INTRODUCTION:
I will analyse if transformative constitutionalism, or simply constitutionalism, has affected
insolvency in this question. I will review all applicable case law and legislation, as well as consider
whether the judges correctly implemented the law.
RULE OF LAW:
Both voluntary and compulsory sequestrations are governed by the Insolvency Act 24 of 1936
(Insolvency Act). The separate estate of the solvent spouse will vest in the Trustee under section
20(1) of the Insolvency Act.
The additional effect of the sequestration of the separate estate of one of two spouses who are not
living apart under a judicial order of separation, according to Section 21(1) of the Act, is to vest in
the Master, until a trustee is appointed, and to vest in him all the property of the spouse whose estate
has not been sequestrated as if it were property of the sequestrated estate, and to empower the
Master or trustee to dissent.
Unless the insolvent has already secured written permission from the presiding officer to be absent,
the insolvent must attend the first and second meetings of the creditors of the insolvent estate,
according to section 64(1).1 After consulting with the trustee, such authority may be granted, in
addition section 64(2)2 empowers the presiding officer to summon anyone who is known or
reasonably believed to be in possession of any property that belonged to the insolvent, the
insolvent's estate, or the insolvent's spouse before or after the insolvent's estate was sequestrated; or
who is indebted to the estate.
This Constitution shall be the supreme law of the Republic, and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in this
Constitution, be of no force and effect to the extent of the inconsistency," according to Section 4(1)
of the Interim Constitution,3 in addition, unless the interests of justice necessitate otherwise, any
procedures pending before a court when the new Constitution took effect shall be dealt with as if
1 Insolvency Act 24 of 1936
2 Insolvency Act 24 of 1936
3 Interim Constitution Act 200 of 1993
I will analyse if transformative constitutionalism, or simply constitutionalism, has affected
insolvency in this question. I will review all applicable case law and legislation, as well as consider
whether the judges correctly implemented the law.
RULE OF LAW:
Both voluntary and compulsory sequestrations are governed by the Insolvency Act 24 of 1936
(Insolvency Act). The separate estate of the solvent spouse will vest in the Trustee under section
20(1) of the Insolvency Act.
The additional effect of the sequestration of the separate estate of one of two spouses who are not
living apart under a judicial order of separation, according to Section 21(1) of the Act, is to vest in
the Master, until a trustee is appointed, and to vest in him all the property of the spouse whose estate
has not been sequestrated as if it were property of the sequestrated estate, and to empower the
Master or trustee to dissent.
Unless the insolvent has already secured written permission from the presiding officer to be absent,
the insolvent must attend the first and second meetings of the creditors of the insolvent estate,
according to section 64(1).1 After consulting with the trustee, such authority may be granted, in
addition section 64(2)2 empowers the presiding officer to summon anyone who is known or
reasonably believed to be in possession of any property that belonged to the insolvent, the
insolvent's estate, or the insolvent's spouse before or after the insolvent's estate was sequestrated; or
who is indebted to the estate.
This Constitution shall be the supreme law of the Republic, and any law or act inconsistent with its
provisions shall, unless otherwise provided expressly or by necessary implication in this
Constitution, be of no force and effect to the extent of the inconsistency," according to Section 4(1)
of the Interim Constitution,3 in addition, unless the interests of justice necessitate otherwise, any
procedures pending before a court when the new Constitution took effect shall be dealt with as if
1 Insolvency Act 24 of 1936
2 Insolvency Act 24 of 1936
3 Interim Constitution Act 200 of 1993
