BILL
To consolidate the laws relating to insolvent persons and to their estates; to repeal
the Insolvency Act, 1936; and to provide for ancillary matters.
BE IT ENACTED as passed by the Parliament and assented to by the President of the
Republic of Namibia, as follows:
ARRANGEMENT OF SECTIONS
CHAPTER 1
INTRODUCTORY PROVISIONS
1. Definitions
2. Application of Act
3. Objectives of Act
CHAPTER 2
GOVERNANCE OF THE INSOLVENCY REGIME
Part 1
The Insolvency Commissioner
4. Appointment of Insolvency Commissioner
5. Appointment of staff members to assist Commissioner
6. Functions and powers of Commissioner
7. Specialist committees
Part 2
Insolvency practitioners
8. Acting as insolvency practitioner
9. Insolvency practitioners not registered
10. Qualifications to act as insolvency practitioner
11. Recognised professional bodies
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12. Application to act as insolvency practitioner
13. Grant or refusal of application to act as insolvency practitioner
14. Revocation of registration certificate
15. Appeal against decision of Commissioner
CHAPTER 3
LIQUIDATION PROCEEDINGS
Part 1
Commencement Standards
16. Acts of insolvency
Part 2
Applications For Liquidation And Liquidation Orders
17. Application by debtor for liquidation of estate
18. Application by creditor for liquidation of debtor's estate
19. Liquidation of partnership estate or trust
20. Application for stay of proceedings from the time an application for
commencement of liquidation is made
21. Abuse of Court's procedures or malicious or vexatious application for
liquidation
22. Provisional liquidation order
23. Final liquidation order
24. Public register of rehabilitated and unrehabilitated insolvents
25. Obligations of creditor upon whose application a liquidation order is made
26. Notice of liquidation
Part 3
Effect Of Liquidation
27. Effect of commencement of liquidation on insolvent and his or her property
28. The effect of liquidation on civil proceedings by or against the insolvent
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29. Rights and obligations of debtor during insolvency
Part 4
Impeachable Dispositions
30. General
31. Alienation by insolvent of property to third party who is in good faith
32. Presumptions relating to property in possession of insolvent
33. Disposition without value
34. Antenuptial contracts
35. Voidable preferences
36. Collusive dealings for prejudicial disposition of property
37. Certain contributions to funds may be recovered for benefit of insolvent estate
38. Attachment of property in possession of associate
39. Certain rights not affected by improper disposition
40. Set-off
41. Payment of debt to insolvent after liquidation
42. Institution of proceedings on behalf of insolvent estate
Part 5
Effect Of Liquidation Upon Certain Contracts
43. Uncompleted acquisition of immovable property by debtor
44. Transactions on an exchange
45. Agreements providing for termination and netting
46. Effect of liquidation of estate of seller under reservation of ownership contract
47. Goods purchased not on credit but not paid for
48. Effect of liquidation upon lease
49. Effect of liquidation on contract of service
Part 6
Provisional Appointment, Election, Appointment And Disqualification Of
Liquidators
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50. Provisional appointment of liquidator
51. Election of liquidator
52. Commissioner may refuse to appoint elected liquidator
53. Appointment of liquidator and security
54. Joint liquidators to act jointly
55. Vacation of office of liquidator
56. Removal of liquidator from office by the Commissioner
57. Court may declare liquidator disqualified or remove liquidator
58. Election of new liquidator
Part 7
Powers And Duties Of Liquidators
59. Service of provisional liquidation order on debtor and attachment of property
belonging to insolvent estate
60. Debtor to hand over books to liquidator and submit statement of affairs to
Commissioner and liquidator
61. Liquidator may obtain search warrant
62. Registration of name and address with liquidator
63. Liquidator's report
64. Recovery of debts due to estate
65. Remuneration of liquidator
66. General duties and powers of liquidator
Part 8
Rights and Duties of Creditors
67. Realization of security
68. Attachment of property upon failure to deliver to liquidator
69. Application of proceeds of security
70. Security in respect of reserved ownership or financial lease
71. Security in respect of landlord's hypothec
72. Special notarial bond over movable property
73. Certain mortgages afford no security or preference
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Part 9
Costs Of Liquidation And Application Of Free Residue
74. Costs of liquidation
75. Application of the free residue
76. Costs incurred in respect of legal services
Part 10
Special Provisions Relating To The Sale Of Property Belonging To The
Insolvent Estate
77. Non-compliance with provisions of Act in sale of property of insolvent estate
78. Bona fide sale of property in possession of debtor
79. Persons incompetent to acquire property from insolvent estate
Part 11
Meetings And Questioning Of Insolvent And Other Persons
80. First meeting of creditors
81. Special meeting of creditors
82. Notice to creditors who have not proved claims
83. General provisions relating to meetings of creditors
84. Voting at meeting of creditors
85. Insolvent to attend meetings of creditors
86. Summons to attend meeting of creditors and notice to furnish information
87. Questioning of insolvent and other persons
88. Questioning by estate representative
89. Liquidator may put written questions or call for accounts, books, documents,
records or information
90. Questioning by or on behalf of the Commissioner
91. Enforcing summonses and giving of evidence
92. Suspected commission of offence to be reported to Commercial Branch
93. Proof of record of proceedings of meetings of creditors
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Part 12
Claims
94. Claim by partnership creditor against estate of insolvent partner
95. Claims against partnerships
96. Proof of claims
97. Liquidator to examine claims
98. Late proof of claims
99. Conditional claims
100. Arrear interest and debt due after liquidation
101. Withdrawal of claim
102. Recovery of debt from insolvent estate where creditor recovered from another
source
Part 13
Banking Accounts, Investments And Moneys Belonging To The Insolvent Estate
103. Banking accounts and investments
104. Recording of receipts by liquidator
105. Unlawful retention of moneys or use of property by liquidator
Part 14
Estate Accounts, Distribution And Contribution
106. Estate Accounts
107. Copies of liquidator's accounts to be open for inspection
108. Objections to liquidator's account
109. Confirmation of liquidator's accounts
110. Distribution of estate and collection of contributions
111. Liquidator to produce receipts for dividends or pay over unpaid dividends to
Commissioner
112. Surplus to be paid into Guardian’s Fund
113. Contribution by creditors towards cost of liquidation
114. Enforcing payment of contribution
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Part 15
Rehabilitation Of Insolvent
115. Rehabilitation
116. Opposition to rehabilitation or refusal of rehabilitation by court
117. Rehabilitation by effluxion of time
118. Effect of rehabilitation
119. Penalties for unlawful inducement to accept compromise or in connection with
rehabilitation
CHAPTER 4
REORGANIZATION PROCEEDINGS
Part 1
Definitions
120. Definitions
Part 2
Pre-Liquidation Composition
121. Pre-liquidation composition with creditors: magistrate’s court
Part 3
Voluntary Arrangements: Ordinary Proceedings In High Court
122. Voluntary arrangement not fully implemented
123. Application for interim order
124. Effect of application for interim order
125. Power of Court to make interim order
126. Provisional supervisor’s report on debtor’s proposal
127. Creditor’s meeting to consider debtor’s proposal
128. Consideration of debtor’s proposal at creditors’ meeting
129. Approval of debtor’s proposal
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130. Effect of approval of debtor’s proposal
131. Additional effect of approved debtor’s proposal on unrehabilitated insolvent
132. Right to challenge decision taken at creditors’ meeting
133. Implementation and supervision of debtor’s proposal
Part 4
Voluntary Arrangements: Expedited Procedure
134. Expedited voluntary arrangement
135. Duty of Commissioner to report to Court
136. Approval of expedited voluntary arrangement
137. Commissioner may apply to Court if debtor is unrehabilitated insolvent
138. Revocation of expedited procedure
Part 5
Summary Instalment Orders
139. Purpose of summary instalment order
140. Application for summary instalment order
141. Requirements for summary instalment order
142. Summary instalment order
143. Commissioner may make additional orders
144. Appointment of supervisor
145. Role of supervisor
146. Commissioner may require supervisor or past supervisor to provide documents
147. Termination of supervisor’s appointment
148. Period of payment of instalments
149. Variation or discharge of summary instalment orders
150. Effect of summary instalment orders
151. Restrictions on bringing proceedings against a debtor while summary
instalment order is in force
152. Supervisor to give notice of summary instalment order
153. Public register of debtors subject to summary instalment orders
154. When summary instalment order not current
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155. Claims of creditors when summary instalment order has effect
156. Payment of debtor’s earnings to supervisor
157. Default by debtor to pay instalments
158. Offence for debtor to obtain credit when summary instalment order in in force
Part 6
No-Asset Procedure
159. Debtor with no realizable assets
160. Eligibility for admission to no-asset procedure
161. Criteria for admission to no-asset procedure
162. Debtor disqualified in certain cases
163. Notification to creditors
164. Restrictions on debtor obtaining credit
165. Debtor admitted to no-asset procedure
166. Public register of persons admitted to no-asset procedure
167. Creditors may not enforce debts of debtor admitted to no-asset procedure
168. Debtor’s duties after admission to no-entry procedure
169. Offence to obtain credit while under no-asset procedure
170. Termination of debtor’s admission to no-asset procedure
171. Commissioner may cause termination of no-asset procedure
172. Commissioner may apply for preservation order
173. Effect of termination of debtor’s participation in no-access procedure
174. Creditor may apply to Commissioner for termination of debtor’s participation
in no-asset procedure
175. Automatic discharge of debtor from no-asset procedure
176. Discharge of debtor’s participation in no-asset procedure
177. Discharge does not release debtor’s business partners and others
Part 7
Post-Liquidation Composition
178. Post-liquidation composition
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Part 8
Criminal Conduct Under This Chapter
179. False declaration to obtain creditors’ approval
180. Prosecution of delinquent debtors
CHAPTER 5
CROSS-BORDER INSOLVENCIES
Part 1
Interpretation And Fundamental Principles
181. Definitions
182. Purpose and aims
183. Scope of application
184. International obligations of Namibia
185. Competent court
186. Authorization of insolvency practitioner, trustee, liquidator, judicial manager
or curator to act in foreign State
187. Public policy exception
188. Additional assistance under other laws
189. Interpretation
Part 2
Access Of Foreign Representatives And Creditors To Courts In Namibia
190. Right of direct access
191. Limited jurisdiction
192. Application by foreign representative to commence proceedings under the laws
of Namibia relating to insolvency
193. Participation of foreign representative in proceedings under the laws of
Namibia relating to insolvency
194. Access of foreign creditors to proceedings under the laws of Namibia relating
to insolvency
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195. Notification to foreign creditors of proceedings under the laws of Namibia
relating to insolvency
Part 3
Recognition Of Foreign Proceedings And Relief
196. Application for recognition of foreign proceedings
197. Presumptions concerning recognition
198. Decision to recognize foreign proceedings
199. Subsequent information
200. Relief that may be granted upon application for recognition of foreign
proceedings
201. Effect of recognition of foreign main proceedings
202. Relief that may be granted upon recognition of foreign proceedings
203. Protection of creditors and other interested persons
204. Actions to avoid acts detrimental to creditors
205. Intervention by foreign representative in proceedings in Namibia
Part 4
Cooperation With Foreign Courts And Foreign Representatives
206. Cooperation and direct communication between court of Namibia and foreign
courts or foreign representatives
207. Cooperation and direct communication between insolvency practitioner,
trustee, liquidator, judicial manager or curator of an institution and foreign
courts or foreign representatives
208. Forms of cooperation
Part 5
Concurrent Proceedings
209. Commencement of proceedings under the laws of Namibia relating to
insolvency after recognition of foreign main proceedings
210. Coordination of proceedings under the laws of Namibia relating to insolvency
and foreign proceedings
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211. Coordination of foreign proceedings
212. Presumption of insolvency based on recognition of foreign main proceedings
213. Rule of payment in concurrent proceedings
CHAPTER 6
OFFENCES
214. Offences
CHAPTER 7
PUBLIC REGISTERS
215. Public registers relating to insolvents and others
216. Access to public registers
217. Purposes of public registers
218. General information to be included in public registers
219. Information kept indefinitely in public registers
220. Restricted information
221. Commissioner may omit, remove, restrict access to or amend information in
public registers
222. Information in public registers may be used for statistical or research purposes
223. Government and Commissioner not liable for certain acts or omissions
CHAPTER 8
GENERAL PROVISIONS
224. Court may stay or set aside liquidation
225. Meetings to ascertain wishes of creditors and others
226. Dispositions after liquidation void
227. General provisions relating to Part 4, Chapter 3 proceedings
228. Giving of evidence after conviction for failure to testify
229. Criminal liability of partners, administrators, servants or agents
230. Jurisdiction of Court
231. Appeals
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232. Review
233. Commissioner's fees
234. Custody and destruction of documents
235. Insurer's liability in respect of indemnification of debtor
236. Non-compliance with directives
237. Regulations, policy and other powers of Minister
238. Amendment and repeal
239. Short title and commencement
SCHEDULE 1
FORM A1: STATEMENT OF DEBTOR'S AFFAIRS
FORM A2: NOMINATION FOR LIQUIDATOR BY CREDITOR
FORM A3: NOMINATION FOR LIQUIDATOR BY REGISTERED TRADE
UNION
FORM B: AFFIDAVIT FOR PROOF OF ANY CLAIM OTHER THAN A
CLAIM BASED ON A PROMISSORY NOTE OR OTHER BILL OF
EXCHANGE
FORM C: AFFIDAVIT FOR THE PROOF OF A CLAIM BASED ON A
PROMISSORY NOTE OR OTHER BILL OF EXCHANGE
FORM D : FORM AND CONTENTS OF ACCOUNTS
FORM E1: NOTICE IN TERMS OF SECTION 29(6)(a) OF THE INSOLVENCY
ACT ___ OF_____ (THE "ACT") TO ATTEND A HEARING IN
TERMS OF SECTION 28 (7)(a) OF THE ACT
FORM E2: SUMMONS IN TERMS OF SECTION 96(13) OF THE
INSOLVENCY ACT ___ OF 2____ (THE "ACT") TO ATTEND A
MEETING OF CREDITORS FOR QUESTIONING IN TERMS OF
SECTION 96(13) OF THE ACT
FORM E3: SUMMONS IN TERMS OF SECTION 86(1) OF THE
INSOLVENCY ACT ___ OF 2____ (THE "ACT") TO ATTEND A
MEETING OF CREDITORS FOR QUESTIONING IN TERMS OF
SECTION 87 OF THE ACT
FORM E4: SUMMONS IN TERMS OF SECTION 88(3)(b) OR 88(6) OF THE
INSOLVENCY ACT ___ OF 2____ (THE "ACT") TO ATTEND A
QUESTIONING IN TERMS OF SECTION 88 OF THE ACT
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FORM E5: SUMMONS IN TERMS OF SECTION 90(1) OF THE
INSOLVENCY ACT ____ OF 2_____ (THE “ACT”) TO ATTEND A
QUESTIONING IN TERMS OF SECTION 90 OF THE ACT
FORM F: STATUTORY DEMAND IN TERMS OF SECTION 16(2)(a) OF
THE INSOLVENCY ACT __ OF 2___ (“THE ACT”)
SCHEDULE 2
TARIFF A: SHERIFF'S FEES
TARIFF B: REMUNERATION OF LIQUIDATOR
TARIFF C: COMMISSIONER'S FEES OF OFFICE
SCHEDULE 3: PROVISIONS OF LAWS AMENDED OR REPEALED
SCHEDULE 4: STATEMENT IN RESPECT OF PROPOSED PRE-
LIQUIDATION COMPOSITION: MAGISTRATE’S COURT
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CHAPTER 1
INTRODUCTORY PROVISIONS
Definitions
1. In this Act, unless the context otherwise indicates-
“account”, in relation to a liquidator, means a liquidation account and distribution
account or contribution account, or any supplementary liquidation account and
distribution account or contribution account;
“Administration of Estates Act” means the Administration of Estates Act 1965 (Act
No. 66 of 1965);
“associate” -
(a) in relation to a natural person means-
(i) the spouse of such person;
(ii) any person who is by consanguinity related to such first-mentioned
person or to his or her spouse, in the first, second or third degree of
relationship as determined in accordance with the provisions of the
Intestate Succession Ordinance, 1946 (Ordinance No. 12 of 1946);
(iii) the partner of such person or the spouse of such partner or any person
who is related to such partner or spouse as is contemplated in
subparagraph (ii);
(iv) the beneficiaries of a trust, or a trust of which such person or associate
of such person is a trustee or beneficiary; or
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(v) a company of which such person is a director or a close corporation of
which such person is a member or any juristic person of whom such
person is a manager or of which he or she has control;
(b) in relation to a juristic person means -
(i) any natural person who is a director of that juristic person or a member
of a close corporation or who has control of that juristic person or close
corporation, either alone or together with his or her associate as
contemplated in sub paragraph (a); or
(ii) any other juristic person which is controlled by the same person who
controls the first-mentioned juristic person;
(c) of another person means a person who has control of an undertaking of the other
person, and that person also has control of an undertaking if the person who
manages the undertaking is or the persons who manage it are accustomed to act
in accordance with that person’s directions or instructions, unless that person
gives advice in a professional capacity only;
(d) means a natural person or juristic person who was an associate of another
natural person or juristic person at the time of any disposition or at the date of
the liquidation of an insolvent estate or liquidation of one of the parties; or
(e) means that two entities are associates of each other if the one is an associate of
the other;
“bank” means a banking institution registered in terms of the Banking Institutions Act,
1998 (Act No. 2 of 1998);
“book” or “books” in relation to bookkeeping or the recording or storage of
information, includes any electronic or mechanical device by means of which the
information concerned is recorded or stored, and in relation to the production, the
handing over or the attachment of any book or books, means the production, the
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handing over or the attachment of a print-out or other written version of the said
information produced by means of such device;
“centre of main interests” means the place where the debtor conducts the administration
of the debtor’s interests on a regular basis, ascertainable by third parties or the place
where the debtor’s registered office is, or where that the debtor’s habitual residence is;
“concurrent creditor” means a creditor who in whole or in part has a claim other than
as a secured creditor or a preferent creditor;
“commencement of liquidation” means the date of a provisional liquidation order;
“Commissioner” means the Insolvency Commissioner appointed under section 4;
“Commissioner of Inland Revenue” means Commissioner of Inland Revenue defined
in section 1 of the Income Tax Act;
“Companies Act” means the Companies Act, 2004 (Act No. 28 of 2004);
“composition” means a composition contemplated in Chapter 4;
“Court” or “the Court” means the High Court or a judge of the High Court, defined in
section 1 of the High Court Act and in section 16(1)(b); 28(1); 33, 35, 36, 213 and
227 includes a magistrate's court, which has jurisdiction in respect of the matter or
offence concerned;
“debtor” means a person, trust or entity that is able to incur debt and whose estate has
been liquidated, and includes-
(a) the estate of any such person or entity;
(b) unless inconsistent with the context or clearly inappropriate any such debtor or
debtor’s estate before liquidation,
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but excludes a debtor which can be wound up under the Companies Act, or any other
Act;
“Deeds Registries Act” means the Deeds Registries Act, 1937 (Act No. 47 of 1937);
“direct notice” means notice by facsimile, e-mail, or personal delivery;
“disposition” means any transfer or abandonment of rights to property and includes a
sale, mortgage, pledge, delivery, payment, release, compromise, donation, suretyship
or any contract therefor;
“e-mail” means a message distributed by electronic means to an e-mail address
indicated for use by the intended recipient and no report is received that the message
could not be delivered to that recipient;
“employee” means an employee as defined by section 1 of the Labour Act;
“establishment” for purposes of determining whether this Act applies to a debtor,
means any place of operations where the debtor carries out a non-transitory economic
activity with human means and goods or services;
“estate” in its functional sense refers to assets of the debtor that are controlled by an
insolvency practitioner and are subject to insolvency proceedings.
“fax” means a facsimile transmission which according to a transmission report has
been transmitted successfully;
“financial lease” means a contract whereby a lessor leases specified movable property
to a lessee at a specified rent over a specified period subject to a term of the contract
that-
(a) at the expiry of the contract the lessee may acquire ownership of the leased
property by paying an agreed or determinable sum of money to the lessor; or
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(b) the rent paid in terms of the contract must at the expiry of the contract be applied
in reduction of an agreed or determinable price at which the lessee may
purchase the leased property from the lessor; or
(c) the proceeds of the realization of the leased property at the expiry of the lease
must accrue wholly or partly to the lessee;
“free residue” in relation to an insolvent estate, means that portion of the estate which
is not subject to any claim by a secured creditor;
“good faith” in relation to the disposition of property, means the absence of any
intention to prejudice creditors in obtaining payment of their claims or to prefer one
creditor above any other;
“High Court Act” means the High Court Act, 1990 (Act No. 16 of 1990);
“immovable property” means land and every right, title and interest in and to land or
minerals which is registrable in any office in Namibia intended for the registration of
title to land or the right to mine;
“Income Tax Act” means the Income Tax Act, 1981 (Act No. 24 of 1981);
“insolvency practitioner” means a person who holds a registration certificate granted
in terms of section 13;
“insolvency proceedings” means-
(a) liquidation proceedings in terms of Chapter 3; or
(b) reorganization proceedings in terms of Chapter 4;
“insolvent” means a debtor whose estate is under liquidation, and in relation to a debtor
who at the date of the liquidation of his or her estate is married in community of
property, includes the spouse of such debtor;
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“insolvent estate” means an estate which is under liquidation and where the joint estate
of spouses married in community of property is under liquidation, it includes the
separate property of the spouses;
“Labour Act” means the Labour Act, 2007 (Act No. 11 of 2007);
“liquidation order” means an order of a Court whereby the estate of a debtor is placed
under liquidation and includes a provisional liquidation order when it has not been set
aside;
“liquidator” means an insolvency practitioner who acts as the liquidator of an insolvent
estate appointed in accordance with Part 6 of Chapter 3 as a provisional or final
liquidator of an insolvent estate;
“liquidator's notice” means-
(a) notice or delivery by the liquidator by registered mail, fax, e-mail, or personal
delivery supported by an affidavit by the liquidator with a list of the persons
given notice or delivered to and the method used by the liquidator to send or
deliver the notice; or
(b) any other form of notice approved by the Commissioner where the
Commissioner is satisfied that there are exceptional circumstances justifying
another form of notice;
“magistrate” means a magistrate as defined in section 1 of the Magistrates Act, 2003
(Act No. 3 of 2003) and includes an additional magistrate defined in that section;
“Magistrates’ Court Act” means the Magistrates’ Court Act, 1944 (Act No. 32 of
1944);
“magistrate's court” means a magistrate’s court established in terms of the Magistrates’
Court Act;
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“Master” means the Master of the High Court and includes a Deputy Master appointed
in terms of section 2 of the Administration of Estates Act;
“Minister” means the Minister responsible for the administration of justice;
“movable property” means every kind of property and every right or interest which is
not immovable property;
“prescribed” means prescribed by regulation;
“Prescribed Rate of Interest Act” means the Prescribed Rate of Interest Act, 1975 (Act
No. 55 of 1975);
“preferent creditor” means a creditor whose claim enjoys preference in terms of any
provision of this Act or a or a similar preference in terms of any other Act;
“property” means-
(a) all movable or immovable property including rights and interests in assets,
wherever located, whether in Namibia or a foreign State;
(b) all tangible and intangible assets; and
(c) a person’s rights and interests in encumbered assets and in third-party-owned
assets,
but excludes assets owned by a third party that are in the possession of the debtor at
the commencement of liquidation, including, but not limited-
(i) to trust assets; or
(ii) to assets subject to an arrangement (whether contractual or otherwise) that does
not involve a transfer of title, but rather the use of the assets and return thereof
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to the owner once the purpose for which they were in the possession of the
person has been fulfilled;
“Public Service Act” means the Public Service Act, 1995 (Act No. 13 of 1995);
“provisional liquidation order” means-
(a) a provisional order for the liquidation of the estate of a debtor; or
(b) an order for the final liquidation of the estate of the debtor if a provisional
liquidation order has not been granted;
“registration certificate” means a registration certificate issued to person in terms of
section 13 authorizing such person to practice as an insolvency practitioner;
“Rules of the Court’ means the Rules of the High Court of Namibia made in terms of
section 39 of the High Court Act;
“Registrar of the Court” means the registrar of court appointed in terms of section 30
of the High Court Act and includes a deputy registrar and assistant registrar appointed
in terms of that section;
“Registrar of Deeds” means the Registrar of Deeds defined in section 1 of the Deeds
Registries Act;
“reservation of ownership contract” means-
(a) a contract in terms of which corporeal or incorporeal movable property is sold
to a purchaser;
(b) the purchase price is payable wholly or partly in the future;
(c) the property is delivered to or placed at the disposal of the purchaser; and
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(d) the ownership in the property does not pass to the purchaser upon delivery of
the property, but remains vested in the seller until the purchase price is fully
paid or until the occurrence of some other specified event;
“secured creditor” means a creditor of an insolvent estate who holds security for his or
her claim, or a portion of a claim, against that estate;
“security” in relation to the claim of a creditor of an insolvent estate means property of
the insolvent estate over which the creditor has a preferent right by virtue of-
(a) any special bond;
(b) a landlord's legal hypothec;
(c) a pledge;
(d) a cession of rights to secure a debt;
(e) a right of retention;
(f) a reservation of ownership contract;
(g) a financial lease;
(h) any preferent right over property in terms of any other Act; or
(i) any prescribed security;
“sheriff” means the sheriff appointed in terms of section 30 of the High Court Act and
includes an additional sheriff, a deputy-sheriff or an assistant to a sheriff appointed in
terms of that section;
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“social benefit” means a pension, allowance or benefits payable to a person in terms of
the Employee’s Compensation Act, 1941 (Act No. 30 of 1941) or the Social Security
Act, 1994 (Act No 34 of 1994);
“special bond” means-
(a) a mortgage bond hypothecating any immovable property; or
(b) a notarial bond hypothecating specially described movable property in terms of
section 72;
“spouse” means a person’s-
(a) partner in a marriage;
(b) partner in a customary union or customary marriage according to customary
law; or
(c) partner in a relationship in which the parties live together in a manner
resembling a partnership contemplated in paragraphs (a) or (b);
“standard notice” means notice by registered mail, fax, e-mail or personal delivery;
“Stock Exchanges Control Act” means the Stock Exchanges Control Act, 1985 (Act
No. 1 of 1985);
“this Act” includes the regulations;
“trade union” means a trade union registered in terms of the Labour Act.
Application of Act
2. (1) This Act applies to any debtor -
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(a) whose centre of main interests is; or
(b) who has an establishment,
in Namibia.
(2) In the absence of proof to the contrary it is presumed that a natural
person’s centre of main interests is in Namibia if that person has his or her habitual
residence in Namibia.
Objectives of Act
3. (1) The objectives of this Act are-
(a) to enhance certainty in financial markets and the economy in general in
order to promote economic stability and growth;
(b) to achieve a balance of the risks allocated between debtors, creditors
and other stakeholders involved in insolvency proceedings;
(c) to promote incentives to achieve maximum value for assets of debtors,
so as to facilitate higher distributions to creditors as a whole and reduce
the burden of insolvency;
(d) to seek to achieve a balance between the liquidation of a debtor and the
reorganization of such debtor’s affairs;
(e) to ensure that creditors with similar legal rights should be treated
equitably, receiving a distribution on their claim in accordance with
their relative ranking and interests;
(f) to ensure that the insolvency of a debtor is addressed and resolved in an
orderly, quick and efficient manner, in order to avoid undue disruption
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to the business activities of the debtor and to minimize the costs of
insolvency proceedings;
(g) to promote the goal of liquidating non-viable and inefficient debtor
businesses and the survival of efficient, potentially viable businesses;
(h) to provide easy access to insolvency proceedings by means of clear and
objective criteria which includes-
(i) an appropriate structure for supervision and administration of
insolvency proceedings;
(ii) convenient means of identifying, collecting, preserving and
recovering assets and rights that should be applied towards
payment of the debts and liabilities of the debtor;
(iii) effective participation of a debtor and his or her creditors in
insolvency proceedings with the least possible delay and
expense;
(iv) effective resolution of the debtor’s financial obligations and
liabilities;
(i) to preserve the debtor’s estate and prevent premature dismemberment
of the debtor’s assets by individual creditor actions to collect individual
debts so as to effect equitable distribution of assets to creditors;
(j) to ensure a transparent and predictable insolvency legal framework that
contains incentives for gathering and dispensing information in order to
promote stability in commercial relations and foster lending and
investment at lower risk premiums;
27
(k) to facilitate clear recognition of existing creditor rights and
establishment of clear rules for ranking of priority claims so as to create
certainty in financial markets and facilitate the provision of credit; and
(l) to establish a framework for cross-border insolvency.
