General Articles

How to file for bankruptcy in South Africa

Declaring bankruptcy in 12 easy steps

Several clients have requested us to provide them with a brief explanation of the procedure to be followed in filing for bankruptcy. This is my attempt to do so, specifically for our current and future prospective clients, who chose this route as a debt solution, written from Dionne Lamprecht Attorneys' administrative viewpoint, bearing in mind all the relevant time constraints. I also included the relevant sections of the Insolvency Act for easy referral and convenience.

In terms of Section 3(1) of the Insolvency Act an insolvent debtor or his agent may petition the court for the acceptance of the surrender of the debtor’s estate for the benefit of his creditors. This process, which is done by way of application to the relevant High Court, is also commonly referred to as ‘filing for bankruptcy’, a ‘voluntary surrender’ or a ‘voluntary sequestration’. Although none of our clients ever had to appear in court, the court may direct the petitioner or any other person to appear and be examined before the court in terms of Section 3(3). I state again - since 1995 I have been responsible for the Insolvency Division of Dionne Lamprecht Attorneys and to date, none of our clients ever had to appear in court for bankruptcy proceedings.

Step 1 - (100% free of charge!)

Download and Complete "Debt Info" Spreadsheet

All prospective clients are required to complete and submit a "Debt Info" spreadsheet. You can download the required spreadsheet by clicking on the following icon:

icon Excel Spreadsheet for Debt Info (37 KB)

Simply save it on your computer, complete it as thoroughly as possible and remember to save it, before submitting it to us via e-mail as an attachment.

Can't Download the Spreadsheet? No Problem!

Simply request it by sending an e-mail to This e-mail address is being protected from spambots. You need JavaScript enabled to view it , stating "Request Spreadsheet" or "Request Assistance"  or something similar. We will respond by sending you an e-mail with the required "Debt Info" Excel Spreadsheet as an attachment. Simply save it on your computer, complete it as thoroughly as possible and remember to save it, before submitting it to us via e-mail as an attachment.


Step 2 - (100% free of charge)

"Debt Info" Spreadsheet submitted - Now what?

After we receive your spreadsheet, we will process it. If need be, we will request more information on a specific creditor or creditors, if the information we received is inadequate.

Once the information is processed to our satisfaction, we will do a complete debt analysis to determine if there’s any viable alternative to filing for bankruptcy. If not, we will draft a Debt Profile to project and contrast bankruptcy against debt repayment / debt review. This also enables us to determine and advise our client as to the minimum asset value their estate will require in unencumbered assets to file for bankruptcy successfully. It would also include the minimum installments payable over an 24 month period.

We will then e-mail you our assessment and a summary of the Debt Profile, reflecting Option 1 - Filing for Bankruptcy vs. Option 2 – Debt Repayment by way of voluntary distribution.

Step 3 - (100% free of charge!)

Free Consultation by Telephone and Advice by E-Mail

We will request you to call us at your convenience to discuss the matter in detail telephonically, to answer any questions or clear up any misconceptions. You may also send us an e-mail regarding any questions you still need answered, if you could not find it on this website.

Remember that the court will only accept the surrender of your estate if it is considered to be for the benefit of your creditors.  Should you feel that your asset value might be inadequate, we will advise you of any possible asset restructuring and/or asset acquisition options to legally increase your estate's asset value. We will also discuss the re-purchase of your assets, the timetable for the application, etc.

Please Note:

We will require payment of a deposit before commencing with Step 3, to cover the majority of our immediate foreseeable disbursements. Payment of the deposit will be arranged individually with each client. Our fees and the remainder of our disbursements will be recovered from the insolvent estate itself, once the application was successful.

Step 4

Drafting of the Statement of Affairs

At this time we should have received enough debt information to enable us to draft a provisional Statement of Affairs (a list of your assets and liabilities in a prescribed form) in order to eventually comply with Section 4(3).

To do this we will require the following information on each and every one of your creditors:

1)     Name of creditor;

2)     Complete postal address;

3)     Postal Code;

4)     Amount client owes / balance due to the relevant creditor;

5)     Reason for debt e.g. assets financed; lease agreement; hire purchase; installment sale agreement; monies loaned and advanced; services rendered or goods sold.

6)     Confirmation whether or not the creditor has any form of security for payment of his claim, e.g. mortgage bond, retained ownership of an asset (vehicle finance) etc.

As soon as we finalised the draft Statement of Affairs, we will proceed with drafting of your founding affidavit.  In the founding affidavit, we will have to deal with the reason for our client’s insolvency, monthly expenditure and certain other law prescribed aspects as well as court ordained practices.

