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Insolvency law is the legislation and statutory guidelines by which an insolvent person must act. What it means to be insolvent: A person is insolvent if his/her liabilities, fairly estimated, exceeds his/her assets, fairly valued. It is important to note that there is a difference between actual insolvency and commercial insolvency, the latter refers to an inability to pay debts. A company may be solvent on paper but have a cash flow problem which renders it unable to pay its debts. Insolvency proceedings are used as the ultimate form of execution/debt. A creditor who wishes to enforce payment of his claim after judgment has a number of remedies: • Writ of execution; • Garnishee orders; • Emoluments Attachment Orders; • Order of payment of instalments. The National Credit Act 34 of 2005 contains certain debt relief sections that came into operation on 1 June 2007. It applies to credit agreements as defined in Section 8 of the Act. Where a consumer (natural persons only) is in default, the Act provides for relief by way of debt counselling, alternative dispute resolution, consumer court or an ombud with jurisdiction. Sections 134 and 135 of the Act deals with “formal” Alternative Dispute Resolution (ADR) procedure. Once the consumer has commenced with the ADR approach in terms of Section 134, it can result in the following: 1. Voluntary arrangement – the National Credit Regulator encourages informal negotiations and agreement to assist the consumer; 2. Consent order in terms of Section 135 – an ombud with jurisdiction, a consumer court or an alternative dispute resolution agent assists the parties in resolving the dispute; 3. Rejection Certificate in terms of Section 134(5) – an alternative dispute resolution agent certifies that the process has failed. ___________________________________________________________ Hi, I’m Kailash Pillay, an attorney from the city of Johannesburg. My passion for the law stems from a desire to improve upon the lives of the vulnerable who fall prey to a corrupt system. I studied at the University of Johannesburg where I obtained my Bachelor of Laws degree, the starting point to the long journey of becoming a legal practitioner. This profession has taught me to persevere through the complexities of the law and to continually develop my skills as a legal professional.
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An application to the Magistrate by means of an affidavit by the trustee of the estate, a warrant for the search for certain property or content that is suspected to be concealed.
Notice of motion and accompanying affidavit for the application for compulsory sequestration detailing the reasons for the application and showing that the applicant has an interest in the sequestration.
Notice of motion and supporting affidavit for the application of the rehabilitation of an insolvent after having given the necessary notice to the creditors and settling liabilities due to them with no objections.
Notice of motion and accompanying affidavit for the application by an insolvent for the voluntary surrender detailing the reasons for surrender and the assets and liabilities of the insolvent.
Notice to creditors and interested parties to attend the creditors meeting to discuss the insolvent estate and prove claims against the estate with all details provided for the meeting.
An offer to the trustee of an insolvent estate by the insolvent themselves to be submitted to the creditors of such insolvent estate.
Report to the master and to the creditors of an estate regarding the assets and liabilities of the insolvent.
Requesting reasons for the master refusing the election of a certain trustee for an estate.
Resolution to be submitted at the second creditor's meeting as per the required procedure and law detailing the steps to be taken by the trustee.
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