MRL3701 STUDY UNIT 3 VOLUNTARY
SURRENDER
ADJUDICATION ON APPLICATION - questions and answers-On date that application is
adjudicated upon the following documents must be before the court:
a. Notice of motion and supporting affidavit
b. debtor's statement of affairs, incorporating the verifying affidavit
c. any sworn valuation necessary in the circumstances
d. proof of publication of the notice of surrender in the Gazette and newspaper
e. proof of affidavit that the applicant has delivered or posted copies of the notice of surrender
as required.
f. Certificate from Master that statement of affairs has lain for inspection as advertised, and
whether any written objections have been lodged with him
g. any report by the Master
h. Any opposing affidavits by creditors
i. debtors replying affidavit.
Although debtor is required to bring his application for surrender within 14 days after the
advertised date of the hearing, the court is not bound to accept or decline the application within
this period and may, therefore, postpone the application to a date beyond the period if it sees fit.
(EX PARTATE LEVIN AND GOHN)
Should court accept the surrender, the debtor's estate is sequestrated and the debtor becomes
a declared insolvent as from date of the court order.
COPY OF APPLICATION TO CONSULTING PARTY - questions and answers-If debtor is
employer he must at time of making application provide a consulting party with a copy of the
application.
Section 189 requires the employer to consult one of the following:
a. person whom the employer is required to consult in terms of a collective agreement.
b. if no collective agreement that requires consultation, the workplace forum and registered
trade union of the employees likely to be affected by the proposed dismissals
c. if no such workplace forum, registered trade union whose members are likely to be affected
by proposed dismissals
d. if there is no such trade union, the employees likely to be affected by the proposed dismissal
or their representative nominated for that purpose.
COST OF SURRENDER - questions and answers-The taxed costs incurred in surrendering the
estate are included in the costs of sequestration and are payable out of the estate.
, CURATOR BONIS - questions and answers-Notwithstanding the publication of a notice of
surrender, the debtor is still at liberty to deal with his property as he chooses. He may for
instance sell of mortgage it. As a safeguard against the debtor dissipating his assets after
publishing a notice of surrender the Master may appoint a curator bonis to the debtors estate
s5(2)
The curator bonis is obliged to take the estate into his custody and assume control of any
business or undertaking of the debtors, as the Master may direct.
Estate remains vested in the debtor since the curator bonis is only in the position of a caretaker.
Curator bonis is required to open a bank account and is subject to the same provision in this
regard as a trustee.
Entitled to reasonable remuneration for his services, taxed by the Master. The remuneration
forms part of the costs of sequestration.
EX PARTE BARTON - questions and answers-Notice had been published in Western Cape
newspaper but applicant had previously lived in Durban and all his creditors were in natal.
EX PARTE GOLDMAN - questions and answers-It was held that a weekly journal devoted to
Jewish interest and printed monthly in Yiddish, using Hebrew characters was not a newspaper
for the purposes of the statute.
EX PARTE HETZLER - questions and answers-Courts may in certain circumstances be
prepared to condone non-compliance with the time period in which posting four days before
publication was not considered to be a fatal defect.
EX PARTE NEL - questions and answers-Applicant disclosed stock-in-trade in his annexure but
failed to support it by detailed stock sheets, merely handing in at the hearing a stock book
containing the relevant details. Court dismissed the application holding that the omission to
supply stock sheets is not a formal defect which the court can condone. Stock sheets are of
material interest for creditors and are the only way in which the sheriff can determine the precise
extent of the merchandise when he makes an attachment.
EX PARTE RUDOLPH - questions and answers-Failure to give notice to creditors in the
prescribed manner will generally be regarded as fatal to the application.
EX PARTE VIVIERS ET UXOR - questions and answers-debtor had, prior to publishing their
present notice of surrender, published a notice of surrender which had lapsed due to expiry of
the 14 day period. Court rejected a contention that they were precluded from surrendering their
joint estate because the earlier notice had not been withdrawn in terms of the Act. Court held
that as the first notice had become void on expiry of the 14 day period, there was nothing for the
applicants to withdraw prior to launching their present application.
