- Government
Gazette 14988
-
STATE
PRESIDENT'S
OFFICE No.
1289
-
20
July
1993
-
- It
is hereby
notified that
the
State
President has
assented
to the
following Act
which is
hereby
published for
general
information:-
-
- NO.
122 OF
1993:
INSOLVENCY
AMENDMENT
ACT, 1993
-
- GENERAL
EXPLANATORY
NOTE:
-
- Words
in bold
type
indicate omissions
from
existing
enactments.
Words in
italics
indicate
insertions
in existing
enactments.
-
- ACT
-
- To
amend
the
Insolvency
Act,
1936, so
as to
further
regulate the
particulars
to be
furnished in
an application
for sequestration;
to provide
for further
notices
to officers
charged
with
the
registration
of title
to immovable
property and
for the
registration
of such
notices;
to regulate
the expiration
of certain
caveats;
to place
obligations
on a
trustee
with
regard to
the
transmission
of particulars
in respect
of the
insolvent and
his spouse
to certain
officers;
to
authorize
a trustee,
with
the
consent
of the
Master
of the
Supreme
Court, to
cause
a caveat
to be
registered;
to further
regulate
the registration
of transactions
in respect
of immovable
property after
the
expiry
of caveats;
to
provide for
the recovery
of the
value
of immovable
property
disposed
of unlawfully;
and to
amplify
the particulars
to be
furnished in
a statement
of affairs;
to amend
the
Deeds
Registries
Act, 1937,
so as
to authorize
the
Registrar
of Deeds
to destroy
-
records
relating to
a caveat
which has
expired;
to amend
the
Matrimonial
-
Property
Act,
1984, so
as to
further
regulate
an application
for the
sequestration
of a
joint
estate;
and to
provide for
matters
connected
therewith.
-
- (Afrikaans
text
signed by
the State
President.)
(Assented
to 9
July 1993.)
-
BE
IT ENACTED
by the
State
President
and the
Parliament
of the
Republic
of South
Africa, as
follows:-
-
- Amendment
of section
9 of
Act 24
of 1936,
as amended
by section
6 of
Act 16
-
- of
1943
and
section
2 of
Act 99
of 1965
-
- 1.
Section
9 of
the Insolvency
Act, 1936
(hereinafter
referred to
as the principal
Act), is
hereby
amended
by the
substitution
for subsection
(3) of
the
following subsection:
-
- "(3)
(a) Such
a petition
shall set
forth,
subject to
the
-
provisions
of paragraph
(c), contain
the
following
information,
namely-
-
- (i)
the
full
names
and date
of
birth of
the
debtor
and, if
an identity
number
has been
assigned to
him, his
identity
number;
-
- (ii)
the
marital
status
of the
debtor
and, if
he is
married, the
full names
and date
of
birth of
his
spouse
and, if
an
-
identity
number
has been
assigned to
his spouse,
the
identity
number of
such spouse;
-
- (iii)
the
amount,
cause
and nature
of the
claim in
question
-
shall
state
-
- (iv)
whether
the
claim is
or is
not
secured and,
if it
is, the
nature and
value
of the
security;
and
shall
set forth
-
- (v)
the debtor's
act of
insolvency
upon which
the
petition
is based
or otherwise
allege
that
the
debtor
is in
fact insolvent.
-
- (b)
The
facts stated
in the
petition
shall
be confirmed
by
-
affidavit
and the
petition
shall
be
accompanied
by a
certificate
of the
Master
given not
more
than
ten
days
before
the date
of such
petition that
sufficient
security
has
been
given
for the
payment
of all
fees
and charges
necessary
for the
prosecution
of all
sequestration
proceedings
and of
all costs
of administering
the
estate
until
a trustee
has
been
appointed,
or if
no trustee
is appointed,
of all
fees and
charges
necessary
for
the discharge
of the
estate
from
sequestration.
-
- (c)
The
particulars
contemplated
in paragraph
(a)(i) and
(ii) shall
also
be set
out in
the heading
to
the
petition,
and if
the creditor
is unable
to set
out
all such
particulars
he shall
state the
reason why
he
is unable
to do
so.
-
- (d)
In issuing
a
sequestration
order
the
registrar
shall
reflect
any
of the
said
particulars
that
appear
in
the
heading
to the
petition
on such
order.".
-
- Amendment
of section
17 of
Act 24
of 1936,
as
amended
by section
10 of
Act
-
16
of 1943
and section
1 of
Act 57
of 1951
-
- 2.
