Study Unit 2 & 3 - Voluntary Surrender Flashcards
(80 cards)
Who may apply for Voluntary Surrender of an estate of a natural person?
The debtor / his agent expressly authorized to do so may apply for Voluntary Surrender of an estate of a natural person.
Who may apply for Voluntary Surrender of an estate of a deceased?
The executor of a deceased estate may apply for Voluntary Surrender.
Who may apply for Voluntary Surrender of an estate of a debtor incapable of managing his owner affairs?
The party entrusted with administering the estate (curator bonis) of the debtor incapable of managing his owner affairs may apply for Voluntary Surrender.
Who may apply for Voluntary Surrender of a partnership estate?
All the members of the partnership (except partners en commandite) residing in South Africa or their agent may apply for Voluntary Surrender of a partnership in terms of Section 3(2) of the Act.
Who may apply for Voluntary Surrender of a joint estate of spouses married in community of property?
Both spouses may apply for the Voluntary Surrender of their joint estate when married in community of property.
What is the 2 (two) exceptions with regards to the Voluntary Surrender of a partnership?
- Special partnerships are repealed and can thus be ignored;
- Partners en commandite (not liable to creditors for partnership debts or co-partners for any losses) only have to contribute to the partnership, thus need not be a party to an application.
What are the requirements for the Voluntary Surrender of an estate?
Requirements of Voluntary Surrender in terms of Section 6(1) of the Act:
- All prescribed formalities must be adhered to;
- Debtor’s estate is insolvent;
- Debtor owns realizable property of sufficient value to pay all costs of sequestration which will be payable out of the free residue of his estate;
- Sequestration will be advantage for creditors
When is a debtor insolvent?
A debtor is insolvent if his liabilities exceeds the value of his assets.
What is the test for insolvency?
The test for insolvency is whether it is established that * the debtor is without funds to pay his debt in full; and
* it is improbable that the assets will be enough for this purpose.
What does the cost of sequestration include?
The cost of sequestration includes:
- Cost of surrender;
- General cost of administration in terms of Section 97 of the Act.
What is “free residue”?
“Free residue” in terms of Section 2 of the Act:
Portion of the estate that’s not subject to any right of preference by reason of:
* special mortgage;
* legal hypothec;
* pledge;
* right of retention.
Can a debtor with no assets Voluntary Surrender his estate?
A debtor with no assets and only liabilities can not surrender his estate, even against a guarantee by the Master for costs of sequestration. Such an estate can be compulsory sequestrated.
On who does the onus lie to prove that there is an advantage to the creditors with Voluntary surrender?
The debtor must prove that there will be an advantage to the creditor. The onus is more strenuous in voluntary surrender.
How did the court resolve the issue in Ex parte Henning where the respondent opposed the application for voluntary surrender on the ground that the application did not comply with the requirements of Section 6(1) because the applicant’s assets did not cover the costs of the sequestration?
The court decided that even if the sequestration costs had to be available at the time of the application, the applicant’s assets would probably fetch R1030 and would therefore cover the sequestration costs which the parties had agreed would run to about R1000.
Which test did the court lie down in Ex parte Henning to be the proper one to be applied with regards to the advantage to creditors?
The court held that the test was not to compare the respondent’s position at the time of immediate voluntary surrender of the applicant’s estate with the respondent’s position if the monthly debt payments were continued for nine years.
The question was merely whether the court papers showed whether voluntary surrender would be to the advantage of all the creditors.
How did the court dispose of the argument that the applicant was approaching the court to avoid paying the respondent’s claim in the Ex parte Henning case?
The respondent argued that the applicant was probably bringing the application not to benefit the creditors, but only to avoid paying the claim in favor of the respondent. The court decided that, on the facts, this argument lacked substance.
If the applicant had wished to avoid paying the claim, it would have suited him and his spouse for her to stop working and sit back without paying anything, so that his creditors could sequestrate his estate.
What is the basic difference between voluntary surrender and compulsory sequestration?
With Voluntary surrender, the debtor himself applies for the sequestration of his estate.
With Compulsory sequestration, a creditor applies for the sequestration of the debtor’s estate.
Where a debtor’s wife is making payments towards his debt, should a court dismiss the application for voluntary surrender because it will be more to the advantage of the creditors if his wife continue helping to pay his debts?
This question relates to the decision of the court in Ex parte Henning.
In the Henning case the court decided that this factor is too vague / uncertain to take into account in evaluating whether sequestration will be to the advantage of the creditors.
The court will therefor not dismiss the application for voluntary surrender only because the creditors will be in a better position if the debtor’s wife continues to assist him in paying his debts.
What are the preliminary formalities for voluntary surrender?
In terms of Section 4 of the Act the preliminary formalities for voluntary surrender are:
- Notice of intention to surrender
- Notice to creditors and other parties
- Preparation and lodging of statement of affairs
Where must the Notice of intention for voluntary surrender be published?
The notice of intention for voluntary surrender must be published in the Government Gazette and; newspaper circulating the magisterial district where the debtor resides, or where the trader has a principle place of business.
Copies of the Government Gazette and newspaper / clippings must be filed at court or attached to affidavit and filed at court.
Why does the debtor need to give notice of his voluntary surrender?
The notice of surrender serves as notice alerting the creditors of the intended application if they want to oppose it.
In which format must the notice of voluntary surrender be?
The Notice of voluntary surrender must be in the format as per Form A, First Schedule of the Act
What must the notice of voluntary surrender contain?
The notice of voluntary surrender must contain:
- Full names, address and occupation of the debtor (debtor’s personal details);
- Date when and particular division of High Court which application for acceptance of surrender will be made (Court details);
- When and where the debtor’s statement of affairs will lie for inspection (Details of the statement of affairs).
State what time limits you should bear in mind when calculating the date when the application for voluntary surrender will be heard.
Publication of the notice must be at least 14 days before date of hearing but not more than 30 days before hearing.