Definitions and the Applications

Section 2


In this Act unless inconsistent with the context—

“account”, in relation to a trustee, means a liquidation account or a plan of distribution or of contribution, or any supplementary liquidation account or plan of distribution or contribution, as the case may require;

“banking institution” means a banking institution as defined in section 1 of the Banks Act, 1965 (Act No. 23 of 1965), and registered or provisionally registered or deemed to be registered as a banking institution in terms of section 4 of that Act, but does not include a provisionally registered banking institution which is so registered provisionally after the coming into operation of the Insolvency Amendment Act, 1972;
[Definition of “banking institution” inserted by s. 1 of Act No. 6 of 1972.]

“building society” means a building society as defined in section 1 of the Building Societies Act, 1965 (Act No. 24 of 1965), and finally registered or deemed to be finally registered as a building society in terms of section 5 of that Act;
[Definition of “building society” inserted by s. 1 of Act No. 6 of 1972.]

“Court” or “the Court”, in relation to any matter means the provincial or local division of the Supreme Court which has jurisdiction in that matter in terms of section one hundred and forty-nine or one hundred and fifty-one, or any judge of that division; and in relation to any offence under this Act or in section eight, twenty-six, twenty-nine, thirty, thirty-one, thirty-two, paragraph (a) of subsection (3) of section thirty-four, seventy-two, seventy-three, seventy-five, seventy-six, seventy-eight or one hundred and forty-seven the expression “Court” or “the Court” includes a magistrate’s court which has jurisdiction in regard to the offence or matter in question;

“debtor”, in connection with the sequestration of the debtor’s estate, means a person or a partnership or the estate of a person or partnership which is a debtor in the usual sense of the word, except a body corporate or a company or other association of persons which may be placed in liquidation under the law relating to Companies;

“disposition” means any transfer or abandonment of rights to property and includes a sale, lease, mortgage, pledge, delivery, payment, release, compromise, donation or any contract therefor, but does not include a disposition in compliance with an order of the court; and “dispose” has a corrresponding meaning;
[Definition of “disposition” substituted by s. 1 of Act No. 27 of 1987.]

“free residue”, in relation to an insolvent estate, means that portion of the estate which is not subject to any right of preference by reason of any special mortgage, legal hypothec, pledge or right of retention;
[Definition of “free residue” amended by s. 2 (a) of Act No. 16 of 1943.]

“Gazette” . . . . . .
[Definition of “Gazette” inserted by s. 2 (b) of Act No. 16 of 1943 and deleted by s. 1 of Act No. 49 of 1996.]

“good faith”, in relation to the disposition of property, means the absence of any intention to prejudice creditors in obtaining payment of their claims or to prefer one creditor above another;

“immovable property” means land and every right or interest in land or minerals which is registrable in any office in the Republic intended for the registration of title to land or the right to mine;

“insolvent” when used as a noun, means a debtor whose estate is under sequestration and includes such a debtor before the sequestration of his estate, according to the context;

“insolvent estate” means an estate under sequestration;

“magistrate” includes an additional magistrate and an assistant magistrate;

“Master” in relation to any matter, means the Master of the Supreme Court within whose area of jurisdiction that matter is to be dealt with and includes an Assistant Master;

“messenger” means a messenger of a magistrate’s court and includes a deputy-messenger;

“Minister” means the Cabinet member responsible for the administration of justice;
[Definition of “Minister” inserted by s. 1 of Act No. 16 of 2003.]

“movable property” means every kind of property and every right or interest which is not immovable property;

“preference”, in relation to any claim against an insolvent estate, means the right to payment of that claim out of the assets of the estate in preference to other claims; and “preferent” has a corresponding meaning;

“property” means movable or immovable property wherever situate within the Republic, and includes contingent interests in property other than the contingent interests of a fidei commissary heir or legatee;

“Republic” . . . . . .
[Definition of “Republic” (“Union”) added by s. 2 (d) of Act No. 16 of 1943 and deleted by s. 1 of Act No. 49 of 1996.]

“security”, in relation to the claim of a creditor of an insolvent estate, means property of that estate over which the creditor has a preferent right by virtue of any special mortgage, landlord’s legal hypothec, pledge or right of retention;

“sequestration order” means any order of court whereby an estate is sequestrated and includes a provisional order, when it has not been set aside;
“sheriff” includes a deputy sheriff;

“special mortgage” means a mortgage bond hypothecating any immovable property or a notarial mortgage bond hypothecating specially described movable property in terms of section 1 of the Security by Means of Movable Property Act, 1993 (Act No. 57 of 1993), or such a notarial mortgage bond registered before 7 May 1993 in terms of section 1 of the Notarial Bonds (Natal) Act, 1932 (Act No. 18 of 1932), but excludes any other mortgage bond hypothecating movable property;

[Definition of “special mortgage” inserted by s. 2 (c) of Act No. 16 of 1943 and substituted by s. 4 of Act No. 57 of 1993 and by s. 1 (1) of Act No. 157 of 1993.]

“Supreme Court” . . . . . .
[Definition of “Supreme Court” inserted by s. 2 (c) of Act No. 16 of 1943 and deleted by s. 1 of Act No. 49 of 1996.]

“the Territory” . . . . . .
[Definition of “the Territory” inserted by s. 2 (c) of Act No. 16 of 1943 and deleted by s. 1 of Act No. 49 of 1996.]

“trader” means any person who carries on any trade, business, industry or undertaking in which property is sold, or is bought, exchanged or manufactured for purpose of sale or exchange, or in which building operations of whatever nature are performed, or an object whereof is public entertainment, or who carries on the business of an hotel keeper or boarding-house keeper, or who acts as a broker or agent of any person in the sale or purchase of any property or in the letting or hiring of immovable property; and any person shall be deemed to be a trader for the purpose of this Act (except for the purposes of subsection (10) of section twenty-one) unless it is proved that he is not a trader as hereinbefore defined: Provided that if any person carries on the trade, business, industry or undertaking of selling property which he produced (either personally or through any servant) by means of farming operations, the provisions of this Act relating to traders only shall not apply to him in connection with his said trade, business, industry or undertaking;

“trustee” means the trustee of an estate under sequestration, and includes a provisional trustee;