Section
17 of
the principal
Act is
hereby amended-
-
(a)
by the
substitution
for subsection
(2) of
the following
subsection:
"(2)
Every
officer
who has
received
an order
transmitted
to him
in
-
terms
of subsection
(1),
or a
certificate
and
a copy
of
an order
transmitted
to him
in
terms
of section
18A,
shall register
-
it
each
such
order,
certificate
or copy
and note
thereon
-
the
day
and hour
when
it was
received
in his
office."; and
-
(b)
by the
substitution
for subsection
(3) of
the following
subsection:
"(3)
(a) Upon
the
receipt
by any
officer referred
to in
subparagraph
-
(ii)
of
paragraph
(b)
of
subsection
(1)
of a
sequestration
order,
or
-
of
a certificate
and a
copy of
an order
referred to
in
section 18A,
he
shall,
if he
has
not yet
entered
such a
caveat,
enter a
caveat
against
the transfer
of all
immovable
property
or the
cancellation
-
or
cession
of any
bond
registered in
the
name
of or
belonging
to the
-
insolvent
or to
his
or her
spouse,
and if
the
sequestration
order
or the
certificate
referred
to in section
18A contains
the name
of the
spouse
of the
insolvent,
he shall
in like
manner
enter a
caveat in
respect
of such
spouse.
-
- (b)
A caveat
contemplated
in this
subsection,
whether it
was
entered
before
or after
the
commencement
of
the
Insolvency
Amendment
Act,
-
1993,
shall expire
ten years
after
the date
of
the
sequestration
-
order
in question,
or six
months
after the
commencement
of the
said
-
Act,
whichever
date is
the
later.".
-
- Insertion
of sections
18A
and 18B
in Act
24 of
1936
-
- 3.
The following
sections
are hereby
inserted
in the
principal
Act
after
section
18:
-
- "Trustee
to furnish
particulars
of insolvent
-
- 18A.
Any person
appointed
as provisional
trustee after
the
-
commencement
of
the
Insolvency
Amendment
Act, 1993,
or if
no provisional
trustee has
been
appointed,
or if
the
provisional
trustee has
failed
to
-
perform
the
duties
mentioned
below,
a trustee
appointed
after the
said
commencement
shall
as soon
as possible
after his
appointment
determine
whether the
particulars
referred to
in section
9(3)(a)(i)
and (ii)
are correctly
reflected
in the
sequestration
order, and
if any
of
such
particulars
are not
so reflected
or are
incorrectly
reflected
he shall
forthwith take
all reasonable
steps
to obtain
the correct
particulars
and shall
transmit a
certificate
containing
such
particulars,
a copy
of the
sequestration
order and
of
his
appointment
to every
officer
charged with
-
- the
registration
of title
to any
immovable
property
in
the
Republic
and to
the Master.
-
- Trustee
may
cause caveat
to be
entered
-
- 18B.
(1) A
trustee
may,
before
or
after the
rehabilitation
of
an insolvent,
with the
written
consent
of the
Master,
by notice
to the
officer
charged
with the
registration
of
title to
immovable
property
in the
-
Republic,
in respect
of immovable
property
or a
bond
registered
in the
name
-
of
the
insolvent
or of
his spouse
contemplated
in
section
21(13),
cause
a caveat
to be
entered
against the
transfer of
the
immovable
property or
the
cancellation
or cession
of
the
bond referred
to
in the
notice.
-
- (2)
The
notice
referred
to in
subsection
(1)
shall
be
accompanied
by
-
the
written
consent
of
the
Master
contemplated
in that
subsection
and shall
identify
sufficiently
the person
in respect
of
whom
and the
property or
-
bond
in
respect
of
which
the caveat
is
to
be entered
so as
to enable
the
-
officer
charged
with
the
registration
to enter
the
caveat
as
contemplated
in the
said
subsection.
-
- (3)
The caveat
shall
remain
in force
until
the
date
indicated
by the
-
Master
in his
consent.".
-
- Amendment
of section
25 of
Act 24
of 1936,
as
amended
by section
2 of
Act
6 of
1972
-
- 4.
Section
25 of
the principal
Act is
hereby amended-
(a)
by the
substitution
for subsection
(1) of
the
following subsection:
"(1)
The estate
of an
insolvent
shall
remain
vested
in the
trustee -
until
the
insolvent
is reinvested
therewith
pursuant to
a composition
as in
section
119 provided,
or until
the
rehabilitation
of the
-
insolvent
in terms
of section
127
or 127A:
Provided
that,
subject to
-
the
provisions
of subsection
(3),
any
property
which immediately
before the
rehabilitation
is
vested
in the
trustee
shall
remain
vested
in him
after
the
rehabilitation
for the
purposes of
realization
and distribution.";
and
-
- (b)
by the
addition
of the
following
subsections:
-
"(3)
After
the
expiry
of every
caveat
entered
in terms
of section
17(3),
18B or
127A
in
respect
of
the
property of
an insolvent
any
-
act
of
registration
in respect
of such
property
brought about
by him
shall be
valid in
spite
of the
fact
that
the
property
formed
part of
-
his
insolvent
estate.