CHAPTER 2
GOVERNANCE OF THE INSOLVENCY REGIME
Part 1
The Insolvency Commissioner
Appointment of Insolvency Commissioner
4. (1) Notwithstanding the provisions of section 2 of the
Administration of Estates Act, the Minister must appoint on a full-time basis a person
with the prescribed qualifications and experience as a Deputy Master in the office of
the Master with the designation of Insolvency Commissioner.
(2) The Commissioner -
(a) is responsible to implement the provisions of this Act subject to the
general control and supervision of the Master;
(b) must perform the functions that are conferred on the Commissioner by
or in terms of this Act.
(3) The Commissioner may, on three months’ written notice addressed to
the Master, resign as Commissioner.
(4) The Master may remove the Commissioner from office on account of-
(a) serious misconduct;
28
(b) permanent incapacity;
(c) engaging in any activity that may undermine the integrity or standing of
the public service; or
(d) any other legitimate ground that justifies the removal of the
Commissioner.
(5) A person does not qualify for appointment as Commissioner if such
person-
(a) is not a Namibian citizen or lawfully admitted to Namibia for permanent
residence;
(b) does not reside in Namibia;
(c) is an unrehabilitated insolvent or is subject to any proceeding in terms
of this Act;
(d) has been convicted of an offence involving dishonesty and sentenced to
imprisonment without the option of a fine; or
(e) is a member of a local authority council, regional council or Parliament.
(6) If the Commissioner is for any reason unable to perform the functions
assigned to them in terms of this Act, the Master may, on such conditions as the Master
may determine, appoint a suitable person as Acting Commissioner to perform the
functions of the Commissioner.
Appointment of staff members to assist Commissioner
5. (1) Subject to the Public Service Act, staff members with suitable
qualifications and experience must be appointed to assist the Commissioner in carrying
out his or her functions under this Act.
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(2) The Master may contract with any service provider to assist the
Commissioner in carrying out his or her functions.
Functions and powers of Commissioner
6. (1) The functions of the Commissioner are to-
(a) oversee and promote adherence with this Act in the interest of the
public;
(b) supervise the administration of all estates and matters to which this Act
applies;
(c) receive applications for registration as insolvency practitioners under
this Act and issue certificates to persons whose applications have been
approved;
(d) monitor whether an insolvency practitioner continues to meet the
qualifications and requirements determined under section 10 and take
the appropriate action referred to in this Act if the Commissioner
determines that the conditions no longer exist;
(e) where not otherwise provided for, require the deposit of one or more
continuing guaranty bonds or continuing suretyships as security-
(i) for the due accounting of all property received by insolvency
practitioners and for the due and faithful performance by them
of their duties in the administration of estates to which they are
appointed;
(ii) in any amount that the Commissioner may determine, which
amount may be increased or decreased as the Commissioner may
deem expedient; and
30
(iii) in a form satisfactory to the Commissioner,
which the Commissioner may enforce for the benefit of the creditors;
(f) from time to time, make or cause to be made any inquiry or investigation
of estates or other matters to which this Act applies, including the
conduct of an insolvency practitioner, that the Commissioner considers
appropriate, and for the purpose of the inquiry or investigation the
Commissioner or any person appointed by the Commissioner for the
purpose must have access to and the right to examine and make copies
of all books, records, data, including data in electronic form, documents
and papers, that are relevant to such inquiry, investigation or other
matters;
(g) receive and keep a record of all complaints from any creditor or other
person interested in any estate and make such specific investigations
with regard to such complaints as the Commissioner may determine;
(h) examine insolvency practitioners’ accounts of receipts and
disbursements and final statements;
(i) investigate, either of its own initiative or in response to complaints
received, any matter concerning an insolvent estate or an insolvency
practitioner;
(j) promote advocacy and educational programs concerning insolvency;
(k) maintain public registers and other records contemplated in this Act and
particularly in Chapter 7;
(l) to exercise such other powers which are not in conflict with this Act as
may be conferred on the Commissioner in writing by the Master or the
Minister; and
31
(m) inquire into and advise the Minister on-
(i) matters relating to insolvency and debt relief, whether of its own
accord or at the request of the Minister;
(ii) the application of this Act, amendments thereto and the making
of regulations; or
(iii) any power, duty or function which may or is required to be
exercised or performed in terms of this Act.
(2) A complaint contemplated in subsection (1)(i) must be -
(a) in the prescribed form; and
(b) substantiated by evidence justifying an investigation by the
Commissioner.
(3) The Commissioner must increase knowledge of the nature and
dynamics and promote public awareness of matters relating to insolvency by -
(a) implementing education and information measures to develop public
awareness of the provisions of this Act, and in particular to advance the
purposes of this Act;
(b) providing guidance to the public by -
(i) issuing explanatory notices outlining procedures and guidelines
pertaining to the Commissioner’s functions under this Act;
(ii) issuing non-binding opinions on the interpretation of any
provision of this Act; or
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(iii) applying to a Court for a declaratory order on the interpretation or
application of the provisions of this Act; and
(c) conducting research relating to the Commissioner’s mandate and
activities and, from time to time, publishing the results of that research.
(4) The Commissioner may liaise with any regulatory authority on matters
of common interest and, without limiting the generality of the foregoing, may -
(a) exchange information with and receive information from any such
regulatory authority pertaining either to matters of common interest or
to a specific complaint or investigation;
(b) participate in the proceedings of any regulatory authority; and
(c) advise, or receive advice from, any regulatory authority.
(5) The Commissioner may, with the approval of the Minister, on a temporary basis or for a particular matter which is being examined by it, employ any person with special knowledge of any matter relating to the work of the Commissioner, or obtain the cooperation of any body, to advise or assist the Commissioner in the exercise of its powers and the performance of its duties and functions under this Act, and fix the remuneration (including reimbursement for travelling, subsistence and other expenses) or other benefits, if any, of such person or body.
(6) The Commissioner may-
(a) intervene in any matter or proceeding in Court, where the
Commissioner considers it expedient to do so, as if the Commissioner
was a party thereto;
(b) issue to insolvency practitioners or persons who provide counselling
pursuant to this Act, directives with respect to the administration of
this Act and, without restricting the generality of the foregoing,
directives requiring them-
33
(i) to keep such records as the Commissioner may require; and
(ii) to provide the Commissioner with such information as he or
she may require;
(c) issue such directives as may be necessary to give effect to any decision
made by the Commissioner pursuant to this Act or to facilitate the
carrying out of the purposes and provisions of this Act, including,
without limiting the generality of the foregoing, directives relating to
the powers, duties and functions of insolvency practitioners;
(d) issue directives governing the criteria to be applied by the
Commissioner in determining whether a certificate may be issued to a
person and governing the qualifications and activities of insolvency
practitioners; and
(e) issue directives determining the form of any document that is by this
Act to be prescribed and the information to be given therein;
(7) Every person to whom a directive is issued by the Commissioner under
subsection (6) must comply with the directive in the manner and within the time
specified therein.
(8) The Commissioner may engage any person that the Commissioner
considers advisable to conduct any inquiry or investigation or to take any other
necessary action, and the cost and expenses of those persons must, when certified by
the Commissioner, be payable out of the appropriation for the office of the Master.
(9) The Commissioner or any person duly authorized by the Commissioner
in writing, is entitled to have access to and to examine and make copies of the banking
accounts of an insolvency practitioner in which estate funds may have been deposited,
and, when required, all deposit slips, cancelled cheques or other documents relating
thereto in the custody of a bank or the insolvency practitioner must be produced for
examination.
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(10) The Commissioner, or any person duly authorized by the Commissioner
in writing, may with the leave of the Court granted on an ex parte application examine
the books, records, documents and deposit accounts of an insolvency practitioner or
any other person designated in the order granting that leave for the purpose of tracing
or discovering the property or funds of an estate when there are reasonable grounds to
believe or suspect that the property or funds of an estate have not been properly
disclosed or dealt with and for that purpose may under a warrant from the Court enter
on and search any premises.
(11) Where the Commissioner, on ex parte application, satisfies the Court
that it is necessary and in the public interest to do so, the Court may issue an order
directing any deposit-taking institution that holds a deposit account of an insolvency
practitioner or such other person as is designated in the order not to make payments
out of the account until such time as the Court otherwise directs.
(12) If, on information supplied by any person, the Commissioner suspects,
on reasonable grounds, that a person has, in connection with any estate or matter to
which this Act applies, committed an offence under this or any other Act, the
Commissioner may, if it appears to the Commissioner that the alleged offence might
not otherwise be investigated, make or cause to be made any inquiries or investigations
that the Commissioner considers appropriate.
(13) (a) If, on the application of the Commissioner or the
Commissioner’s authorized representative, a subpoena has been issued by the
Court, the Commissioner may, for the purpose of an inquiry or investigation
under subsection (12) examine or cause to be examined under oath before the
Registrar of the Court or other authorized person-
(i) an insolvency practitioner;
(ii) the debtor;
35
(iii) any person who the Commissioner suspects, on reasonable
grounds, has knowledge of the affairs of the debtor; or
(iv) any person who is or has been an agent or a mandatary, or a
clerk, a servant, an officer, a director or an employee of the
debtor or the insolvency practitioner,
with respect to the conduct, dealings and transactions of the debtor or
insolvency practitioner, as the case may be, the causes of the
insolvency of the debtor, the disposition of the debtor’s property or the
administration of the estate.
(b) The Commissioner may order any person liable to be so examined to
produce any books, records, data, including data in electronic form,
documents or papers in the person’s possession or under the person’s
control.
(14) A person being examined pursuant to this section is bound to answer all
questions relating to the conduct, dealings and transactions of the debtor or the
insolvency practitioner, as the case may be, the causes of the debtor’s insolvency and
the disposition of the debtor’s property.
(15) Where a person being examined pursuant to this section objects to
answering any question on the ground that his or her answer may tend to criminate him
or her or may tend to establish his or her liability to a civil proceeding at the instance
of the State or of any person and if, but for this section or Article 12(1)(f) of the
Namibian Constitution, he or she would have been excused from answering that
question, the answer so given may not be used or admitted in evidence against him or
her in any proceeding, civil or criminal, thereafter taking place other than a prosecution
for perjury in the giving of that evidence.
(16) No person may hinder, molest or interfere with any person doing
anything that he or she is authorized by or pursuant to this section to do, or prevent or
attempt to prevent any person doing any such thing, and, notwithstanding any other
36
Act or law, every person must, unless he or she is unable to do so, do everything he or
she is required by or pursuant to this section to do.
(17) Where any book, record, paper or other document is examined or
produced in accordance with this section, the person by whom it is examined or to
whom it is produced or the Commissioner, may make or cause to be made one or more
copies thereof, and a document purporting to be certified by the Commissioner or a
person thereunto authorized by the Commissioner to be a copy made pursuant to this
section is admissible in evidence and has the same probative force as the original
document would have if it were proven in the ordinary way.
(18) If, after an investigation pursuant to this section or otherwise the
Commissioner has obtained evidence of an offence having been committed in
connection with an estate or matter to which this Act applies, the Commissioner must
report the alleged offence to the Prosecutor-General or to such person as is duly
designated by the Prosecutor-General for that purpose.
(19) A recovery made as the result of any inquiries or investigation made or
caused to be made pursuant to this section must be applied to the reimbursement of any
costs and expenses incurred by the Commissioner thereon, not being ordinary costs or
expenses of the office of the Commissioner, and the balance thereafter remaining in
respect of the recovery must be made available for the benefit of the creditors of the
debtor.
(20) The Master must submit to the Minister, not later than 31 March of each
year, a report on the activities of the Commissioner during the previous year.
(21) The Minister must submit the report of the Master to the National
Assembly within 30 days after receipt thereof or, if the National Assembly is not then
in session, within 30 days after commencement of its first ensuing session.
Specialist committees
37
7. (1) The Commissioner, after consultation with the Master may
appoint one or more specialist committees to advise the Commissioner on the
management of its resources or the performance of his or her functions.
(2) The Commissioner may assign specific powers to the members of a
specialist committee for the purposes of performing any function contemplated in
subsection (1).
(3) A specialist committee may -
(a) be established for an indefinite term or for a period determined by the
Commissioner when the committee is established; and
(b) determine its own procedures.
(4) A specialist committee established under this section must -
(a) perform its functions impartially and without fear, favour or prejudice;
and
(b) consist of-
(i) not more than five persons who are independent from the
Commissioner and are appointed by the Minister for a term of
not more than five years; and
(ii) not more than two senior employees of the office of the Master
designated by the Master.
(5) A member of a specialist committee must-
(a) be a fit and proper person;
(b) should not have been removed involuntarily from a position of trust;
38
(c) have appropriate expertise or experience; and
(d) have the ability to perform effectively as a member of the committee.
(6) Members of a specialist committee must not-
(a) act in any way that is inconsistent with subsection (4)(a);
(b) expose themselves to any situation in which the risk of a conflict may
arise between their responsibilities and any personal financial interest;
or
(c) use their position or any information entrusted to them to enrich
themselves or improperly benefit any other person.
(7) A member of a specialist committee ceases to be a member if-
(a) the member resigns from the committee;
(b) the Commissioner terminates the person’s membership because the
member no longer complies with subsection (5) or has contravened
subsection (6); or
(c) the member’s term of office has expired.
(8) A member of a specialist committee who has any personal or financial
interest in any matter on which the committee gives advice, must disclose that interest
and withdraw from the proceedings of the specialist committee when that matter is
discussed.
(9) The Master must compensate-
39
(a) a member contemplated in subsection (4)(b)(i) for expenses incurred to
the extent determined by the Master; and
(b) a member contemplated in subsection (4)(b)(ii) for expenses incurred
only to the extent that the member’s remuneration and allowances as an
employee of the office of the Master does not extend to that person’s
services as a member of the specialist committee.
PART 2
INSOLVENCY PRACTITIONERS
Acting as insolvency practitioner
8. (1) A person acts as an insolvency practitioner in terms of this Act
if that person acts-
(a) as the permanent or interim liquidator in the liquidation of an insolvent’s
estate;
(b) as supervisor of a voluntary arrangement approved under Parts 3 and 4
of Chapter 4.
(2) No person may act as an insolvency practitioner unless that person is
issued with a registration certificate in terms of this Part.
Insolvency practitioners not registered
9. A person who does not hold a registration certificate and who purports
to act as an insolvency practitioner commits an offence and is on conviction liable to a
fine not exceeding N$100 000-00 or to imprisonment not exceeding 4 years.
Qualifications to act as insolvency practitioner
40
10. (1) Subject to subsections (2) and (3), a person is qualified to act as
an insolvency practitioner only if the person-
(a) satisfies the prescribed requirements with respect to education, practical
training and experience;
(b) is a member of a professional body recognised under section 11; and
(c) satisfies the requirements, if any, of the rules pertaining to insolvency
governing that body.
(2) A person is disqualified from being or acting as an insolvency
practitioner if the person -
(a) is an unrehabilitated insolvent or subject to any proceedings under this
Act;
(b) is subject to a disqualification under the law relating to companies;
(c) is unable to perform the functions of an insolvency practitioner because
of physical or mental infirmity;
(d) does not reside in Namibia;
(e) is the spouse of a debtor subject to any proceedings under this Act;
(f) is by consanguinity related or deemed to be related in the first, second
or third degree of relationship, as determined in accordance with the
Intestate Succession Ordinance, 1946 (Ordinance No. 12 of 1946), to a
debtor referred to in paragraph (e) or to his or her spouse;
(g) is a minor or any other person under legal disability;
(h) is declared under section 57 to be disqualified;
41
(i) is removed by the Court from office of trust on account of misconduct;
(j) has been convicted, in Namibia or elsewhere, of an offence in terms of
this Act or an offence of which dishonesty is an element and who was
sentenced to imprisonment without the option of a fine or to a fine of
more than N$1000;
(k) any person who was, at any time, a party to an agreement or arrangement
with any debtor or creditor whereby he or she undertook that he or she
would, when performing the functions of an insolvency practitioner,
grant or endeavour to grant to, or obtain or endeavour to obtain for any
debtor or creditor any benefit not provided for by law;
(l) any person who has by means of any misrepresentation or any reward
or offer of any reward, whether direct or indirect, induced or attempted
to induce any person to nominate him or her as an insolvency
practitioner, to vote for him or her as an insolvency practitioner or to
effect or assist in effecting his or her election as an insolvency
practitioner of any insolvent estate;
(m) any person who at any time during a period of 12 months immediately
preceding the commencement of an insolvency proceeding in terms of
this Act acted as the bookkeeper, accountant or auditor of a debtor;
(n) any person with a proven interest opposed to the general interest of the
creditors of an insolvent estate.
(3) A body corporate is not eligible to be an insolvency practitioner, but
this subsection does not extend to an employee of a body corporate.
(4) A natural person who, during the two years immediately preceding the
commencement of this Part, was carrying on any of the activities referred to in section
8(1) is, unless disqualified under subsection (2), presumed to be qualified to be and to
42
act as an insolvency practitioner on and after that commencement, and the
Commissioner must issue a registration certificate to that person, but that person ceases
to be so qualified unless the person has, within 12 months after that commencement,
complied with the requirements of subsection (1).
Recognised professional bodies
11. (1) The Minister may, on the recommendation of the Commissioner
by notice in the Gazette declare one or more professional bodies to be recognised
professional bodies for the purposes of this Act.
(2) The Minister may declare a professional body to be a recognized
professional body only if it-
(a) regulates the practice of a profession; and
(b) maintains and enforces rules enabling its members to act as insolvency
practitioners to ensure that those members-
(i) are persons fit and proper to act as insolvency practitioners;
(ii) meet acceptable requirements relating to education, practical
training and experience.
(3) A reference to the members of a recognised professional body includes
a reference to persons who are, whether members of that body or not, governed by its
rules in the practice of the relevant profession.
(4) The Minister may revoke a notice made under subsection (1) if it
appears to the Minister that the professional body no longer meets the requirements of
subsection (2).
(5) A notice made by the Minister under this section takes effect from the
date of the notice or such other date as is specified in it.
43
(6) In this section, “profession” means a profession involving in or carrying
on any of the activities referred to in section 8(1).
Application to act as insolvency practitioner
12. (1) A person who wishes to act as an insolvency practitioner must
apply to the Commissioner for a registration certificate to act as an insolvency
practitioner.
(2) The Commissioner must refuse an application in terms of subsection (1)
that-
(a) does not comply with the prescribed requirements;
(b) does not contain or is not accompanied by such information as the
Commissioner may reasonably require for purposes of determining the
application;
(c) does not comply with subsection (3); or
(d) is not accompanied by the prescribed fee.
(3) The applicant must include in, or attach to, the application proof that-
(a) the applicant is qualified to act as an insolvency practitioner;
(b) the applicant-
(i) has a professional indemnity insurance policy or has provided
security for the proper performance of the functions of an
insolvency practitioner; and
44
(ii) that policy or security meets the prescribed requirements; and
(c) the applicant is a person fit and proper to act as an insolvency
practitioner.
(4) Information to be provided to the Commissioner under this section
must, if the Commissioner so requires, be in such form or verified in such manner as
the Commissioner may specify.
(5) An application made under subsection (1) may be withdrawn at any
time before it is granted or refused.
Grant or refusal of application to act as insolvency practitioner
13. (1) The Commissioner must as soon as practicable after receiving
an application made under section 12, grant or refuse the application.
(2) The Commissioner must grant an application made under section 12, if
satisfied that-
(a) the application complies with the requirements of that section; and
(b) the applicant is qualified to act as an insolvency practitioner and is a
person fit and proper to act as such,
whereupon the Commissioner must issue a registration certificate in the prescribed
form to the applicant.
(3) The Commissioner may not refuse an application for a registration
certificate without having given the applicant an opportunity to be heard.
(4) On granting an application under this section, the Commissioner must
notify the applicant in writing thereof and specify the date on which the registration
certificate is to take effect.
45
(5) A registration certificate granted under this section continues in force
for such period and subject to such reasonable conditions as are specified in that
certificate.
Revocation of registration certificate
14. (1) The Commissioner in consultation with the Master may revoke
a registration certificate if satisfied that the holder of such certificate–
(a) is no longer qualified to act as an insolvency practitioner;
(b) is no longer a person fit and proper to act as an insolvency practitioner;
(c) has been found guilty of an offence under this Act, or of an offence
under any other Act involving fraud, dishonesty or breach of trust;
(d) has contravened or failed to comply with, or is contravening or failing
to comply with, a condition of the registration certificate;
(e) in making the application for registration certificate, has provided the
Commissioner with false or misleading information.
(2) A registration certificate may be revoked by the Commissioner at the
request, or with the consent, of the holder thereof.
(3) Except if subsection (2) applies, the Commissioner may not revoke a
registration certificate without having given its holder an opportunity to be heard in
accordance with prescribed directives respecting the rules governing hearings for the
purposes of investigation into the conduct of an insolvency practitioner.
(4) A revocation of registration certificate is stayed until the period
determined under section 15(2)(a) within which the holder of a registration certificate
may appeal against the revocation has expired or, if that holder lodges such appeal
46
within that period, until the appeal is finally determined or is withdrawn, whichever
occurs first.
Appeal against decision of Commissioner
15. (1) A person whose-
(a) application for a registration certificate is refused; or
(b) registration certificate is revoked otherwise than at that person’s request
or with his or her consent,
may appeal to the Minister against the refusal or revocation, as the case may be in
accordance with rules prescribed for that purpose.
(2) Upon receipt of an appeal referred to in subsection (1), the Minister
must within the prescribed period convene an appeals committee comprising of
officials from the Ministry responsible for justice whom the Minister deems
appropriately qualified to adjudicate the appeal in accordance with the rules referred to
in that subsection.
(3) Appeal or a review proceedings may be instituted in any Court only
against the decision of an appeals committee referred to in subsection (2).
(4) An appeal or review referred to in subsection (3) must-
(a) be lodged with the Court within 90 days after applicant or holder of the
registration certificate is notified of the decision of the appeals
committee refusing the application or revoking the registration
certificate, or within such extended period as the Court may allow; and
(b) be in the form, and complies with any other requirements as prescribed.
47
(3) The Commissioner must be served with a copy of an appeal or review
in terms of this section.
CHAPTER 3
LIQUIDATION PROCEEDINGS
PART 1
COMMENCEMENT STANDARDS
Acts of insolvency
16. (1) A debtor commits an act of insolvency if-
(a) that debtor leaves Namibia or, being out of Namibia remains absent
therefrom, or absents himself or herself from his or her dwelling, or
regular place of business, with intent thereby to evade or delay the
payment of his or her debts;
(b) that debtor disposes or attempts to dispose of the debtor’s property or
any part thereof in a manner which appears to the Court to be likely to
prejudice creditors or to prefer one or more creditors above another,
unless the debtor satisfies the Court that such debtor was able to pay the
debtor’s debts after the disposition;
(c) that debtor removes or attempts to remove any of the debtor’s property
in a manner which appears to the Court to be likely to prejudice creditors
or to prefer one or more creditors above another, unless the debtor
satisfies the Court that such debtor was able to pay the debtor’s debts
after the removal or attempted removal;
(d) that debtor makes or offers to make any arrangement with any of the
debtor’s creditors for releasing the debtor wholly or partially from the
debtor’s debts;
48
(e) having applied in terms of section 17 for liquidation, that debtor fails to
comply with the requirements of that section or submits a statement of
affairs contemplated in that section which is substantially incorrect or
incomplete; or
(f) that debtor gives notice in writing to any of the debtor’s creditors that
the debtor is unable to pay any of the debtor’s debts;
(g) if the debtor exhibits to any meeting of the debtor’s creditors any
statement of the debtor’s assets and liabilities that shows that the debtor
is insolvent, or presents or causes to be presented to any such meeting a
written admission of the debtor’s inability to pay the debtor’s debts;
(h) if the debtor defaults in any proposal made under this Act; or
(i) the debtor is generally unable to pay debts which are due and payable,
or the debtor’s liabilities exceed the value of the debtor’s assets.
(2) For purposes of subsection (1)(i) a debtor is unable to pay that debtor’s
debts if-
(a) a creditor to whom the debtor is indebted in an amount of not less than
the amount prescribed from time to time has, by cession or otherwise,
in the manner contemplated in subsection (3) served on the debtor a
statutory demand, corresponding substantially with Form F of
Schedule 1-
(i) for payment of the amount which is due and payable;
(ii) to give security to the reasonable satisfaction of the creditor for
such amount;
(iii) to enter into a compromise therefor,
49
and the debtor has for 21 days thereafter neglected to pay the sum, or to
secure or compound for it to the reasonable satisfaction of the creditor;
or
(b) it appears from the return of the officer charged with the execution of a
judgment of any court against that debtor that the judgment has not been
satisfied after a valid execution thereof.
(3) The statutory demand referred to in subsection (2) must be served on
the debtor by the messenger of the magistrate’s court within whose jurisdiction the
debtor resides or by the creditor’s legal practitioner by delivering it -
(a) to the debtor personally;
(b) at the debtor’s main office or place of residence; or
(c) in such other manner as a magistrate’s court may direct.
(4) In determining whether a debtor is unable to pay its debts, a Court must
also take into account the contingent and prospective liabilities of the debtor.
(5) If a debtor committed any of the acts of insolvency contemplated in
subsection (1), any person entitled to do so in terms of this Chapter may commence
insolvency proceedings.
PART 2
APPLICATIONS FOR LIQUIDATION AND LIQUIDATION ORDERS
Application by debtor for liquidation of estate
17. (1) (a) The following persons may make application to a Court
in accordance with the Rules of the Court for the liquidation of the estate of a
debtor or of a deceased person:
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(i) the debtor;
(ii) a person who lawfully acts on behalf of a debtor who is
incompetent to manage his or her own affairs; or
(iii) the executor or liquidator of the estate of that deceased person.
(b) An applicant contemplated in paragraph (a) must prove that-
(i) the estate of that debtor or deceased person, as the case may be,
is or will be generally unable to pay its debts as they mature; or
(ii) the liabilities of the estate of that debtor or deceased estate
exceed the value of its assets.
(2) Subject to subsection (7), an application contemplated in subsection (1)
must, where applicable contain the following information:
(a) The full name and date of birth of the debtor or deceased person, as the
case may be and, if an identity number has been assigned to him or her,
that identity number;
(b) any other names under which the debtor traded, if applicable;
(c) the marital status of the debtor or deceased person, as the case may be
and, if he or she is married in community of property the full name and
date of birth of his or her spouse and, if an identity number has been
assigned to the spouse, that identity number.
(3) The particulars referred to in subsection (2) must appear in the heading
of the application.
(4) An application contemplated in subsection (1) must be accompanied by-
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(a) an affidavit in support of the relief sought in the application;
(b) a statement of affairs of the debtor or deceased person, as the case may
be, corresponding substantially with Form A1 of Schedule 1 and which
must contain the particulars provided for in the said Form, which
particulars must be sworn to or confirmed as required by the said Form;
and
(c) a certificate of the Commissioner, issued not more than 14 days before
the date on which the application is to be heard by the Court, that
sufficient security has been given for-
(i) the payment of all costs in respect of the application that might
be awarded against the applicant; and
(ii) all costs of the liquidation of the estate referred to in section 74,
which are not recoverable from other creditors of the estate.
(5) The applicant must, in accordance with the Rules of the Court lodge an
application contemplated in subsection (1) no later than noon on the fifth court day
before the day on which the application is to be heard by the Court, with the Registrar
of the Court for enrolment and deliver by standard notice to the Commissioner-
(a) a copy of the application together with the supporting affidavit referred
to in subsection (4)(a); and
(b) two copies of the statement of affairs referred to in subsection (3)(b).
