Frequently Asked Questions

Pre-Insolvency Possibilities:

Voluntary Distribution: If all creditors should agree we can enter into a voluntary distribution with them. You would then tender payment of an agreed amount of money to our offices each month to which we will subtract our distribution fee as set out on the mandate and power of attorney to be signed by yourself, and distribute the remainder of the instalment pro-rata to your creditors in relation to the size of the claims of the various creditors.

Moratorium Of Creditors: One can try and convince all creditors that you are expecting to receive a sum of money from a source that could cover your debts. However, the success of this approach is entirely dependant on the consent and cooperation of the creditors.

Administration Order In The Magistrates’ Court: This option will only partially affect your status, however, one can only use this option if your due debts do not exceed the amount stipulated in the Government Gazette which is at present R50,000.00. The courts will then grant an order to the effect that you will be liable to each creditor pro-rata for a specific amount of money each month.

Sequestration Options:

Voluntary Surrender: This option takes the form of an Ex-Parte Application to the High Court supported by a Founding Affidavit by the Debtor. There are 4 formal requirements that must be complied with for Voluntary Surrender to be granted.

These requirements can be summarised as follows:

Must be factually insolvent (may not have performed an act of insolvency);
Sufficient assets in your free residue (remainder of the estate after preferent creditors have been paid) of the estate to defray all the costs of the sequestration. The minimum amount that may remain is R10,000.00;
The sequestration must be to the advantage of the creditors;
All formalities in terms of Section 4 of the Insolvency Act must be complied with.

Voluntary Surrender has the advantage that no security for the sequestration costs needs be given to the relevant Master of the High Court. Any sale of your property in execution will be stayed in law once the adverts have appeared in the Government Gazette and a local newspaper.

Compulsory Sequestration: This option is initiated by a creditor of your estate. An Applicant for the Compulsory Sequestration of a Debtor’s Estate needs to show that:

That he/she has a claim which entitles him to apply for sequestration.
The debtor is actually insolvent (liabilities exceed his assets, fairly valued OR that the debtor has committed an act of insolvency).
Reason to believe that it will be to the advantage of the creditors that the estate is sequestrated.

Obviously this option is normally initiated by a creditor and not by the debtor and thus the debtor cannot force a creditor to apply for such sequestration. However, there is an application known as a “friendly compulsory sequestration” which entails the same process as mentioned above, except that the debtor, in fact, knows the creditor, has a relationship with the creditor and asks the creditor to apply for a compulsory sequestration. However, it must be disclosed to the court that it is a “friendly compulsory sequestration”.

All of the above avenues have important consequences and obligations and therefore your decision requires careful consideration. The effect of the sequestration options will, however, seriously affect your status and estate and should not be followed without thoroughly thinking things through.

The remedies listed in paragraph 1 are very much dependant on the attitudes of the creditors while the court has the discretion regarding those listed in paragraph 2. The courts will only consider exercising their discretion regarding the latter remedies after the advantage to creditors hurdle has been crossed.

If you pursue either of the insolvency remedies, you have the duty of full disclosure in utmost good faith to the Court and we will need all relevant information in order to properly draft the papers.

We will obviously guide you through the process and explain to you the necessary legal requirements that will need to be fulfilled in order to succeed in an Application for Sequestration.