1,943 research outputs found
Die toepassing van verskillende teorieë vir die beoordeling van die regsposisie van versekerde skuldeisers in 'n oorgrens insolvensieprosedure
No full textDie voorkeurorde is die hart en kern van enige insolvensieregstelsel. Hierdie orde bepaal die hiërargie onder skuldeisers in 'n finale likwidasie. Woods noem dit die prioriteitsleer (ladder of priorities) en dit is hierdie leer wat bepaal hoe groot die risiko is wat 'n skuldeiser neem. Bo-aan die voorkeurorde of prioriteitskema is daardie skuldeisers wat in rem sekuriteitsregte oor 'n skuldenaar se bates gevestig het. Diesulkes behou die effektiwiteit van hul sekuriteit gedurende en ten spyte van enige formele insolvensieprosedure wat die skuldenaar ondergaan. Elke insolvensieregstelsel in enige jurisdiksie maak voorsiening vir die "groot prioriteit" ofte wel versekerde skuldeisers. 'n Versekerde skuldeiser is dan wel daardie skuldeiser wat 'n sekuriteitsbelang in 'n spesifieke bate van die skuldenaar het. Daarenteen is 'n preferente eis 'n onversekerde eis wat uit hoofde van wetgewing voor ander onversekerde eise uitbetaal word - dit is statutêre voorkeure. Die term "voorkeurskuldeisers" sluit die versekerde skuldeisers sowel as die preferente skuldeisers in omdat albei hierdie groepe voorkeur bo die gewone, konkurrente skuldeisers in 'n insolvente boedel geniet. ABSTRACT: The different theories, old and new, are investigated because the submission is that these theories as currently applied, underlie the recognition or non-recognition of the rights of the preferential creditors of a specific jurisdiction in the case of a cross-border insolvency procedure. The author takes the view that neither modern universalism nor cooperative territoriality offers a proper solution to the problems that may occur in cross-border insolvency cases. It is submitted that the best solution would be to create a fair, just and effective set of rules on the example of the American Law Institute's and the International Insolvency Institute's Principles of Cooperation, to get accepted in any given case and this should be applied universally. However, it is recognized that to be internationally or universally implemented, such an approach will undeniably take too long. The proposal is therefore that, until such rules are established the theory of universal proceduralism with its virtual territoriality linked to reciprocal comity is the most acceptable and fair model to apply. It supports the principle that territorial claims should be respected by limiting the scope of the lex concursus, ensuring that the distribution to creditors in a cross-border insolvency procedure reflects the distribution that creditors would get territorial. This way the relevant distribution scheme is determined by the assets of the estate and the claims against the estate and not by the debtor/insolvent. Universal proceduralism is procedurally global and substantively territorial. This means that a centralised insolvency procedure occurs within the debtor's centre of main interests that controls all procedures relating to the insolvency. However, the choice of law should be decentralized, whereby the substantive aspects of the insolvency proceedings are determined by the ordinary choice of law principles
Die effek van 'n voorlopige sekwestrasiebevel – word my reg om 'n lid van die parlement te wees ingeperk?
No full textThe question asked in this article is inspired by the recent case of Mr Julius Malema. Why the matter is so important and has enjoyed so much attention, is the fact that it was widely suggested that a final order of sequestration would affect Mr Malema's political career in that it would not be possible for him to continue to serve as Member of Parliament. The question that immediately comes to the fore is whether the provisional order of sequestration would not already result in such an outcome. As stipulated by the Constitution of the Republic of South Africa, 1996, an unrehabilitated insolvent may not become a member of the National Assembly, National Council of Provinces, or a Provincial Legislator. Do the words "unrehabilitated insolvent" also include a person who is under provisional sequestration? The purpose of this article is to investigate the effect of a provisional order of sequestration and the focus will be on the ability of an insolvent to act as a Member of Parliament. The legal position in the South African law will be compared with the legal position in the United States of America – which is, with regard to the insolvency law, recognized as a very successful, modern, progressive and dynamic legal system. Voluminous changes to the American bankruptcy law system, to adapt to current practical situations and the current economic climate, have been effected as recently as in 2005. Brief reference will also be made to the legal position in the United Kingdom, due to South Africa's historical ties with the UK and the reliance in the past on the English insolvency law and the Bankruptcy Act, 1986
Enkele opmerkings oor bankrot munisipaliteite
No full textThe insolvency of municipalities is no longer a rare incident; it is a reality. It is interesting to note that even in the United States of America the insolvency of municipalities is currently an equally serious concern. In South Africa there is much speculation regarding the causes of the insolvency of municipalities, and possible solutions are often discussed. This investigation is an attempt to provide answers. Importantly, however, constructive contributions are needed to begin to address the problem of insolvent municipalities. But to address a problem accurately, necessarily means that one should also refer to the possible causes. The working method applied in the USA with regard to the reorganization of bankrupt municipalities and the requirements set, are explained because it is important to establish what the effect and consequences are of this type of "sequestration" in the American law of insolvency and what the role of the insolvency courts is in managing the whole procedure. In the American law the purpose of the Chapter 9 reorganisation is to provide for a plan acceptable to the majority of creditors and binding on the dissenting minority. Consequently the purpose of this article is to indicate how Chapter 9 functions in practice and which solutions may possibly be applied in South Africa to ensure an effective procedure
