, MRL3701 ASSIGNMENT 2 | SEMESTER 2 | MEMO| DUE DATE: 31 AUGUST 2026
Question 1
Neliswa is an unrehabilitated insolvent who wishes to stand as a candidate in the forthcoming
municipal elections for the Evolve party. The issue is whether her trustee may interfere with her
intended political career merely because the trustee believes that she should not enter politics at this
stage. The answer requires a distinction between the trustee’s powers over the insolvent estate and
the personal and political rights of the insolvent.
The sequestration of Neliswa’s estate does not mean that her trustee obtains unlimited control over
her personal affairs. The trustee’s principal function is to administer and realise the insolvent estate
for the benefit of the creditors. In terms of section 20(1)(a) of the Insolvency Act 24 of 1936, the
effect of sequestration is that the estate of the insolvent vests in the Master until a trustee is
appointed and thereafter in the trustee.1 The trustee consequently obtains extensive powers
concerning property belonging to the insolvent estate, but these powers are directed towards the
administration of the estate and the interests of creditors. They do not amount to a general authority
to control the insolvent’s personal life, political opinions or political ambitions.
It is therefore necessary to distinguish between control over property and control over personal
rights. A trustee may exercise control over property forming part of the insolvent estate and may
take steps necessary to protect creditors’ interests. The trustee may not, merely because of personal
disagreement with the insolvent’s decisions, dictate which political party the insolvent supports or
whether the insolvent wishes to participate in political activities. The trustee’s powers must be
exercised within the limits imposed by the Insolvency Act and for purposes connected with the
administration of the estate.2
Neliswa’s position must, however, be considered against the legal consequences attached to being
an unrehabilitated insolvent. Insolvency law imposes various disabilities upon an unrehabilitated
insolvent, particularly in relation to positions of public responsibility and trust. These restrictions
are imposed by legislation and public policy rather than by the personal discretion of the trustee.
Accordingly, if a particular statute disqualifies an unrehabilitated insolvent from holding a particular
public office, Neliswa would have to comply with that statutory restriction irrespective of whether
her trustee supports her political ambitions.
The Constitution is particularly important because section 158(1) provides that every citizen who is
qualified to vote in a municipal election is eligible to be a member of a Municipal Council, subject
to the listed constitutional disqualifications.3 Section 158(2) further provides that certain persons
who are not eligible to be members under section 158(1) may nevertheless be candidates, subject to
national legislation.4 The constitutional framework therefore demonstrates that eligibility to
participate in municipal elections is regulated by law and cannot simply be determined by the
personal wishes of a trustee.
It is also important to distinguish between being politically active, standing as a candidate and
ultimately occupying public office. Neliswa’s status as an unrehabilitated insolvent does not, by
1
Insolvency Act 24 of 1936 s 20(1)(a).
2
Insolvency Act 24 of 1936 ss 82–83, concerning the trustee’s powers and duties in relation to the administration and realisation
of the insolvent estate.
3
Constitution of the Republic of South Africa, 1996 s 158(1).
4
Constitution of the Republic of South Africa, 1996 s 158(2).
Question 1
Neliswa is an unrehabilitated insolvent who wishes to stand as a candidate in the forthcoming
municipal elections for the Evolve party. The issue is whether her trustee may interfere with her
intended political career merely because the trustee believes that she should not enter politics at this
stage. The answer requires a distinction between the trustee’s powers over the insolvent estate and
the personal and political rights of the insolvent.
The sequestration of Neliswa’s estate does not mean that her trustee obtains unlimited control over
her personal affairs. The trustee’s principal function is to administer and realise the insolvent estate
for the benefit of the creditors. In terms of section 20(1)(a) of the Insolvency Act 24 of 1936, the
effect of sequestration is that the estate of the insolvent vests in the Master until a trustee is
appointed and thereafter in the trustee.1 The trustee consequently obtains extensive powers
concerning property belonging to the insolvent estate, but these powers are directed towards the
administration of the estate and the interests of creditors. They do not amount to a general authority
to control the insolvent’s personal life, political opinions or political ambitions.
It is therefore necessary to distinguish between control over property and control over personal
rights. A trustee may exercise control over property forming part of the insolvent estate and may
take steps necessary to protect creditors’ interests. The trustee may not, merely because of personal
disagreement with the insolvent’s decisions, dictate which political party the insolvent supports or
whether the insolvent wishes to participate in political activities. The trustee’s powers must be
exercised within the limits imposed by the Insolvency Act and for purposes connected with the
administration of the estate.2
Neliswa’s position must, however, be considered against the legal consequences attached to being
an unrehabilitated insolvent. Insolvency law imposes various disabilities upon an unrehabilitated
insolvent, particularly in relation to positions of public responsibility and trust. These restrictions
are imposed by legislation and public policy rather than by the personal discretion of the trustee.
Accordingly, if a particular statute disqualifies an unrehabilitated insolvent from holding a particular
public office, Neliswa would have to comply with that statutory restriction irrespective of whether
her trustee supports her political ambitions.
The Constitution is particularly important because section 158(1) provides that every citizen who is
qualified to vote in a municipal election is eligible to be a member of a Municipal Council, subject
to the listed constitutional disqualifications.3 Section 158(2) further provides that certain persons
who are not eligible to be members under section 158(1) may nevertheless be candidates, subject to
national legislation.4 The constitutional framework therefore demonstrates that eligibility to
participate in municipal elections is regulated by law and cannot simply be determined by the
personal wishes of a trustee.
It is also important to distinguish between being politically active, standing as a candidate and
ultimately occupying public office. Neliswa’s status as an unrehabilitated insolvent does not, by
1
Insolvency Act 24 of 1936 s 20(1)(a).
2
Insolvency Act 24 of 1936 ss 82–83, concerning the trustee’s powers and duties in relation to the administration and realisation
of the insolvent estate.
3
Constitution of the Republic of South Africa, 1996 s 158(1).
4
Constitution of the Republic of South Africa, 1996 s 158(2).
