Amended by Insolvency Amendment Act 33 of 2002. Companies Act 1984; Companies Act 2001; Code de Commerce; Insolvency Act 2009; Limited Partnership Act 2011; Foundation Act 2012; Business Registration Act 2002; Limited Liability Partnership 2016; Limited Liability Partnership 2016 - Proclamation No.60 of 2016 SECTION 27 OF THE INSOLVENCY ACT 24 OF 1936 AS A VIOLATION OF THE ... will have passed the test of constitutionality. TOPIC 6: THE EFFECTS OF SEQUESTRATION (CONT) Amended by Insolvency Second Amendment Act 69 of 2002. Where deeds controllers are not absolutely certain about the effect of the interdict, they must consult the management in this regard. This paper examines section 27 of the Insolvency Act as it currently reads, within the context of the right to equality in section 9 of the Constitution. The Practitioner's Guide to Conveyancing and Notarial Practice by AS West, Chapter 16, confirms this. The Principal Act is amended by the insertion of the following after section 115: “115A. Short title and extent. Harksen v Lane.docx - Harksen v Lane Introduction The constitutionality of certain provisions(s21 64 and 65 of the Insolvency Act was brought before the, 2 out of 3 people found this document helpful, The constitutionality of certain provisions (s21, 64 and 65) of the Insolvency Act was brought, Mrs Harksen married out of community of property to Mr Harksen and his estate was, The provisions were alleged to be unconstitutional in that they impact on the affairs of a. solvent spouse upon the sequestration of the estate of an insolvent spouse. 1.1 The constitutionality vires of Part II of the Insolvency and Bankruptcy Code, 2016 (“Code”) (Insolvency Resolution and Liquidation for Corporate Persons), substantial provisions of which were brought into force with effect from December 1, 2016, vide Notification S.O. Section 21 of the Insolvency Act and the final Constitution’s property clause: revisiting Harksen v Lane NO. 3 Section 21(13) of the Insolvency Act provides that the word "spouse" means "not only a wife or husband in the legal sense, but also a wife or husband by virtue of a marriage according to any law or custom, and also a woman living with a man as his wife or a man living with a woman as her husband, although not married to one another". 3 Section 6(1). But currently there is also other legislation affecting the … This week on Property24.com: South Africans continue to shuffle the residential property market; five consecutive repo rate cuts have resulted in a massive shift in affordability; and expanding your property portfolio to the UK. Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has issued notice to the Centre in a writ petition challenging the Constitutional validity of Section 327 (7) of the Companies Act, 2013 qua Section 53 of the Insolvency and Bankruptcy code, to the extent that Section 327 (7) renders the meaning of the Explanation (II) to Section 53 of the Code meaningless. SECTION 27 OF THE INSOLVENCY ACT 24 OF 1936 AS A VIOLATION OF THE EQUALITY CLAUSE: A CRITICAL ANALYSIS . The office thereafter determined who the curator in the estate was and contacted him for further information. Constitutionality of provisions.....19 Expedition of administration ... Act replaced the Insolvency Act 32 of 1916 but did not amend it drastically. Insolvency, Restructuring and Dissolution Act 2018 (No. (b) property acquired by the solvent spouse under a marriage settlement; (c) property acquired by the solvent spouse during the marriage by a title valid as, (d) those policies of life insurance which are protected by the provisions of the, (e) property acquired with, or with the income or proceeds of, property referred to, The category of property acquired by the solvent spouse during the marriage by a valid title, against creditors of the insolvent was substantially widened by s22 of the Matrimonial, Donations between spouses were made legal and enforceable – therefore the, category of property which the solvent spouse may reclaim has been widened. XML Full Document: Bankruptcy and Insolvency Act [1093 KB] | PDF Full Document: Bankruptcy and Insolvency Act [1836 KB] Act current to 2021-03-10 and last amended on 2019-11-01. The Bloemfontein deeds office received a call from a member of the public who was sequestrated in 2001 and both he and his spouse were mentioned in the sequestration order. Accordingly, the Deeds Office will allow no dealings to be registered in regard to property of the solvent spouse acquired prior to the insolvency order unless a release signed