Some thoughts on environmental claims in liquidation
No full textThe purpose of this note is to establish if it is ever possible, after completion of
the liquidation process, to recover the balance of a claim for damages not fully
paid during the liquidation of an insolvent company. The focus is specifically on
the situation where the activities of an insolvent company are found to have
caused damage to the environment. Given the nature of this discussion, reference
is made to the situation where an insolvent debtor is involved and is rehabilitated
after the completion of the sequestration process. For the sake of completeness,
reference is also made to the priority of the claims considered during the seques-
tration/liquidation process. Also relevant to this topic (namely the enforcement
of a claim for damages against the insolvent as a result of harm to the environ-
ment) are the stay of legal proceedings after the issuing of the sequestration/
liquidation order; the effect that the dissolution of the insolvent company has on
claims for damages that are not fully paid out during the liquidation process; and
of the perpetrator’s latent environmental obligationshttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=2389231http://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2389231_code1634964.pdf?abstractid=2389231&mirid=
Die aanspreeklikheid van 'n insolvente maatskappy en die likwidateur van 'n insolvente maatskappy vir vergoeding as gevolg van omgewingsbenadeling
No full textWith regard to environmental harm by an insolvent company, the concern with the liquidator of the insolvent company is usually the extent to which he or she shall personally be held liable for environmental harm caused while operating the business of the company in performing the duty to liquidate the business properly. It is necessary to distinguish between damage that occurred prior to the winding-up by the harmful activity itself and damage that occurred during the winding-up. Damage during liquidation could again result from activities prior to liquidation or damage flowing from the activities of the liquidator while operating the business of the insolvent company with a view to the proper liquidation and settlement of the business and affairs of the company. The liability for damages by the harmful activity itself should also be distinguished from the reimbursement or payment of costs under the liability to take certain steps such as cleaning up, remediation, prevention and limiting of any environmental damage. Again, it can be a failure by the company before the liquidation or a failure by the liquidator after the liquidation. It is submitted that the liability of the liquidator will probably depend on the degree of skill that the courts believe will reasonably be expected from the liquidator. The answer lies in the liquidator's duty of care. It is possible that, unlike the trend in English law, the courts will not expect the same level of skill or knowledge as expected from company management. The liquidator will not be held liable unless the harm resulting from an act or an omission is unreasonable, even for a liquidator. However, in each case the courts will require appropriate management skills. It is therefore recommended that the liquidator ensures that he or she has adequate 'tools' in place for performing environmental obligations, with duties delegated to appropriate persons
Die effek van likwidasie op arbitrasies
No full textThis article addresses the effects of insolvency in arbitral proceedings. The interaction between
insolvency law and the law of arbitration is a neglected topic and literature on the subject is scarce. In
this article three situations are distinguished and discussed. The first exposition merely reflects on the
effect of liquidation on an arbitration clause recorded in a contract between an insolvent, liquidated
company and another. Secondly the situation is discussed where an arbitration is already in process
when liquidation takes place. In the third instance the position is examined where an arbitration award
has been made prior to the liquidation. Suggestions as to how national courts should apply the law
in each of these situations are provided. In the second part of the article the effect of an international
arbitration is investigated. As will be seen, the interaction between the insolvency law and arbitration
law is complex, in particular in an international context. In general it can be said that neither of the
fields provides appropriate answers and useful guidelines where these two fields intersect. Suggestions
are nevertheless presented in an attempt to find a fair and just solution for every party concernedhttps://jutalaw.co.za/products/3603-stellenbosch-law-reviewhttp://reference.sabinet.co.za/webx/access/electronic_journals/ju_slr/ju_slr_v24_n3_a5.pd
Die effek van sekwestrasie op huiswerkers en die bepaling van voordeel vir skuldeisers weer onder die loep
No full textThe concept of “advantage to creditors” in insolvency law is not without problems. Inevitably
the question arises, and is discussed in this note, whether the notion of creditor
advantage ultimately got stuck at determining the dividend, namely, a specific one, which
has to be paid to the concurrent creditors. A further interesting aspect highlighted in this
note, is the position of the ordinary domestic worker, where an application was made for
the sequestration of the employer’s estate.
