MRL3701 STUDY UNIT 5 - Compulsory Sequestration Questions with Correct Answers

APPLICATION FOR SEQUESTRATION Correct Answer Form & content of application: Brought by way of notice of motion supported by affidavit. Affidavit must be by the sequestrating creditor or anyone else who can attest to the facts. Affidavit to contain: a) Full names, status, occupation and address of the sequestrating creditor. Must be made evident that the creditor has locus standi to apply. When application is made by agent the affidavit must indicate that the agent is duly authorised to bring the proceedings. b) Full names, date of birth, identity number and marital status of the debtor and, if debtor is married, full names, date of birth and identity number of spouse. should be made appear that court has jurisdiction to hear application. c) amount, cause and nature of the claim and a statement as to whether the claim is secured or not and if it is the nature and value of the security. Should appear from information furnished that sequestrating creditor is entitle to bring application in terms of s9(1). If he applies as a cessionary the details of the cession should be given. d) the act of insolvency committed by the debtor and/or his de fact insolvency. If creditor relies on act of insolvency he should follow wording of the Act in describing it and set out the facts that gave rise to the alleged act. Where creditor bases his application on the insolvency of the debtor, he should make an allegation to this effect and support it with some prima facie evidence of insolvency. e) An averment that sequestration will be to the advantage of the creditors and an explanation why this will be so. f) any other relevant facts which might influence the discretion of the court in granting or refusing a sequestration order, eg, the fact that the debtor has a claim for damages against the creditor which is the subject of a pending action. g) A statement that security will be furnished to the Master and his certificate obtained as required by s 9(3) If already done, the certificate should be attached to the affidavit. h) A statement that a copy of the papers will be lodged with the Master with a view to obtaining his report in terms of s9(4)