by the trustee or an Order of Court is lodged as specified in the section. — 2005, c. 47, s. 133, as amended by 2007, c. 36, s. 107. Accordingly, the Deeds Office will allow no dealings to be registered in regard to property of the solvent spouse acquired prior to the insolvency order unless a release signed by the trustee or an Order of Court is lodged as specified in the section. Moreover, vires of section 21 and 24 of IBC were also assailed on the ground that the operational creditors do not get a right to vote in the meetings of the committee of creditors. ~'(1) After the publication of a notice of surrender in the Amendment of section 9 of Act … Bankruptcy and Insolvency Act Help; Search within this Act: Table of Contents. 6. Bankruptcy and Insolvency Act. 1 July 1936 Changes to … (3) Paragraph 178(1)(d) of the Bankruptcy and Insolvency Act, as enacted by section 32 of this Act, applies only to bankruptcies in respect of which proceedings are commenced after the coming into force of that section. Bankruptcy and Insolvency Act. THE EFFECT THAT SECTION 21 OF THE I INSOLVENCY ACT HAS ON PERSONS MARRIED IN TERMS OF THE ISLAMIC LAW Dissertation submitted in partial fulfilment of the requirements of the degree Magister Legum at the North-West University (Potchefstroom Campus) N. GABRU 10935487 Study supervisor: Prof AL Stander 2004 . The constitutionality of section 21 of the Insolvency Act 24 of 1936. Amended by Administration of Estates Laws Interim Rationalisation Act 20 of 2001. seventy-two and seventy-four thereof) and section twenty of the Land Bank Amendment Act, 1934 (Act 58 of 1934) are hereby repealed: Provided that if an estate was sequestrated or assigned before the commencement of this Act the sequestration or assignment and all Notes : See coming into force provision and notes, where applicable. S.A. legislation, although a Unified Insolvency Bill is currently being considered by the relevant govern-mentbodiesbeforeitstablingbeforeParliament.At present, the Insolvency Act 24 of 1936 regulates the sequestration of the estates of natural persons and partnerships. Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) ... 250 (1) An application may be made under section 248 or 249 notwithstanding any order of a court as defined in subsection 243(1). Authors : Evans, R G. Journal Title : Stellenbosch Law Review. The office practice when the registrar of deeds is notified by the Registrar of the High Court of any sequestration order is that such sequestration must be noted against the full names and date of birth/identity number of the solvent, and, if he/she is married, also against his/her spouse on the computer. It was contended that there is no intelligible differentia in the classification of creditors and hence the same violates Article 14 of the Constitution. This preview shows page 1 - 3 out of 4 pages. (1) Where— (a) a proposal for a Personal Insolvency Arrangement is not approved in accordance with this Chapter, and Section 12A was inserted into the Code to provide that a resolution applicant can seek the withdrawal of an insolvency proceeding if it is approved by a 90 percent voting share of the committee of creditors. 1.) Advantage to Creditors in Voluntary Surrender The Insolvency Act contains formalities20 for an insolvent debtor, or his/her agent, or a person entrusted with the administration of the estate of a deceased insolvent debtor, to petition the court for the acceptance of surrender of his or This constitutionality of this provision too was challenged in the case. Previous Versions. Nelson Mandela Metropolitan University • LAW JLQ 311, Nelson Mandela Metropolitan University • LAW JMM 311, Nelson Mandela Metropolitan University • LAW JJE311, Nelson Mandela Metropolitan University • LAW LEADS1, Nelson Mandela Metropolitan University • LAW 101, Nelson Mandela Metropolitan University • LAW JSVV102. The Chief Registrar of Deeds supported the Bloemfontein Deeds Office in the decision that was taken and is of the opinion that deeds examiners and registrars of deeds must take cognizance of the provisions of section 18A, read in conjunction with section 9 of the Insolvency Act, and apply the provisions thereof until such time as such provisions are declared unconstitutional. Section 12 provides that: "Trust property shall not form part of the personal estate of the trustee except in so far as he as trust beneficiary is Harksen v Lane Introduction The constitutionality of certain provisions (s21, 64 and 65) of the Insolvency Act was brought before the CC. See discussion on further subsections of 21 as well as the s64 and 65. The Principal Act is amended by the insertion of the following after section 115: “115A. The office was duly informed that the wife of the person who phoned the office intends selling the property, which was registered in her name in 2000. Section 21 was introduced to the Insolvency Act with the aim of avoiding a collusion between spouses, who are married outside of community of property, when the estate of one of the spouses becomes sequestrated. Court review of proposed Personal Insolvency Arrangement. 