Step 5

Valuation of Assets

A provisional Statement of Affairs will then be sent to our client by e-mail for perusal. This will enable us to discuss any possible inadequacies, corrections or changes and the overall effect it will have, prior to signature of the document.

At this stage we will proceed to arrange for a valuation of our client’s assets by a sworn appraiser recognised by the Master of the High Court, to validate the value listed in the provisional Statement of Affairs as required by the Court and Master of the High Court. Ownership of these assets will eventually vest in the Trustee appointed by the Master once the application is granted, but may be re-purchased by our client from the insolvent estate – Please refer to our FAQ (Frequently Asked Questions) segment for any questions in this regard, and note that this would also be discussed with in detail with you during Step 2.

Should the asset value be inadequate, we will advise our client as to any possible asset restructuring and/or asset acquisition options (as would also have been previously discussed in Step 2) to achieve the aforementioned minimum value, legally.

Step 6

Signature of the Statement of Affairs and Affidavit

The necessary changes will be made to the provisional Statement of Affairs in accordance with the valuation certificate, thereby finalizing it. Both the Statement of Affairs and your Founding Affidavit will then be e-mailed to you, for your perusal and signature. The both document will have to be printed in duplicate and both sets must be signed before a Commissioner of Oaths. Full and complete, easy-to-follow instructions in this regard will accompany the documents.

Once signed and commissioned, both sets and copies must be mailed back to us via overnight mail or courier.

Once the documents are back in our possession, we will compile the application, index and paginate all the pages and supporting documentary evidence. The application will be scanned and the necessary copies will be made, for service on all the relevant and required parties.

Step 7

Advertisement in Government Gazette

Once we receive the Statement of Affairs back, in duplicate, we will proceed to draft and place the necessary advertisements for publication, in order to comply with Section 4(1).

Once the advertisement has been published (must be approved for publication before 11h00 on a Friday in order to appear the following Friday) you will be under the protection of the Insolvency Act and creditors may no longer instruct the Sheriff of the Court to attach and sell your property, as Section 5 will apply.

Please Note:

The court date will appear in the advert. The court date must be set within 30 days from the adverts' date of publication in terms of Section 4(1).

Step 8

Public inspection of Statement of Affairs

The Statement of Affairs will then be sent by us via overnight mail or courier to the relevant Master of the High Court and if applicable, Magistrate’s office, in order to comply with Section 4(3), (5) and (6).

Step 9

Notice to creditors and other parties

No notice of any kind need be given to your employer, only your employees (if any). We will proceed to inform by registered mail, your creditors, the South African Revenue Service and any registered trade union representing your employees (only if any), of the pending application as required by Section 4(2). A copy of the application will also be served on your employees themselves (only if any), in the prescribed manner.

Step 10

Issuing Notice of Motion

Once all of the aforementioned sections have been complied with, we will proceed to draft and issue the Notice of Motion, thus reserving a place on the High Court roll for the application to be heard.

Step 11

Service and lodging of Application

A copy of the application will then be served on the relevant Master of the High Court, another on the Receiver of Revenue (only if required), whilst the original will be filed with the Registrar of the High Court (at least 48 hours before the court date or earlier if so required).

A copy will then be sent to our Advocate along with our brief (our instructions), our correspondent will also require a copy as will the Trustee eventually. We, ourselves, will be utilizing the electronic scanned copy.

Step 12

The Court Date

The application (for bankruptcy) will then serve before the High Court and if needed our Advocate will argue the case on our behalf. Your presence will not be required. Section 6 will then apply and if the court is satisfied that the provisions of Section 4 have been complied with, the High Court may accept the surrender of your estate and issue a sequestration order.

More questions? Need more information? No problem!

Should you have any more questions regarding the process, comments or suggestions, please feel free to e-mail us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

- The Insolvency Division -



 
History of Bankruptcy
Written by Rohan Lamprecht   

Bankruptcy can be traced back through the centuries to Hebrew Scriptures that refer to Moses' Laws that prescribed one "Holy Year" or "Jubilee Year" that should take place every 50 years, when all debts are eliminated among Jews and all debt-slaves are freed, due to the heavenly command. The law of debt forgiveness can be found in the Old Testament of the Bible:

"Every seven years we will let our fields rest, and we will cancel all debts." - Nehemiah 10:31b, and

"Every seven years you must announce, "The LORD says loans do not need to be paid back." Then if you have loaned money to another Israelite, you can no longer ask for payment. At the end of every seventh year you must cancel your debts. This is how it must be done. Creditors must cancel the loans they have made to their fellow Israelites. They must not demand payment from their neighbours or relatives, for the LORD's time of release has arrived." - Deuteronomy 15:1-2.