SURRENDER
ADJUDICATION ON APPLICATION - questions and answers-On date that application is
adjudicated upon the following documents must be before the court:
a. Notice of motion and supporting affidavit
b. debtor's statement of affairs, incorporating the verifying affidavit
c. any sworn valuation necessary in the circumstances
d. proof of publication of the notice of surrender in the Gazette and newspaper
e. proof of affidavit that the applicant has delivered or posted copies of the notice of surrender
as required.
f. Certificate from Master that statement of affairs has lain for inspection as advertised, and
whether any written objections have been lodged with him
g. any report by the Master
h. Any opposing affidavits by creditors
i. debtors replying affidavit.
Although debtor is required to bring his application for surrender within 14 days after the
advertised date of the hearing, the court is not bound to accept or decline the application within
this period and may, therefore, postpone the application to a date beyond the period if it sees fit.
(EX PARTATE LEVIN AND GOHN)
Should court accept the surrender, the debtor's estate is sequestrated and the debtor becomes
a declared insolvent as from date of the court order.
COPY OF APPLICATION TO CONSULTING PARTY - questions and answers-If debtor is
employer he must at time of making application provide a consulting party with a copy of the
application.
Section 189 requires the employer to consult one of the following:
a. person whom the employer is required to consult in terms of a collective agreement.
b. if no collective agreement that requires consultation, the workplace forum and registered
trade union of the employees likely to be affected by the proposed dismissals
c. if no such workplace forum, registered trade union whose members are likely to be affected
by proposed dismissals
d. if there is no such trade union, the employees likely to be affected by the proposed dismissal
or their representative nominated for that purpose.
COST OF SURRENDER - questions and answers-The taxed costs incurred in surrendering the
estate are included in the costs of sequestration and are payable out of the estate.
, CURATOR BONIS - questions and answers-Notwithstanding the publication of a notice of
surrender, the debtor is still at liberty to deal with his property as he chooses. He may for
instance sell of mortgage it. As a safeguard against the debtor dissipating his assets after
publishing a notice of surrender the Master may appoint a curator bonis to the debtors estate
s5(2)
The curator bonis is obliged to take the estate into his custody and assume control of any
business or undertaking of the debtors, as the Master may direct.
Estate remains vested in the debtor since the curator bonis is only in the position of a caretaker.
Curator bonis is required to open a bank account and is subject to the same provision in this
regard as a trustee.
Entitled to reasonable remuneration for his services, taxed by the Master. The remuneration
forms part of the costs of sequestration.
EX PARTE BARTON - questions and answers-Notice had been published in Western Cape
newspaper but applicant had previously lived in Durban and all his creditors were in natal.
EX PARTE GOLDMAN - questions and answers-It was held that a weekly journal devoted to
Jewish interest and printed monthly in Yiddish, using Hebrew characters was not a newspaper
for the purposes of the statute.
EX PARTE HETZLER - questions and answers-Courts may in certain circumstances be
prepared to condone non-compliance with the time period in which posting four days before
publication was not considered to be a fatal defect.
EX PARTE NEL - questions and answers-Applicant disclosed stock-in-trade in his annexure but
failed to support it by detailed stock sheets, merely handing in at the hearing a stock book
containing the relevant details. Court dismissed the application holding that the omission to
supply stock sheets is not a formal defect which the court can condone. Stock sheets are of
material interest for creditors and are the only way in which the sheriff can determine the precise
extent of the merchandise when he makes an attachment.
EX PARTE RUDOLPH - questions and answers-Failure to give notice to creditors in the
prescribed manner will generally be regarded as fatal to the application.
EX PARTE VIVIERS ET UXOR - questions and answers-debtor had, prior to publishing their
present notice of surrender, published a notice of surrender which had lapsed due to expiry of
the 14 day period. Court rejected a contention that they were precluded from surrendering their
joint estate because the earlier notice had not been withdrawn in terms of the Act. Court held
that as the first notice had become void on expiry of the 14 day period, there was nothing for the
applicants to withdraw prior to launching their present application.