25 In this case, the Constitutional Court declared invalid section 44(1) of the Insurance Act 27 of 1943.This section used to provide that, where a man hadtaken out a life insurance policy upon his life and ceded it … The trustee has the right in terms of section 21 of the Insolvency Act to release property of the solvent spouse. Section 21 requires the trustee to release the property of the spouse from the insolvent estate. (12) [OMITTED 1] "insolvency commencement date" means the date of admission of an application for initiating corporate insolvency resolution process by the Adjudicating Authority under sections 7, 9 or section 10, as the case may be; (13) "insolvency resolution process costs" means-- … Shaded provisions are not in force. Evans, R ‘A critical analysis of section 21 of the Insolvency Act 24 of 1926’ Parts 1 and 2 in 1996 (59) THRHR 613 and 1997 (60) THRHR 72. Section 22 of the POCSO Act provides for the punishment for false complaint but Section 22(2) exempts a child from the imposition of any punishment on lodging a false complaint. Where the parties are married out of community of property it is important that examiners distinguish between two cases: The Conveyancing Tables have been updated to reflect the recent changes to Deeds Office Fees which came into effect on 01 April 2021. . The provisions were alleged to be unconstitutional in that they impact on the affairs of a solvent spouse upon the sequestration of the estate of an insolvent spouse. (2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a. Insolvency Act 24 of 1936 s. 21. Course Hero is not sponsored or endorsed by any college or university. This constitutionality of this provision too was challenged in the case. Current developments in respect of section 27 will be considered to illustrate progress made in reforming the section and whether the reform measures proposed will protect all those affected by the discrimination arising from section 27. Proceedings from Act of Insolvency to Discharge. Constitution and Powers of Court 1. Certain proposals have been made to develop section 27 to be consistent with the Constitution by amending the definition of spouse in section 21(13) of the Insolvency Act. mixed with the trustee's other assets. Section 12A was inserted into the Code to provide that a resolution applicant can seek the withdrawal of an insolvency proceeding if it is approved by a 90 percent voting share of the committee of creditors. *21. Commencement. In practice the same interdict noted against the insolvent will also be noted against the spouse and he/she will not be capable of dealing with his/her assets until such time as the trustee has released such property from the insolvent estate. Changes over time for: Section 213. Subject : Constitutional law - … The basis for the appeal by the Stratfords rests on the interpretation and constitutionality of section 9(4A) of the Insolvency Act 24 of 1936 (the Act). [29] Section 28 of the interim Constitution provides as follows: “(1) Every person shall have the right to acquire and hold rights in property and, to the extent that. 1 Section 20 of the Insolvency Act 24 of 1936 (hereafter "the Act" or "the Insolvency Act"). 21. Certain proposals have been made to develop section 27 to be consistent with the Constitution by amending the definition of spouse in section 21(13) of the Insolvency Act. In terms of section 21 of the Insolvency Act No 24 of 1936, the property of a spouse whose estate has not been sequestrated shall also vest in the Master, and, on appointment of the trustee, in the name of such trustee, as if it were the property of the sequestrated estate. The deeds office enquired from certain sheriffs and conveyancers for their views about this situation and they did not agree with the noting of the sequestration against the wife's name when parties are married out of community of property. Amended by Judicial Matters Amendment Act 42 of 2001. 