Skip to main content

Are you facing financial difficulty? Find out here how a sequestration can benefit you!

Are you having sleepless nights worrying about how you will be able to make payment to your creditors? Are you avoiding answering your phone for fear of speaking to loan sharks, debt collectors, or maybe even the sheriff?  Not able to concentrate on earning an income or moving forward with your life because of financial restraints? Read this article to find out if sequestration is an option for you.   
Broadly speaking, being “insolvent” means that your liabilities exceed your assets.  Should you find yourself in this unfortunate situation, you can make an application to the high court, with the necessary jurisdiction, for the voluntary surrender of your estate, provided that you meet certain requirements:  You need to have enough realisable assets (or cash) to pay the administration costs in respect of your sequestration and at least 20 cents in the Rand to defray creditors.
If the court is satisfied that:
1.              there are enough funds in your estate to cover the administration costs;
2.              the sequestration will be to the benefit of your creditors;  and
3.              you are indeed insolvent;
the court may grant a sequestration order.  The latter is a formal declaration that a debtor – the Applicant - is insolvent.  
Having been declared insolvent entails that the insolvent’s estate, consisting of assets and liabilities, be placed in the hands of a trustee.  The trustee will then administer the insolvent’s estate by reducing all the assets to cash and by distributing the proceeds amongst the insolvent’s creditors (in order of preference). 
What happens if there are not enough funds to pay the creditors?
Not all your creditors, as listed in your application for voluntary surrender, will necessarily lodge a claim against your (insolvent) estate and consequently, if they do not lodge a claim, they will not be paid by your trustee.  Here it is necessary to differentiate between the different types of creditors.   There are three types of creditors:
1.              Preferential creditors – these are creditors who are entitled to get paid before other creditors. For example, South African Revenue Services;
2.              Secured creditors – these are creditors whose claims are secured by means of a bond, a tacit hypothec, pledge or lien.  They are second in line to get paid by the trustee, after preferential creditors. For example, bondholder.
3.              Concurrent creditors – these are creditors who are not preferential or secured and they stand last in the line of getting paid by the trustee. For example, credit cards, personal loans, etc.
If there is a shortfall in your estate, in other words; not enough funds to pay the administrative costs of your voluntary surrender then, and in that event, the proven concurrent creditors will need to each make a payment towards the insolvent estate in respect of the administration costs.  This may very well be the reason why concurrent creditors will think twice before they lodge a claim against an insolvent estate.
For an in-depth discussion on sequestration contact our office for a consultation.
Written by Talita Erasmus – a practising attorney at Alan José Incorporated.


Comments

Popular posts from this blog

Signing a contract without reading and or understanding it – what are the implications?

This article deals with the written forms of contract, more specifically when one party tries to resile from (or get out of) a contract because he/she/it did not understand the contract’s terms or did not know that he/she/it was signing an actual contract.  In South African law the principle  Caveat Subscriptor  –  signor beware  – applies.  This means that a party who signs a contract consents to be bound by its terms and conditions, irrespective if such party did not read the contract or understand its terms.    The fact that you did not read the contract, did not understand its terms, or did not know what you were signing, is not an excuse which will help you escape the legal consequences of said contract.  I refer to the case of  Smit v Hughes  where it was explained that:  “ If, whatever a man’s real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to t...

The divorce procedure made easy.

  Following our previous article, Understanding the divorce procedure , we would now like to guide you through the steps you need to take to do your own divorce. Please note that this a very basic guide as there are many different permutations with regards to divorces and we are available to assist you at any point with further legal advice.   In order to start your divorce procedure, you will first need to draft a divorce summons. A divorce summons is a formal notification that a divorce is being requested and the terms of the divorce. Various examples of divorce summons can be obtained on the internet or from the courts. The content of the summons is very important and should be carefully thought through.   If there are minor children involved, you will need to complete an Annexure “A” form, which can be obtained on the internet or from the courts. This form needs to be commissioned by a commissioner of oaths and once completed it must be attached to your summons, befor...

What is the accrual system and how is it calculated?

In our previous blog post, “Understanding the Divorce procedure” we discussed that how you are married, whether in community of property, out of community of property without the accrual or out of community of property with the accrual, is an important factor to take into consideration when applying for or going through a divorce. In this blog post, we will be sharing a basic overview of what the accrual system is and how it is calculated.   In basic terms, the accrual refers to the growth in the value of your estate from the date of your marriage until the date of the end of your marriage (whether by divorce or by death of either spouse). It was adopted into our legal system in 1984, by way of the Matrimonial Property Act, and since then every marriage entered into out of community of property is subject to the accrual system – unless it has been expressly excluded in your ante-nuptial contract (ANC).   In this marriage system, spouses share only in the profits that accumulat...