Article by listed Attorney: Nanika Prinsloo
When is a person (“the insolvent”) has been sequestrated, he/she can apply for rehabilitation. Once rehabilitated, the sequestration comes to an end and the insolvent can start afresh. We are not going to get technical in this article, but we will provide you with a broad outline of rehabilitation applications.
You can read more about our article on insolvency here
In terms of the Insolvency Act, Act 24 of 1936, a person is outomatically rehabilitated after a period of 10 years has expired from date of provisional sequestration. Or, an insolvent can apply to Court for rehabilitation before the 10 years have expired. The general time period before an insolvent can make an application for rehabilitation is 4 years after date of provisional sequestration.
There are circumstances under which one can apply for rehabilitation sooner or only later, but it will not be discussed in this article as in general the period is 4 years. You can consult with us in this regard.
An application for rehabilitation is made to the High Court who has jurisdiction where the insolvent resides. The matter is set down for a provisional rehabilitation order. On the same day that the provisional order is granted, the matter is postponed for approximately one month to a return date. (rule nisi). On the return date, if there was no obtjection to the application, the order is made final by the Court and the insolvent is rehabilitated at that point.
We will draft the affidavit that the insolvent will sign. Once signed, the documents are issued at the High Court, and a case number and a Court date is issued. The insolvent does not have to appear in Court, as applications are made in writing (meaning per Affidavit).
We will perform the work, but to bring a rehabilitation application the insolvent must give notice first of his intention to bring such an application by advertising in the Goverment Gazette, and to give notice to the Master of the High Court. We will also obtain the permission from the curator that the insolvent may rehabilitate. The curator will be the person who was appointed after the initial sequestration order to finalise the insolvent estate. If there were problems in the insolvent estate, for example if the insolvent did not co-operate with the curator at the time when the sequestration order was given, then there may be reasons for the curator not to approve the application for rehabilitation. If the insolvent co-operated with the curator, the latter will probably not have a problem to give permission.
There are various circumstances under which one can apply for rehabilitation, but the most general reason listed here, is to apply after 4 years, in other words through a lapse of time. The insolvent has to inter alia prove what his/her income and expenses are and that he/she is able to provide for him/herself.
There are quite a few more, but as mentioned before, we will not get technical in this article.
Rehabilitation puts an end to sequestration.
With a rehabilitation order all debts are discharged and the insolvent does not have to pay it. The debts mentioned here refers to all debt incurred up to and until date of sequestration. This includes foreign debts in terms of which judgment was granted by a foreign court after sequestration.
Debts incurred after date of sequestration, must still be paid in full by the insolvent. (It is best not to incur debt after sequestration without the permission of the appointed curator in any case.)
The fact that a rehabilitation order is granted by a Court, does not mean that the insolvent’s blacklisting on ITC is removed outomatically.
Judgments that were previously listed on the records of any credit bureaux must be removed as such judgment has lapsed. Some credit bureauxx refuse to do removal of these judgments, but they will not be correct, as the judgment is not valid any longer.
“ITC clearance” must still be arranged after the rehabilitation order was granted. This means that a copy of the rehabilitation order must be forwarded to the credit bureauxx.
On ITC the insolvent will be listed as “rehabilitated”. We find that the banks have no problem granting bonds or other debt once persons have been rehabilitated.
The “rehabilitation” listing will remain on ITC for 5 years whereafter it will be removed.
There are about 10 credit bureauxx in South Africa, so it is important to make use of the services of a person/business that is registered with all the credit bureauxx. There are about 3 better known credit bureauxx.
A rehabilitation order is not a complicated matter. If you have been sequestrated, may we recommend that you start saving towards costs for rehabilitation as soon as you can after sequestration. (You have four years to do it and it keeps you motivated through the sequestration process).
Rehabilitation is about new beginnings: it gives you the opportunity to purchase your new home again, or to manage your money to your advantage and forget the past.
This article written by Nanika Prinsloo of Prinsloo & Associates Attorneys.
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