(6) Before the documents referred to in subsection (5) are delivered to the
Commissioner the applicant must give notice of the application with the affidavit
referred to in subsection (4)(a) attached thereto-
(a) by direct notice to the head office of every trade union that, to the
applicant's knowledge, represents employees, if any, of the debtor; and
52
(b) to the employees themselves-
(i) by affixing a copy of such notice and attached affidavit to any
notice board to which the employees have access inside the
debtor's premises; or
(ii) if there is no access to the premises by the employees, by
affixing a copy of the notice and attached affidavit to the front
gate of the premises, where applicable, failing which to the front
door of the premises from which the debtor conducted any
business immediately prior to the date of the application; and
(c) by direct notice to-
(i) the Commissioner of Inland Revenue; and
(ii) the head office of bondholders with special bonds registered
against any property of the debtor.
(7) (a) If an applicant is unable to comply with any of the requirements
of subsection (2), the Court may dispense with such requirement and dispose
of the application in the manner that it finds just.
(b) Where the Court is satisfied that there are exceptional circumstances
justifying it the Court may authorise the applicant to give notice in a
manner other than subsection (6)(b) which the Court regards as
appropriate under the circumstances to bring the matter to the notice of
any affected employees.
(8) The Commissioner may require the applicant to cause the property
enumerated in the statement of affairs to be valued by an appraiser appointed in terms
of section 6 of the Administration of Estates Act, or any other suitably qualified person
approved by the Commissioner.
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(9) The Court may, having considered the application -
(a) make an order as contemplated in section 22;
(b) make -
(i) an order in terms of Chapter 4 as if the application was a
reorganization proceeding; or
(ii) an administration order in terms of section 74 of the Magistrates’
Courts Act;
(c) dismiss the application or postpone its hearing; or
(d) make any other order that the Court finds to be just.
Application by creditor for liquidation of debtor's estate
18. (1) The following categories of creditors may make application to a
Court in accordance with the Rules of the Court for the liquidation of a debtor's estate:
(a) A creditor who has against a debtor who committed an act of insolvency
or who is insolvent, a liquidated claim for not less than the amount
determined by the Commissioner from time to time by notice in the
Gazette; or
(b) two or more creditors who have against a debtor who committed an act
of insolvency or who is insolvent in the aggregate liquidated claims for
not less than the amount determined by the Commissioner as
contemplated in paragraph (a).
(2) A claim in respect of a liquidated debt which is payable at some
determined time in the future may be taken into account for purposes of subsection (1).
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(3) An application contemplated in subsection (1) must-
(a) be made by direct notice to the debtor and to the debtor's spouse, where
applicable unless the Court orders that such notice may be dispensed
with where the Court is satisfied that it would be in the interest of the
debtor or of the creditors to dispense with the notice; and
(b) subject to subsection (5), contain the following information, namely-
(i) the full name and date of birth of the debtor and, if an identity
number has been assigned to him or her, that identity number;
(ii) any other names under which the debtor traded, if applicable;
(iii) the marital status of the debtor and if he or she is married in
community of property, the full name and date of birth of his or
her spouse and if an identity number has been assigned to the
spouse, such identity number;
(iv) the amount, cause and nature of such claim;
(v) whether or not security has been given for the claim and if so,
the nature and value of the security; and
(vi) the act of insolvency or ground of liquidation on which the
application is founded or otherwise an allegation that the debtor
is in fact insolvent.
(4) An application contemplated in subsection (1) must be accompanied by-
(a) an affidavit in support of the relief sought in the application;
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(b) a certificate of the Commissioner, issued not more than 14 days before
the date on which the application is to be heard by the Court, that
sufficient security has been given-
(i) for the payment of all costs in respect of the application that
might be awarded against the applicant; and
(ii) all costs of the liquidation of the estate referred to in section 74,
which are not recoverable from creditors of the estate.
(5) The particulars referred to in subsection (3)(b)(i), (ii) and (iii) must
appear also in the heading of the application unless the Court dispenses with this
requirement if the applicant is unable to furnish all such particulars.
(6) The applicant must in accordance with the Rules of the Court-
(a) lodge an application with the Registrar of the Court for enrolment; and
(b) serve a copy of the application, supporting affidavit and all annexures
thereto on-
(i) the debtor unless notice to the debtor has been dispensed with by
the Court; and
(ii) the Commissioner.
(7) When the application is lodged with the Registrar of the Court in
accordance with subsection (6), the applicant must give notice (with the affidavit
referred to in subsection (4)(a) attached thereto) of the application -
(a) by direct notice to the head office of every trade union that, to the
applicant's knowledge, represents employees, if any, of the debtor; and
(b) to the employees themselves-
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(i) by affixing a copy of such notice and attached affidavit to any
notice board to which the employees have access inside the
debtor's premises; or
(ii) if there is no access to the premises by the employees, by
affixing a copy of the notice and attached affidavit to the front
gate of the premises, where applicable, failing which to the front
door of the premises from which the debtor conducted any
business immediately prior to the date of the application; and
(c) by direct notice to-
(i) the Commissioner of Inland Revenue; and
(ii) the head office of bondholders with special bonds registered
against any property of the debtor.
(8) If the debtor wishes to oppose the application, that debtor in accordance
with the Rules of the Court -
(a) must file a notice of opposition and answering papers with the Registrar
of the Court and serve a copy thereof on the applicant and on the
Commissioner;
(b) may apply to the Court that the application commenced in terms of this
section be converted into any reorganization proceeding contemplated
in Chapter 4, in which event the application will be stayed until the
Court determined the debtor’s application for conversion into
reorganization proceedings.
(9) (a) If an applicant is unable to comply with any of the requirements
of subsections (3)(b), the Court may dispense with such requirement and
dispose of the application in the manner that the Court finds to be just.
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(b) Where the Court is satisfied that there are exceptional circumstances
justifying it the Court may authorise the applicant to give notice in a
manner other than subsection (7)(b) which the Court regards as
appropriate under the circumstances to bring the matter to the notice of
any affected employees.
(10) The Court, having considered an application contemplated in
subsection (1), may-
(a) make an order as contemplated in section 22;
(b) make -
(i) an order in terms of Chapter 4 as if the application was a
reorganization proceeding; or
(ii) an administration order in terms of section 74 of the Magistrates’
Courts Act;
(c) dismiss the application or postpone its hearing; or
(d) make any other order that the Court finds to be just.
Liquidation of partnership estate
19. (1) When application is made to a Court for the liquidation of the
estate of a partnership, whether in terms of this Act or aother Act, application must
simultaneously be made for the liquidation of the separate estate of every partner, other
than a partner who is not liable for partnership debts or a partner in respect of whom
there is a lawful bar to the liquidation of his or her estate.
(2) The provisions of-
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(a) section 17, in so far as they are applicable, applies with the changes
necessitated by the context in respect of an application by members of
a partnership for the liquidation of the partnership estate; and
(b) section 18, in so far as they are applicable, applies with the changes
necessitated by the context in respect of an application by a creditor or
creditors of a partnership for the liquidation of the estate of the
partnership.
(3) A Court granting a provisional or a final order for the liquidation of the
estate of a partnership must simultaneously grant an order for the liquidation of the
separate estate of every partner, except a partner who is not liable for partnership debts
or a partner in respect of whom there is a lawful bar to the liquidation of his or her
estate: Provided that if a partner has undertaken to pay the debts of the partnership
within a period determined by the Court and has given security for such payment to the
satisfaction of the Registrar of the Court, the separate estate of that partner may not be
liquidated by reason only of the liquidation of the estate of the partnership.
(4) In the case where there is no partner whose estate may be liquidated as
contemplated in subsection (3), the Court may nevertheless liquidate the partnership
estate and in such event every director, officer or member of a juristic person, which
juristic person is a partner of the partnership in question and every natural person who
is a partner but whose estate may not be liquidated, is deemed, for the purpose of
performing any statutory requirement in respect of the partnership estate, to be a person
whose estate is under liquidation.
(5) Where the separate estate of a partner is unable to meet fully the costs
of the liquidation of that estate, the balance must be paid out of the partnership estate
and where the partnership estate is unable to meet fully the costs of liquidation the
balance must be paid out of the estates of the partners.
(6) If a partnership has been dissolved and the partnership estate is unable
to pay its debts, the partnership estate may, on the application of a creditor of the
partnership or a former partner, be liquidated as an insolvent estate and the provisions
59
of subsections (1) to (5) apply with the changes necessitated by the context to such
liquidation.
Application for stay of proceedings from the time application for commencement
of liquidation is made
20. (1) At any time after the making of a liquidation application, and
before the Court grants a liquidation order, a debtor, a creditor of that debtor or a third
party with an interest in that application may, to protect and preserve the value of the
assets of the debtor or the interests of creditors, apply to the Court-
(a) if legal proceedings against that debtor are pending in the Court, for the
proceedings to be stayed;
(b) if proceedings relating to a matter are pending against the debtor in
another Court, including a magistrate’s court to restrain further
proceedings in respect of that matter in that other court;
(c) to stay execution against the assets of the debtor, including actions to
make security interests effective against third parties or the enforcement
of security interests;
(d) to entrust the administration or supervision of the debtor’s business, if
any, which may include the power to use and dispose of assets in the
ordinary course of business, to an insolvency practitioner or other
person designated by the Court; or
(e) to entrust the realization of all or part of the assets of the debtor to an
insolvency practitioner or other person designated by the Court, in order
to protect and preserve the value of assets of the debtor that, by their
nature or because of other circumstances, are perishable, susceptible to
devaluation or otherwise in jeopardy.
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(2) On the hearing of an application made in terms of subsection (1), the
Court may make an order contemplated in subsection (1) on such terms as the Court
considers appropriate, including but not limited to-
(a) requiring the applicant to provide security to the satisfaction of the
Commissioner to indemnify the debtor in the event that the liquidation
application is dismissed or a liquidation order is set aside; and
(b) where appropriate, to pay costs or fees in respect of the application and
the orders of the Court contemplated in subsection (1).
Abuse of Court's procedures or malicious or vexatious application for liquidation
21. Whenever a Court is satisfied that an application for the liquidation of
a debtor's estate is an abuse of the Court's procedures or is malicious or vexatious, the
Court may allow the debtor forthwith to prove any damages which that debtor may
have sustained by reason of the application and award the debtor such compensation
as the Court finds to be just.
Provisional liquidation order
22. (1) If a Court hearing an application for the liquidation of the estate
of a debtor as contemplated in section 17, 18 or 19 is satisfied upon initial examination
that sufficient corroborating evidence appears to exist that-
(a) the applicable requirements of section 17, 18 or 19, as the case may be,
have been complied with;
(b) the debtor has committed an act of insolvency, or that the debtor is
insolvent; and
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(d) in the case of an application contemplated in section 18, the applicant
has a claim against the debtor as contemplated in subsection (1) of that
section,
the Court may grant a provisional order for the liquidation of the estate of the debtor.
(2) A Court granting a provisional liquidation order contemplated in
subsection (1) may simultaneously grant a rule nisi calling upon all interested parties
and the respondent, if any, to appear on a date mentioned in the rule and show cause
why the respondent’s estate should not be liquidated finally.
(3) The return day of the rule nisi may on the application of the respondent
be anticipated for the purpose of discharging the order for provisional liquidation if 24
hours’ notice is given to the applicant.
(4) If the Court does not grant a provisional liquidation order as
contemplated in subsection (1) the Court may-
(a) grant an order in terms of section 23;
(b) make -
(i) an order in terms of Chapter 4 as if the application was a
reorganization proceeding; or
(ii) an administration order in terms of section 74 of the Magistrates’
Courts Act;
(c) dismiss the application;
(d) postpone the hearing thereof, but not indefinitely; or
(e) make any other order which the Court finds to be just.
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(5) When a provisional liquidation order is granted the Registrar of the
Court must, where applicable ensure that the particulars required in terms of section
17(6) and 18(5) to appear in the heading of the application appear also on the order.
(6) If there are reasonable grounds to believe that an insolvent may flee the
country to avoid prosecution or to take assets out of the reach of creditors, the Court
may when granting a provisional or final liquidation order, or at any time thereafter on
an application by the liquidator, issue an order that the passport or passports of such
insolvent is handed to the liquidator for the period stated in the order.
(7) Notwithstanding time periods set out in the Rules of the Court, the Court
must hear and consider an application contemplated in subsection (1) in an expedited
manner to enable the Court to reach a decision on whether or not to issue a provisional
order or an order referred to in subsection (4) as quickly as possible.
Final liquidation order
23. (1) If at the hearing of an application as contemplated in section 17,
18 or 19 or pursuant to the rule nisi referred to in section 22(2) the Court is satisfied
that -
(a) in the case where the application for liquidation was made by a creditor,
that creditor has established a claim against the debtor in accordance
with section 18; and
(b) the debtor has committed an act of insolvency or is insolvent,
that Court may make an order for the final liquidation of the estate of the debtor.
(2) If the Court does not issue a provisional order in terms of section 22,
and is not satisfied as contemplated in subsection (1), the Court may-
(a) dismiss the application for the liquidation of the estate of the debtor and
set aside the provisional liquidation order; or
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(b) require further proof of the allegations in the application and postpone
the hearing for a reasonable period but not indefinitely.
(3) When a final liquidation order is granted the Registrar of the Court
must, where applicable ensure that the particulars which must in terms of section 17(2)
and 18(3)(b)(i)-(iii) appear in the heading of the application also appear on the order.
Public register of rehabilitated and unrehabilitated insolvents
24. The Commissioner must in accordance with Chapter 7 establish and
maintain a public register of rehabilitated and unrehabilitated insolvents.
Obligations of creditor upon whose application a liquidation order is made
25. (1) The creditor upon whose application a liquidation order is made
must, at that creditor’s own cost, prosecute the liquidation proceedings until a
liquidator is appointed.
(2) The liquidator must pay to the creditor referred to in subsection (1) that
creditor’s costs in respect of the prosecution of the liquidation proceedings, as costs of
the liquidation and the costs so payable to the said creditor must be taxed according to
the tariff applicable in the Court that made the liquidation order.
Notice of liquidation
26. (1) The Registrar of the Court that has granted a provisional
liquidation order must without delay send by standard notice a copy of that order and
of any order amending or discharging that order on the date any such order is issued -
(a) to the Registrar of Deeds; and
(b) to the sheriff of the district in which the insolvent resides, appears to be
carrying on business or owns property.
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(2) The Registrar of Deeds and sheriff who received a copy of an order in
accordance with subsection (1) must note thereon the date and time when he or she
received that order.
(3) The Registrar of Deeds who has received a copy of a provisional
liquidation order in terms of subsection (2) must enter a caveat against-
(a) the transfer of immovable property; or
(b) the cancellation or cession of every bond,
registered in the name of or belonging to the insolvent.
(4) If the Registrar referred to in subsection (3) receives a copy of an order
discharging a provisional liquidation order, he or she must immediately cancel every
caveat entered as a result of such provisional liquidation order.
(5) A caveat entered in terms of subsection (3) expires ten years after the
commencement of liquidation.
(6) The Registrar of the Court must without delay send by standard notice
to the Commissioner a copy of every provisional or final liquidation order and any
other order made by the Court in respect of the insolvent or the liquidator of the
insolvent estate.
(7) Upon the granting of a provisional liquidation order the applicant who
applied for the order must without delay cause a notice of the order to be published in
the Gazette and a newspaper circulated in the area where the debtor normally resides.
PART 3
EFFECT OF LIQUIDATION
Effect of commencement of liquidation on insolvent and his or her property
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27. (1) The issue of a provisional liquidation order in respect of an
insolvent has the effect that the insolvent is divested of his or her estate and that all the
property of that insolvent is deemed to be in the custody and under the control of the
Commissioner until a liquidator is appointed, whereupon the insolvent estate is deemed
to be in the custody and control of that liquidator.
(2) The estate of the debtor remains in the custody and under the control of
the liquidator until it reverts to the insolvent in terms of a composition contemplated
in Chapter 4 of this Act, or until the liquidation order is set aside.
(3) If the liquidator vacates his or her office or dies or becomes incompetent
to exercise his or her powers and perform his or her duties, the estate vests in any
remaining liquidator or if there is none, in the Commissioner until the appointment of
a new liquidator.
(4) After the expiry of every caveat entered in terms of sections 26(3),
66(9), or 117(3) in respect of the property of an insolvent any act of registration in
respect of such property brought about by such insolvent is valid despite the fact that
the property formed part of the insolvent estate.
(5) If a person who is or was insolvent unlawfully disposes of immovable
property which forms part of his or her insolvent estate, the liquidator may recover the
value of the property so disposed of, from -
(a) the insolvent or former insolvent;
(b) any person who, knowing such property to be part of the insolvent
estate, acquired such property from the insolvent or former insolvent; or
(c) any person who acquired such property from the insolvent or former
insolvent without giving sufficient value in return, in which case the
amount so recovered is the difference between the value of the property
and any value given in return.
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(6) (a) The execution of a judgment in respect of property of the debtor
is stayed as soon as the sheriff becomes aware of the issue of a provisional
liquidation order against the insolvent, unless the Court orders otherwise.
(b) If costs in connection with the sale in execution of assets of the insolvent
have already been incurred when the execution of a judgment is stayed
as contemplated in paragraph (a), the Commissioner may-
(i) on the application of the liquidator;
(ii) on the conditions the Commissioner finds just and subject to
confirmation of the sale price by him or her; or
(iii) by resolution of a meeting of creditors of the estate,
approve the continuation of the sale for the benefit of the insolvent
estate, in which case the costs of the sale before or after liquidation must
be deducted from the proceeds.
(c) The liquidator of an insolvent estate is entitled to recover from a creditor
of the debtor the net amount of any payment in pursuance of the
execution of any judgment made to such creditor after the granting of
the provisional liquidation order.
(7) For the purposes of this section –
(a) the following property is excluded from a person’s insolvent estate:
(i) the necessary beds, bedding and wearing apparel of the insolvent
and his or her family;
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(ii) the necessary furniture (other than beds) and household utensils
of the insolvent in so far as they do not exceed the prescribed
amount in value;
(iii) stock, tools and agricultural implements of a farmer, in so far as
they do not exceed the prescribed amount in value;
(iv) the supply of food and drink in the house sufficient for the needs
of the insolvent and his or her family during one month;
(v) tools and implements of trade, in so far as they do not exceed the
prescribed amount in value;
(vi) professional books, documents or instruments necessarily used
by the insolvent in his or her profession, in so far as they do not
exceed the prescribed amount in value;
(vii) arms and ammunition that the insolvent is required by law to
have in his or her possession as part of his or her equipment; and
(viii) a motor vehicle not exceeding the prescribed value;
(ix) necessary medicine and medical devices; and
(b) notwithstanding the provisions of any other law, all property of the
insolvent-
(i) not included in paragraph (a), at the date of issue of the
provisional liquidation order, including property or the proceeds
thereof which are in the hands of the sheriff under a writ of
attachment or a warrant of execution; and
(ii) subject to section 29, all property acquired by or which accrued
to the insolvent during his or her insolvency,
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form part of the insolvent’s insolvent estate.
The effect of liquidation on civil proceedings by or against the insolvent
28. (1) Subject to the provisions of section 29(8), the issue of a
provisional liquidation order in respect of an insolvent has the effect that all civil
proceedings instituted in a Court by or against the insolvent is stayed.
(2) Proceedings that are stayed in terms of subsection (1) may-
(a) with the consent of the Court or a liquidator appointed in terms of
section 53; or
(b) with three weeks’ standard notice to that liquidator,
be continued against the insolvent estate.
(3) The opposite party in the civil proceedings referred to in subsection (1)
may apply to the Registrar of the Court to substitute the liquidator appointed in terms
of section 53 for the insolvent in the proceedings referred to in subsection (2).
(4) That liquidator may, by giving a liquidator’s notice to all parties and to
the Registrar of the Court, substitute himself or herself as party for the insolvent in
proceedings by or against the insolvent, other than proceedings contemplated in
section 29(8).
(5) The Court may on application by that liquidator or a creditor who has
proved a claim against the insolvent estate, prohibit the continuation of proceedings
against that estate if the Court is of the opinion that-
(a) the institution or continuation of the proceedings was unreasonably
delayed; and
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(b) the continuation of the proceedings will unreasonably delay the
finalisation of that estate.
(6) After the confirmation by the Commissioner of the liquidator’s first
account in terms of section 106 and no more than three months after the conclusion of
the first meeting of creditors, no person may institute legal proceedings against the
insolvent estate in respect of any liability which arose before the commencement of
liquidation: Provided that the Court may, subject to the provisions of section 109 and
subject to such conditions as the Court may impose, permit the institution of such
proceedings if the Court is of the opinion that there was a reasonable excuse for the
delay in instituting the proceedings.
Rights and obligations of debtor during insolvency
29. (1) The fact that a person entering into a contract is insolvent does
not affect the validity of that contract: Provided that if a debtor thereby-
(a) purports to dispose of any property of his or her insolvent estate; or
(b) without the consent in writing of the liquidator of his or her estate, enters
into any contract whereby any earnings which accrues to his or her
insolvent estate in terms of subsection (2) is or is likely to be adversely
affected,
the contract is in either case voidable at the option of the liquidator, but subject to the
provisions of section 31.
(2) After the issue of a provisional liquidation order, the insolvent may
follow any profession or occupation and, subject to subsection (6), may collect for his
or her own benefit any remuneration for work done or payment for professional
services rendered by him or her or someone on his or her behalf.
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(3) Any person who, after the commencement of liquidation of an
insolvent’s estate, became a creditor of the insolvent as a result of illegal conduct on
the part of the insolvent is entitled to payment of the debt out of any assets that accrued
to the insolvent estate as a result of the said illegal conduct to the extent that such debt
cannot be recovered from the insolvent personally and after payment of all costs
attributable to such assets, subject thereto that such creditor was not at the time when
he or she became a creditor aware, and could not by exercising reasonable care have
acquired knowledge, of the illegal conduct.
(4) (a) The insolvent must-
(i) keep a detailed record of all assets and income received by him
or her from whatever source and of all expenses incurred by him
or her;
(ii) for a period of one year from the issue of the provisional
liquidation order send to the liquidator monthly during the first
week of every month a statement of his or her income and
expenses during the preceding month, confirmed by an affidavit
or a solemn declaration;
(iii) after the expiry of the period of one year referred to in
subparagraph (ii), send to the liquidator annually a return of his
or her income and expenses for the preceding year, likewise
sworn to or confirmed; and
(iv) at the written request of the liquidator within seven days after
such request, submit to the liquidator particulars of income
received and expenses incurred by him or her for the period
indicated by the liquidator.
(b) The liquidator may-
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(i) at all reasonable times inspect the records referred to in
paragraph (a); and
(ii) require the insolvent to submit proof in support of such records
and of expenses which he or she claims to have incurred for his
or her own support or that of his or her dependants.
(5) No benefit in terms of any pension law or the rules of a fund which is
claimable by an insolvent and is paid after the commencement of liquidation of his or
her estate, and no social benefit which is so claimable and paid, forms part of the
debtor’s insolvent estate.
(6) (a) The liquidator may issue from the magistrate’s court of the
district in which the insolvent resides, carries on business or is employed a
notice calling on the insolvent to appear at a hearing before that court in
chambers on a date specified in such notice to give evidence on and supply
proof of-
(i) the earnings received by the insolvent or his or her dependants
out of the exercise of his or her profession, occupation or
employment;
(ii) all assets or income received by the insolvent or his or her
dependants from whatever source; and
(iii) his or her estimated expenses,
for his or her own support and that of his or her dependants.
(b) The notice, substantially in the form of Form E1 of Schedule 1 must
be drawn up by the liquidator, signed by the liquidator and the clerk of
that court and served in accordance with the Rules of the Court by the
messenger of the court on the insolvent at least 7 days before the date
specified in the notice for the hearing.
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(c) That court may at any time in the presence of the insolvent postpone the
proceedings to such date as the court may determine and may order the
insolvent to produce such documents as the court may specify at the
hearing on the date determined by the court.
(d) On the appearance of the insolvent before that court in chambers, the
court must-
(i) call upon the insolvent to give evidence under oath or
affirmation on his or her earnings or estimated expenses
contemplated in paragraph (a); and
(ii) receive such further evidence as may be adduced either orally or
by affidavit or in such other manner as the court finds to be just
by or on behalf of either the insolvent or the liquidator as is
material to the determination of the said earnings or estimated
expenses.
(e) The court, after the hearing must issue a certificate indicating which
proportion of the insolvent’s future earnings, if any, is not required for
the support of the insolvent and his or her dependants and must accrue
to his or her insolvent estate.
(f) The liquidator may send a copy of a certificate contemplated in
paragraph (e) to the insolvent's employer by standard notice whereupon
the employer must transmit to the liquidator in accordance with the
certificate the amount stated therein.
(g) Any property which the debtor obtains after the issue of a provisional
liquidation order with earnings which do not in terms of a certificate
contemplated in paragraph (e) accrue to his or her insolvent estate, does
not form part of the insolvent estate.
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(7) (a) If an emoluments attachment order issued by any court in
respect of a judgment debtor prior to the commencement of liquidation of his
or her estate is in force when his or her estate is liquidated, such order remains
in force for a period of six months from the date of the provisional liquidation
order.
(b) The employer upon whom that emoluments attachment order was
served must in accordance with the order make payments to the
liquidator for the benefit of the insolvent estate.
(8) (a) An insolvent may sue or be sued in his or her own name without
reference to the liquidator of his or her estate-
(i) in any matter relating to status;
(ii) any right in so far as it does not affect his or her insolvent estate;
or
(ii) in respect of any claim due to or against him or her under this
section,
but no cession of his or her earnings after the commencement of liquidation of
his or her estate, whether made before or after the issue of the provisional
liquidation order, is of any effect so long as his or her estate is under liquidation.
(b) An insolvent may be sued in his or her own name for any delict
committed by him or her after the commencement of liquidation of his
or her estate, and his or her insolvent estate is not be liable therefor.
(c) An insolvent may for his or her own benefit recover any compensation
for any loss or damage which he or she may have suffered, whether
before or after the commencement of liquidation of his or her estate, by
reason of any defamation or personal injury: Provided that-
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(i) where such compensation recovered by that insolvent includes
medical or other expenses a creditor in respect of such expenses
is entitled to be paid out of the compensation or recover the
compensation from the insolvent even though the claim for such
expenses arose before the commencement of liquidation of the
estate; and
(ii) the insolvent may not without leave of the Court institute any
action against the liquidator of his or her estate on the ground of
malicious prosecution or defamation.
(9) Any property claimable by the liquidator from the insolvent under this
section may be recovered from the insolvent by warrant of execution to be issued by
the Registrar of the Court upon the production to him or her of a certificate by the
Commissioner that the property stated therein is so claimable.
(10) The insolvent must at the request of the liquidator assist the liquidator
to the best of his or her ability in collecting, taking charge of or realising any property
belonging to the insolvent estate and the liquidator during the period of such assistance,
must give to the insolvent out of the insolvent estate such an allowance in money or in
goods as is, in the opinion of the Commissioner, necessary to support the insolvent and
his or her dependants.
(11) The insolvent must keep the liquidator informed in writing of his or her
postal and residential address.
(12) If a notice is to be conveyed to an insolvent in terms of this Act notice
must be sent to such insolvent at the address referred to in subsection (11).
PART 4
IMPEACHABLE DISPOSITIONS
General
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30. (1) A debtor commits an offence if the debtor knowingly
participates in-
(a) transactions intended to defeat, delay or hinder the ability of creditors
to collect claims where the effect of the transaction was to put assets
beyond the reach of creditors or potential creditors or to otherwise
prejudice the interests of creditors;
(b) transactions where a transfer of an interest in property or the
undertaking of an obligation by the debtor was a gift or was made in
exchange for a nominal or less than equivalent value or for inadequate
value that occurred at a time when the debtor was insolvent or as a result
of which the debtor became insolvent (undervalued transactions).
(2) A creditor and a debtor commit an offence if they knowingly participate
in transactions where that creditor obtained, or received the benefit of, more than its
proportional share of the debtor’s assets that occurred at a time when the debtor was
insolvent.
Alienation by insolvent of property to third party who is in good faith
31. If an insolvent, without the consent of the liquidator of his or her estate,
alienates for value any property or any right to such property which he or she acquired
after the commencement of liquidation of his or her estate and which forms part of his
or her insolvent estate, to a person who proves that he or she was not aware and had no
reason to suspect that the estate of the insolvent was under liquidation, the alienation
is nevertheless valid.
