Insolvency / Bankruptcy

When your liabilities exceed your assets, you are insolvent. The remedy is to apply for a sequestration order. The effect of such a sequestration order is that creditors must claim from the insolvent estate and that they cannot claim from you anymore.

We have done over 5,000 of these applications with a remarkable success rate.

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Which option is right for me

When you have debt, there are a few options to consider. If you cannot pay your debt, sequestration is usually the only option available. Below we discuss the mechanisms that can be used for debt

When you can pay your debts

Pay
Administration
Debt Counselling
Statutory Composition
Common Composition
Settlement Auction
Voluntary Distribution
Private Liquidation
Moratorium
Consolidation
Do nothing about it

When you can’t pay creditors

Sequestration

 

Sequestration is an application made to the high court in terms whereof your debt is legally written off. The creditors must claim from the separate insolvent estate. There are effects that last until the day of your rehabilitation. Upon rehabilitation, it is regarded that your debts have been settled.

Positive Effects

Debt Written Off

Creditors legal actions are stayed

You can sleep easy at night

You can start living again

Negative Effects

Certain assets are realized

 Will be listed on credit bureau’s

Excluded from certain professions

Not credit worthy during sequestration

 

Attorneys

Danie Potgieter
Danie PotgieterAttorney
Owner and Prinsipal of the Firm. Danie has a formidable knowledge of Tax Law, Insolvency Law and Corporate Structuring.
Johann Pepler
Johann PeplerAttorney
Johann has finished his Masters degree in Insolvency law. He has the academic expertise that the law profession requires. He has a head for business and a ability to handle the most difficult of law questions.
Breyten Potgieter
Breyten PotgieterAttorney
Breyten is a specialist in Corporate Structuring (Asset Protection), Insolvency Law, Tax Law and Trusts. He is a partner of Danie Potgieter Attorneys and has knowledge and experience that far surpasses his age in years.

Frequently Asked Questions – Voluntary Sequestration Process

Frequently asked Questions

Rights and Obligations

Dispositions & Interesting Law

Frequently asked Questions

To be considered before you decide on Sequestration:

How does the sequestration process work?
Can I be “too poor” to sequestrate?
What is a “benefit for creditors” and how is it calculated?
Will my Application for Sequestration succeed?
Why don’t I simply wait for my creditors to sequestrate me?
What do I tell my creditors?
Can “they” take my salary?
Will I lose my furniture?
Can “they” take my tools of trade?
Can “they” take my children’s assets?
What happens to my insurance policies?
Will my cell phone contract be cancelled?
Do I still have to pay maintenance to my ex-wife?
Parking tickets, Television licenses, Speeding fines and other statutory fines?
Can I start a new business while I am insolvent?
Can “they” attach money due to me in terms of a claim for personal injury or defamation?
Will they take my wife’s jewellery?
Will “they” take my firearms?
Can “they” take my pension?
How long will I be able to stay on in my house which falls into my insolvent estate?
How long will I be able to keep my car?
Will I be able to open a bank account after my sequestration?
Should I keep on paying my creditors after I have given my Attorneys Instruction to sequestrate me?
What are the most common practical problems after sequestration?
Can I put all my assets in trust?
Can my employer fire me because I am declared insolvent?
Someone “from the bank” has called me and he wants to collect my car because the payments are in arrears. Must I hand it over?
Will I be able to get a car?
Will I be able to rent a house?
Am I allowed to enter into a contract after sequestration?
My son’s car is financed on my name, what will happen to the car after sequestration?
How do I prove that stuff does / does not belong to me?
I have a photocopier / laptop / television under rental agreement!
Who the heck are “they”?
Can I sequestrate whilst / after I have been placed under debt review?
Will I have to pay back my creditors before I can apply for rehabilitation?
How about a “friendly divorce” before sequestration?
What is the effect of a marital property system where the accrual is applicable?
Can creditors take my assets while I am in the process of sequestration?
Which are the three processes acknowledged in our law by which someone can be sequestrated?
What is the effect of placing an advertisement in Government Gazette in which I publish my intent to surrender my estate?

 

After you were sequestrated:

I have forgotten about one or two small creditors and they are not mentioned in my application for sequestration, will I be held liable to pay them?
Am I allowed to have a credit card and cheque account while I am under sequestration?
Am I allowed to have a cheque account or credit card after my sequestration?
Must I keep on still pay my municipal levies after I have given instruction to my attorney to sequestrate me?
Must I keep on paying water and lights after I have given instruction to my attorney to sequestrate me?
I have received a subpoena to appear in Court. Must I still appear in Court after I instructed my attorney to attend to my sequestration?
What is the position regarding assets or debt that I have in other countries than South Africa?
What are the exclusions in the International Insolvency Convention, regarding countries other than South Africa?
What is the role of the Trustee in my life after sequestration?
My relationship with the Trustee?

 

Rights and Obligations

What are my rights and obligations during sequestration?
Can I be a Trustee of a Trust during insolvency?
Can I be a member of a Close Corporation while I am under Sequestration?
Can I be a director of a Company while I am under Sequestration?
What is the position of people who worked for me?
Am I allowed to immigrate?
Am I liable for my debts of the company/close corporation/business trust?
What happens if I incur debt after my sequestration?
Will I lose my business when declared insolvent?
Can/should I start a business on someone else’s name?
What about my good name?
What is the effect of my sequestration on a lease agreement?
If I am the beneficiary in someone’s will and that person passes away, what happens to that inheritance?
Am I allowed to obtain credit after my sequestration?
Can the Trustee attach my spouse’s assets, if my spouse is not sequestrated?
Am I allowed to move domestically or to immigrate?

 

Dispositions & Interesting Law

What is meant by a “disposition” in the Insolvency Act?
I have heard that all dispositions that I have made longer than six months before my sequestration was granted is safe. Is this true?
What are the so called “voidable dispositions”?
What are the categories of “voidable dispositions”?
What is a disposition without value?
Certain dealings in terms of an Antenuptial Contract
What does voidable preference mean?
What does Undue preference (Section 30) mean?
What does “collusion” mean? (Section 31)
What is meant by a voidable transfer of business?

 

Just interesting:

I feel guilty!
I fear the unknown?
Can “they” put me in jail if I do not pay my debt?
I have not heard from a creditor for more than 3 years. Is the debt written off?
I did not even know that they took judgment against me!
Can a judgment against me be set aside?
The bank has, irrespective of the fact that I am insolvent, given me an overdraft and a credit facility on my credit card. Am I allowed to go into overdraft?
I have a purchaser who is interested to buy my immovable property?
I own an undivided share in an immovable property. What is the legal position?
What happens at SARS?
At the time of my sequestration I owed SARS VAT (value added tax)?
Can’t I simply hide my assets and then say that I have lost all my money at Monte Casino?
Who appoints the trustee and how does he get appointed?
Can I be jailed for not paying my debt?
Under which circumstances can my trustee lay criminal charges against me?
What is an insolvency inquiry?
What is a bank mandate and why is it important?
How long does the winding up of my estate take?
Sequestration through the Ages!