The Bible makes it clear in Leviticus 25:39 that people are generally expected to pay their debts and no one should advance any argument against that. However, the moral and legal obligation to pay debts must be balanced by the need for compassion and the ability to cancel debts at periodic intervals. The Biblical basis for such ideas is based on the sabbatical and Jubilee years.

In ancient Greece, a similar concept existed regarding a “timetable for debt forgiveness”. Only locally born adult males could be citizens, it was therefore the fathers (as the head of their family) who were the legal owners of property. If a father was indebted and he could not pay, his entire family including their servants were forced into "debt slavery", until the creditor recovered his debt through their physical labour. However, in most city-states debt slavery was limited to a period of five years and debt slaves had protection of life and limb, which regular slaves did not enjoy. Unfortunately the servants of the debtor could be retained by the creditor beyond the five year deadline. They were often forced to serve the creditor for a lifetime, usually under significantly harsher conditions.

During the period of the Twelve Tables which was promulgated in 451 BC, Roman Law dictated that the inability of a debtor to pay his debt, afforded his creditors the option of either selling him into slavery known as manus injection, or of cutting his body into pieces with the advantage of incurring no liability in case anyone cut off more than his share. These cruel practices were later abolished and replaced by imprisonment of the debtor in a public prison. Eventually in AD 320 imprisonment itself was abolished, save in a case of a debtor who contumaciously refused to pay his debts.

The formal concept of Bankruptcy stemmed from the Roman Empire. The actual word ‘Bankruptcy’ was derived from the ancient Latin term bancus ruptus which means ‘broken bench’, as it was common practice amongst the first bankers of that time to use a bench in public places such as markets to do business, count their money and to write bills of exchange on. Whenever a banker failed, he broke his bench in order to inform the public that his “bank” was no longer in business, as he was bankrupt.

This same practice was also frequented in Italy and therefore some people are of the opinion that the term ‘Bankrupt’ originated from the Italian term banco rotto, which also means ‘broken bench’. Some however, choose to deduce the word from the banque and route meaning ‘table’ and ‘trace’, which was used for referring to the traces or signs left in the ground by a table that was once fastened to it, but has since been removed.

Modern British bankruptcy statutes can be traced back to the sixteenth century and formed the basis of modern U.S. bankruptcy law. Bankruptcy was originally more of a sword than a shield, initiated by creditors and often leading to imprisonment for the delinquent debtor. Roman-Dutch law of the 1700 provided debt relief in the form of surchéance of payments, which is defined as a favour granted by the state which afforded a debtor a right to obtain suspension of payment of debts for one year.

Pre-Union legislation relating to insolvency law in South Africa were regulated by various ordinances during the 1800. In 1916 the Parliament of the Union of South Africa repealed the existing statute law of insolvency in the various provinces and substituted a uniform law of insolvency which was implemented throughout the then Union of South Africa. The Insolvency Act, Act 32 of was repealed on the 1st of July 1936 by the commencement of the current Insolvency Act, Act 24 of 1936. Although it has been frequently been amended over the years since its implementation, it has remained largely unchanged. The most comprehensive amendments were brought about by the following Insolvency Amendment Acts: 16 of 1943, 99 of 1965 and 101 of 1983.

In 1987 the South African Law Reform Commission lodged an investigation into all aspects of insolvency law under their mandate to review the Law of Insolvency. The Insolvency Amendment Act 122 of 1993 and 32 of 1995 were passed, before the South African Law Commission Report Project 63, as it was known, eventually led to a draft Bill in 2000 and the implementation of Insolvency Amendment Act 33 of 2002 and subsequent Insolvency Second Amendment Act 69 of 2002. Although the aforementioned draft Bill also adopted a fresh start approach for bona fide debtors by proposed certain new sections the various acts in order to facilitate pre-bankruptcy compromises, it was eventually resolved that prevention is better than cure.

In this regard it was submitted that the solution to over-indebtedness did not only lie in reform of the insolvency legislation, but in the reform of consumer protection legislation as well. This realization eventually led to the implementation of the new National Credit Act, Act 34 of 2005 with the aim to address and prevent over-indebtedness. The NCA as it is commonly referred to, offers mechanisms for debt payment restructuring by affording an over-indebted consumer the opportunity to apply for debt-arrangement.

Although the aim was to assist the over-indebted consumer, the NCA also opened up the proverbial “Pandora’s box” with regards to unscrupulous Debt Counsellors. The main problem for the consumer seems to be that the relief offered by the NCA boils down to an extension of the debt repayment timetable, without addressing the effect of interest over the extended period.

Thus when all is said and done, the informed consumer that seeks a truly fresh start and clean slate from over-indebtedness is ultimately still left with only one recourse - filing for voluntary bankruptcy in terms of the Insolvency Act, Act 24 of 1936.


 
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