Presumptions relating to property in possession of insolvent
32. (1) Whenever an insolvent has acquired the possession of property
and the liquidator of his or her estate claims that property for the benefit of the insolvent
estate that property is presumed to belong to the insolvent estate, unless the contrary is
proved.
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(2) If any person who became a creditor of the insolvent after the
commencement of liquidation of the insolvent’s estate alleges against the insolvent or
the liquidator that property acquired by the insolvent does not belong to the insolvent
estate and claims any right thereto, it is presumed that such property does not belong
to the insolvent estate, unless the contrary is proved.
Disposition without value
33. (1) The Court may set aside every disposition of property not made
for value if such disposition was made by the insolvent-
(a) within two years before the presentation of the application for
liquidation of his or her estate to the Registrar of the Court; or
(b) within three years before the presentation of the application for
liquidation to that Registrar if the disposition was made in favour of an
associate:
Provided that if it is proved by someone opposing the setting aside of the disposition
that the liabilities of the insolvent at any time after the making of the disposition
exceeded his or her assets by less than the value of the property disposed of, the
disposition may be set aside only to the extent of such excess.
(2) A disposition of property not made for value, which was set aside under
subsection (1) or which was uncompleted by the insolvent, does not give rise to any
claim in competition with the creditors of the debtor’s estate: Provided that in the case
of a disposition of property not made for value, which was uncompleted by the
insolvent, and which -
(a) was made by way of suretyship, guarantee or indemnity; and
(b) has not been set aside under subsection (1),
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the beneficiary concerned may compete with the creditors of the insolvent’s estate for
an amount not exceeding the amount by which the value of the insolvent’s assets
exceeded his or her liabilities immediately before the making of that disposition.
Antenuptial contracts
34. (1) No immediate benefit under a duly registered antenuptial
contract given in good faith by one spouse to the other or to any child to be born of the
marriage may be set aside as a disposition without value, unless the application for the
liquidation of the estate of the spouse who gave the benefit was presented to the
Registrar of the Court within two years of the registration of that antenuptial contract.
(2) In subsection (1) the expression "immediate benefit" means a benefit
given by a transfer, delivery, payment, cession, pledge, or special bond of property
completed before the expiration of a period of three months as from the date of the
marriage.
Voidable preferences
35. (1) The Court may set aside every disposition an insolvent makes
of his or her property which has the effect that any one of his or her creditors receives
a benefit to which that creditor would not have been entitled had the insolvent’s estate
been under liquidation at the time of the making of the disposition if -
(a) the insolvent’s liabilities exceeded the value of his or her assets
immediately after the making of the disposition; and
(b) the disposition was made within six months before the presentation of
the application for liquidation of the insolvent’s estate to the Registrar
of the Court or within 12 months before such presentation where that
disposition was made to an associate of the debtor,
unless the person for whose benefit the disposition was made, proves that it was made
in the ordinary course of business and that it was not intended thereby to prefer one
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creditor above the other, and if he or she is an associate of the insolvent, also proves
that he or she was not aware and had no reason to suspect that the insolvent’s liabilities
would exceed the value of his or her assets immediately after the making of the
disposition.
(2) For purposes of subsection (1) it is presumed unless the contrary is
proved, that a disposition was made not in the ordinary course of business if -
(a) it was made by way of payment of a debt that was not due and payable
or not legally enforceable;
(b) it embodied payment in an unusual form or a form not originally agreed
upon.
(3) The Court may set aside any disposition a debtor makes of his or her
property at a time when his or her liabilities exceed his or her assets, made with the
intention of preferring one of his or her creditors above another, if the application for
the liquidation of the estate of the debtor is presented to the Registrar within three years
after the making of the disposition.
(4) For purposes of this section a surety of a debtor or a person by law in a
position analogous to that of a surety is deemed to be a creditor of the debtor.
(5) Every disposition of property made under a power of attorney, whether
revocable or irrevocable, is for the purposes of this section, deemed to be made at the
time at which the transfer or delivery or mortgage of such property takes place.
Collusive dealings for prejudicial disposition of property
36. (1) Any transaction which-
(a) was entered into by a debtor before or after the liquidation of his or her
estate in collusion with another person for disposing of property
belonging to the debtor or the debtor’s estate; and
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(b) had the effect of prejudicing that debtor’s creditors or preferring one
creditor above another,
may after the liquidation of his or her estate be set aside by the Court.
(2) Any person who was a party to such collusion-
(a) is liable to make good any loss thereby incurred by the insolvent estate;
(b) must pay for the benefit of the insolvent estate, by way of penalty, such
sum as the Court may determine, which sum may not be more than the
amount by which he or she would have benefited if the disposition had
not been set aside; and
(c) if that person is a creditor he or she forfeits his or her claim against the
insolvent estate.
(3) The compensation and penalty referred to in subsection (2) may be
recovered in any proceedings for the setting aside of the transaction concerned.
Certain contributions to funds may be recovered for benefit of insolvent estate
37. (1) If a debtor at any time within two years before the presentation
to the Registrar of the Court of the application for the liquidation of that debtor’s estate
undertook new obligations in respect of a fund at a time when the debtor’s liabilities
exceeded that debtor’s assets, or as a result of which the debtor’s liabilities exceeded
the debtor’s assets, the liquidator of that debtor’s estate may recover from such fund
for the benefit of the insolvent estate any contribution in respect of such new obligation
which together with the total contributions in respect of existing obligations, exceed
the amount per annum as prescribed: Provided that-
(a) if it is proved by someone opposing the recovery of contributions that
the liabilities of the debtor at any time after the new obligation was
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undertaken exceeded that debtor’s assets by less than such prescribed
amount which the liquidator may recover the amount which may be
recovered may not be greater than the amount by which the debtor’s
liabilities exceeded the debtor’s assets;
(b) payment by one fund to another fund upon termination of service or
dissolution of a fund and contributions to a new fund in so far as they
replace contributions to another fund is not regarded as new obligations;
(c) if contributions which are recoverable have been made to more than one
fund, the amount which may be recovered from any such fund must be
proportioned according to the contributions made to each fund in respect
of such new obligations.
(2) The prescribed amount referred to in subsection (1) must be periodically
amended to take account of subsequent fluctuations in the value of money.
(3) Notwithstanding the provisions of any other law, a fund from which any
contribution is recovered as contemplated in subsection (1) may reduce the benefits to
which the debtor concerned would have been entitled in terms of the rules of the fund
in respect of such contributions, in proportion to the contributions so recovered from
the fund.
(4) No greater amount may be recovered from a fund in terms of subsection
(1) than the amount that would have been payable to the debtor if the fund had been
dissolved on the date when the amount is recovered.
(5) If the full amount in terms of subsection (1) cannot be recovered
because of the limitation in subsection (4), the liquidator may recover the deficit
proportionately from-
(a) the insolvent personally in respect of benefits which he or she received
from the said fund within three years after the commencement of
liquidation of the insolvent’s estate; and
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(b) from another beneficiary in respect of benefits which he or she received
from the said fund, within three years after the commencement of
liquidation in connection with the insolvent.
(6) If a fund had bought an annuity for a debtor from an insurer, the fund
may recover from the insurer that part of the purchase price paid out of contributions
recoverable in terms of subsection (1) and the insurer may, notwithstanding the
provisions of any other law, reduce the future benefits in respect of the annuity
accordingly: Provided that the amount so recovered may not exceed the value of the
debtor’s annuity on the date when the amount is recovered.
(7) If a debtor-
(a) conceals the payment of a contribution to a fund from his or her
creditors;
(b) partakes in the concealment thereof; or
(c) resigns himself or herself thereto,
the liquidator may recover such contribution made before creditors discovered, or
could reasonably have discovered if they had acted with due care, the payment of such
contribution, irrespective of whether such contribution was made within two years
before presentation to the Registrar of the Court of the application for the liquidation.
(8) This section does not prejudice the rights of a liquidator or creditors in
terms of the common law or this Act, if contributions were made fraudulently to the
disadvantage of creditors or if there were collusive dealings as contemplated in section
36.
(9) If the payment of premiums in respect of a life policy is a contribution
to a fund in terms of this section, the provisions of section 47 of the Long-term
Insurance Act, 1998 (Act No. 5 of 1998) does not apply.
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(10) For the purpose of this section-
(a) “contribution” in respect of a fund or annuity means a contribution made
to such fund or annuity by a debtor in respect of the debtor, less that part
of the contribution which represents commission or a premium in
respect of death or disability benefits and benefits paid to the debtor
before the commencement of liquidation;
(b) “fund” means any pension fund, provident fund or pension scheme
which is instituted in terms of any law or regulation or a fund which is
registered or provisionally registered in terms of section 4 of the Pension
Funds Act, 1956 (Act No. 24 of 1956);
Attachment of property in possession of associate
38. (1) If a liquidator believes on reasonable grounds that a disposition
of property by the debtor to an associate of the debtor may be liable to be set aside, the
liquidator may instruct the sheriff to attach such property.
(2) The sheriff must-
(a) take into his or her personal custody all cash, share certificates, bonds,
bills of exchange, promissory notes and other securities and compile a
specified list thereof;
(b) without delay deposit in a banking account as contemplated in section
103(1)(a) or (b) all cash taken into his or her custody;
(c) in so far as possible leave all other movables which the sheriff has
attached, other than animals, in a properly locked storage place or
appoint a suitable person to keep the said property in that person’s
custody, in which case the sheriff must-
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(i) hand to such person a copy of an inventory of the property left
in his or her custody; and
(ii) draw that person’s attention to the offence contemplated in
section 213(2)(f) in respect of the unauthorised disposition of
property under attachment;
(d) be entitled to fees according to Tariff A in Schedule 2.
(3) The property must be released if the liquidator instructs the sheriff to do
so.
(4) The liquidator must instruct the sheriff to release property as soon as it
is evident that attachment of the property is not required to safeguard the interests of
the estate in the setting aside of a disposition of property.
(5) An associate may apply to the Court for appropriate relief if property of
the associate is attached or held under attachment without reasonable cause.
(6) Unless the Court orders otherwise, the costs of attachment of the
property form part of the costs of liquidation.
Certain rights not affected by improper disposition
39. (1) A person who in return for any disposition which is in terms of
sections 33, 35 or 36 liable to be set aside, acting in good faith -
(a) has parted with any property or security which he or she held; or
(b) has lost any right against another person,
is not be obliged to restore any property or other benefit received under such
disposition, unless the liquidator has indemnified him or her for parting with such
property or security or for losing such right.
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(2) Sections 33, 35 or 36 do not affect the rights of any person who acquired
property in good faith and for value from any person other than a person whose estate
was subsequently liquidated.
(3) The setting aside of a disposition made by a debtor in terms of sections
33, 35 or 36 does not discharge a surety for the debtor.
Set-off
40. If-
(a) two persons have entered into a transaction the result whereof is a set-
off, wholly or in part, of debts which they owe one another and the estate
of one of them is liquidated within a period of six months after the taking
place of the set-off; or
(b) a person who had a claim against another person (in this section referred
to as the “debtor”) has ceded that claim to a third person against whom
the debtor had a claim at the time of the cession, with the result that the
one claim has been set-off, wholly or in part, against the other, and
within a period of one year after the cession the estate of the debtor is
liquidated,
the liquidator of the insolvent estate may in either case-
(i) abide by the set-off; or
(ii) if the set-off was not effected in the ordinary course of business,
disregard it and call upon the person concerned to pay to the insolvent
estate the debt which that person would owe the estate but for the set-
off, and thereupon that person is obliged to pay that debt and may prove
his or her claim against the estate as if no set-off took place:
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Provided that any set-off is effective and binding on the liquidator if it takes place
between a financial market infrastructure or a market participant as defined in section
44 and any other party in accordance with the rules of such market infrastructure, or if
it amounts to payment of a net amount in terms of section 45.
Payment of debt to insolvent after liquidation
41. If on or after the date of liquidation of an insolvent's estate a debtor of
the insolvent-
(a) pays to the insolvent a debt that was due before the date of liquidation;
or
(b) fulfils any obligation towards the insolvent the cause of which arose
before the date of liquidation,
such payment or such fulfilment is void, unless the debtor proves that it was
made or done in good faith without knowledge on his or her part of the
liquidation.
Institution of proceedings on behalf of insolvent estate
42. (1) Proceedings to set aside any disposition of property made by an
insolvent or for the recovery of any debt, asset, compensation, penalty or benefit of
whatever kind for the benefit of the insolvent estate may be instituted by the liquidator
and, if the liquidator fails to institute such proceedings they may be instituted by any
creditor on behalf of the insolvent estate upon indemnifying the liquidator against all
costs thereof to the reasonable satisfaction of the liquidator.
(2) If any creditor instituted proceedings under subsection (1) no creditor
who was not a party to the proceedings may derive any benefit from any moneys or
from the proceeds of any property recovered as a result of such proceedings before the
claim and costs of every creditor who was a party to such proceedings have been paid
in full.
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(3) In the proceedings referred to in subsection (1) an insolvent may be
compelled to give evidence on a subpoena issued on the application of any party to the
proceedings or he or she may be called upon by the Court to give evidence and the
provisions of section 87(6) apply with the changes necessitated by the context to the
giving of evidence at such proceedings.
(4) In any proceedings under sections 33, 35 or 36 it is presumed, until the
contrary has been proved, that the liabilities of a debtor exceeded his or her assets or
the value of his or her assets at any time within one year before the commencement of
liquidation of the insolvent estate.
(5) When the Court sets aside any disposition of property-
(a) the Court must declare the liquidator entitled to recover the alienated
property or in default of such property the value thereof at the date of
the disposition or at the date on which the disposition is set aside,
whichever is the higher; and
(b) interest as prescribed in section 1 of the Prescribed Rate of Interest Act
may be recovered on the value of such property and for the period
ordered by the Court.
PART 5
EFFECT OF LIQUIDATION UPON CERTAIN CONTRACTS
Uncompleted acquisition of immovable property by debtor
43. (1) If before the commencement of liquidation of his or her estate
an insolvent had entered into a contract for the acquisition of immovable property by
him or her and such property had not yet been transferred to him or her at the
commencement of liquidation, the liquidator of the insolvent estate may elect either to
abide by the contract or to abandon it.
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(2) The other party to the contract referred to in subsection (1) may call
upon the liquidator of that insolvent estate by written request to make an election as
contemplated in that subsection and if the liquidator fails to do so and to notify the
other party of his or her election by standard notice within four weeks after he or she
has received the written request, the other party may apply to the Court for an order for
the cancellation of the contract and for restoring any such immovable property which
came in possession or under the control of the insolvent or the liquidator by virtue of
the contract.
(3) The Court must, in respect of an application referred to in subsection
(2), make any order it finds to be just.
(4) The provisions of this section do not affect any right which that other
party may have to establish against the insolvent estate a concurrent claim for any loss
suffered by him or her as a result of the non-fulfilment of the contract.
Transactions on a financial market infrastructure
44. (1) In this section-
“financial market infrastructure” means-
(a) an exchange as defined in section 78 and registered in terms of Chapter 3 of the
Financial Institutions and Markets Act, 2018 (Act No. – of 2018);
(b) a central securities depository as defined in section 121 and registered in terms
of Chapter 3 of that Act;
(c) a securities clearing house as defined in section 78 and registered in terms of
Chapter 3 of that Act;
(d) any other financial market infrastructure as determined by the Minister by
notice in the Gazette;
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“rules” means-
(a) the exchange rules, the depository rules or securities clearing house rules as
defined in section 78 of the Financial Institutions and Markets Act, 2018 (Act
No. – of 2018);
(b) the rules of a financial market infrastructure referred to in paragraph (d) of the
definition of financial market infrastructure;
“market participant” means-
(a) an authorised user, a portfolio member, authorised advisor or authorised
representative registered in terms of section 91 of the Financial Institutions and
Markets Act, 2018 (Act No. – of 2018);
(b) a participant registered in terms of section 97 of that Act, a clearing member or
a client as defined in section 1 of the Financial Markets Act, 2012, or any other
party to a transaction;
“transaction” means any transaction to which the rules apply.
(2) If upon the sequestration of the estate of a market participant the
obligations of such market participant in respect of any transaction entered into prior
to sequestration have not been fulfilled, the financial market infrastructure in respect
of any obligation owed to it, or any other market participant in respect of obligations
owed to such market participant, is in accordance with the rules applicable to any such
transaction entitled to terminate transactions or revoke settlement instructions and the
trustee of the insolvent estate of the market participant is bound by such termination or
revocation.
(3) No claim as a result of the termination or revocation of any transaction
as contemplated in subsection (2) may exceed the amount due upon termination or
revocation in terms of the rules in question.
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(4) Any rules and the practices thereunder which provide for the netting of
a market participant’s position or for set-off in respect of transactions concluded by the
market participant or for the opening or closing of a market participant’s position or
for the revocation of settlement instructions is upon sequestration of the estate of the
market participant binding on the trustee in respect of any transaction or contract
concluded by the market participant prior to such sequestration, but which is, in terms
of such rules and practices, to be settled on a date occurring after the sequestration, or
settlement of which was overdue on the date of sequestration.
Agreements providing for termination and netting
45. (1) For purposes of this section-
“master agreement” means-
(a) an agreement in accordance with standard terms published by the International
Swaps and Derivatives Association, the International Securities Lenders
Association, the Bond Market Association or the International Securities
Market Association, or any similar agreement, which provides that, upon the
liquidation of one of the parties-
(i) all unperformed obligations of the parties in terms of the agreement-
(aa) terminate or may be terminated; or
(bb) become or may become due immediately; and
(ii) the values of the unperformed obligations are determined or may be
determined; and
(iii) the values are netted or may be netted, so that only a net amount
(whether in the currency of the Republic or any other currency) is
payable to or by a party,
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and which may further provide that the values of assets which have been
transferred as collateral security for obligations under that agreement
must be included in the calculation of the net amount payable upon
liquidation; or
(b) any agreement declared by the Minister, after consultation with the Minister of
Finance, by notice in the Gazette to be a master agreement for the purposes of
this section.
"unperformed obligation" includes an obligation of a party to an agreement to return
to the other party assets (whether tangible or intangible), in which ownership had been
transferred to the first-mentioned party as security for the latter party's prospective
liability under the agreement;
"market value" means a value determined without reference to the ability of the debtor
to perform;
(2) In this section “agreement” does not include -
(a) a transaction contemplated in section 44; or
(b) a netting agreement as contemplated in the Payment System
Management Act, 2003 (Act No. 18 of 2003).
(c) any agreement declared by the Minister after consultation with the
Minister responsible for finance, by notice in the Gazette not to be an
agreement for the purposes of this section.
(3) Notwithstanding any rule of the common law to the contrary, upon the
commencement of liquidation of the estate of a party to a master agreement-
(a) all unperformed obligations arising out such agreement, or obligations
arising from such agreement in respect of assets in which ownership has
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been transferred as collateral security, terminate automatically at the
commencement of liquidation;
(b) the values of those obligations must be calculated at market value as at
the commencement of liquidation;
(c) the values so calculated must be netted; and
(d) the net amount must be payable.
(4) Section 346 of the Companies Act and sections 33 and 35 of this Act
do not apply to property disposed of in terms of a master agreement.
Effect of liquidation of estate of seller under reservation of ownership contract
46. The liquidation of the estate of a seller under a reservation of ownership
contract does not give a right to the liquidator of the estate to reclaim property sold
under the contract.
Goods purchased not on credit but not paid for
47. (1) If a debtor, before the commencement of liquidation of his or
her estate, received delivery of movable property bought by him or her and the
purchase price of such property had not been paid in full at the time of the delivery
despite a term of the contract that the purchase price must be paid on delivery of the
property, the seller may after the liquidation of the debtor’s estate, reclaim the property
if within 14 days after the delivery thereof the seller gives standard notice to the debtor,
the liquidator or the Commissioner that he or she reclaims the property.
(2) If the liquidator disputes the seller's right to reclaim the property he or
she must, within 14 days after receipt of the seller’s notice of the claim, notify the seller
by standard notice that he or she disputes the claim, whereupon the seller may within
14 days after receipt of the liquidator’s notice, institute legal proceedings to enforce
the seller’s right.
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(3) For the purposes of subsection (1) a contract of purchase and sale is
deemed to provide for the payment of the purchase price upon delivery of the property
in question to the debtor, unless the seller has agreed that the purchase price or any part
thereof is not payable before or at the time of such delivery.
(4) The liquidator of a debtor’s insolvent estate is not obliged to restore any
property reclaimed by the seller in terms of subsection (1), unless the seller refunds to
the liquidator every part of the purchase price already received by the debtor or
liquidator, as the case may be.
(5) Except as provided in this section, a seller is not entitled to recover any
property which he or she sold and delivered to a purchaser whose estate was liquidated
after the sale, only by reason of the fact that the purchaser failed to pay the purchase
price.
Effect of liquidation upon lease
48. (1) This section does not apply to a financial lease.
(2) A lease of movable or immovable property does not terminate by the
liquidation of the estate of the lessee, but the liquidator of the insolvent estate may,
without prior notice, terminate the lease by standard notice to the lessor-
(a) with the approval of the Commissioner; or
(b) in terms of a resolution of creditors taken at a meeting of creditors of
the insolvent estate.
(3) The lessor may claim from the insolvent estate compensation for any
loss which the lessor may have sustained by reason of the non-performance of the terms
of the lease.
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(4) If the liquidator does not within three months of his or her appointment
notify the lessor by standard notice that he or she elects to continue the lease on behalf
of the insolvent estate, the liquidator is deemed to have terminated the lease at the end
of the three months.
(5) The rent due in terms of the lease from the commencement of
liquidation of the estate of the lessee to the termination or cession of the lease by the
liquidator, must be included in the cost of the liquidation.
(6) The termination of the lease by the liquidator in terms of this section
deprives the insolvent estate of any right to compensation for improvements, other than
improvements made in terms of an agreement with the lessor, made to the leased
property during the period of the lease.
Effect of liquidation on contract of service
49. (1) The contracts of service of employees whose employer has been
liquidated are suspended with effect from the commencement of liquidation.
(2) Without limiting subsection (1), during the period of suspension of an
employee’s contract of service referred to in subsection (1), the employee–
(a) is not required to render services;
(b) is not entitled to any remuneration; and
(c) is not entitled to any employment benefit,
in terms of that contract.
(3) An employee whose contract of service is suspended is entitled from
the date of such suspension to any unemployment benefits determined by any law.
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(4) Subject to subsections (5) and (8), a liquidator appointed in terms of
section 53 may terminate the contracts of service of employees,.
(5) A liquidator who has received proposals referred to in subsection (8) or
who intends to terminate the contracts of service of employees must consult with –
(a) any person who the insolvent employer was required to consult with
immediately before the liquidation, in terms of a collective agreement
defined in section 1 of the Labour Act;
(b) (i) a workplace representative elected in terms of section 67 of the
Labour Act; and
(ii) any trade union whose members are likely to be affected by the
termination of contract of service,
if there is no such collective agreement, that existed immediately prior
to the commencement of liquidation;
(c) the employees whose contracts of service were suspended in terms of
subsection (1) and who are likely to be affected by the termination of
the contract of service or their representatives nominated for that
purpose, if they do not belong to a trade union.
(6) The liquidator must disclose to the consulting parties all relevant
information that will allow the parties to consult effectively.
(7) The consultation referred to in subsection (5) must be aimed at reaching
consensus on appropriate measures to sell, save or rescue the whole or part of the
business of the insolvent employer in any manner authorised by law.
(8) If any party referred to in subsection (5), wishes to make proposals
concerning any matter contemplated in subsection (6), that party must lodge written
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proposals to the liquidator within 21 days after the appointment of the liquidator in
terms of section 53, unless the liquidator or such party agree otherwise.
(9) A creditor of the insolvent employer may, with the consent of the
liquidator, participate in any consultation contemplated in this section.
(10) Unless the liquidator and an employee have agreed on continued
employment of the employee in view of measures contemplated in subsection (7), all
suspended contracts of service terminates 45 days after the date of the appointment of
a liquidator in terms of section 53.
(11) An employee whose contract of service has been –
(a) suspended in terms of subsection (1); or
(b) terminated in terms of subsection (10),
is entitled to claim compensation from the insolvent estate of his or her former
employer for any loss he or she may have sustained by reason of the suspension or
termination of a contact of service prior to its expiration.
(12) An employee whose contract of service terminates or has been
terminated in terms of this section is entitled to claim severance benefits from the estate
of the insolvent employer in accordance with section 35 of the Labour Act.
PART 6
PROVISIONAL APPOINTMENT, ELECTION, APPOINTMENT AND
DISQUALIFICATION OF LIQUIDATORS
Appointment of provisional liquidator
50. (1) A creditor of an insolvent estate with a liquidated claim, the
cause of which arose before liquidation and who will after proof of the claim have the
right to vote for a liquidator at a meeting of creditors, and a trade union which
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represents employees of the insolvent may in writing nominate a person to be appointed
by the Commissioner as liquidator.
(2) The Commissioner must as soon as possible-
(a) after the granting of the provisional liquidation order; or
(b) after the time when a liquidator ceases to function as liquidator
according to the provisions of section 55,
appoint the liquidator or liquidators nominated in accordance with subsection (1):
Provided that-
(i) the Commissioner may reject a nomination or amend the amount of a
claim in a nomination if it appears from the information in a nomination
that the creditor's claim cannot be proved at a meeting of creditors or
cannot be proved for the amount reflected in the nomination;
(ii) an employee who has lodged a declaration that he or she was employed
by the debtor at the date of liquidation and who has not lodged a
nomination as a creditor, will be counted as a vote in number;
(iii) the nomination of a trade union will be counted in number for the
employees represented by the union and that the nomination by the
union prevails if the nomination by an employee conflicts with a
nomination of a union of which the worker is a member;
(3) If the Commissioner deems it necessary for the proper administration
of an insolvent estate he or she may at any time, in accordance with policy determined
by the Minister, appoint one additional liquidator by direct notice of the reasons for an
additional appointment to each liquidator appointed or to be appointed in terms of
subsection (2).
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(4) If the appointment of a liquidator is so urgent that it cannot be delayed
until the second working day after the granting of the provisional liquidation order the
Court may when granting the order simultaneously appoint a provisional liquidator for
the preservation of the estate on such conditions regarding the giving of security or
otherwise the Court finds to be just.
(5) The provisional liquidator referred to in subsection (4) must forthwith-
(a) after his or her appointment proceed to recover and take into possession
all the assets and property of the insolvent estate; and
(b) give effect to any directions by the Court.
(6) If the provisional liquidator referred to in subsection (4) is not appointed
in terms of subsection (2) or (8), the provisional liquidator must-
(a) vacate his or her office when a liquidator is appointed in terms of those
subsections; and
(b) deliver the assets, property and books of the insolvent estate to the
liquidator and render an account to the liquidator.
(7) The provisional liquidator is entitled to remuneration taxed by the
Commissioner in accordance with Tariff B in Schedule 2.
(8) Failing any valid nomination for the appointment of a liquidator in
terms of subsection (1), the Commissioner must appoint a person of his or her choice
as liquidator.
(9) If in the case of a liquidation by the Court the Commissioner is unable
to appoint a liquidator the he or she must, after the issue of a final order and after giving
direct notice to the person who applied for liquidation and notice by publication in the
Gazette, report to the Court with or without any formal application and request the
Court to set aside the liquidation order.
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(10) The Court may on receipt of the Commissioner’s report referred to in
subsection (9) –
(a) set aside the liquidation order;
(b) refer the report back to the Commissioner and direct the Commissioner
to proceed by way of formal application at the cost of the estate; or
(c) make any other order the Court finds to be just.
(11) The written nomination referred to in subsection (1) must be
substantially in the form of Form A2 of Schedule 1 for a creditor and Form A3 of
Schedule 1 for a trade union.
(12) No person may be appointed in terms of subsection (2) or (8) unless-
(a) that person has given security to the satisfaction of the Commissioner
for the proper exercise of his or her powers and performance of his or
her duties as liquidator; and
(b) has lodged an affidavit stating that he or she is not disqualified in terms
of section 10(2).
(13) A liquidator appointed in terms of subsection (2) or (8) must, before the
first meeting of creditors of the insolvent estate, give effect to any direction the
Commissioner gives to him or her.
(14) The Commissioner must keep a public record, which must be updated
at least every 30 days, of appointments in terms of subsection (3) or section 51(4)
which must reflect the name and reference number of the estate, the name and address
of the person appointed, the amount of security called for and the reasons for the
appointment.