2. (hereafter referred as Insolvency Act). The 1936 Act has been ... for company law in terms of section 18 of the Companies Act 61 of 1973. The third proviso to section 7(1) provides that the financial creditors mentioned under clause (a) and clause (b) of subsection (6A) of Section 21 (i.e. Section 50 of this Act repeals s 37 of Act 16 of 1943) *** Act 32 of 1995 also apply to the former Republics of Transkei, Bophuthatswana, Venda and Ciskei. Upon that supposition, jurisdiction involves an [ Translation ] "exclusive minimum content" [5] that cannot be affected by provincial legislation. Evans, R ‘Release of a solvent souse’s property under section 21( 2) (c) of the Insolvency act 24 of 1926’ 2004 (1) Stellenbosch Law Review 193-200. Section 21: Committee of creditors. Moreover, vires of section 21 and 24 of IBC were also assailed on the ground that the operational creditors do not get a right to vote in the meetings of the committee of creditors. Where the property was acquired by the solvent after the insolvency order, examiners must not call for a release signed by the trustee. Acts of Insolvency . Orders under sections 224 and 225: 227. 15 An interesting aspect of the development of regulation in South African insolvency law is the question o. f (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 … Thereafter the estate vests in the trustee. Mrs Harksen married out of community of property to Mr Harksen and his estate was sequestrated. The Insolvency Act and section 27 in particular which is the focus of this paper must be consistent with the Constitution. the nature of the rights permits, to dispose of such rights. Section 21 of the Act On behalf of Mrs Harksen, her counsel, in impugning the constitutionality of section 21 of the Act, relied upon the provisions of both section 8 (“the equality clause”) and section 28 (“the property clause”) of the interim Constitution. Court review of proposed Personal Insolvency Arrangement. The deeds office refused to remove the sequestration from the wife's name in the light of section 18A read with sections 9 and 91. (1) This section applies if in the course of the winding up of a company it appears that a person who— (a) is or has been an officer of the company, (b) has acted as liquidator F1 . For Private Circulation 1 Background The constitutional vires of Part II of the Insolvency and Bankruptcy Code, 2016 (“Code”) (Insolvency Resolution and Liquidation for Corporate Persons), substantial provisions of which were brought into force with effect from December 1, 2016, vide Notification S.O. 270 Subsections 65.11(7) and 65.13(9) and sections 72.1 and 246.1 of the Bankruptcy and Insolvency Act, as enacted by sections 265 to 268, apply only in respect of proceedings that are commenced under that Act on or after the day on which this section comes into force. [10] Section 21(2) provides that once the solvent spouse proves that his or her property falls into one of the following categories, the trustee shall release it: (a) property of the solvent spouse acquired before her or his marriage to the insolvent or before 1 October, 1926; 3 See ss 21(2), (3), (4) and (10). In insolvency proceedings opened for the property owned by the entrepreneur, section 112 subs. Where the property was acquired by the solvent spouse prior to the insolvency order, the following must be noted. Such proposals will be considered to illustrate the progress made in reforming the section and to establish whether the reform measures proposed will protect all those affected by the discrimination arising from section … S64 and 65 basically provide for the enquiries into the estate, business, affairs or property of, The trustees caused the property of Mrs Harksen to be attached and none of it had been, She was ordered to submit to s64 and 65 – hence this application to have the relevant, The constitutionality of the impugned sections of the, Relied upon the equality clause and the property clause of the interim Constitution in. 21 advantage to creditors. Find answers and explanations to over 1.2 million textbook exercises. 