Appointment of Trustee; Effects of Sequestration

Section 26

Disposition without value

(1) Every disposition of property not made for value may be set aside by the court if such disposition was made by an insolvent—

(a)    more than two years before the sequestration of his estate, and it is proved that, immediately after the disposition was made, the liabilities of the insolvent exceeded his assets;
(b)    within two years of the sequestration of his estate, and the person claiming under or benefited by the disposition is unable to prove that, immediately after the disposition was made, the assets of the insolvent exceeded his liabilities:

Provided that if it is proved that the liabilites of the insolvent at any time after the making of the disposition exceeded his assets by less than the value of the property disposed of, it may be set aside only to the extent of such excess.


(2) A disposition of property not made for value, which was set aside under subsection (1) or which was uncompleted by the insolvent, shall not give rise to any claim in competition with the creditors of the insolvent’s estate: Provided that in the case of a disposition of property not made for value, which was uncompleted by the insolvent, and which—

(a)    was made by way of suretyship, guarantee or indemnity; and

(b)    has not been set aside under subsection (1),

the beneficiary concerned may compete with the creditors of the insolvent’s estate for an amount not exceeding the amount by which the value of the insolvent’s assets exceeded his liabilities immediately before the making of that disposition.

[Sub-s. (2) substituted by s. 1 of Act No. 84 of 1984.]