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Election of liquidator
51. (1) Any-
(a) creditor of an insolvent estate who has proved claims against the estate
may vote for one liquidator at the first meeting of creditors or a
subsequent meeting convened to elect a liquidator; and
(b) employee who has not voted as a creditor and who has lodged a
declaration that he or she was employed by the debtor at the date of
liquidation may vote in number.
(2) (a) A liquidator is elected by the majority in number and in value of
the votes of creditors who are entitled to vote and who voted at such
meeting.
(b) If no candidate for the office of liquidator has obtained a majority in
number and in value of the votes, the candidate who has obtained a
majority of votes in number is deemed to be elected as liquidator if no
candidate has obtained a majority of votes in value, and the candidate
who has obtained a majority of votes in value is deemed to have been
so elected if no candidate has received a majority of votes in number.
(c) If one candidate obtained a majority of votes in value and another a
majority in number, both such candidates are deemed to be elected as
liquidators, and if either of them declines to share the office of liquidator
with the other, the other candidate is deemed to be the sole elected
liquidator.
(3) If no liquidator is elected at a meeting of creditors the liquidator
appointed by the Commissioner in terms of section 50 must be the liquidator of the
estate.
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(4) If the Commissioner deems it necessary for the proper administration
of an insolvent estate he or she may at any time, in accordance with policy determined
by the Minister, appoint one additional liquidator after 48 hours’ direct notice to each
liquidator appointed or to be appointed in terms of subsection (2) or (3) of the reasons
for an additional appointment.
Commissioner may refuse to appoint elected liquidator
52. (1) The Commissioner may refuse to appoint as liquidator a person
elected in terms of section 51, on any one or more of the following grounds namely,
that the person -
(a) was not properly elected;
(b) is in terms of section 10(2) disqualified from being appointed as a
liquidator or as liquidator of the insolvent estate in question;
(c) has failed to give security, within seven days after his or her election or
within such longer period as the Commissioner may allow, to the
satisfaction of the Commissioner for the proper performance of his or
her duties as liquidator.
(2) If the Commissioner refuses to appoint a person elected as as liquidator,
he or she must notify that person by direct notice of the reason for his or her refusal.
(3) (a) Any person aggrieved by the appointment of a liquidator or the
refusal of the Commissioner to appoint a person elected as liquidator,
may within a period of ten days from the date of such appointment or
refusal submit his objections to the Commissioner in writing.
(b) The Commissioner must within seven days of the receipt by him of the
objections inform the objector and the person elected, if applicable, of
his or her decision.
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(c) Any interested party may apply to the Court for a review of the
Commissioner's decision within 14 days after the Commissioner has
informed the objector and the person elected, if applicable, of his or her
decision.
(4) Whenever the Commissioner refuses to appoint as liquidator a person
elected as such, or the Court has set aside an appointment of a liquidator by the
Commissioner, the Commissioner must direct the liquidator appointed in terms of
section 53 to convene a meeting of creditors of the insolvent estate for purposes of
electing another person as liquidator in the place of such person or liquidator.
(5) The notice of the meeting referred to in subsection (4) must-
(a) state that the purpose of the meeting is to elect a liquidator;
(b) set out the reason in subsection (1) (a), (b) or (c), why the Commissioner
has refused to appoint the person elected as liquidator, or state that the
appointment of the liquidator has been set aside by the Court;
(c) be published in the Gazette not less than 14 days and not more than 21
days before the date fixed for the meeting;
(d) be sent by liquidator’s notice to every creditor who has proved a claim
against the estate.
(6) The meeting mentioned in subsection (4) must be held as if it were the
continuation of a first meeting of creditors held after an adjournment thereof.
(7) If the Commissioner refuses to appoint as liquidator a person elected at
a meeting convened in terms of subsection (4), he or she must notify such person by
direct notice and state the reason for his or her refusal, as contemplated in subsection
(2), whereupon the Commissioner may, if he or she deems it necessary for the proper
administration of the estate, in accordance with policy determined by the Minister
102
appoint as liquidator any person whom he or she regards as a suitable person for
appointment.
(8) All the provisions of this Act relating to a liquidator applies to a
liquidator appointed by the Commissioner under this section.
Appointment of liquidator and security
53. (1) When-
(a) a final liquidation order has been made;
(b) a person elected as liquidator has given security to the satisfaction of
the Commissioner for the proper performance of his or her duties; and
(c) lodged an affidavit stating that he or she is not disqualified in terms of
10(2),
the Commissioner must, subject to section 52, appoint him or her as liquidator and
issue him or her with a letter of appointment, which is valid throughout Namibia.
(2) After the receipt of his or her letter of appointment the liquidator must
notify his or her appointment and his or her address by notice in the Gazette.
(3) The costs to the liquidator of giving security must, up to a maximum
amount which the Commissioner deems reasonable, be included as part of the costs of
the liquidation.
(4) The Commissioner may-
(a) for good cause at any time call for additional security; or
(b) reduce the security given by the liquidator if the liquidator has-
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(i) to the satisfaction of the Commissioner accounted for any
property in the estate; and
(ii) the Commissioner is of the opinion that the reduced security is
sufficient to indemnify the insolvent estate or its creditors
against any maladministration by the liquidator of the remaining
property in that estate.
Joint liquidators to act jointly
54. (1) When more than one liquidator has been appointed for an
insolvent estate all those liquidators-
(a) must act jointly in performing their functions as liquidators; and
(b) each of them is jointly and severally liable for every act performed by
them jointly.
(2) Whenever liquidators of an insolvent estate disagree on any matter
relating to the estate, the matter must be referred to the Commissioner to-
(a) determine the question in issue; or
(b) give directions as to the procedure to be followed for the determination
thereof.
Vacation of office of liquidator
55. (1) A liquidator vacates his or her office -
(a) if his or her estate is liquidated;
(b) if he or she is in terms of the Mental Health Act, 1973 (Act No. 18 of
1973), received and detained in an institution contemplated in the said
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Act or if he or she is declared by a competent Court to be incapable of
managing his or her own affairs;
(c) if he or she is convicted in Namibia or elsewhere of an offence of which
dishonesty is an element and is sentenced to imprisonment without the
option of a fine or to a fine of at least N$1000.
(2) Whenever a liquidator of an insolvent estate vacates his or her office for
whatever reason, any legal proceedings pending against the estate-
(a) does not lapse merely by reason of the vacating of office; and
(b) may, with the permission of the Court, be continued in the name of any
remaining or newly appointed liquidator.
Removal of liquidator from office by the Commissioner
56. (1) The Commissioner must remove a liquidator from office -
(a) if he or she was not qualified for appointment as liquidator or if his or
her appointment was unlawful;
(b) if the majority in value and the majority in number of the creditors who
have proved claims against an insolvent estate -
(i) have requested the Commissioner in writing to do so; or
(ii) have at a meeting of creditors of the estate, after notice of the
intended resolution was given, resolved, that the liquidator must
be removed from office;
(c) if he or she resigns from the office of liquidator;
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(d) if he or she is temporarily absent from Namibia for a period longer than
60 days without the permission of the Commissioner, or contrary to the
conditions, if any, set by the Commissioner when the Commissioner
gave permission;
(e) if after his or her appointment he or she becomes disqualified from being
a liquidator;
(2) The Commissioner may remove a liquidator from office on the ground
that he or she has failed to -
(a) perform satisfactorily any duty imposed upon him or her by this Act; or
(b) comply with a lawful demand of the Commissioner.
(3) The Commissioner may-
(a) when a liquidator has been formally charged with the commission of an
offence;
(b) on the strength of a complaint made to him or her on affidavit; or
(c) on evidence given at a questioning in terms of section 87, 88 or 90 or
written answers in terms of section 89; and
(d) pending an investigation by him or her into the suitability of a liquidator
to remain in office,
suspend the liquidator from office and, if necessary, appoint an interim liquidator for
the preservation of the estate: Provided that the Commissioner must in the case of a-
(i) complaint, evidence or written answers contemplated in this subsection,
without delay carry out the necessary investigation and either remove
the liquidator from office or set aside the suspension;
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(ii) liquidator charged with an offence remove the liquidator from office or
set aside the suspension as soon as the prosecution has been finalised.
(4) No person may be appointed as interim liquidator in terms of subsection
(2) unless that person has-
(a) given security to the satisfaction of the Commissioner for the proper
exercise of his or her powers and performance of his or her duties as
interim liquidator; and
(b) lodged an affidavit stating that he or she is not disqualified in terms of
section 10(2).
(5) The interim liquidator -
(a) must after his or her appointment proceed to recover and take into
possession-
(i) all the assets and property of the insolvent estate;
(ii) all books of account, invoices, vouchers, business
correspondence and any other records relating to the affairs of
the insolvent; and
(b) may apply for a search warrant in terms of section 61.
(6) The interim liquidator-
(a) must give effect to any directions by the Commissioner; and
(b) may without the authorisation of the Commissioner as contemplated in
section 66 perform any act which is necessary for the preservation of
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the estate until the suspension of the liquidator is set aside or another
liquidator is appointed.
(7) The interim liquidator is entitled to remuneration taxed by the
Commissioner in accordance with Tariff B in Schedule 2.
(8) The interim liquidator-
(a) vacates his or her office when the suspension of the liquidator is set
aside or a liquidator is appointed in the place of the removed liquidator;
and
(b) must deliver the assets, property, books, documents or records to the
liquidator and render an account to the liquidator.
Court may declare liquidator disqualified or remove liquidator
57. If in the opinion of the Court it is in the interests of the proper
administration of an insolvent estate, the Court may, on the application of the
Commissioner or any other interested party -
(a) declare any person disqualified from being a liquidator of the estate; or
(b) remove from office any person who has been appointed as liquidator;
and
(c) declare such a person incapable of being elected or appointed as
liquidator under this Act during his or her lifetime or for such other
period as determined by the Court.
Election of new liquidator
58. (1) (a) When one of two or more joint liquidators of an
insolvent estate-
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(i) has vacated his or her office;
(ii) has been removed from office by the Commissioner or the Court;
or
(iii) has resigned or died,
the Commissioner must direct the remaining liquidator or liquidators to
convene a meeting of creditors of the estate for the purpose of electing a new
liquidator in the place of the one who vacated his office.
(b) When a majority of proved creditors in value of an insolvent estate at
any time requests it the Commissioner must direct the liquidator or
liquidators to convene a meeting for the election of a further liquidator.
(2) When every liquidator or the sole liquidator of an insolvent estate-
(a) has vacated his or her office;
(b) has been removed from office by the Commissioner or the Court; or
(c) has resigned or died,
the Commissioner must direct the liquidator appointed in terms of section 50 to
convene a meeting of creditors of that estate for the purpose of electing a liquidator.
(3) The provisions of section 80(2) must with the changes necessitated by
the context apply to a meeting referred to in subsections (1) or (2).
PART 7
POWERS AND DUTIES OF LIQUIDATORS
109
Service of provisional liquidation order on debtor and attachment of property
belonging to insolvent estate
59. (1) (a) The liquidator must immediately after his or her
appointment serve a copy of the provisional liquidation order on the insolvent and if
the name of the insolvent's spouse appears on the order he or she must serve a copy of
the order also on that spouse.
(b) When a copy of a provisional liquidation order is served on an insolvent
or his or her spouse he or she must be supplied with two copies of the
form referred to in section 60(1)(b).
(2) When serving the provisional liquidation order the liquidator must
ensure in so far as it is possible, that the following particulars in respect of the insolvent
and his or her spouse, if applicable, is obtained namely -
(a) the full name, date of birth and identity number or registration number
of the insolvent;
(b) where applicable, the insolvent’s marital status and, if he or she is
married in community of property, the full name, date of birth and
identity number of his or her spouse.
(c) if the insolvent is an employer, whether his or her employees are
represented by a trade union and whether there is a notice board inside
the employer's premises for notice to employees.
(3) If-
(a) the name, date of birth or identity number of the insolvent or his or her
spouse which appears on the provisional liquidation order is incorrect;
or
(b) if any of these particulars are not stated,
110
the liquidator must -
(i) ensure that that the correct particulars are noted on the copy of the
provisional liquidation order;
(ii) send a copy of that provisional liquidation order by standard notice to
the registrar of every deeds registry in Namibia together with a copy of
his or her letter of appointment; and
(iii) send a copy of the order on which the particulars have thus been noted
by standard notice to the applicant in the liquidation proceedings, the
Commissioner and to the Registrar of the Court.
(4) Service of a copy of a liquidation order may be effected by the
liquidator's clerk or by the sheriff, if requested thereto by the liquidator, in which event
the provisions of subsections (2) and (3) relating to the particulars which must be
endorsed on the copy of the order apply to that clerk or sheriff, as the case may be.
(5) Service of a copy of a liquidation order must be carried out in
accordance with the Rules of Court: Provided that if the insolvent has been absent from
his or her usual place of residence or his or her business in Namibia during a period of
at least 21 days, the Court may be approached for directions with regard to some other
mode of service.
(6) (a) The liquidator must forthwith after his or her appointment,
attach all the movable property in the possession of the insolvent and compile
a full inventory thereof.
(b) Property in respect of which a person allegedly has a right of pledge or
a right of retention or which is under judicial attachment may not be
attached but must be shown on the inventory.
(7) The liquidator must -
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(a) take into his or her personal custody all books of account, invoices,
vouchers, business correspondence and any other records relating to the
affairs of the insolvent and make a specified list of all such books,
documents and other records;
(b) if the insolvent is present, ask him or her whether the list referred to in
paragraph (a) is a complete list of all books and records relating to his
or her affairs and note his or her reply on the list;
(c) note on the list any explanation which the insolvent gives with regard to
the books, documents and other records relating to his or her affairs or
in respect of any books, documents or other records which he or she is
unable to supply;
(d) take into his or her personal custody all cash, share certificates, bonds,
bills of exchange, promissory notes and other securities and compile a
specified list thereof;
(e) without delay deposit in a banking account as contemplated in section
103(1)(a) or (b) all cash which he or she has taken into his or her
custody;
(f) in so far as is possible-
(i) leave all other movable property which he or she has attached,
other than animals, in a properly locked storage place; or
(ii) appoint a suitable person to keep the said property in his or her
custody, in which case he or she must hand to such person a copy
of an inventory of the property left in his or her custody and he
or she must draw that person's attention to the offence
contemplated in section 213(2)(f) in respect of the unauthorised
disposition of property under attachment.
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(8) (a) The liquidator may perform the attachment himself or herself or
he or she may cause the attachment to be performed in whole or in part
by the sheriff.
(b) The sheriff is entitled to fees taxed by the Commissioner according to
Tariff A in Schedule 2 and the rules for the construction of that tariff.
(9) (a) Any person who has an interest in the insolvent estate or in any
property which is attached is entitled to be present or may authorise a
person to be present on his or her behalf when property of the insolvent
estate is attached and when an inventory in respect thereof is compiled.
(b) If the insolvent or his or her representative is present, he or she must
sign the inventory and a copy thereof must be handed to him or her and
any comment which he or she may have with regard to the inventory or
with regard to any assets, books or records of the insolvent not included
in the inventory must be attached to the inventory.
(10) The liquidator must by standard notice send a copy of the inventory to
the Commissioner.
(11) The liquidator must-
(a) cause the attached property of the insolvent to be valued by an appraiser
appointed in terms of section 6 of the Administration of Estates Act, or
a suitably qualified person approved by the Commissioner, who must
submit to the liquidator a valuation report; and
(b) by standard notice send the Commissioner a copy of the valuation
report.
Debtor to hand over books to liquidator and submit statement of affairs to
Commissioner and liquidator
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60. (1) When a liquidation order is served in accordance with section
59(1), upon an insolvent, the insolvent must -
(a) immediately hand over to the liquidator all books of account, invoices,
vouchers, business correspondence and any other records relating to that
insolvent’s affairs and obtain from the insolvent a specified receipt in
respect thereof;
(b) within 7 days after the service of the said order send by standard notice
to the Commissioner and the liquidator one copy each of a statement of
affairs as on the commencement of liquidation, compiled in a form
substantially corresponding to Form A1 of Schedule 1 containing the
particulars required in that Form, which particulars are confirmed by
affidavit.
(2) All stock in trade enumerated in the statement of affairs referred to in
subsection (1) must be valued at cost price or at the market value thereof at the time of
the making of affidavit referred in that subsection, whichever value is the smallest.
(3) If the Commissioner is satisfied that the insolvent or his or her spouse
was unable to draw up the statement of affairs referred to in subsection (1)(b) without
assistance, the person who assisted the insolvent or such spouse with the preparation
of the statement is entitled to a reasonable fee determined by the Commissioner, which
fee is deemed to be part of the costs of the liquidation.
Liquidator may obtain search warrant
61. (1) If the liquidator on reasonable grounds suspects that any book,
document or record relating to the affairs of the insolvent or any property belonging to
the insolvent is being concealed or otherwise unlawfully withheld from the liquidator,
he or she may apply to the magistrate within whose area of jurisdiction such book,
document, record or property is suspected to be or a magistrate who presided at a
questioning in terms of sections 87, 88 or 90, for a search warrant.
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(2) If it appears to a magistrate to whom an application referred to in
subsection (1) is made on the basis of facts in an affidavit, or evidence given at a
questioning in terms of sections 87, 88 or 90 or answers to questions contemplated in
section 89(3)(b) that there is substantiated reason to suspect that a book, document or
other record relating to the affairs of the debtor or property belonging to the insolvent
estate is being concealed in possession of a person or at a place or on a vehicle or vessel
or in a container of whatever nature or is otherwise unlawfully withheld from the
liquidator, within the area of jurisdiction of the said magistrate, he or she may issue a
warrant authorising the liquidator or a police officer to search a person, or place or
vehicle, vessel or container mentioned in the warrant and to take possession of such
book, document, record or property.
(3) The provisions of sections 21, 27 and 29 of the Criminal Procedure Act,
1977 (Act No. 51 of 1977) in so far as they are applicable, apply with the changes
necessitated by the context to the execution of a warrant referred to in subsection (2).
Registration of name and address with liquidator
62. (1) Any person who claims to be a creditor of an insolvent estate
may-
(a) register his or her name and address in Namibia with the liquidator of
that estate upon payment to the liquidator of the prescribed fee; and
(b) indicate property which he or she claims to hold as security for a claim.
(2) The liquidator must by liquidator’s notice send to the name and address
of a creditor registered in terms of subsection (1)-
(a) a notice of every meeting of creditors of the insolvent estate;
(b) a copy of every report contemplated in section 63(1);
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(c) a copy of every notice in terms of section 107(2) that an account will
lie open for inspection; and
(d) a notice of the date, time and place of the sale of any property which a
person claims to hold as security in terms of subsection (1).
(3) The liquidator must by standard notice send a copy of an account which
has been advertised to lie open for inspection to a creditor registered in terms of
subsection (1) upon that creditor’s request and payment of the reasonable costs of
making a copy of the account.
(4) Failure on the part of the liquidator to comply with a provision of this
section constitutes a failure to perform his or her duties but does not invalidate anything
done under this Act.
Liquidator's report
63. (1) (a) The liquidator must investigate the affairs of the
insolvent and the business transactions entered into by him or her before
the liquidation of his or her estate.
(b) At the first meeting of creditors of the insolvent estate, or in so far as he
or she is then not ready to do so, at a special meeting of creditors the
liquidator must submit-
(i) a full written report on those affairs and transactions; and
(ii) on any matter of importance relating to the insolvent or the
insolvent estate.
(2) The liquidator must in particular report on -
(a) the assets and liabilities of the insolvent estate;
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(b) whether, in his or her opinion, there is a risk of a contribution by
creditors in terms of section 113, or indicate why he or she is unable to
express an opinion on the matter;
(c) the cause of the insolvent’s insolvency;
(d) the bookkeeping relating to the insolvent’s affairs, the question whether
proper bookkeeping in respect of his or her business transactions was
carried out and if not, in what respect it is defective, insufficient or
incorrect;
(e) the question whether the insolvent -
(i) appears to have contravened any provision of this Act;
(ii) appears to have committed any other offence or contravened the
provisions of any law;
(iii) has failed to submit a statement of affairs and of his or her
income and expenses as required by this Act;
(f) where applicable, the monthly income and expenses of the insolvent,
any allowance made by the liquidator to the insolvent by way of
maintenance for the insolvent and his or her family, and the assistance
given to the liquidator during the period for which the allowance was
paid;
(g) any-
(i) legal proceedings instituted by or against the insolvent which
were suspended by the liquidation of the estate; and
(ii) other legal proceedings which are pending or may be instituted
against the insolvent estate;
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(h) any business conducted on behalf of the insolvent estate and the result
thereof;
(i) any transaction entered into by the insolvent before the liquidation of
his or her estate in respect of the acquisition of immovable property
which was not transferred to him or her or any transaction entered into
by the insolvent as lessee;
(j) the names of secured creditors with the amounts of the secured claims
and steps taken or envisaged to investigate the validity of security;
(k) whether or not further enquiry is in his or her opinion desirable in regard
to any matter relating to the insolvent or the conduct of the insolvent’s
business;
(l) any other matter relating to the administration or the realisation of the
insolvent estate requiring direction of the creditors.
(3) If the liquidator’s report is to be submitted as envisaged under
subsection (1) before a final order is made, the liquidator must further report on
whether any of the following, where applicable, are more appropriate than liquidation
of the debtor-
(a) reorganization proceedings in terms of Chapter 4; or
(b) an administration order in terms of section 74 of the Magistrates’ Courts
Act;
(4) The liquidator must-
(a) supply the Regional Commander of the Commercial Branch of the
Namibian Police, or a similarly ranked law enforcement official with an
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affidavit containing a report relating to any offence which the insolvent
in his or her opinion committed;
(b) on request of that Commander or official supply any further particulars
as may be required; and
(c) by standard notice send a copy of that affidavit and report to the
Commissioner.
Recovery of debts due to estate
64. (1) The liquidator of an insolvent estate must, in the notification of
his or her appointment by notice in the Gazette, call on all persons indebted to that
estate to pay their debts within a period and at a place stated in the notice.
(2) If any person referred to in subsection (1) fails to pay their debts to the
estate, the liquidator must recover payment thereof from him or her, by legal process,
if necessary.
Remuneration of liquidator
65. (1) A liquidator is entitled to a reasonable remuneration for his or
her services and for expenses incurred by him or her in the administration of an
insolvent estate.
(2) The Commissioner must tax the remuneration and expenses referred to
in subsection (1) in accordance with Tariff B in Schedule 2.
(3) The liquidator may apply to the Commissioner for an increase in
remuneration after giving at least 14 days’ liquidator’s notice to creditors registered in
terms of section 62 who will be affected by such increase.
(4) The Commissioner may for good cause-
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(a) increase a liquidator's remuneration in particular to compensate him or
her for the time spent in assisting with criminal prosecutions or
investigating the affairs of a debtor; or
(b) disallow his or her remuneration, either wholly or in part, by reason of-
(i) any failure of or delay in the discharge of his or her duties; or
(ii) on account of any improper performance of his or her duties.
(5) (a) Any person who employs a liquidator, is a fellow employee of
a liquidator or is ordinarily in the employment of a liquidator, is not entitled to
any remuneration out of the insolvent estate for services rendered to the estate.
(b) A liquidator or his or her partner is not entitled to remuneration out of
the estate for services rendered to the estate, except the remuneration to
which he or she is entitled to as a liquidator in terms of this Act.
(6) A liquidator is not entitled to receive any remuneration before the
liquidation account making provision for the remuneration has been confirmed in terms
of section 109.
General duties and powers of liquidator
66. (1) The liquidator of an insolvent estate must -
(a) forthwith recover and take into his or her possession all the assets and
property of the insolvent estate;
(b) apply those assets and property, as far as they extend, in satisfaction of
the costs of the administration of the estate and the claims of creditors
of the estate; and
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(c) if any cash balance remains, deal therewith in accordance with the
provisions of section 112.
(2) The liquidator, in addition to any powers that he or she has in terms of
this Act, has the power to perform any act which is necessary for the proper
administration and distribution of the estate and, except where otherwise provided by
this Act, he or she need not obtain formal authorisation for the performance of any such
act.
(3) In particular, without detracting from the generality of subsection (2),
the liquidator has the power to -
(a) execute in the name of and on behalf of the insolvent estate all deeds,
receipts and other documents;
(b) prove a claim in the estate of any debtor of the insolvent estate and to
receive payment or a dividend in respect thereof;
(c) draw, accept, make or endorse any bill of exchange or promissory note
in the name of or on behalf of the insolvent estate: Provided that any
such act by which the estate is burdened with additional liabilities
requires the authorisation of the Commissioner or the creditors of the
estate;
(d) conduct, with the authorisation of the Commissioner or the creditors of
the estate the business of the insolvent or any part thereof, subject
thereto that the liquidator may, pending the obtaining of authorisation
thereto, only carry on the business of the insolvent in so far necessary
to pay expenses of the estate or incur necessary expenses to avoid loss;
(e) obtain credit for the payment of necessary expenses which he or she is
obliged to incur before funds for the payment thereof are available;
(f) convene a meeting of creditors of the estate;
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(g) take all necessary measures for the protection and the administration of
the estate.
(4) A liquidator, if authorised thereto by the Commissioner or by resolution
of a meeting of creditors of the estate, has the power to -
(a) institute or defend any legal steps in civil proceedings by or against the
insolvent estate and to settle such proceedings;
(b) submit to determination of arbitrators any dispute concerning the
insolvent estate;
(c) compromise or admit any claim lodged for proof at a meeting of
creditors of the insolvent estate, including any unliquidated claim,
(d) disallow or reduce a claim in terms of section 97(3);
(e) carry on the business or part of the business of the insolvent in
accordance with the authorisation and directions of the Commissioner
or the creditors of the insolvent estate;
(f) exercise his or her election in respect of contracts entered into before
liquidation, including his or her election in terms of section 43 or 48;
(g) sell or alienate property of the insolvent estate, subject to the directions
of the Commissioner or the creditors of the estate: Provided that if such
property or a portion thereof is subject to rights of a secured creditor the
secured creditor must give his or her consent in writing and provided
further that the liquidator must endeavour to sell any property as a going
concern where practical or appropriate;
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(h) engage the services of a legal practitioner or any other professional
person or employ any other person to render services on behalf of the
insolvent estate;
(i) dispose of a debt owing to the insolvent estate or to accept payment of
a reasonable part of a debt in full settlement of the debt or to give a
reasonable extension of time for payment of a debt or part thereof;
(j) draw, accept, make or endorse any bill of exchange or promissory note
by which the insolvent estate is burdened with liabilities;
(k) make available to the insolvent or his or her dependants a sum of money
or assets for his or her maintenance or that of his or her dependants;
(l) make available to the insolvent assets of the insolvent estate in excess
of the amounts prescribed in terms of section 27(7);
(m) if the liquidator determines that the continued operation of the business
of an insolvent as a going concern will benefit creditors, obtain finance
for the continuation of the business -
(i) payable as costs of liquidation; or
(ii) payable with security over the assets of the estate without
priority ahead of any existing security interest over the same
assets, unless the liquidator obtains the agreement of the existing
secured creditor that such security over the assets of the estate
will enjoy such priority.
(5) The Master must authorise the liquidator to act in accordance with
subsection (4) only if the authority is required so urgently that the liquidator cannot
obtain a resolution at a first meeting of creditors of the insolvent estate.
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(6) Before the issue of a final liquidation order, the powers set out in
subsection (4) may only be exercised with the consent of the insolvent or the Court.
(7) A liquidator or an insolvent who disagrees with the assets made
available in terms of subsection (4)(l) may refer the matter to the Commissioner for his
or her decision.
(8) A liquidator may at any time, approach the Court in regard to any matter
arising from the liquidation and the Court may give directions or grant the liquidator
all powers that in its opinion are necessary for the proper administration, liquidation
and distribution of the insolvent estate in question.
(9) Notwithstanding the provisions of any law relating to tax or duties a
liquidator of an insolvent estate is entitled to -
(a) inspect any return or other document submitted by or on behalf of an
insolvent or the spouse of an insolvent, where applicable, in connection
with tax or duties to the Commissioner of Inland Revenue;
(b) make copies of any such return;
(c) have any such copy, certified as correct by or on behalf of that
Commissioner;
(d) at his or her request be apprised in writing by or on behalf of that
Commissioner of the basis for any estimated assessment made in terms
of any such law relating to tax or duties.
