Definitions and the Applications

Section 9

Petition for sequestration of estate

(1) A creditor (or his agent) who has a liquidated claim for not less than fifty pounds, or two or more creditors (or their agent) who in the aggregate have liquidated claims for not less than one hundred pounds against a debtor who has committed an act of insolvency, or is insolvent, may petition the court for the sequestration of the estate of the debtor.

[Sub-s. (1) amended by s. 6 (a) of Act No. 16 of 1943.]

(2) A liquidated claim which has accrued but which is not yet due on the date of hearing of the petition, shall be reckoned as a liquidated claim for the purposes of subsection (1).

(3) (a)  Such a petition shall, subject to the provisions of paragraph (c), contain the following information, namely—

(i)    the full names and date of birth of the debtor and, if an identity number has been assigned to him, his identity number;
(ii)    the marital status of the debtor and, if he is married, the full names and date of birth of his spouse and, if an identity number has been assigned to his spouse, the identity number of such spouse;
(iii)    the amount, cause and nature of the claim in question;
(iv)    whether the claim is or is not secured and, if it is, the nature and value of the security; and
(v)    the debtor’s act of insolvency upon which the petition is based or otherwise allege that the debtor is in fact insolvent.
(b)  The facts stated in the petition shall be confirmed by affidavit and the petition shall be accompanied by a certificate of the Master given not more than ten days before the date of such petition that sufficient security has been given for the payment of all fees and charges necessary for the prosecution of all sequestration proceedings and of all costs of administering the estate until a trustee has been appointed, or if no trustee is appointed, of all fees and charges necessary for the discharge of the estate from sequestration.
(c)  The particulars contemplated in paragraph (a) (i) and (ii) shall also be set out in the heading to the petition, and if the creditor is unable to set out all such particulars he shall state the reason why he is unable to do so.
(d)  In issuing a sequestration order the registrar shall reflect any of the said particulars that appear in the heading to the petition on such order.

[Sub-s.(3) amended by s. 6 (b) of Act No. 16 of 1943 and substituted by s. 2 of Act No. 99 of 1965 and by s. 1 of Act No. 122 of 1993.]

(4) Before such a petition is presented to the court, a copy of the petition and of every affidavit confirming the facts stated in the petition shall be lodged with the Master, or, if there is no Master at the seat of the court, with an officer in the public service designated for that purpose by the Master by notice in the Gazette, and the Master or such officer may report to the court any facts ascertained by him which would appear to him to justify the court in postponing the hearing or in dismissing the petition. The Master or the said officer shall transmit a copy of that report to the petitioning creditor or his agent.

(4A) (a)  When a petition is presented to the court, the petitioner must furnish a copy of the petition—

(i)    to every registered trade union that, as far as the petitioner can reasonably ascertain, represents any of the debtor’s employees; and
(ii)    to the employees themselves—
(aa)    by affixing a copy of the petition to any notice board to which the petitioner and the employees have access inside the debtor’s premises; or
(bb)    if there is no access to the premises by the petitioner and the employees, by affixing a copy of the petition to the front gate of the premises, where applicable, failing which to the front door of the premises from which the debtor conducted any business at the time of the presentation of the petition;
(iii)    to the South African Revenue Service; and
(iv)    to the debtor, unless the court, at its discretion, dispenses with the furnishing of a copy where the court is satisfied that it would be in the interest of the debtor or of the creditors to dispense with it.
(b)  The petitioner must, before or during the hearing, file an affidavit by the person who furnished a copy of the petition which sets out the manner in which paragraph (a) was complied with.

[Sub-s. (4A) inserted by s. 2 of Act No. 69 of 2002.]

(5) The court, on consideration of the petition, the Master’s or the said officer’s report thereon and of any further affidavit which the petitioning creditor may have submitted in answer to that report, may act in terms of section ten or may dismiss the petition, or postpone its hearing or make such other order in the matter as in the circumstances appears to be just.