-
- (4)
If a
person
who
is
or was
insolvent
unlawfully
disposes of
-
- immovable
property or
a right
to immovable
property which
forms
part of
his
insolvent
estate,
the
trustee
may,
notwithstanding
the
provisions
of
-
subsection
(3), recover
the value
of
the property
or right
so disposed
of-
(a)
from
the
insolvent
or former
insolvent;
-
(b)
from
any person
who, knowing
such property
or right
to be
part of
the insolvent
estate,
acquired such
property or
right
from the
insolvent
or former
insolvent;
or
-
- (c)
from any
person
who acquired
such property
or right
from the
insolvent
or former
insolvent
without
giving
sufficient
value
in return,
in which
case
the
amount
so recovered
shall
be the
difference
between
the value
of the
property
or right
and any
value
given
in return.".
-
- Amendment
of section
32 of
Act 24
of 1936
-
- 5.
Section
32 of
the principal
Act is
hereby amended
by the
substitution
for subsection
(1) of
the
following subsection:
-
- "(1)
(a) Proceedings
to recover
the
value
of
property or
a right
in terms
of section
25(4),
to
set aside
any disposition
of property
under
section
26, 29,
30 or
31, or
for the
recovery
of compensation
or a
penalty
under
section
31, may
be taken
by the
trustee.
-
- (b)
If the
trustee
fails to
take
any such
proceedings
they
-
may
be taken
by any
creditor
in the
name
of the
trustee upon
his indemnifying
the
trustee
against
all
costs
thereof.".
-
- Amendment
of section
104 of
Act 24
of 1936
-
- 6.
Section
104 of
the principal
Act
is hereby
amended
by the
substitution
for subsection
(3) of
the
following subsection:
-
- "(3)
If any
creditor
has under
subsection
(1) of
section
32 taken
proceedings
to recover
the value
of
property
or a
right under
section 25(4),
to set
aside any
disposition
of or
dealing with
-
property
under section
26,29, 30
or 31
or for
the recovery
of damages
or a
penalty
under
section 31,
no
creditor
who was
not a
party
to the
proceedings
shall
derive any
benefit from
any
moneys
or from
the
proceeds
of any
property
recovered as
a result
of such
proceedings
before the
claim
and costs
of every
creditor
who
was a
party
to such
proceedings
have been
paid
in full.".
-
- Substitution
of section
127A of
Act 24
of 1936,
as inserted
by
section
6 of
-
Act
6 of
1972
-
- 7.
The following
section
is
hereby
substituted
for
section 127A
of the
principal
Act:
-
- "Rehabilitation
by effluxion
of time
-
- 127A.
(1) Any
insolvent not
rehabilitated
by the
court within
a period of
ten years
from
the date
of sequestration
of his
estate, shall
be deemed
to be
rehabilitated
after
the expiry
of that
period unless
a court
upon application
by an
interested
person
after
notice
to the
insolvent
orders otherwise
prior to
the
expiration
of the
said period
of ten
years or
before the
31st December,
1972,
whichever
date
is the
later.
-
- (2)
If a
court
issues
an order
contemplated
in
subsection
(1),
the
registrar
shall
transmit a
copy
of the
order
to
every
officer
charged
with
the
registration
of title
to
any immovable
property
in
the
Republic.
-
- (3)
Upon receipt
of
the
order
by
such officer
he
shall enter
a caveat
against the
transfer
of all
immovable
property
or the
cancellation
or cession
of any
bond
registered
in
the
name
of
or belonging
to
the insolvent.
-
- (4)
The caveat
shall
remain
in
force
until the
date
upon which
the
insolvent
is
rehabilitated.".
-
- Amendment
of First
Schedule
to Act
24 of
1936
-
- 8.
The First
Schedule
to the
principal
Act
is
hereby
amended
by the
substitution
for Annexure
VIII of
Form
B of
the following
Annexure:
-
- "ANNEXURE
VIII PERSONAL
INFORMATION
-
- Amendment
of
section
3
of
Act
47
of
1937,
as
substituted
by
section
2
of
-
Act
87
of
1965
and
amended
by
section
1
of
Act
41
of
1977,
section
1
of
Act
-
92
of
1978,
section
1
of
Act
44
of
1980,
section
3
of
Act
27
of
1982
and section
28
of
Act
88
of
1984
-
9.