(10) A liquidator may, in respect of immovable property or a bond registered
in the name of an insolvent, or his or her spouse if he or she is married in community
of property -
(a) before or after the rehabilitation of an insolvent;
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(b) with the written consent of the Commissioner; and
(c) by standard notice to the Registrar of Deeds,
cause a caveat to be entered against the transfer of the immovable property or the
cancellation or cession of the bond referred to in that notice.
(11) The notice referred to in subsection (10)(c) must-
(a) be accompanied by the written consent of the Commissioner indicating
the date the caveat referred to in that subsection remains in force; and
(b) identify sufficiently the person in respect of whom and the property or
bond in respect of which the caveat is to be registered so as to enable
the Registrar of Deeds to enter the caveat as contemplated in that
subsection.
(12) The caveat referred to in subsection (10) remains in force until the date
indicated by the Commissioner in his or her consent.
(13) If any entry in a return contemplated in subsection (9) is relevant in any
civil or criminal proceedings in which the insolvent or the insolvent estate is involved,
that return or a copy thereof, purporting to be certified as contemplated in subsection
(9)(c), is admissible in those proceedings on its mere production by any person and
such certified copy has the same evidentiary value as the original return.
(14) No provision in any contract, including the Memorandum or Articles of
Association of a company, which-
(a) purports to regulate the manner in which property belonging to a person
must be disposed of on or after his or her insolvency; or
(b) on his or her insolvency limits a person's power to dispose of his or her
rights to property as he or she wishes,
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binds the liquidator of such person’s insolvent estate.
PART 8
RIGHTS AND DUTIES OF CREDITORS
Realization of security
67. (1) A secured creditor of an insolvent estate must as soon as the
creditor becomes aware of the liquidation of the estate notify the liquidator in writing,
of the-
(a) nature and extent of that creditor’s security; and
(b) amount of that creditor’s claim.
(2) If such property consists of securities as defined in section 1 of the Stock
Exchanges Control Act the creditor may, subject to the provisions of subsection (5),
after giving the notice mentioned in subsection (1), realize the property forthwith, if
the property is of a class ordinarily sold through a stockbroker as defined in section 1
of the Stock Exchanges Control Act, subject to the provisions of the said Act and
(where applicable) the rules referred to in section 12 of that Act, by selling it through
a stockbroker, or if the creditor is a stockbroker, also to another stockbroker.
(3) A creditor who has realized property contemplated in subsection (2)
must forthwith-
(a) pay over to the liquidator the proceeds after deduction of the reasonable
costs of realization; and
(b) furnish the liquidator with vouchers in support of the realization of the
property and the costs of realization.
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(4) (a) A secured creditor with security other than property
contemplated in subsection (2) must as soon as possible after
commencement of liquidation place the liquidator in possession of the
security.
(b) A secured creditor with security contemplated in subsection (2) which
has not been realized by the creditor before the first meeting of creditors
of the insolvent estate, must within five days after the commencement
of that meeting or within such longer period as the liquidator may allow,
place the liquidator in possession of that security.
(c) The liquidator must cause the security referred to in paragraphs (a) and
(b) to be valued by an appraiser appointed in terms of section 6 of the
Administration of Estates Act, or a suitably qualified person approved
by the Commissioner, who must submit to the Commissioner a
valuation report.
(5) A creditor who has placed the liquidator in possession of property held
by that creditor as security, does not thereby lose the security the creditor is entitled to
in respect of such property.
(6) Subject to subsection (7) and section 66(4), the liquidator must realize
the property made available to him or her pursuant to subsection (5) for the benefit of
a creditor whose claim is secured by such property.
(7) If authorised thereto by the Commissioner or by resolution at a meeting
of creditors of an insolvent estate, the liquidator may sell property constituting the
security of a creditor -
(a) whose claim ranks first in preference; and
(b) who has proved the creditor’s claim against the estate,
to that creditor at a value agreed upon between the liquidator and the creditor.
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(8) After proof of his or her claim and the realisation of the security, any
secured creditor is entitled to payment of his or her secured claim if that creditor has
furnished security to the satisfaction of the liquidator for the repayment of such
payment with interest at the rate prescribed in terms of the Prescribed Rate of Interest
Act, if according to the liquidator’s confirmed account the creditor is not entitled to the
payment or a part thereof.
(9) A secured creditor may request the court to grant permission to sell
security for the claim subject to proper accounting to the liquidator for the sale on
grounds that-
(a) the security is not necessary to a prospective reorganization or sale of
the debtor’s business;
(b) the value of the security is diminishing as a result of the commencement
of insolvency proceedings; and
(c) the secured creditor is not protected against that diminution of value.
Attachment of property upon failure to deliver to liquidator
68. (1) (a) If a creditor has not in accordance with section 67(5),
placed the liquidator in possession of the property constituting that
creditor’s security the liquidator must send to that creditor a demand by
direct notice to place the liquidator in possession within seven days after
such demand.
(b) If the creditor fails to place the liquidator in possession of the property
within seven days after such demand was delivered or sent to that
creditor, the liquidator may obtain from a magistrate of the district
where the property is or is situated a warrant directing the sheriff to
attach such property and to place the liquidator in possession of the
property.
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(2) The creditor referred to in subsection (1) is liable for all costs resulting
from that creditor’s failure to place the liquidator in possession of the property and if
such costs cannot be recovered from the said creditor they form part of the costs of
realizing the security in terms of section 69(4).
Application of proceeds of security
69. (1) A secured creditor is entitled to share in the distribution of the
proceeds of that creditor’s security only if he or she has proved a claim against the
insolvent estate.
(2) Any interest due in respect of a secured claim in respect of any period
not longer than two years before the commencement of liquidation must be secured as
if that interest were part of the capital debt.
(3) If the claim of a secured creditor exceeds the sum payable to that
creditor in respect of the creditor’s security, the creditor is entitled to rank against the
insolvent estate in respect of the excess as a concurrent creditor, unless when proving
the creditor’s claim the creditor indicated that the creditor relied solely on the creditor’s
security for the fulfilment of that claim.
(4) The costs of maintaining, conserving and realizing any security must be
paid out of the proceeds of that security if sufficient and, if insufficient, the costs must
be paid by the secured creditor who would have been entitled, in priority to other
creditors, to the proceeds if it had been sufficient to cover those costs.
(5) The costs of realization of a security must include-
(a) the liquidator's remuneration in respect of any security and a
proportionate share of any excess of minimum liquidator's remuneration
over the ordinary tariff;
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(b) a proportionate share of the costs incurred by the liquidator in giving
security for his or her proper administration of the estate;
(c) a proportionate share of the Commissioner's fees, calculated on the
proceeds of the security;
(d) if the property is immovable, any assessment rates as defined in
subsection (7) which is or will become due thereon in respect of any
period not exceeding two years immediately preceding the date of the
liquidation and in respect of the period from that date to the date of the
transfer of that property by the liquidator of that estate, with any interest
or penalty which may be due on the said assessment rates in respect of
any such period.
(6) Notwithstanding the provisions of any law which prohibits the transfer
of any immovable property unless any assessment rates as defined in subsection (7) or
other amounts due thereon have been paid, that law does not debar the liquidator of an
insolvent estate from transferring any immovable property in that estate for the purpose
of liquidating the estate, if the liquidator has paid or offered reasonable security for
payment of the assessment rates which may have been due on that property in respect
of the periods mentioned in subsection (5) and no preference, either as costs of
liquidation or otherwise, may be accorded to any claim for such assessment rates or
such other amounts.
(7) For the purposes of subsections (5) and (6) "assessment rates" in
relation to immovable property means any amount payable periodically in respect of
that property to-
(a) the State; or
(b) a body established by or under the authority of any law in discharge of
a liability to make such periodical payments, if that liability is an
incidence of the ownership of that property,
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but excludes any payment for services rendered in respect of such property.
(8) After payment of the costs referred to in subsection (4), the balance of
the proceeds of the security must be applied in satisfying, in order of preference of
secured creditors-
(a) first the capital sums of claims secured by the said security; and
(b) thereafter simple interest on those capital sums at the rate prescribed in
terms of the Prescribed Rate of Interest Act, or a higher rate of interest
by virtue of a lawful stipulation in writing, from commencement of
liquidation to the date of payment.
(9) Any balance of the proceeds of the security remaining must be added to
the free residue of the insolvent estate.
(10) (a) If a creditor (herein and in subsection (10) referred to as the
“mortgagee”) whose claim is secured by a special mortgage over
immovable property belonging to the insolvent estate has not proved
that creditor’s claim and the liquidator is not satisfied that the debt in
question has been discharged or abandoned, the liquidator must deposit
with the Master for payment into the Guardian’s Fund the proceeds of
the sale of the former mortgagee's security.
(b) The amount which the liquidator must deposit in terms of paragraph (a)
must not exceed the capital amount of the special mortgage and such
arrears of interest for which the mortgagee would have been a secured
creditor, after deduction of an amount equal to the costs which the
mortgagee would have had to pay if the mortgagee had proved a claim
and had stated in the affidavit lodged in support of that claim that the
mortgagee relied for the satisfaction of that claim solely on the proceeds
of the sale of the said property.
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(c) The amount so deposited or the part thereof to which the mortgagee may
be entitled must be paid to that mortgagee if, within a period of one year
after confirmation in terms of section 109 of the distribution account
under which the money is distributed, the mortgagee applies therefor to
the Commissioner and the Commissioner is satisfied after proof of the
mortgagee's claim, that the mortgagee is entitled to the amount or part
thereof.
(11) Any amount deposited into the Guardian’s Fund in terms of subsection
(10) which has not been paid out to the mortgagee, as in that subsection provided, must
after the expiry of the year mentioned in that subsection be distributed among the
creditors who have proved claims against the insolvent estate prior to the confirmation
of the said distribution account, as if the amount had, at the time of such confirmation,
been available for distribution among them.
(12) Any creditor claiming to be entitled to share in the said distribution must
apply in writing to the Commissioner for payment of that creditor’s share, and the
Commissioner may-
(a) cause the payment to such creditor or hand the money to the liquidator,
if any, for distribution among the creditors entitled thereto; or
(b) if there is no liquidator, appoint a liquidator on such conditions as the
Commissioner may think fit to impose for the purpose of making such
distribution.
(13) Any liquidator charged with the duty of making a distribution
contemplated in subsection (12) must lodge with the Commissioner a supplementary
account in respect thereof and the provisions of this Act relating to an account apply to
such supplementary account.
Security in respect of reserved ownership or financial lease
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70. (1) If a creditor could immediately before the commencement of
liquidation assert that creditor’s ownership to property delivered to an insolvent under
a reservation of ownership contract or a financial lease the property is, subject to the
rights of other secured creditors, upon the liquidation of the insolvent estate deemed to
be held by that creditor or that creditor’s successor in title (herein referred to as “the
creditor”) as security for the amount outstanding in respect of the purchase price of the
property or the balance owing on the financial lease.
(2) If property referred to in subsection (1) was returned by the debtor to
the creditor within three months before the commencement of liquidation of that
debtor’s estate, the liquidator may demand from the creditor that the creditor deliver to
the liquidator the property or its value at the date when it was returned to the creditor,
subject to payment to the creditor by the liquidator or to deduction from the value, as
the case may be of the difference between the total amount payable under the
transaction and the total amount actually paid.
Security in respect of landlord's hypothec
71. (1) A landlord's hypothec confers a preference with regard to the
property which is subject to the hypothec, for rent due in respect of the period
immediately prior to the commencement of liquidation, but not exceeding rent for a
period of -
(a) three months, if the rent is payable monthly or at shorter intervals than
one month; or
(b) six months, if the rent is payable at intervals exceeding one month but
not exceeding three months; or
(c) nine months, if the rent is payable at intervals exceeding three months
but not exceeding six months; or
(d) fifteen months, if the rent is payable at intervals exceeding six months.
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(2) A tacit or legal hypothec other than a landlord’s hypothec in subsection
(1) does not confer any preference against an insolvent estate.
Special notarial bond over movable property
72. (1) If a notarial bond hypothecating corporeal movable property
specified and described in the bond in a manner which renders it readily recognizable,
is registered after the commencement of this Act in accordance with the Deeds
Registries Act such property is –
(a) subject to any encumbrance resting upon it on the date of registration of
the bond; and
(b) notwithstanding the fact that it has not been delivered to the mortgagee,
deemed to have been pledged to the mortgagee as effectually as if it had expressly been
pledged and delivered to the mortgagee.
(2) Upon the discharge of the debt secured by a bond mentioned in
subsection (1) the mortgagee must, at the request of the mortgagor, furnish to the
mortgagor, free of charge, proof of such discharge in the form required for the
cancellation of the bond.
(3) Subject to the provisions of subsection (4) a notarial bond contemplated
in subsection (1), which was registered before the commencement of this Act, upon the
insolvency of the mortgagor before or after such commencement, confers on the
mortgagee the same preference in respect of the entire free residue of the insolvent
estate as that conferred on a mortgagee by a general bond in terms of section 75(12).
(4) The provisions of subsection (3) does not apply if any part of such free
residue was, before the commencement of this Act, paid out to concurrent creditors in
terms of a confirmed account.
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(5) If, at the commencement of this Act, an account has been confirmed but
dividends have not yet been paid out as contemplated in subsection (4), such account
must be reopened so as to give effect to the provisions of subsection (3) without
requiring the permission of the Court contemplated in section 109.
(6) Notwithstanding anything to the contrary in the common law or in any
other law, movable property-
(a) which, while hypothecated by a notarial bond mentioned in subsection
(1), is in the possession of a person other than the mortgagee; or
(b) to which an instalment agreement as defined in section 1 of the Credit
Agreements Act, 1980 (Act No. 75 of 1980) relates,
may not be subject to a landlord's tacit hypothec.
(7) The provisions of subsection (6) in respect of movable property
hypothecated by a notarial bond mentioned in subsection (1) does not apply if such
bond is registered after the landlord's hypothec has been perfected.
(8) Nothing in this section affect any mortgage, hypothecation, pledge, tacit
hypothec, preference, lien or right of retention acquired by or in accordance with any
law by the State or by-
(a) any body corporate; or
(b) any association of persons,
constituted or established by or under any law and supported wholly or partly
by public funds.
Certain mortgages afford no security or preference
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73. With the exception of a kustingsbrief, no special bond or a general bond
over movables, or a general clause in a special bond over movables passed for the
purpose of-
(a) (i) securing the payment of an existing unsecured debt; or
(ii) obtaining a preference for an existing concurrent debt,
which was incurred more than two months prior to the lodging of the
bond with the Registrar of Deeds for registration; or
(b) securing the payment of a debt or obtaining a preference for a debt
incurred in novation of or substitution for that first-mentioned debt,
confers any security or preference if the application for the liquidation of the estate of
the debtor is lodged with the Registrar of the Court within nine months after the lodging
of that bond with the Registrar of Deeds: Provided that a bond is deemed not to have
been lodged if it was at any stage withdrawn from registration.
PART 9
COSTS OF LIQUIDATION AND APPLICATION OF FREE RESIDUE
Costs of liquidation
74. (1) The costs of liquidation in respect of an insolvent estate include-
(a) the sheriff's charges incurred since the commencement of liquidation;
(b) fees payable to the Commissioner in connection with the liquidation;
(c) the costs, as taxed by the Registrar of the Court, incurred in connection
with the application by a debtor or of a creditor for the liquidation of
that debtor’s estate, excluding the costs of opposition to such
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application, unless the Court has ordered that such costs must be
included in the costs of liquidation;
(d) the amount determined by the Commissioner for the preparation of a
statement of a debtor’s affairs by the debtor in accordance with section
60;
(e) the remuneration of an interim liquidator appointed in terms of section
50 and of the liquidator, including the costs incurred by the liquidator in
giving security for the proper administration of the estate;
(f) any expenses incurred by the Commissioner or by a presiding officer in
carrying out the provisions of this Act, unless otherwise ordered by the
Commissioner or the Court and subject to the provisions of section
90(3)(b);
(g) the salary, wages or fees of any person who was engaged or appointed
by the liquidator in connection with the administration of the estate;
(h) costs incurred in the administration of a deceased estate before the
liquidation of the estate as the Commissioner may allow;
(i) all other costs of the administration and the liquidation of an insolvent
estate.
(2) The taxed fees of the sheriff in connection with proceedings stayed in
terms of section 28 must be regarded as costs of liquidation of the estate;
(3) The costs of liquidation referred to in subsections (1) and (2) rank on
equal footing and abate in equal proportion, if necessary.
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Application of the free residue
75. (1) The free residue of an insolvent estate must be applied in the
first place in defraying the costs of liquidation contemplated in section 74, but
excluding the costs referred to in section 69(4).
(2) In the second place the balance of the free residue must, subject to
subsection (4) be applied in paying-
(a) to an employee who was employed by the insolvent-
(i) any salary or wages, for a period not exceeding four months, due
to an employee;
(ii) any payment in respect of any period of leave or holiday due to
the employee which has accrued as a result of his or her
employment by the insolvent in the year in which liquidation
occurred and the preceding year, whether or not payment thereof
is due at the commencement of liquidation;
(iii) any payment due in respect of any other form of paid absence
for a period not exceeding three months immediately prior to the
commencement of liquidation of the estate;
(iv) any severance or retrenchment pay due to the employee in terms
of any law, agreement, contract, wage-regulating measure or as
a result of termination in terms of section 49; and
(b) any contributions which were payable by the insolvent, including
contributions which were payable in respect of any of his or her
employees, and which were, immediately prior to the liquidation of the
estate, owing by the insolvent, in his or her capacity as employer, to any
pension, provident, medical aid, sick pay, holiday, unemployment or
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training scheme or fund, or any similar scheme or fund under the
provisions of any law.
(3) For the purposes of subsection (2) –
“salary and wages” includes all cash earnings which the employee is entitled to receive
from the employer, but excludes other benefits.
(4) (a) The claims in subsection (2) may not exceed the amounts
prescribed in respect of each category of payment contemplated in that subsection.
(b) The Minister-
(i) may after consultation with the Minister responsible for Labour
amend an amount mentioned in subsection (2) by notice in the
Gazette;
(ii) must consider amendments to the amounts at least once in every
three years after the commencement of this Act in order to take
account of the fluctuation in the value of money and other
changed circumstances.
(5) (a) The claims referred to in subsection (2)(a)(i) enjoy preference
above the claims referred to in subsections (2)(a)(ii), (iii) and (iv) and (2)(b)
and must rank equally and abate in equal proportions, if necessary.
(b) The claims referred to in subsection (2)(a)(iv) must be preferred to the
claims referred to in subsections (2)(a)(ii), (iii) and (2)(b) and must rank
equally and abate in equal proportions, if necessary.
(c) The claims referred to in subsection (2)(a)(ii), (iii) and (iv) enjoy
preference above the claims referred to in subsection (2)(b) and rank
equally and abate in equal proportions, if necessary.
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(c) The claims referred to in subsection (2)(b) rank equally and abate in
equal proportions, if necessary.
(6) The Minister may after consultation with the Minister responsible for
Labour by notice in the Gazette exclude from the operation of the provisions of this
section a category of employees, schemes or funds specified in the notice by reason of
the fact that there exists any other type of guarantee which affords the employees,
schemes or funds protection which is equivalent to the protection as provided in this
section.
(7) A director of a liquidated company employed by the company or a
member of a liquidated close corporation employed by the corporation is not entitled
to payment in terms of this section.
(8) (a) In the third place after the free residue has been applied as set
out in subsections (1) and (2), any balance of the free residue must be applied in paying
maintenance due by the insolvent in terms of a court order including maintenance in
arrears at the commencement of liquidation of the estate, for a period not exceeding
three months subject to the maximum amount as prescribed.
(b) The Minister-
(i) may after consultation with the Minister responsible for Labour
amend an amount mentioned in subsection (2) by notice in the
Gazette;
(ii) must consider amendments to the amounts at least once in every
three years after the commencement of this Act in order to take
account of the fluctuation in the value of money and other
changed circumstances.
(9) In the fourth place any balance of the free residue must be applied in
paying simple interest from the commencement of liquidation to the date of payment
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on the claims paid in terms of subsections (1) to (8) in their order of preference at the
rate of interest prescribed in terms of the Prescribed Rate of Interest Act.
(10) In the fifth place any balance of the free residue must be applied in
paying-
(a) any amount which in terms of the Employee’s Compensation Act, 1941
(Act No. 30 of 1941), was, immediately prior to the commencement of
liquidation due to the Social Security Commission defined by section 1
of that Act by the insolvent in his or her capacity as an employer, in
respect of any assessment, penalty or fine, or the compensation then due
in respect of any employee, including in the case of a continuing
liability, also the capitalized value, as determined by that Commission,
of the pension (irrespective of whether a lump sum is at any time paid
in lieu of the whole or a portion of such pension in terms of section 49
of that Act), periodical payment or allowance, as the case may be, which
constitutes the liability;
(b) any amount which the insolvent-
(i) has under the provisions of section 35 of the Income Tax Act,
deducted or withheld as a withholding tax on royalties from any
amount referred to in that section;
(ii) is under the provisions of the Income Act required to pay in
respect of any tax due by any other person and has deducted or
withheld from any moneys, including pensions, salary, wages,
remuneration and amounts of any other nature, held by him for
or due by him to such person; or
(iii) has under the provisions of the Second Schedule to that Act
deducted or withheld by way of employees' tax from
remuneration or any other amount paid or payable by him or her
to any other person prior to the commencement of liquidation,
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but did not pay to the Commissioner of Inland Revenue prior to the
commencement of liquidation, and any interest or penalty payable under
that Act in respect of such amount for any period prior to the
commencement of liquidation;
(c) the amount of any customs or excise duty, forfeiture, interest, fine or
penalty which in terms of the Customs and Excise Act, 1998 (Act No.
20 of 1998), was, immediately prior to the commencement of
liquidation, due by the insolvent; and
(d) the amount of value-added tax, additional tax, interest, fine or penalty
which in terms of the Value-Added Tax Act, 2000 (Act No. 10 of 2000),
was due by the insolvent immediately prior to the commencement of
liquidation.
(11) The claims referred to in subsection (10) rank equally and abate in equal
proportions, if necessary.
(12) In the sixth place, after the free residue has been applied as set out in
subsections (10) and (11) the balance thereof must be applied in paying –
(a) any tax on persons or the incomes or profits of persons for which the
insolvent was liable under any Act of Parliament in respect of any period
prior to the commencement of liquidation, whether or not that tax has
become payable after that date;
(b) any amount payable by the insolvent under any Act of Parliament by
way of interest, in respect of any period prior to the commencement of
liquidation, in respect of any tax referred to in paragraph (a);
(c) in the case of an insolvent partnership, so much of any tax due and
payable by any partner as is referable to the taxable income derived by
him or her from the partnership, the amount so referable being deemed
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to be a sum which bears to the total amount due by him as tax the same
ratio as his or her taxable income derived from the partnership bears to
his total taxable income.
(13) In the seventh place the balance of the free residue must, subject to any
maximum amount in terms of a bond, be applied in payment of the proved claims of
creditors who are holders of a general bond over movables or a special bond over
movables with a general clause, registered by Registrar of Deeds, in their order of
preference with simple interest from the commencement of liquidation to the date of
payment at the rate of interest prescribed in the Prescribed Rate of Interest Act, or a
higher rate of interest by virtue of a lawful stipulation agreed upon in writing.
(14) In the eighth place any balance of the free residue must be applied in
payment of the concurrent claims of creditors proved against the estate, in proportion
to the amount of each claim.
(15) When the concurrent claims have been paid in full, any balance of the
free residue must be applied in payment of simple interest on such claims from the
commencement of liquidation to the date of payment, in proportion to the amount of
each such claim.
(16) The interest referred to in subsection (14) must be calculated at the rate
of interest prescribed in terms of the Prescribed Rate of Interest Act, unless the amount
of the claim bears interest at a higher rate of interest by virtue of a lawful stipulation
agreed upon in writing.
(17) An employee of the debtor is entitled to payment in terms of subsection
(2)(a) even though he or she has not proved a claim against the insolvent estate in
respect thereof, but the liquidator may require the employee to submit an affidavit
indicating the amount due to him or her.
Costs incurred in respect of legal services
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76. (1) Subject to the provisions of subsection (2), costs incurred to
engage the services of legal practitioners to perform legal work on behalf of the estate
except costs awarded against the estate in legal proceedings, is not subject to taxation
by the Taxing Master of the Court if the liquidator has entered into any written
agreement in terms of which the fees of any legal practitioner will be determined in
accordance with a specific tariff.
(2) Notwithstanding subsection (1), if –
(a) the liquidator has not entered into an agreement under subsection (1); or
(b) there is any dispute as to the fees payable in terms of such an agreement,
the costs must be taxed by the Taxing Master of the Court or, where the costs are not
subject to taxation by that Taxing Master, such costs must be assessed by the Council
of the Law Society defined in section 1 of the Legal Practitioners Act, 1995 (Act No.
15 of 1995).
(3) No bill of costs based upon an agreement entered into under subsection
(1) may be accepted as cost of liquidation of the estate, unless such bill is accompanied
by a declaration under oath or affirmation by the liquidator stating that–
(a) he or she had been duly authorized by either the creditors or the
Commissioner, as the case may be, to enter into such an agreement;
(b) any legal work specified in such bill has been performed to the best of
his or her knowledge and belief;
(c) any disbursements specified in such bill have been made to the best of
his or her knowledge and belief; and
(d) to the best of his or her knowledge and belief, the legal practitioner
concerned has not overreached him or her.
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(4) Notwithstanding anything to the contrary contained in this Act, the
Commissioner may disallow any costs incurred under this section if the Commissioner
is of the opinion that any such costs are excessive, unnecessary, incorrect or improper
or that the liquidator acted in bad faith, negligently or unreasonably in incurring any
such costs.
(5) If it appears to the Court that a legal representative or legal adviser has,
with intent to benefit himself or herself, improperly given legal advice or acted with
intent to benefit himself or herself, whether for or against an insolvent estate, or has
caused any unnecessary expense in that regard, the Court may order that such expense
or any part thereof must be borne by that legal representative or legal adviser
personally.
PART 10
SPECIAL PROVISIONS RELATING TO THE SALE OF PROPERTY
BELONGING TO THE INSOLVENT ESTATE
Non-compliance with provisions of Act in sale of property of insolvent estate
77. (1) If property of an insolvent estate is sold without the provisions
of this Act having been complied with, the sale is void unless the purchaser proves that
he or she acquired the property in good faith and for value and, where applicable, that
a court order authorising the sale was not a prerequisite.
(2) Any person who disposes of property of an insolvent estate contrary to
the provisions of this Act is liable to make good to the estate twice the amount of the
loss which the estate might have sustained as a result of any such disposition.
Bona fide sale of property in possession of debtor
78. (1) Subject to the provisions of section 70, the owner of movable
property which was in the possession or custody of a debtor at the commencement of
liquidation of that debtor’s estate is not entitled to recover that property if it has, in
good faith, been sold as part of that debtor’s insolvent estate, unless the owner has, by
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standard notice given to the liquidator or the Commissioner before the sale, demanded
the return of that property.
(2) If property contemplated in subsection (1) has been sold as part of the
insolvent estate, the former owner of the property may recover from the liquidator,
before the confirmation of the liquidator's account as contemplated in section 109 the
net proceeds of the sale of that property, unless he or she has recovered that property
from the purchaser, and thereupon he or she loses any right to reclaim the property as
contemplated in subsection (1).
Persons incompetent to acquire property from insolvent estate
79. The liquidator or an auctioneer employed to sell property of the
insolvent estate or an employer, employee or associate of such liquidator or auctioneer
may not acquire any property of the insolvent estate unless the acquisition is authorised
by an order of the Court.
PART 11
MEETINGS AND QUESTIONING OF INSOLVENT AND OTHER PERSONS
First meeting of creditors
80. (1) A liquidator of an insolvent estate appointed in terms of section
50 must convene by notice in the Gazette a first meeting of creditors of that estate to
be held within 60 days of his or her appointment.
(2) (a) The notice referred to in subsection (1) must-
(i) state the date, time and place of the meeting;
(ii) state the matters that will be dealt with; and
(iii) be published in the Gazette not less than 14 days before the date
fixed for the meeting.