2 Hereafter the "solvent spouse". The trustee has the right in terms of section 21 of the Insolvency Act to release property of the solvent spouse. As per Section 12A of the Insolvency and Bankruptcy Code, 2016, the Adjudicating Authority may allow the withdrawal of application admitted under Sections 7, 9 or 10, with the approval of ninety per cent. voting share of the committee of creditors. The third proviso to section 7(1) provides that the financial creditors mentioned under clause (a) and clause (b) of subsection (6A) of Section 21 (i.e. (1) The interim resolution professional shall after collation of all claims received against the corporate debtor and determination of the financial position of the corporate debtor, constitute a committee of creditors. Insolvency Act 24 of 1936 (SA) (SA GG 2365) came into force in South West Africa on 1 July 1943 when Act 19 of 1943 was brought into force in South West Africa (see also section 158. ter. Legislation : Insolvency Act 24 of 1936 s. 21. Citation : (1998) 9 Stell LR 359. However, s 12 of this Act is not linked to such identification. bepaal artikel 21 van die Wet op lnsolvensie, Wet 24 van 1936, dat die Meester beskik oor die afsonderlike boedel van die solvente gade, en met die aanstelling van 'n trustee dat so 'n trustee daaroor beskik, asof dit die eiendom van die gesekwestreerde boedel was. The Companies Act 61 of 1973 and the Close Corporations Act 69 of 1984 provide for 3. Alternative versions: 01/02/1991- Amendment; 06/06/2013- Amendment; 07/04/2017- Amendment; Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Insolvency Act 1986. Evans, R ‘A critical analysis of section 21 of the Insolvency Act 24 of 1926’ Parts 1 and 2 in 1996 (59) THRHR 613 and 1997 (60) THRHR 72. (a) property of the solvent spouse acquired before her or his marriage to the. Act 16 of 1943. See also part 4 in Evans for a detailed discussion of s 21 of the Insolvency Act. The insolvent became livid about this and referred the matter to the Chief Registrar of Deeds for a ruling. Section 92 of the Canadian I propose to consider the property clause first. Related Parties under Section 29A(j) – The constitutionality of Section 29A(j) of the Code 34 read with the definition of related party under Section 5(24A) of the Code 35 was assailed, based on apprehensions concerning the disqualification of relatives of persons disqualified as a resolution applicant, in spite of not having any business relationships with the disqualified persons per se. There is no doubt where parties are married in community of property. Allen West discusses Deeds Office practice with regards the correct description of companies being wound-up, under judicial management or business rescue, or in liquidation, when deeds are lodged for registration. 4 … 2 Ex Parte Van Den Berg 1950 (1) SA 816 (W) 817. 3594(E) dated November 30, 2016, has been subject to numerous challenges before various High Courts . 21. 1 Insolvency Act 24 of 1936. The Insolvency Act 24 of 1936 aims: to consolidate and amend the law relating to insolvent persons and to their estates. If we see the ground reality families just to seek revenge from other use this section and also cases have been reported where families used this section to blackmail other person and extort money. Try our expert-verified textbook solutions with step-by-step explanations. It is therefore important that examiners must check the date of acquisition in the title deed of the solvent spouse and compare it with the date of the insolvency order. It was contended that there is no intelligible differentia in the classification of creditors and hence the same violates Article 14 of the Constitution. Any changes that have already been made by the team appear in the content and are referenced with annotations. Amended by Cross-Border Insolvency Act … Section 91(21) of the Constitution Act, 1867 gives exclusive jurisdiction over bankruptcy and insolvency to the Parliament of Canada. Section 11 of the Trust Property Control Act21 requires identification of property as trust property. Evans, R ‘Release of a solvent souse’s property under section 21( 2) (c) of the Insolvency act 24 of 1926’ 2004 (1) Stellenbosch Law Review 193-200. Supreme Court: The bench of Ranjan Gogoi, CJ and Sanjiv Khanna, J has issued notice to the Centre in a writ petition challenging the Constitutional validity of Section 327 (7) of the Companies Act, 2013 qua Section 53 of the Insolvency and Bankruptcy code, to the extent that Section 327 (7) renders the meaning of the Explanation (II) to Section 53 of the Code meaningless. 4 Boraine et al “The Pro-Creditor Approach in South African Insolvency Law and the Possible Impact of the onstitution _ 2015 NIBLeJ 62. In terms of section 21 of the Insolvency Act No 24 of 1936, the property of a spouse whose estate has not been sequestrated shall also vest in the Master, and, on appointment of the trustee, in the name of such trustee, as if it were the property of the sequestrated estate. 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