Curiously, both these matters surfaced recently in the same case. Regarding the requirement
of “advantage”, the Constitutional Court ruled that an overly rigid interpretation of
this notion should be discouraged. Therefore, this note formulates the view that, understandably
a fair, reasonable and justified determination of the sequestration and administration
costs is still needed to ascertain whether some form of monetary advantage
should be paid out to the concurrent creditors and that a proper, meticulous and accurate
assessment should be made of the estate’s assets. Nevertheless, a specific dividend should
not be presented in such a case. At the very least, a dividend should be paid out to the
concurrent creditors, and this amount should be determined by considering all circumstances
of the mentioned estate. In this way, it can be established whether the sequestration
would be reasonable, fair and sufficient for that specific circumstance.
Naturally, the costs of sequestration and administration as well as of valuing the assets,
need to be factored in. However, typically all sequestrations differ; in this case there are
different circumstances to keep in mind. Furthermore, numerous factors may play a role –
or in certain cases, should not play a role. With regard to the circumstances of domestic
workers, the view of the authors is that the Constitutional Court’s interpretation is correct
and that, for purposes of this note, the term “employees” also refers to domestic workers
Verandering en verhoging van die risiko tydens die termyn van die verskeringskontrak
No full textThe current rule in insurance law is that a duty to disclose material facts before the conclusion of the contract rests on both parties to the insurance contract. The test for materiality is based on the judgment of the reasonable person which is an objective measure. In terms of section 53 of the Short Term Insurance Act misrepresentation and non-disclosure by one of the parties is also judged objectively with reference to the view of the reasonable person. In the South African insurance law no common-law duty exists to extend the duty to disclose beyond the conclusion of the contract. However, nothing prevents the insurer from including such a clause in the contract. After a thorough explanation of this duty, the (presumptuous?) question is asked whether, in the context of marine insurance a statutory duty to disclose should not be placed on the insured in instance where the circumstances change to such an extent that the risk undergoes a material degree of increase in occurring during the term of the insurance contract. This issue is examined and the consequences are spelled out
Artikel 102 van die insolvensiewet en notariële verbande: van onsekerheid na sekerheid?
No full textIn this note, the application of section 102 of the Insolvency Act 24 of 1936 is analysed.
This section provides preference (and not real security) to the holder of a specific type of
notarial bond. To understand the matter properly, the different types of notarial bonds and
the legal position held by each in the administration of an insolvent estate are discussed.
Three possibilities are distinguished, namely, notarial bonds that offer effective security
during the sequestration/liquidation; notarial bonds that do not provide security but provide
preference under section 102; and notarial bonds that offer no security or preference
whatsoever. Following this, the interest-aspect regarding section 102 claims is examined.
Section 102 refers only to section 103(2) and therefore only to interest after sequestration.
Interest after sequestration is calculated in terms of section 103 but in respect of interest
prior to sequestration, it is the authors’ submission that such a creditor’s claim must be
dealt with in a manner similar to the claim of a concurrent creditor under section 50 of the
Insolvency Act. A thought-provoking issue is whether a general bondholder, like the
secured creditor, has a choice not to claim as a concurrent creditor as well. What will be
the effect if he proves his claim and his claim is greater than the proceeds of the movable
property concerned, or more than the limit set in the notarial bond? One may well ask
whether he would automatically also qualify as a concurrent creditor. The consequent risk
is to pay a contribution under section 106 of the Insolvency Act, that is, if there is insufficient
free residue in the estate to pay the costs of sequestration/liquidation. The note also
contains a discussion of FirstRand Bank v Land and Agricultural Development Bank with
regard to the interpretation of section 102 and the matter whether the proceeds of immovable
property can be regarded as “movable property”
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