Section
3 of
the
Deeds
Registries
Act,
1937
(Act
No.
47
of
1937),
is hereby
amended
by
the
substitution
for
paragraph
(a)
of subsection
(1)
of the
following
paragraph: -
"(a)
take
charge
of
and,
except
as
provided
in
subsection
(2)
or
(3),
preserve
or
cause
to
be
preserved
all
records
which
were
prior
to -
the
commencement
of
this
Act,
or
may
become
after
such
commencement,
-
- records
of
any
deeds
registry
in
respect
of
which
he
has
been
-
appointed:
Provided
that
the
registrar
may
destroy
or
otherwise
dispose of
any
record
as
prescribed
which
has
been
cancelled
in
terms
of
this subsection
or
any
record
in
connection
with
a
caveat
that
has
-
expired
in
terms
of
section
17(3),
18B
or
127A
of
the
Insolvency
Act,
-
1936
(Act
No.
24
of
1936);".
-
- Amendment
of
section
58
of
Act
47
of
1937,
as
substituted
by
section
17
of
-
Act
27
of
1982
-
- 10.
Section
58
of
the
Deeds
Registries
Act,
1937
(Act
No.
47
of
1937), is
hereby
amended-
-
(a)
by
the
substitution
for
subsection
(1)
of
the
following
subsection:
"(1)
Immovable
property
which
has
vested
in
a
trustee
in
accordance
-
with
the
law
relating
to
insolvency
and
which
has
not
in
terms
of
-
that
law
been
re-vested
in
the
insolvent
may,
subject
to
the
provisions
of
section
25(3)
of
the
Insolvency
Act,
1936
(Act
No.
24 of
1936),
whether
before
or
after
rehabilitation
of
the
-
insolvent,
be
transferred
only
by
the
trustee,
and
may
not
after such
rehabilitation
be
transferred,
mortgaged
or
otherwise
dealt
with
by
the
insolvent
until
it
has
been
transferred
to
him
by
the trustee:
Provided
that
if
after
rehabilitation
the
trustee
has
been
discharged
or
there
is
no
trustee
in
existence,
the
Master
shall,
if satisfied
that
the
rehabilitated
insolvent
is
entitled
to
the
property,
give
him
transfer
thereof
in
such
manner
as
may
be prescribed.";
and
(b)
by
the
substitution
for
subsection
(2)
of
the
following
subsection:
-
- "(2)
If
by
virtue
of
the
provisions
of
the
law
relating
to
-
insolvency
an
insolvent
has
been
re-vested
with
the
ownership
of
any
property,
such
property
may
not,
subject
to
the
provisions
of
-
section
25(3)
of
the
Insolvency
Act,
1936
(Act
No.
24
of
-
1936),
be
transferred,
mortgaged
or
otherwise
dealt
with
by
the insolvent
until
an
endorsement
that
the
property
has
been
restored to
him,
has
been
made
by
the
registrar
on
the
title
deed
of
the property.".
-
- Amendment
of
section
17
of
Act
88
of
1984
-
- 11.
Section
17
of
the
Matrimonial
Property
Act,
1984
(Act
No.
88
of
-
1984),
is
hereby
amended
by
the
substitution
for
subsection
(4)
of
the following
subsection:
-
- "(4)
(a)
An
application
for
the
surrender
of
a
joint
estate
shall
be
made
by
both
spouses.
and
-
- (b)
an
An
application
for
the
sequestration
of
-
a
joint
estate
shall
be
made
against
both
spouses:
Provided
that
no
application
for
the
sequestration
of
the
estate
of
a
debtor
shall
be
dismissed
on
the
ground
that
such
debtor's
estate
is
a
joint
estate
if the
applicant
satisfies
the
court
that
despite
reasonable
steps
taken by
him
he
was
unable
to
establish
whether
the
debtor
is
married
in community
of
property
or
the
name
and
address
of
the
spouse
of
the
debtor.".
-
- Short
title
and
commencement
-
- 12.
(1)
This
Act
shall
be
called
the
Insolvency
Amendment
Act,
1993,
and
shall
come
into
operation
on
a
date
fixed
by
the
State
President
by
proclamation
in
the
Gazette.
-
- (2)
Different
dates
may
be
so
fixed
in
respect
of
different
provisions of
this
Act.
|
