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Article by Cape Town insolvency expert - Nanika Pretorius

Emigration has become part of the South African lifestyle as many citizens leave the country. It is not an easy process and can cause many anxieties and worries. A big worry is what happens to your debt that you cannot pay by the time you leave South Africa. A fear is that you may be prohibited to leave and that you may be held liable for the debt in your new country. A worse fear is how liquidation and/or sequestration will impact your emigration and whether you will be prohibited to leave the country and arrested if you should return! This article will put your mind at ease and explain how it will impact your image.

The benefits of insolvency stand firm. In fact, insolvency may be a very necessary part of your emigration process. It is always better to not leave unfinished business behind that may bother or affect you in the future in your new country and life. Insolvency will allow you to get rid of your debt problems before (sometimes after) you leave the country. It is better to get rid of debt by means of the insolvency process before you leave than after you have left.

Insolvency consists of either liquidation or sequestration. A business liquidates and an individual sequestrates. In both cases, the debt is written off and the creditors may not collect it from you or your business ever again. The consequence of insolvency is that the creditors come together in both liquidation and sequestration, and they must share in the available proceeds in a certain order of preference. Insolvency stops all the threats, harassment and legal action.

How does insolvency affect the emigration process?

It does not. First of all the debt is written off, which means you do not have to fear being harassed in the future or when you return to South Africa one day. The insolvency process writes off all debts, including SARS. **The liquidation process does not write off customs and excise taxes, but it does other taxes. Sequestration writes off all taxes.

One can liquidate a company in the Companies Offices as well as in the High Court. I usually prefer to liquidate a company in the Companies Offices as it is faster and cheaper than a Court application.

The question is that if you do NOT liquidate your company or sequestrate yourself, what happens to the debt? Will somebody wait for you at the airport and stop you from leaving? Or will your visas not be granted? The good news is no, they will not. Owing money is a civil matter and not a criminal matter and unless an over-zealous attorney decides to try and attach your suitcases while you are boarding a flight, you will be free to leave. The only time a warrant for your arrest will be issued is if you committed a crime or if you did not appear in court when you were summoned to appear, and the court issued a warrant for your arrest for contempt of court. You cannot be arrested for not paying your debt.

Once a company is liquidated and an individual is sequestrated, the debt is written off and it can never be claimed from you. If you leave without liquidating or sequestrating, the only risk you have with regards to your debt is that the court can issue a warrant for arrest for failing to appear in court if you were summoned to do so. You may be unaware that such a document was issued because it may be served on your previous domicilium address. It is for this reason definitely better to go to the insolvency route, then you know that that cannot happen in Purely from a psychological perspective, it is best to liquidate and/or sequestrate before you leave the country, then you have peace of mind for the future. Insolvency closes the door on problems and leaves no loose ends that may bother you once you are overseas.

In insolvency, timing is everything. Waiting too long to liquidate or sequestrate may make your insolvency more expensive or more difficult.

The benefits of insolvency before emigration

If you liquidate and/or sequestrate before emigration, it will not affect your emigration. If you liquidate or sequestrate in South Africa, the liquidation or sequestration is only valid in South Africa. It will not affect you in your new country.

Insolvency after emigration

You can liquidate a company from overseas, but it is possible, but more expensive to sequestrate after you have left.

Dealing with an insolvent company or being unable to pay your debt is quite a burden to carry. It is best to get rid of the problems so that you can wrap up your affairs in South African and leave with a positive mindset to look forward to your new future without any problems.

Having unpaid debt should also not impact your visa applications and other documentation that you need to provide. Debt is a civil matter unrelated to the requirements for emigration.

Contact us for a consultation so that we can assist you with your liquidation and sequestration before you leave the country. Contact the writer or visit our website at