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(3) The liquidator must, at least 14 days before the date fixed in the Gazette
for the holding of the first meeting of creditors of the insolvent estate-
(a) give notice of the first meeting of creditors to the employees, if any of
the debtor-
(i) by affixing a copy of the notice to any notice board to which the
employees have access inside the debtor's premises; or
(ii) if there is no access to the premises by the employees, by
affixing a copy to the front gate of the premises, where
applicable, failing which to the front door of the premises from
which the debtor conducted any business immediately prior to
the date of the application;
(b) send by liquidator’s notice to the insolvent, to every creditor of the
debtor whose name and address is known to the liquidator or which he
or she can reasonably obtain and to the head office of every trade union
which has notified the liquidator that it represents employees of the
debtor-
(i) a copy of the inventory contemplated in section 59(6);
(ii) a copy of the valuation contemplated in section 59(11);
(iii) a copy of the report contemplated in section 63(1);
(iv) a written draft of any resolution or direction which in his or her
opinion should be taken or given at that meeting;
(v) a copy of the notice contemplated in subsection (1);
(vi) any composition which is to be considered.
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(4) The liquidator must on or before the second working day before the date
determined for the meeting of creditors lodge with the Commissioner or a magistrate
who is to preside at the meeting -
(a) a copy of the report contemplated in section 63(1);
(b) a copy of the documents referred to in subsection (3); and
(c) an affidavit containing a list of the names and addresses of the creditors
to whom the documents referred to in subsection (3) have been sent.
(5) The first meeting of creditors may deal with any one or more of the
following -
(a) proof of claims against the estate;
(b) questioning of any person in terms of the Act;
(c) considering of the report of the liquidator;
(d) nomination and appointment of one or more co-liquidators;
(e) considering of a composition;
(f) the giving of directives to the liquidator with regard to any matter
affecting the liquidation of the estate.
(6) If the liquidator is unable to convene a meeting in the manner
contemplated in subsection (1) he or she must obtain the Commissioner's permission
to convene the meeting within the time determined by the Commissioner.
(7) If the liquidator fails to convene a meeting as contemplated in
subsections (1) or (6), the Commissioner may take any steps he or she deems necessary
to force the liquidator to convene a meeting of creditors of the insolvent estate.
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(8) If the majority in value or number of creditors voting at the meeting
rejects the liquidator's report the liquidator must submit a report to an adjourned or
subsequent meeting or refer the report to the Commissioner who may give such
directions with regard to the report as he or she deems appropriate.
Special meeting of creditors
81. (1) The liquidator may at any time but must convene a special
meeting of creditors of the insolvent estate-
(a) if requested thereto by not less than one fourth in value of creditors who
have proved claims against the estate;
(b) on request of the Commissioner;
(c) whenever a composition has to be considered; or
(d) for the proof of claims if requested to do so by a creditor who tenders
payment of the costs occasioned by the meeting.
(2) Any one or more of the following matters may be dealt with at a special
meeting of creditors:
(a) The proof of claims against the insolvent estate;
(b) the questioning of any person in terms of the Act;
(c) considering of a composition;
(d) the giving of directives to the liquidator with regard to any matter
affecting the liquidation of the insolvent estate.
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(3) The liquidator must not less than 14 days before the date set for the
meeting referred to in subsection (1) publish in the Gazette a notice of the date, time
and place of the meeting and the matters to be dealt with.
(4) The liquidator must at least 14 days before the date determined in the
Gazette for the holding of the meeting-
(a) give notice of the first meeting of creditors to the employees, if any of
the debtor-
(i) by affixing a copy of the notice to any notice board to which the
employees have access inside the debtor's premises; or
(ii) if there is no access to the premises by the employees, by
affixing a copy to the front gate of the premises, where
applicable, failing which to the front door of the premises from
which the debtor conducted any business immediately prior to
the date of the application;
(b) send by liquidator’s notice to every creditor whose name and address
are known to him or her or which he or she can reasonably obtain and
to the head office of every trade union which has notified the liquidator
that it represents employees of the debtor, the following documents,
namely-
(i) a copy of any composition which is to be considered;
(ii) a copy of any report contemplated in section 63(1) to be
considered at the meeting;
(iii) a written draft of any resolution or direction which in his of her
opinion should be taken or given at that meeting;
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(iv) a copy of the notice contemplated in subsection (3).
(5) The liquidator must on or before the second working day before the date
set for the meeting lodge with the person who is to preside at the meeting copies of the
documents sent to creditors in terms of subsection (4) together with a list of the names
and addresses of the persons to whom they were sent.
Notice to creditors who have not proved claims
82. (1) The liquidator may at any time after his or her report in terms of
section 63(1) has been accepted by creditors or the Commissioner by notice in the
Gazette and in any newspaper with national circulation fix a date after which creditors
who have not proved claims against the estate will be excluded from participation in
any distribution in terms of an account which will be submitted to the Commissioner
within two weeks after that date.
(2) The notice referred to in subsection (1) must be published not less than
four weeks before the date so fixed and before such publication a copy thereof must be
sent by liquidation’s notice to each unproved creditor whose name and address are
known to the liquidator or which he or she can reasonably obtain.
General provisions relating to meetings of creditors
83. (1) A meeting of creditors must, subject to subsection (9), be
convened-
(a) in the magisterial district where the insolvent had the insolvent’s main
place of business at the time of liquidation, or
(b) if the insolvent did not carry on a business or if it is unclear where the
insolvent’s main business was situated, in the magisterial district where
the insolvent had his ordinary residence at the commencement of
liquidation; or
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(c) if the debtor did not have his ordinary residence within Namibia or it is
unclear where he had his ordinary residence, within the magisterial
district of the court which issued the liquidation order.
(2) The Commissioner or an officer of his or her office appointed by him
or her must, subject to subsection (4), preside at a meeting of creditors convened within
a magisterial district in which the Commissioner has an office.
(3) If a meeting of creditors is to take place in a magisterial district where
the Commissioner has no office, the magistrate of the district concerned or a person
appointed by him or her must, subject to subsection (4), preside at the meeting.
(4) The Minister must ensure that sufficient magistrates who may hold
court under the Magistrates' Courts Act, are available to preside over creditors'
meetings to be held before the Commissioner or a magistrate, where such a magistrate
is required to consider the incarceration of recalcitrant witnesses.
(5) (a) A liquidator may convene any meeting to be held before himself
or herself at any place within the magisterial district contemplated in subsection
(2).
(b) No questioning may take place at such a meeting and if a questioning
must be held or if any person who avers that he or she is a creditor of
the insolvent estate demands, before or during the meeting, that the
meeting must be held or continued before the Commissioner or a
magistrate, the meeting must be held or continued before the
Commissioner or the magistrate contemplated in subsection (1).
(c) The liquidator must announce at the meeting when and where the
meeting will be continued or convene the meeting to be held before the
Commissioner or the magistrate.
(6) The presiding officer at a meeting of creditors must-
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(a) keep a record of the proceedings, which he or she must certify at the
conclusion of the meeting; and
(b) if he or she is not the Commissioner, send the record by standard notice
to the Commissioner.
(7) A meeting of creditors may, if necessary, be adjourned from time to
time.
(8) A meeting may after an adjournment be presided over by a different
presiding officer and a meeting before the Commissioner may be adjourned to take
place before a magistrate.
(9) With the consent of the Commissioner-
(a) a meeting may be convened in a magisterial district other than the
district contemplated in subsection (1); and
(b) a meeting may after an adjournment take place at a different place,
including a place in another magisterial district.
(10) The place where a meeting of creditors is held must, subject to section
87(4), be accessible to the public.
(11) The publication of any statement made by any person or any evidence
given at a meeting of creditors is privileged to the same extent as the publication of
evidence given in a court of law.
(12) A meeting of creditors, if duly convened in terms of this Act is deemed
to be a meeting of creditors although no creditor or only one creditor or his or her
representative attended the meeting personally.
Voting at meeting of creditors
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84. (1) Every creditor of an insolvent estate who has proved a claim
against the estate is, subject to subsection (3), entitled to vote at a meeting of creditors
of the estate.
(2) A creditor may vote on all matters relating to the administration of the
estate, but not on matters relating to the distribution of the assets of the estate or the
payment of costs of liquidation.
(3) A creditor may not vote -
(a) in respect of any claim which was ceded to that creditor after
commencement of the proceedings for the liquidation of the insolvent
estate; or
(b) on the question as to whether steps should be taken to contest the
creditor’s claim or preference.
(4) (a) Voting by creditors takes place according to value except where
this Act provides that voting must take place according to
number and value.
(b) (i) In the case of voting according to number the number of votes
brought out in favour of a resolution and those brought out
against the resolution are determined, without taking into
account the value represented by the votes.
(ii) In the case of voting according to value the aggregate value of
votes brought out in favour of a resolution and the aggregate
value of votes brought out against the resolution are determined,
without taking into account the number of votes for or against
the resolution.
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(5) (a) A secured creditor is entitled to vote on the full value of his or
her claim in respect of any matter affecting his or her security or
on the election of a liquidator.
(b) On a matter other than those mentioned in paragraph (a)-
(i) a secured creditor may vote only if that creditor had placed a
monetary value on his or her security when the creditor proved
the creditor’s claim or the liquidator has obtained a valuation of
the security or the security has been realised.
(ii) a secured creditor may vote on the amount (if any) by which the
creditor’s claim exceeds the proceeds of the realization of the
security if that creditor's security has been realized.
(iii) if a secured creditor’ security has not been realized, that creditor
may vote on the amount (if any) by which the creditor’s claim
exceeds-
(aa) the value placed by that creditor on the security; or
(bb) the valuation of the security obtained by the liquidator,
whichever is the greater.
(6) A creditor may vote personally or through an agent appointed thereto
by that creditor by power of attorney.
(7) No person may vote as an agent of a creditor, unless that person submits
proof of his or her mandate.
(8) Every resolution taken at a meeting of creditors and the result of the
voting on any matter must be recorded in the minutes of the meeting and in so far as a
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resolution contains a directive to a liquidator, the resolution is binding upon the
liquidator.
(9) The Court may set aside any directive of creditors which infringes the
rights of any creditor on application by that creditor, or the liquidator with the consent
of the Commissioner, within 90 days of the date of the resolution or such further period
as the Court upon good cause shown may allow.
(10) No resolution of creditors that a specific legal practitioner, auctioneer
or any other person be employed in connection with the administration of an insolvent
estate is binding upon the liquidator, but creditors may by resolution recommend the
employment of any such person and if the liquidator does not accept the
recommendation the Commissioner's decision in respect of such employment is final.
Insolvent to attend meetings of creditors
85. An insolvent must attend all meetings of creditors of his or her insolvent
estate of which he or she is notified in writing by the liquidator by standard notice or
an adjourned meeting which he or she is directed by the presiding officer to attend,
unless he or she is excused in writing by the liquidator, the Commissioner or the person
who is to preside at such meeting from attending such meeting or the resumption of
such adjourned meeting.
Summons to attend meeting of creditors and notice to produce document
86. (1) If the officer who presides or is to preside at a meeting of
creditors of an insolvent estate or the Commissioner or magistrate has reasonable
ground for believing that a person -
(a) has or had in his or her possession or custody property belonging to that
estate;
(b) is indebted to that estate;
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(c) is able to give material information on any matter relating to the
insolvent or his or her business or affairs, whether before or after the
liquidation of his or her estate, or concerning any property which at any
time belonged to that estate; or
(d) has in his or her possession or custody any book, document, or record
relating to the insolvent’s affairs or his or her property,
he or she may summon that person to appear at a meeting of creditors of the insolvent
estate at a time stated in the summons, in order to be questioned in terms of section 87
and, where applicable, to produce the books, documents, or records specified in the
summons.
(2) A summons referred to in subsection (1) must be substantially in the
form of Form E3 of Schedule 1.
Questioning of insolvent and other persons
87. (1) (a) The presiding officer at a meeting of creditors of an
insolvent estate may call upon the insolvent or any person
summoned for questioning or the production of any book,
document or record in terms of section 86, or any other person
who is present and who possesses relevant information, to-
(i) appear before him or her and give evidence;
(ii) be questioned on all matters relating to the insolvent or his or her
business or affairs, whether before or after the liquidation of the
estate, and concerning any property which at any time belonged
to the insolvent estate; or
(iii) to produce a book, document or record.
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(b) That presiding officer must administer to such person the oath or an
affirmation to speak the truth.
(2) (a) The presiding officer referred to in subsection (1), the liquidator
of that estate or a proved creditor on whose request a person was
summoned or called upon to testify, or the representative of any of them
may question a person who, in terms of subsection (1), is called upon to
testify or to produce a book, document, or record.
(b) The presiding officer in his or her discretion may allow any other
creditor to put questions to that person through the presiding officer.
(3) A person called upon in terms of subsection (1) to testify may be
assisted by a representative and that representative may question that person only in so
far as it is necessary to clarify answers given by him or her.
(4) The place where proceedings under this section takes place must be
accessible to the public: Provided that if in the opinion of the presiding officer it is
necessary for the effective questioning of a person or for the maintenance of good order
or the protection of the public interest, the presiding officer may order that-
(a) the proceedings or any part thereof takes place behind closed doors;
(b) any particular person or persons may not be present during any stage of
the proceedings; or
(c) the proceedings or any part thereof may not be published.
(5) If a banker is summoned in terms of section 86 or ordered in terms of
section 89 to produce documents, books or statements or give information, such banker
must, notwithstanding the law relating to privilege or confidentiality, produce such
documents, books or statements or give such information.
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(6) Notwithstanding the provisions of any other law or the common law,
but subject to the Court’s power to avoid questioning being conducted in an oppressive,
vexatious or unfair manner, no person questioned in terms of this section may-
(a) refuse to answer a question because the answer may prejudice him or
her in any criminal or disciplinary proceedings which have been or may
be instituted against him or her; or
(b) apply for a postponement of the questioning until the criminal or
disciplinary proceedings have been finalised:
Provided that evidence given by a person in terms of this section is not admissible
against him or her in criminal or disciplinary proceedings, except in criminal
proceedings where such person is charged in connection with evidence given during
the questioning -
(i) with perjury;
(ii) the giving of false evidence under oath or affirmation; or
(iii) a contravention of section 91(3) for refusal or failure to answer lawful
questions fully and satisfactorily.
(7) The insolvent must at a questioning under this section be required to
declare that he or she has disclosed all his or her affairs fully and correctly.
(8) The presiding officer at proceedings in terms of this section must-
(a) disallow all questions that are irrelevant and may disallow questions that
would prolong the proceedings unnecessarily;
(b) record the proceedings or cause them to be recorded.
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(9) A person who in answer to a summons issued in terms of section 86
attends a meeting of creditors or a person called upon in terms of this section to testify
at such meeting or to produce books, documents, or records including the insolvent, is
entitled to the witness fees to which he or she would have been entitled if he or she
were a witness in civil proceedings before a court of law.
(10) Subject to the proviso to subsection (6), any evidence given under this
section is admissible in any proceedings instituted against the person who gave such
evidence and any record of a questioning introduced in such proceedings forms part of
the record of the proceedings.
(11) (a) The liquidator may in terms of an agreement with a creditor
repay the creditor's costs and expenses in connection with questioning
conducted by the creditor if sufficient money is recovered as a result of
the investigation.
(b) In the absence of such an agreement the Court or the Commissioner may
order that the whole or any part of such costs or expenses form part of
the costs of liquidation.
Questioning by estate representative
88. (1) The liquidator or any creditor of an insolvent estate may at any
time after the liquidation of the debtor’s estate apply to the Court or the Commissioner-
(a) that a person known or suspected to-
(i) have in his or her possession any property belonging to the
insolvent estate; or
(ii) be indebted to the insolvent estate; or
(iii) be able to give material information regarding the affairs of the
insolvent or of his or her property,
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be summoned to appear before an estate representative for questioning; and
(b) that a suitable person be appointed as estate representative to carry out
the questioning contemplated in paragraph (a).
(2) A creditor who makes an application contemplated in subsection (1)
must furnish security to the satisfaction of the Court or the Commissioner for all costs
in connection with the questioning.
(3) If the Court or the Commissioner grants an application referred to in
subsection (1) the Court or the Commissioner-
(a) must appoint a magistrate or any other person the Court or the
Commissioner deems suitable, as estate representative with the
assignment to carry out the questioning in terms of this section; and
(b) may summon a person referred to in subsection (1)(a) to appear at a
date, time and a place stated in the summons before that estate
representative and to produce any books, documents or records in his or
her custody or under his or her control relating to the insolvent in order
to be questioned with regard to the affairs of the debtor.
(4) A summons referred to in subsection (3) must be substantially in the
form of Form E4 of Schedule 1.
(5) An estate representative appointed in terms of subsection (3) must
administer the oath an affirmation to speak the truth to the person who appears before
him or her for questioning.
(6) An estate representative has the power to summons witnesses and to
question them and to require the production of documents.
(7) If an estate representative -
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(a) has been appointed by the Commissioner, that representative must, in
such manner as the Commissioner may direct, report to the
Commissioner; or
(b) has been appointed by the Court, that representative must, in such
manner as the Court may direct, report to the Commissioner and the
Court,
on any questioning referred to him or her.
(8) The provisions of subsections (2), (3), (5), (6), (7), (8) and (9) of
section 87 apply with the changes necessitated by the context with regard to the giving
of evidence and the production of documents in terms of this section.
(9) A witness who gave evidence in terms of this section is at his or her
own cost entitled to a copy of the record of his or her evidence.
(10) A creditor at whose request a questioning is carried out in terms of this
section is liable for all costs and expenses incurred in connection with the questioning:
Provided that the Court or the Commissioner may order that the whole or any part of
such costs or expenses must be reckoned as costs of the liquidation.
(11) A questioning in terms of this section and any application therefor is
private and confidential, unless the Court or the Commissioner, either generally or in
respect of any particular person, directs otherwise.
Liquidator may put written questions or call for accounts, books, documents,
records or information
89. (1) If in the opinion of a liquidator it would be convenient to obtain
information concerning the affairs of the insolvent by means of written questions and
answers instead of oral evidence given at a meeting of creditors of the insolvent estate
contemplated in section 86 or a questioning in terms of section 87 or section 88, as the
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case may be, the liquidator may by standard notice send such written questions to the
insolvent or a creditor of the insolvent estate or to any other person to be answered by
him or her.
(2) (a) Questions contemplated in subsection (1) may be put to the
insolvent with regard to all matters relating to his or her business or
affairs, whether before or after the liquidation of the insolvent’s estate,
and with regard to any property which at any time belonged to the
insolvent estate.
(b) Questions may be put to a creditor of an insolvent estate with regard to
a claim proved by that creditor against the estate or a claim offered for
proof.
(c) Questions may be put to any other person with regard to -
(i) any transaction which that person had with the insolvent, or
(ii) any property, books, documents or records of the insolvent
which such person had in his or her possession within 36 months
before the commencement of liquidation of the estate of the
insolvent.
(3) (a) Standard notice of the questions contemplated in subsection (1)
must be given to the person to whom they are put.
(b) The written answers to the questions must be sworn to or affirmed and
sent to the liquidator by standard notice within 14 days after receipt of
the questions.
(4) The provisions of subsections (5) and (6) of section 87 are with the
changes necessitated by the context applicable with regard to the written answers to
questions referred to in this section.
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(5) The answers to questions referred to in this section are regarded as
evidence given in terms of section 87.
(6) The giving of answers to questions referred to in this section or a refusal
to give such answers does not prevent a person from being summoned in terms of
section 86 or from being questioned in terms of section 87, 88 or 90 and does not
absolve a person from the obligation to give evidence when called upon to do so.
(7) A liquidator of an insolvent estate may by standard notice order any
person with whom the insolvent or his or her spouse had an account or transactions
within 12 months before the date of the liquidation of that insolvent’s estate to furnish
the liquidator within seven days or such longer period as the liquidator may allow with
a statement reflecting-
(a) the state of the said account; or
(b) the debits, credits and balance due in respect of the transactions,
during that period of 12 months.
(8) A liquidator may by standard notice order any person whom he or she
has reason to believe to be in possession or control of -
(a) any book, document, record or material information relating to the
affairs of the insolvent or his or her spouse, before or after the
liquidation of the insolvent’s estate; or
(b) property which belong or had belonged to the insolvent or his or her
spouse,
to make the book, document, record information or property specified in the said notice
available to the liquidator within seven days of the date of that notice or within such
longer time as the liquidator may allow and that person must allow the liquidator or
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someone on behalf of the liquidator to make copies of or extracts from any such book,
document or record.
Questioning by or on behalf of the Commissioner
90. (1) If at any time after the liquidation of an insolvent’s estate and
before his or her rehabilitation, the Commissioner is of the opinion that the insolvent
or a liquidator or any other person -
(a) is able to give information; or
(b) is in possession of books, documents or records which the
Commissioner considers desirable to obtain,
concerning-
(i) the insolvent or his or her estate;
(ii) the administration of that estate; or
(iii) any demand made against that estate,
the Commissioner may by notice in writing delivered to the insolvent or the liquidator
or such other person, summon him or her to appear before the Commissioner or before
a magistrate at a place and on a date and time stated in the notice, and to-
(aa) furnish all the information within his or her knowledge concerning the
insolvent or his or her estate; or
(bb) the administration of that estate; and
(cc) produce the books, documents or records specified in the notice.
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(2) The notice referred to in subsection (1) must be substantially in the form
of Form E5 of Schedule 1.
(3) (a) The Commissioner may at any time-
(i) appoint a person to investigate the books, documents,
records and vouchers of the liquidator; and
(ii) direct the liquidator to deliver to that person or to the
Commissioner any book, document, or record relating to
or property belonging to the insolvent estate of which he
or she is the liquidator.
(b) The reasonable costs incurred in performing such an investigation are,
unless the Court otherwise orders, regarded as part of the costs of
liquidation.
(c) If the liquidator is removed from office consequent upon such an
investigation, those costs must be paid by the liquidator in his or her
personal capacity.
(4) After having questioned a person summoned in terms of subsection (1),
the Commissioner or the magistrate may deliver to that person a notice to-
(a) appear again before the Commissioner or the magistrate at a place and
time stated in that notice; and
(b) furnish such further information or to produce any book, document or
record specified in that notice.
(5) (a) A person summoned in terms of subsection (1) may be
questioned by the Commissioner or the magistrate presiding at the
proceedings.
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(b) If a person other than the liquidator is summoned in terms of that
subsection, the liquidator or his or her representative may cross-examine
that person in regard to evidence given by that person.
(c) To the extent that the presiding officer allows any person having an
interest in the insolvent estate or its administration or his or her
representative may question the person summoned.
(d) The reasonable costs of such questioning are, unless the Court otherwise
orders, regarded as part of the costs of liquidation.
(e) If the liquidator is removed from office consequent upon such a
questioning, those costs must be paid by the liquidator in his or her
personal capacity.
(6) The provisions of section 87(3), (5), (6), (7), (8) and (9) with the
changes necessitated by the context apply to a questioning in terms of this section
subject thereto that the liquidator of the insolvent estate is not be entitled to witness
fees.
(7) Proceedings under this section are private and confidential and without
the permission of the presiding officer at the proceedings-
(a) no person whose attendance thereat is not necessary may be present at
the proceedings; and
(b) no publication of the proceedings may take place.
Enforcing summonses and giving of evidence
91. (1) If-
(a) a person summoned under section 86, 87, 88 or 90 fails to appear at a
meeting of creditors or questioning in answer to the summons; or
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(b) an insolvent fails to attend a hearing in terms of section 29(6)(a) or a
meeting of creditors in terms of section 85; or
(c) that person or insolvent fails to remain in attendance at that meeting,
questioning or hearing,
any magistrate for the district where the meeting, questioning or hearing was scheduled
to be held who may hold a court under the Magistrates' Courts Act, may issue a warrant,
authorizing any member of the Namibian police to apprehend the person summoned or
the insolvent, as the case may be, and to bring him or her before that magistrate.
(2) (a) Unless the person summoned or the insolvent, as the case may
be, satisfies the magistrate referred to in subsection (1) that he or she
had a reasonable excuse for his or her failure to appear at or attend the
meeting, questioning or hearing, or for absenting himself from the
meeting, hearing or questioning, referred to in that subsection, that
magistrate may commit him or her to prison to be detained there until
such time as the magistrate may determine.
(b) The officer in charge of the prison to which that person or insolvent was
committed, must detain him or her and produce him or her at the date,
time and place determined by that magistrate for his or her production.
(3) If-
(a) a person summoned in terms of this section, appears in answer to the
summons but fails to produce any book, document or record which he
or she was summoned to produce;
(b) any person who may be questioned at a meeting of creditors in terms of
section 87 or during a questioning in terms of section 88 or 90 or a
hearing in terms of section 29(6)(a) refuses to be administered the oath
or make an affirmation to speak the truth at a meeting of creditors,
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questioning or hearing at which he or she is called upon to give
evidence;
(c) refuses to answer any question lawfully put to him or her under those
sections; or
(d) does not answer the question fully and satisfactorily,
the magistrate referred to in subsection (1) may issue a warrant committing that person
to prison, where he or she must be detained, subject to the provisions of subsection (5),
until he or she has undertaken to do what is required of him or her.
(4) If a person who has been released from prison after having undertaken
in terms of subsection (3) to do what is required of him or her, fails to fulfil his or her
undertaking, the magistrate referred to in subsection (1) may commit the person to
prison as often as may be necessary to compel him or her to do what is required of him
or her.
(5) Any person committed to prison under this section may apply in
accordance with the Rules of Court on an urgent basis to the Court for his or her
discharge from custody and the Court must order the discharge if the Court finds that
the person was wrongfully committed to prison or is being wrongfully detained.
(6) In connection with the apprehension of a person or with the committal
of a person to prison under this section, the magistrate who issued the warrant of
apprehension or committal to prison enjoys the same immunity which is enjoyed by a
judicial officer in connection with any act performed by him or her in the exercise of
his or her functions.
(7) The magistrate referred to in subsection (1) may upon the request of a
liquidator, the Commissioner, an estate representative or a proved creditor and after
giving the witness or the insolvent the opportunity to be heard, order the witness or the
insolvent to pay-
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(a) the costs in the amount determined by the magistrate occasioned by any
failure contemplated in that subsection; and
(b) the costs to have him or her brought before the magistrate.
Suspected commission of offence to be reported to Commercial Branch
92. (1) If it appears from an answer or statement given by a person who
is questioned in terms of section 87, 88, 89 or 90, that there are reasonable grounds for
a suspicion that any person has committed an offence, the presiding officer at the
proceedings, or the liquidator in the case of proceedings in terms of section 89, must-
(a) report such suspicion and submit the answer or statement or a certified
copy thereof with supporting documents, if any, to the Regional
Commander of the Commercial Branch of the Namibian Police; and
(b) set out the grounds on which the suspicion rests.
(2) If the presiding officer referred to in subsection (1) is not the
Commissioner, a copy of the answer or statement and supporting documents, if any,
and the report to the Regional Commander referred in that subsection must be sent by
standard notice to the Commissioner.
(3) The Regional Commander referred in subsection (1) must cause the
Commercial Branch with due consideration to the provisions of section 87(6) to
investigate whether criminal proceedings should be instituted in the matter.
Proof of record of proceedings of meetings of creditors
93. (1) Any record purporting to be a record of the proceedings at a
meeting of the creditors of an insolvent estate or a questioning held under this Act and
purporting to have been signed by a person describing himself or herself as
Commissioner or magistrate or other presiding officer or estate representative is, upon
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its mere production in judicial proceedings, prima facie proof of the proceedings
recorded therein.
(2) Unless the contrary is proved, it is presumed that any meeting of
creditors or any questioning referred to in subsection (1) was duly convened and held
and that all acts performed thereat were validly performed.
PART 12
CLAIMS
Claim by partnership creditor against estate of insolvent partner
94. When the estate of a partner in a partnership is liquidated without the
partnership being placed under liquidation-
(a) the partnership is dissolved; and
(b) until the debts of the partnership have been settled in terms of the
dissolution of the partnership, any claim by a creditor of the partnership
against the estate of the insolvent partner must be tendered as an
unliquidated claim in terms of section 96(11).
