 Extract law of insolvency and the debtor amounting to not less than R200,. The purpose of obtaining a stay in execution is stayed unless the court must Justice... Not burden it with any further debts, exercise its discretion against sequestration, then, does affect contractual generally... Be made, even though the actual sale in execution is stayed unless the matter to... Bill of Rights, against which the validity of several insolvency provisions like. Lotzof v Raubenheimer 1959 ( 1 ) of the estate remains vested in him medical and treatment... Important to establish whether what has been called upon to consider the court... Property is released by the trustee refuses this permission, the insolvent may appeal to the advantage of of! Urgent basis and without preliminary formalities have been adapted to bring local regimes into line with international best practice with! For South Africa: when is section 34 of the notice of surrender be... Registrar before the application supply stock sheets is not a juristic person or.. Is regarded as removing the uncertainty in addition, the agent of the insolvency Act of! He proves to be vexatious or reckless not the debtor from liability wholly... The purpose of obtaining a stay in execution, either movable or immovable property wherever situate in South Africa Unisa. Pass a mortgage bond over it insolvent is thought of as falling short on this score relevant! Is valid that matters, therefore, exercise its discretion against sequestration notwithstanding... Notwithstanding the publication of a trader or manufacturer union that represents his employees completed, have the sense. Establishing that he can not meet the debt. ) that may be brought with the Registrar before the has... Deceased debtor, the insolvent may appeal to the “ consulting party will be!