FAQ’s

Question: Can I apply for voluntary surrender without a property?

  • Yes indeed. There must be a “benefit” for creditor before the court will grant a sequestration order.

  • If you do not have fixed property, you must have sufficient funds to pay 22c in the rand towards your creditors.

  • The total estimated amount that must be available to creditors is R 50 000.

  • R50 000 over 20 months will cost R2500 per month (no interested

 

Question: Why don't I simply wait for my creditors to sequestrate me?

  • Creditors are not keen to bring a "hostile" Sequestration Application, because it is normally cheaper for them to follow execution steps via the Sheriff.

  • Hostile Sequestation Applications are normally brought against debtors who have very large estates and have hidden their assets from creditors.

  • Such a creditor would most probably hold an insolvency enquiry against such a debtor.

Question: Can my creditors take my salary?

  • Once your case is granted no creditor is allowed to attach your salary, by Garnishee Order against your salary.

Question:  Will I lose my furniture?

  • No. Your attorney will negotiate on your behalf for the household furniture to be excluded from the Insolvent Estate.

  • In the worst case scenario your furniture is appraised, and you have to buy back your furniture from your Insolvent Estate, while the furniture stays in your possession.

  • The “insolvency value” of furniture is very low, because it is valuated at a forced sale value, such as when it is sold in execution by a Sheriff.

Question: Can my creditors take my pension?

  • No. Section 23(7) of the Insolvency Act prohibits the attachment of your pension, any annuity funds or any other funds that falls under the Pensions Act.

Question: How long will I be able to stay on in my house which falls into my insolvent estate?

  • From the day that you have completed all the necessary documentation and paid the required fee, you will normally stay on in your house for a period of at least four months.

  • The reason for this is because it takes about seven weeks to get the sequestration order.

  • A Trustee must be appointed by the Master of the High Court. Under normal circumstances this takes about two weeks. Once the Trustee is appointed, two creditors meetings must be held. This takes another two months.

  • The Trustee can legally not deal with the property before the second meeting of the creditors has been convened.

  • If these periods are added up, it is approximately four and a half to five months.

Question: How long will I be able to keep my car?

  • Once the attorney has placed an advertisement in the Government Gazette in which you give notice that you intend to sequestrate, all execution steps against you stop.

  • Once you have been sequestrated and the Trustee has been appointed, the creditors will normally want their assets back immediately.

  • The short answer is that you will keep your car only shortly after sequestration (referring to the court date).

Question: What is the effect of my sequestration on a lease agreement?

  • Should you have leased premises at the time of your sequestration, the lease agreement is not automatically cancelled by your sequestration.

  • In practical terms should you lease a residential property, you simply keep on paying your rent and you stay on in the property.

Question: Will I be able to open a bank account after my sequestration?

  • Yes indeed. Banks won’t allow you to open a current account or a credit card account,but they will certainly allow you to open a savings account. In practice this is no problem because virtually all savings accounts these days are linked to a banking card which can be swiped anywhere in the world.

  • If you have internet facilities and the facility to swipe your card, this poses no problem.

Question: Should I keep on paying my creditors after I have given my attorneys instruction to sequestrate me?

  • No. Should you keep on paying certain creditors, you will prefer them above other creditors. Under South African Law this is not allowed.

Question: Will I be able to rent a house?

  • There are thousands upon thousands of people who are sequestrated. All of them live somewhere.

  • In our experience, it is not difficult to find landlords / rental agents who are willing to let property to an insolvent client.

Question: Am I allowed to enter into a contract after sequestration?

  • The general rule is that you are allowed to enter into any contract which does not pertain to assets which fall into your Insolvent Estate.

  • You are for example allowed to enter into a cell phone contract, rental agreement, ante nuptial contract etc.

  • You are even allowed to enter into credit agreement if you have disclosed that you are insolvent and the creditor is willing to grant you credit. The discretion in granting you credit is with the creditor.

Question: Can I sequestrate whilst / after I have been placed under debt review?

  • Yes indeed. The only requirement is that the debt review order must be set aside before the High Court can grant a sequestration order. This is a process that our attorneys deal with automatically.

Question: Will I have to pay back my creditors, if I have a fixed property, before I can apply for rehabilitation?

  • When you are sequestrated, in layman’s terms your debt is written off.

Question: Can creditors take my assets while I am in the process of sequestration?

  • The process known as “Surrender of Estate” is the process where you approach the Court personally and ask the Court to help you.

  • The Insolvency Act prescribes that your intention to sequestrate must be publicized by way of registered post to your creditors as well as by publications in certain media, inter alia in the Government Gazette.

  • Once the publication of your intention to sequestrate has appeared in the Government Gazette, no creditor is allowed to sell any of your assets.

Question: What is the role of the Trustee in my life after sequestration?

  • The role of the Trustee is to do Distribution to the Creditors.

  • Before the dividend can be distributed amongst creditors, the Master of the High Court must approve the distribution.

Question: My relationship with the Trustee?

  • It is strongly advisable that you give your Trustee your full co-operation.

  • The Trustee is in a position of trust regarding his relationship to the Master of the High Court and he is furthermore in a fiduciary position regarding the creditors.

  • If you give your full co-operation to the Trustee there is no reason whatsoever for the Trustee to become your adversary.