An individual can declare themselves insolvent, or bankrupt, and file for sequestration if their debt has become too great and unmanageable and their liabilities exceed his or her assets.
Sequestration is defined as the surrender of an individual’s estate to the High Court under the governance of the Insolvency Act.
Compulsory and voluntary sequestration
Sequestration can either be executed voluntarily or compulsory. The procedure and requirements for each method differ in material respects (although the consequences of the sequestration order are the same in both instances):
- Compulsory sequestration: Debtors who cannot pay off debts leads to creditors applying to have the debtor’s estate sequestrated.
- Voluntary sequestration: Debtors who willingly apply to the High Court for sequestration. The National Credit Act 34 of 2005 (NCA) along with the Insolvency Act has determined the exact process to be followed for voluntary sequestration in South Africa.
The process of sequestration
All movable and immovable property of the debtor before and after the sequestration, fall within his insolvent estate and is available for distribution. Upon the sequestration of an insolvent, his estate is handed over to the Master of the High Court (the Master) who appoints a trustee for the insolvent estate.
Frequently asked questions about sequestration:
Can I be employed as the director of a company when I am sequestrated?
No, an insolvent is disqualified from practicing certain professions or careers. An insolvent may not, amongst others:
- be a director of a company;
- partake in the management of a close corporation of which he is a member;
- hold a Fidelity Fund Certificate in accordance with the provisions of the Estate Agency Affairs Act;
- be registered as a manufacturer or distributor of liquor;
- act as a trustee of a trust under certain circumstances and may be removed as trustee by the Master;
- be a member of the National Assembly of Parliament;
- be a member of the National Council of Provinces;
- be a member of a provincial legislature; or
- be a board member of the National Credit Regulator.
How will my insolvency affect my spouse?
A sequestration order can also have an effect on the debtor’s spouse. Section 21 of the Insolvency Act provides that the separate assets of both spouses may vest in the Master and later the trustee when either spouse is placed under sequestration.
If there is an existing marriage in community of property, there is in principal only one joint estate. Both spouses will therefore receive the status of an insolvent and the joint estate is sequestrated.
If a marriage out of community (with or without accrual) exists, Section 21 places the burden of proof on the solvent spouse that all goods in his or her estate, is indeed his or her property, and therefore excluded from the debtor’s estate.
When does my insolvency come to an end?
Insolvency comes to an end when the insolvent becomes rehabilitated, which means that he is released from his pre-sequestration debts. The insolvent is therefore provided the opportunity of a new start.
Our experienced Insolvency Law team can assist with all matters related to your business including liquidation, sequestration, rehabilitation and business rescue.
For legal advice pertaining to Insolvency Law
The articles on these web pages are provided for general information purposes only. Whilst care has been taken to ensure accuracy, the content provided is not intended to stand alone as legal advice. Always consult a suitably qualified attorney on any specific legal problem or matter.