The Process

This article gives very general oversight and timetable of the process involved in applying for rehabilitation after sequestration and may vary slightly from case to case.

 

Please note: Before we advise you on the possibility of a rehabilitation and time table involved, we will require certain information regarding your sequestration and current status - this will enable us to establish:

  • Whether you qualify for immediate rehabilitation;
  • If not, what period of time must still expire before you may apply for rehabilitation;
  • What prerequisites are still outstanding, if any,  and whether compliance falls to you or your trustee;

 

Step 1 - Contact Us

So, in order to kick off the process, we need you to e-mail us and establish contact. You may e-mail us at This email address is being protected from spambots. You need JavaScript enabled to view it. .

Once we receive your e-mail, we will forward you an excel spreadsheet, requesting certain information. Please complete it thoroughly as possible and e-mail it back to us. Once we receive the spreadsheet, we will contact you and arrange a telephonic consultation to discuss the possible rehabilitation of your insolvent estate and what further information we require as well as the costs involved - all free of charge!

Please also note: All information and communications received from you will be treated confidentially and will not be divulged to a third party without your consent.

Now that we have established contact, we will cover the process that follows.

 

Step 2 - Is Rehabilitation possible?

We would consult the timetable for rehabilitation applications set in Section 124 of the Insolvency Act to establish whether or not you qualify for rehabilitation of your insolvent estate.

This timetable will also indicate the relevant sub-section of the Insolvency Act that will be applicable. Your Founding Affidavit which would be used in support of your application for rehabilitation must establish that you are factually entitled under the specific sub-section to apply for rehabilitation and that all the provisions have been complied with in full.



Step 3 - Notice of intention to rehabilitate

Depending under which specific section the application will be made, notice in intention to rehabilitate must be published in the Government Gazette and written notice must be given to both the Master and the trustee, if any. The aforementioned can be summarized as follows:

Notification by publishing an advertisement in the Government Gazette in the prescribe form, according to the following timetable:

  • No notification for Section 124(5) Applications;
  • At least a 3 week notification for Section 124(1) Applications;
  • At least a 6 week notification for Sections 124(2) and 124(3) Applications;


Notification to the Master and to the trustee of the insolvent estate in writing according to the following timetable:At least a 3 week notification for Section 124(1) and 124(5) Applications; At least a 6 week notification for Sections 124(2) and 124(3) Applications;

 

Step 4 - Trustee to furnish Report

According to Section 124(4) a trustee who has received a notice for rehabilitation in terms of Sections 124(1), (2), or (3) must report to the Master with any facts which in his opinion would justify the court in refusing, postponing, or qualifying the applicant’s rehabilitation.

Usually the Trustee would withhold his report until he has be served with a complete application and has had time to peruse the Founding Affidavit and annexations in support thereof.


Step 5 - Furnish Security for costs

In terms of Section 125, security to the value of R500 must be furnished to the Registrar of the High Court not less than 3 (THREE) weeks before the rehabilitation application's court date. The security serves as guarantee for payment of costs for any person who oppose the rehabilitation application successfully.


Step 6 - The Application

Section 126 of the Insolvency Act stipulates that the Founding Affidavit of an insolvent applicant in support of a rehabilitation application, must include the following facts and statements:

  • That a complete surrender of the insolvent estate has been made; 
  • That you have not "granted or promised any benefit whatsoever to any person or entered into any secret agreement with intent to induce his trustee or any creditor not to oppose the rehabilitation”; 
  • Full disclosure of all your current assets;  
  • Complete disclosure of  all your current liabilities; 
  • Substantiated disclosure of your earnings at the date of the application;
  • Substantiated disclosure of the dividend that was paid to creditors;
  • Full disclosure of any further assets that are available for realization and the estimated value thereof;
  • Confirmation of the total amount of all claims proved against the estate;
  • Confirmation of the total amount of liabilities at the date of sequestration;
  • Disclosure of any prior insolvency;
  • Disclosure of any conviction of a fraudulent act in relation to his or her existing or any previous insolvency, or of any offence under Sections 132, 133 or 134 of the Act.

If application for rehabilitation is made pursuant to Section 124(1), the applicant must set out the particulars of the composition and must state whether there are creditors whose claims against the insolvent estate have not been proved, and if there are such creditors, the applicant must state their names, addresses and particulars of their claims.


Step 7 - Trustee files his report to the Master

See Step 4 above. The trustee now report to the Master “any facts which in his opinion would justify the Court in refusing, postponing or qualifying the applicant's rehabilitation”. It is respectfully submitted that although this step is imperative to ensure that the Master would file his subsequent report to the High Court, failure to comply with this requirement, is not per se fatal to the application.

The purpose of the trustee's report,  is to assist the Master in concluding his report to the High Court. If as a result of the trustee’s default the Master is unable to present his report, the Master or the applicant may invoke the provisions of Section 116 bis of the Insolvency Act against the trustee.

This invocation will of course, involve postponing the rehabilitation application to a subsequent court date, pending compliance by the trustee to file his report. No additional fees of any kind is payable to the trustee for drafting and filing his report.

Do note that where the Master it is satisfied that the trustee has nothing to report, and states as much in his report, the Court may adjudicate upon the rehabilitation application notwithstanding the lack of the trustee’s report.


Step 8 - Master’s report to the Court

The Master must report to the Court upon the application. For the purpose of such report the Master should have the trustee’s report and a complete copy of the application and annexations thereto. It is therefore imperative that it be served upon the Master as soon as possible.

In his report, the Master will advise the High Court of any matter that may affect the outcome of the rehabilitation application and if applicable, will also contain the Master’s recommendation as to what the High Court's verdict should be.


Step 9 - Court date and verdict

Upon the date and time set out in the Notice of Motion, the application will serve before the High Court for adjudication and the High Court will then give its verdict.

 

In all our cases to date hereof, the verdict was:

"So ORDERED - APPLICATION for REHABILITATION GRANTED!"

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