Rehabilitation
Halse, Havemann and Lloyd has been practicing since 1967 and has firmly established itself as one of the leading firms in Kwazulu- Natal and Gauteng.
There are different periods of time within which an Application for Rehabilitation may be brought, depending on the facts which were before the Court when the Insolvency Order was made, namely:-
- after six months from the date of provisional sequestration, if no claim has been proved against the estate, if the sequestrated person has not been found guilty by a Criminal Court of an insolvency offence and the estate was not previously sequestrated (in other words, that there had been more than one sequestration);
- after twelve months have elapsed after confirmation by the Master of the Trustee’s account in the estate;
- after three years have elapsed from such confirmation of account, if the sequestrated person’s estate has been previously sequestrated (in other words, that there had been more than one sequestration);
- after five years have elapsed from the date of the sequestrated person’sconviction of any fraudulent act of certain offences provided for in the Insolvency Act, in relation to his / her existing- or any previous insolvency;
- if a statutory composition by creditors occurred – that being that creditors whose votes amounted to three quarters in number and value of the votes of all creditors who proved claims, accepted a composition of not less than 50c / R of every claim proved and that payment of all costs of sequestration and administration have been paid.
The effects of rehabilitating a sequestrated person is that:-
- It relieves the now solvent person from every disability arising from the insolvency;
- It puts an end to his / her status as a sequestrated person;
- the trustee no longer has any authority to deal with the now solvent person’s financial affairs;
- the now solvent person’s financial status is finally restored;
- the now solvent person is able to deal with his / her financial affairs which
includes that he / she may again enter into contracts and apply for credit
facilities, without requiring any consent from your trustees; - all debts which were due or the cause of which before the sequestration are discharged – in other words, you become debt free, unless the you committed fraud in the process;
- any surplus in the sequestrated estate, after all creditors have been paid, must be repaid to you.
The test as to whether a sequestrated person qualifies for rehabilitation is,
essentially whether:-
- he / she is a fit and proper person to trade with the public on the same basis as any honest man;
- he / she traded negligently or deceitfully prior to insolvency;
- it is in the interests of past creditors;
- the sequestrated person’s probable future behaviour justifies your rehabilitation.