Claims against partnerships
95. When the estate of a partnership and the estates of the partners in that
partnership are under liquidation-
(a) any claim for a partnership debt must be proved against the partnership
estate, despite liability of a partner for such debt;
(b) a shortfall on the claim against the partnership is admitted without
formal proof as a claim against each of the estates of the partners which
is liable for the debt; and
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(c) any balance in the partnership estate after payment of the debts is
distributed amongst the estates of the partners in so far as the partner
would have been entitled to such a balance upon the dissolution of the
partnership.
Proof of claims
96. (1) Any person who has a liquidated claim against an insolvent
estate, the cause of which arose on or before the commencement of liquidation of the
estate, or the authorised agent of that person, may at any time before the final
distribution of the estate, but subject to the provisions of section 98, prove that claim
against the estate.
(2) A claim against an insolvent estate must be admitted at a meeting of
creditors of the estate if the claim has been proved to the satisfaction of the presiding
officer on-
(a) the face of the claim form;
(b) documents in connection with the claim submitted by the creditor or
another person, if any; and
(c) the evidence, if any, by the creditor.
(3) If the claim has not been proved in in accordance with subsection (2),
the presiding officer must reject it.
(4) A creditor who holds security for the creditor’s claim must place a
monetary value on his or her security, or have his or her voting rights limited in terms
of section 84(5).
(5) Subject to section 28, the rejection of a claim does not debar the
claimant from proving the claim at a later meeting of creditors or by an action at law.
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(6) Every claim must be proved by an affidavit in a form corresponding
substantially with Form B or C of Schedule 1 and, subject to subsections (11) and
(12) no oral evidence may be received in support of any claim.
(7) The affidavit contemplated in subsection (6) and all documents
submitted in support of the claim or a copy thereof must be lodged before the time of
day advertised for the commencement of the meeting of creditors on or before the
second working day before the date of the meeting, with the presiding officer of that
meeting, failing which the claim may not be admitted at that meeting unless the
presiding officer is of the opinion that the creditor had a reasonable excuse for the
creditor’s failure to lodge the claim with the presiding officer within the said time.
(8) Where appropriate the amount of a claim may be expressed in a foreign
currency, but all claims in a foreign currency must be paid in its equivalent in Namibian
dollar and the date of commencement of liquidation is the conversion date of Namibian
dollar to a foreign currency.
(9) A claimant who has proved a claim which is deficient in any respect
may at a subsequent meeting of creditors prove a corrected claim.
(10) (a) The documents referred to in subsection (7) may be perused free
of charge by the liquidator, the insolvent and any creditor of the insolvent estate
or the representative of any of them during office hours at the office of the
presiding officer of the meeting of creditors.
(b) The liquidator, insolvent, or creditor may submit motivated objections
to prove a claim at the meeting where the claim is lodged for proof or
with the presiding officer before that meeting.
(11) (a) Any person who has an unliquidated claim against an insolvent
estate may tender such claim for proof at a meeting of creditors, but such claim
may not be admitted to proof until the claim-
(i) has been accepted by the liquidator by way of compromise; or
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(ii) is proved in an action at law.
(b) When such claim is compromised or proved in an action at law the claim
is deemed to have been proved and admitted against the insolvent estate
at the meeting where it was lodged for proof, unless the creditor informs
the liquidator by standard notice within seven days of the compromise
or judgment that the creditor abandons the claim.
(12) (a) The presiding officer at the meeting of creditors of an insolvent
estate may-
(i) of his or her own motion;
(ii) at the request of the liquidator or his or her representative; or
(iii) at the request of any creditor who has proved a claim at a meeting
of creditors or the representative of such creditor,
call upon any person present at the meeting who wishes to prove a claim
or who has proved a claim against the estate to submit to questioning by
the presiding officer, the liquidator or his or her representative or any
such creditor or his or her representative in regard to such claim.
(b) For purposes of such questioning the presiding officer must administer
to that person an oath or affirmation to speak the truth.
(c) Notwithstanding paragraph (a), a creditor who has proved a claim at a
meeting of creditors may not be permitted to question a creditor who
wishes to prove a claim at the same meeting before the claim of such
creditor has been admitted or rejected.
(13) (a) Any person who wishes to prove or who has at any time proved
a claim against an insolvent estate and who is absent from a meeting of creditors
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may be summoned in writing by the presiding officer in a summons
substantially in the form of Form E2 of Schedule 1 to appear before him or her
at a place and time stated in the summons for the purpose of being questioned
by the presiding officer, the liquidator or a creditor who has proved a claim
against the estate, or the representative of the liquidator or such creditor in
regard to such claim.
(b) The provisions of subsection (12) with regard to the administering of
the oath or the taking of a solemn declaration apply with the changes
necessitated by the context with regard to the giving of evidence by such
person.
(14) The claim of a person who wishes to prove such claim and is called
upon to be questioned as contemplated in subsection (12) and who-
(a) fails without reasonable excuse to appear;
(b) refuses to take the oath or make an affirmation;
(c) refuses to submit to questioning; or
(d) refuses to answer fully and satisfactorily any lawful question put to him
or her,
may be rejected.
Liquidator to examine claims
97. (1) The person who presided at a meeting of creditors of an
insolvent estate must, if he or she is not the liquidator, after the meeting deliver to the
liquidator every claim proved against the insolvent estate at that meeting and every
document submitted in support of any claim.
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(2) (a) The liquidator must examine the claims and supporting
documents referred to in subsection (1) and all available books, documents or
records relating to the insolvent estate for the purpose of ascertaining whether
the estate in fact owes the claimant the amount claimed.
(b) The liquidator may require the claimant to submit additional supporting
proof of his or her claim and, in the case where the claim is based on an
estimate, the basis on which the estimate was arrived at.
(3) (a) If the liquidator disputes a claim after it has been proved at a
meeting of creditors, he or she may, with the authority of the Commissioner or
creditors in terms of section 66(4) and after having afforded the claimant the
opportunity of substantiating the claimant’s claim or any part thereof, reduce or
disallow the claim.
(b) The liquidator must forthwith by standard notice notify the claimant and
the Commissioner in writing of such reduction or disallowance of the
claim.
(4) Subject to the provisions of section 28(5), the reduction or disallowance
of a claim as contemplated in subsection (3) does not debar a claimant from
establishing his or her claim by means of an action at law.
Late proof of claims
98. (1) Subject to the provisions of section 75(8) and subsection (2), a
creditor of an insolvent estate who has not proved his or her claim against the estate
before a date fixed in terms of section 82 is not entitled to share in the distribution of
the assets reflected in an account lodged with the Commissioner within two weeks after
that date.
(2) Notwithstanding subsection (1), if the Commissioner is satisfied that a
creditor referred to in subsection (1) has a reasonable excuse for the delay in proving
his or her claim, the Commissioner may-
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(a) permit that creditor to prove the creditor’s claim before the confirmation
of the account contemplated in subsection (1); and
(b) order the liquidator to draw up a new account in which provision is made
for the claim so proved, provided that the creditor tenders all costs in
connection with the drawing-up of the new account, including wasted
advertisement costs, if any.
(3) A creditor of an insolvent estate who has proved a claim against the
estate and who was not in terms of subsection (1) permitted to share in the assets
reflected in an account, is, in so far as available funds allow, entitled to be awarded out
of any subsequent distribution account the amount to which that creditor would have
been entitled under the earlier distribution account if the creditor had proved the
creditor’s claim in time.
(4) A creditor who delayed proving that creditor’s claim pending-
(a) the outcome of proceedings for the setting aside of any disposition of
property made by an insolvent; or
(b) the recovery of any debt, asset, compensation, penalty or benefit of
whatever kind for the benefit of an insolvent estate,
is not entitled to share in the distribution of any money or the proceeds of property
recovered as a result of such proceedings.
Conditional claims
99. (1) A creditor who has a claim against an insolvent estate which is
dependent upon the fulfilment of a condition, may request the liquidator to place a
value on the claim.
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(2) If a liquidator places a value on a claim referred to in subsection (1), he
or she must in writing indicate the grounds on which he or she arrived at the valuation.
(3) The valuation of a conditional claim by a liquidator is subject to review
by the Court on application of the creditor concerned.
(4) After a conditional claim has been valuated as contemplated in this
section, the claim may be proved by the creditor for the amount of the valuation.
(5) (a) If the condition upon which a claim is dependent is fulfilled
before the inclusion of the amount referred to in subsection (4) in a proposed
distribution account, the claim may be proved in full.
(b) If that condition is fulfilled after provision had already been made in a
distribution account for the claim contemplated in subsection (4), the
balance of the claim may be proved, subject to the provisions relating to
the late proof of claims.
(6) A claim for severance pay or retrenchment pay which is subject to a
condition that the contract of service has been terminated may be proved for the full
amount of the claim, but until the contract of service has been terminated-
(a) no award is paid on the claim; and
(b) the creditor has no vote on the claim.
Arrear interest and debt due after liquidation
100. (1) A creditor may prove a claim against an insolvent estate in
respect of a capital debt and interest thereon which has accrued at the commencement
of liquidation.
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(2) No claim may be proved for interest which accrues after the
commencement of liquidation, but such interest is payable in the circumstances set out
in sections 69(8) and 75(15).
(3) The capital amount of a debt which becomes payable after the
commencement of liquidation must be reduced by the prescribed percentage of that
amount per annum compounded monthly on completed months from the
commencement of liquidation to the date on which the debt becomes payable.
Withdrawal of claim
101. (1) A creditor who has proved a claim against an insolvent estate
may withdraw his or her claim by standard notice to the liquidator.
(2) A liquidator who receives a notice of withdrawal of a claim must give
standard notice to the Commissioner of the withdrawal.
(3) A creditor who has withdrawn his or her claim remains liable for his or
her proportional share of the costs of liquidation up to the date when the notice of
withdrawal was received by the liquidator.
(4) A creditor who has withdrawn that creditor’s claim may by standard
notice to the liquidator cancel such withdrawal, in which event that creditor is not be
entitled to payment of the creditor’s claim out of the estate until all other creditors who
have proved claims have been paid in full.
(5) If a creditor cancels the withdrawal of a claim as contemplated in
subsection (4), that creditor is not liable for liquidation costs for which that creditor
was not liable at the time of the cancellation of the withdrawal of that claim.
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Recovery of debt from insolvent estate where creditor recovered from another
source
102. (1) A creditor who has proved a claim against an insolvent estate
and who, after the commencement of liquidation of the insolvent estate, has received
payment of that debt in whole or in part, from a source other than the insolvent estate,
must notify the liquidator by standard notice of such payment within 60 days from
receiving payment.
(2) If the creditor fails to act as set out in subsection (1), double the amount
to which that creditor was not entitled to and which was paid to that creditor out of the
insolvent estate, may be recovered from the creditor.
PART 13
BANKING ACCOUNTS, INVESTMENTS AND MONEYS BELONGING TO
THE INSOLVENT ESTATE
Banking accounts and investments
103. (1) The liquidator of an insolvent estate -
(a) must open a cheque account in the name of the estate with a bank within
Namibia and deposit therein all moneys received by him or her on behalf
of the estate;
(b) may open a savings account in the name of the estate with a bank within
Namibia and may transfer thereto from the account referred to in
paragraph (a) moneys not immediately required for the payment of any
claim against the estate;
(c) may place moneys deposited in an account referred to in paragraph (a)
and not immediately required for the payment of any claim against the
estate, on an interest-bearing deposit account with a bank within
Namibia.
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(2) Whenever required by the Commissioner to do so, the liquidator must-
(a) notify the Commissioner by standard notice of the bank and the office,
branch office or agency thereof with which he or she has opened an
account or placed a deposit referred to in subsection (1); and
(b) furnish the Commissioner with a bank statement or other sufficient
evidence of the status of the account.
(3) The liquidator must as far possible transfer any payments from any
account referred to in subsection (1) electronically to the intended beneficiary provided
that all payment instructions drawn upon such account must-
(a) contain the name of the payee and the cause of payment;
(b) be drawn to order; and
(c) be authorised in writing by every liquidator or his or her authorised
agent.
(4) The Commissioner and any surety for the liquidator, or any person
authorised by such surety, have the same right to information in regard to an account
referred to in subsection (1) as the liquidator himself or herself has, and may examine
all vouchers relating thereto, whether in the hands of the bank or the liquidator.
(5) The Commissioner may, after direct notice to the liquidator, direct the
manager of any office, branch office or agency with which an account referred to in
subsection (1) has been opened, by standard notice to pay over into the Guardian's
Fund-
(a) all moneys standing to the credit of that account at the time that manager
receives that direction; and
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(b) all moneys which may thereafter be paid into that account,
and that manager must carry out that direction.
Recording of receipts by liquidator
104. (1) The liquidator of an insolvent estate must immediately after his
or her appointment open a record in which all moneys, goods, accounts and other
documents received by him or her on behalf of the estate are recorded.
(2) The Commissioner may at any time direct the liquidator in writing to
produce the said record for inspection and every creditor who has proved a claim
against the estate and, if the Commissioner so orders, every person claiming to be a
creditor or surety for the liquidator, may inspect the said record at all reasonable times.
Unlawful retention of moneys or use of property by liquidator
105. (1) A liquidator who-
(a) without lawful cause, retains any money exceeding N$100 belonging to
the insolvent estate of which he or she is liquidator;
(b) knowingly permits his or her co-liquidator to retain such a sum of
money longer than the earliest day after its receipt on which it was
possible for him or her or his or her co-liquidator to pay that money into
a bank; or
(c) who uses or knowingly permits his or her co-liquidator to use any
property of the insolvent estate, except for the benefit of the estate,
is, in addition to any other penalty to which he or she may be liable, liable to pay into
that estate an amount equal to double the amount so retained or double the value of the
property so used.
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(2) The amount which a liquidator is liable to pay in terms of subsection
(1) may -
(a) be deducted from any remuneration to which he or she is entitled out of
the insolvent estate; or
(b) may be recovered from him or her by action in a court of law at the
instance of his or her co-liquidator or the Commissioner or any creditor
who has proved a claim against the estate.
PART 14
ESTATE ACCOUNTS, DISTRIBUTION AND CONTRIBUTION
Estate Accounts
106. (1) Subject to subsections (5), (7) and (8), a liquidator must within
a period of six months from the date of his or her appointment as final liquidator in
terms of section 53(1)-
(a) lodge with the Commissioner a liquidation account and a distribution
account of the proceeds of the property in the insolvent estate available
for payment to creditors; or
(b) if all realisable property in the insolvent estate has been realised and
brought into account and the proceeds are insufficient to cover the costs
and charges referred to in section 74 a contribution account
apportioning the liability for the deficiency among creditors who are
liable to contribute.
(2) The accounts referred to in subsection (1) must be substantially in the
form set out in Form D of Schedule 1: Provided that the Commissioner may insist on
strict compliance with any item of that Form.
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(3) If a liquidation account is not a final account, the liquidator must from
time to time as the Commissioner may direct, but at least every six months unless he
or she has received an extension of time as contemplated in subsections (5), (7) or (8),
lodge with the Commissioner periodical accounts in the form and in all other respects
similar to the accounts mentioned in subsection (2).
(4) If the estate of a partnership is under liquidation, separate accounts must
be lodged in respect of the partnership and the estate of each partner whose estate is
under liquidation.
(5) If a liquidator is unable to lodge an account with the Commissioner
within the period of six months as required by subsection (1) or (3), he or she must
before the expiration of such period or within the further period that the Commissioner
may allow, send to the Commissioner by standard notice an affidavit in which he or
she must state -
(a) the reasons for his or her inability to lodge the account concerned;
(b) those affairs, transactions or matters relating to the insolvent or the
insolvent estate as the Commissioner may require; and
(c) the amount of money available for payment to creditors or, if there is no
free residue or the free residue is insufficient to meet all costs referred
to in section 74, the deficiency the creditors are liable to make good,
and the Commissioner may thereupon extend such period to a date determined by him
or her.
(6) If the Commissioner extends the period in terms of subsection (5) the
liquidator must inform proved creditors of the extension by liquidator’s notice and
enclose a copy of the affidavit in terms of that subsection.
(7) Subject to subsection (8), if a liquidator fails to lodge an account within
the period required by subsection (1) or before the date determined by the
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Commissioner in terms of subsection (5), the Commissioner may send a standard
notice to the liquidator in which he or she is required to lodge-
(a) the account concerned with the Commissioner; or
(b) if he or she is unable to lodge such account, send an affidavit as
contemplated in subsection (5) to the Commissioner,
within a period of 14 days from the date of the notice and the Commissioner may, if
the account concerned or the said affidavit is not lodged with him or her after the
expiration of the 14 days extend such period to a date determined by him or her.
(8) If the Commissioner refuses to extend the period as contemplated in
subsection (7), the liquidator may apply by motion to the Court, after having given the
Commissioner direct notice of his or her intention to make the application, for an order
extending the said period and the Court may thereupon make such order as it deems
just.
(9) If before the expiration of the period contemplated in subsection (1) or
(3) a liquidator has funds in hand which in the opinion of the Commissioner ought to
be distributed and the liquidator has not lodged with the Commissioner a plan for the
distribution of those funds, the Commissioner may direct him or her by standard notice
to lodge to the Commissioner a plan for the distribution of those funds.
(10) If any liquidator fails-
(a) to lodge any account to the Commissioner as and when required by or
under this Act;
(b) to lodge any vouchers in support of such account upon the request of
the Commissioner;
(c) to perform any other duty imposed upon him by this Act; or
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(d) to comply with any reasonable demand of the Commissioner for
information or proof required by him in connection with the liquidation
or distribution of an estate,
the Commissioner or any person having an interest in the liquidation or distribution of
an insolvent estate may, after giving the liquidator not less than 14 days’ standard
notice, apply to the Court for an order directing the liquidator to lodge such account or
any vouchers in support thereof or to perform such duty or to comply with such
demand.
(11) Any costs awarded to the Commissioner or to such person as a result of
an application referred to in subsection (10) must, unless otherwise ordered by the
Court, be payable by the liquidator in his her personal capacity.
Copies of liquidator's accounts to be open for inspection
107. (1) (a) The liquidator must as soon as possible after he or she
has lodged an account with the Commissioner as contemplated in section 106
lodge a copy of the account with a magistrate of the district in which the
insolvent resided or carried on business before his or her liquidation if the
Commissioner does not have an office in that district.
(b) If the insolvent resided or carried on business in a portion of a district
in respect of which an additional magistrate or assistant magistrate
permanently carries out the functions of the magistrate of the district at
a place other than the seat of the magistracy of that district, the liquidator
must lodge a copy of the account with that additional magistrate or
assistant magistrate.
(2) The liquidator must-
(a) give notice in the Gazette that the account will lie open for inspection
by any person having an interest in an insolvent estate at the place and
during the period stated in the notice; and
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(b) give liquidator’s notice to each creditor who has proved a claim against
that estate.
(3) Every such account and every copy thereof lodged with a magistrate
must be open for inspection by any person having an interest in the insolvent estate at
the office of the Commissioner and of such magistrate during a period of 14 days as
from the date of the publication of the notice in the Gazette.
(4) A magistrate who has received a liquidator's account must cause a
notice to be affixed in a public place in or about his or her office notifying that the
account will lie open for inspection at his or her office during the period stated in the
notice.
(5) After the expiration of the period referred to in subsection (4) the
magistrate must-
(a) endorse upon the account a certificate that the account was open for
inspection at his or her office as provided in this section; and
(b) send the account by standard notice to the Commissioner.
Objections to liquidator's account
108. (1) The insolvent or any person having an interest in the estate may
at any time after the commencement of the period contemplated in section 107 until
the liquidator's account is confirmed in terms of section 109 lodge with the
Commissioner in writing any objection to that account, stating the reasons for such
objection.
(2) If the Commissioner is of the opinion-
(a) that any such objection is well founded;
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(b) apart from any objection, that the account is in any respect incorrect;
(c) that the account contains any improper charge; or
(d) that the liquidator acted in bad faith, negligently or unreasonably in
incurring any costs included in the account and that the account should
be amended,
he or she may direct the liquidator to amend the account or may give such other
direction in connection therewith as he or she may think fit.
(3) Any person, including the liquidator, who feels aggrieved by any
direction of the Commissioner or by the Commissioner's refusal to sustain an objection
so lodged, may within 14 days as from the date of the Commissioner's direction apply
to the Court for relief and the Court has the power to consider the merits of any such
matter, to hear evidence and to make any order it deems just.
(4) When any direction by the Court affects the interests of a person who
has not lodged an objection the account so amended must again lie open for inspection
by creditors in the manner and with the notice stipulated by section 107, unless the
person affected as aforesaid consents in writing to the immediate confirmation of the
account.
Confirmation of liquidator's accounts
109. (1) The Commissioner must confirm a liquidator's account which
has been open to inspection as stipulated by this Act, if-
(a) no objection has been lodged; or
(b) an objection has been lodged and the account has been amended in
accordance with the direction of the Commissioner and has again been
open for inspection, if necessary, and no application for relief has been
made to the Court in terms of section 108(3); or
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(c) an objection has been lodged but withdrawn or has not been sustained
and the objector has not applied to Court for relief.
(2) The Commissioner’s confirmation is final notwithstanding mistakes in
the account, except against a person who may have been permitted to reopen it by the
Court before any dividend has been paid under the account.
Distribution of estate and collection of contributions
110. (1) Immediately after the confirmation of a liquidator's account the
liquidator must-
(a) give notice of that confirmation in the Gazette; and
(b) state in that notice that-
(i) a dividend to creditors, is being processed for payment; or
(ii) a contribution is in the course of collection from creditors, and
that every creditor liable to contribute is required to pay to the
liquidator the amount for which that creditor is liable.
(2) If any contribution is payable the liquidator must-
(a) specify fully in that notice the address at which payment of the
contribution is to be made; and
(b) send a copy of the notice by liquidator’s notice to every creditor who is
liable to contribute.
(3) Immediately after the confirmation of a liquidator's account but not later
than two months after such confirmation the liquidator must in accordance therewith-
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(a) distribute the insolvent estate; or
(b) collect from each creditor who is liable to contribute, the amount for
which he or she is liable.
Liquidator to produce receipts for dividends or pay over unpaid dividends to
Commissioner
111. (1) The liquidator must within three months after the confirmation
of the account lodge with the Commissioner the receipts for dividends paid to creditors
or other persons and if there is a contribution account, the vouchers necessary to
complete the account: Provided that-
(a) a cheque purporting to be drawn payable to a creditor or other person in
respect of a dividend due to him or her and paid by the banker on whom
it is drawn; or
(b) a statement by a bank that the bank of the creditor has credited or has
been instructed to credit the account of the creditor with the amount of
the dividend,
must be accepted by the Commissioner in lieu of any such receipt.
(2) If any dividend has at the expiration of a period of two months from the
confirmation of the account under which it was payable, not been paid to the creditor
or other person who is entitled thereto, the liquidator must within three months after
confirmation of the account pay the dividend over to the Master who must deposit it in
the Guardian's Fund on account of the creditor or other person.
Surplus to be paid into Guardian’s Fund
112. (1) Subject to subsection (2), if after the confirmation of a final
account there is any surplus in an insolvent estate which is not required for the payment
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of claims, costs, charges or interest, the liquidator must after the confirmation of that
account pay the surplus over to the Master who must-
(a) deposit that surplus in the Guardian’s Fund; and
(b) after the rehabilitation of the insolvent must at the insolvent's request
pay that surplus to the insolvent.
(2) Where the insolvent estate is that of a partnership, section 95 applies.
Contribution by creditors towards cost of liquidation
113. Where there is no free residue in an insolvent estate or where the free
residue is insufficient to meet all the costs mentioned in section 74 the following rules
apply with regard to the liability of creditors to pay contributions towards defraying
any such deficiency:
(a) The creditor upon whose application the liquidation order was made,
whether or not he or she has proved a claim against the estate, is liable
to contribute not less than the amount he or she would have had to
contribute if he or she had proved a claim for the amount stated in his
or her application for liquidation and where he or she is a secured
creditor, without reliance on his or her security;
(b) each concurrent creditor is be liable to pay a contribution in proportion
to that creditor’s concurrent claim;
(c) if a creditor has withdrawn his or her claim, that creditor is liable to pay
a contribution only so far as is provided in section 101 and if a creditor
withdraws his or her claim within 5 days after the date of any resolution
of creditors, that creditor is be deemed to have withdrawn the claim
before anything was done in pursuance of that resolution;
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(d) if a claim has been reduced or disallowed by a liquidator in terms of
section 97(3) the creditor is, unless the claim is subsequently admitted
by means of compromise or proved in action at law, liable to pay-
(i) a contribution in respect of costs incurred before the date of
notice referred to in the said subsection on the amount of the
claim before the claim was reduced or disallowed; and
(ii) in the case of a reduced claim in respect of costs incurred after
the date of the said notice, on the amount to which the claim was
reduced by the liquidator.
Enforcing payment of contribution
114. (1) If a creditor who is liable to contribute under an account has
failed to pay the amount of his or her liability within a period of 30 days after the date
of the sending or delivery to that creditor of a notice referred to in section 110(1) the
liquidator may take out a writ of execution for the amount of the creditor's liability in
the magistrate's court in which the creditor could be sued for the contribution in
question.
(2) Whenever-
(a) a creditor who is liable to contribute under an account is in the opinion
of the Commissioner and of the liquidator unable to pay the contribution
for which that creditor is liable; or
(b) the liquidator has incurred expenses in connection with the recovery of
any contribution, which expenses are in the opinion of the
Commissioner and the liquidator irrecoverable,
the liquidator must as soon as practicable and in any event within such period as the
Commissioner may determine therefor, frame and lodge with the Commissioner a
supplementary contribution account wherein he or she must apportion the share of the
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creditor who is unable to pay or the expenses in question among the other creditors
who are in the opinion of the Commissioner and the liquidator able to pay.
(3) The provisions of subsection (2) with the changes necessitated by the
context apply-
(a) whenever a creditor who is liable to contribute under a first or further
supplementary account is, in the opinion of the Commissioner and the
liquidator, unable to pay the contribution for which he or she is liable;
or
(a) whenever the liquidator has incurred expenses in connection with the
recovery of a contribution under a first or further supplementary account
which are, in the opinion of the Commissioner and the liquidator,
irrecoverable by the liquidator.
(4) The liquidator may in lieu of complying with the requirements of
section 107 in connection with any supplementary contribution account, furnish a copy
of that account to every creditor who is liable to contribute thereunder and thereupon
the provisions of subsection (1) apply with the changes necessitated by the context.
PART 15
REHABILITATION OF INSOLVENT
Rehabilitation
115. (1) An insolvent may, subject to the provisions of subsection (2),
apply to the Court for an order for his or her rehabilitation -
(a) at any time after the confirmation by the Commissioner of a distribution
account providing for the full payment of all claims proved against that
insolvent’s estate, with interest thereon from the commencement of
liquidation, calculated in terms of section 75(14) and (15) and all costs
of liquidation; or
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(b) at any time after the Commissioner has issued a certificate of acceptance
of a composition as contemplated in section 177; or
(c) in any other case, but subject to subsection (2), after the expiration of
four years from the date of the confirmation by the Commissioner of the
provisional liquidation account in the estate.
(2) If an insolvent has been convicted in respect of the existing or any prior
insolvency for an offence referred to in section 213(1)(a), (b), (d), (e) or (g) or (2)(e)
or (f) or for any other fraudulent act, the insolvent may not apply to the Court for an
order for his or her rehabilitation before a period of five years has elapsed from the
date of the conviction concerned.
(3) The Commissioner may on the request of the insolvent recommend to
the Court that an application referred to in subsection (1)(c) may be made before the
expiration of the period of four years referred to in that subsection but no such
application may be made-
(a) within a period of 12 months; or
(b) in the case where the insolvent’s estate was liquidated prior to the
liquidation in respect of which he or she applies for rehabilitation,
within a period of three years,
from the date referred to in that subsection.
(4) An insolvent who wishes to apply for a rehabilitation order must send a
standard notice of his or her intended application-
(a) not less than four weeks before the date of the intended application in
the case of an application contemplated in subsection (1)(a), to the
Commissioner and the liquidator (if there is one); or
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(b) in the case of an application contemplated in subsections (1)(b), (c) or
(2)-
(i) not less than six weeks before the date of the intended
application to the Commissioner, the liquidator (if there is one)
and to every creditor of the insolvent estate whose name and
address is known to him or her or which he or she can readily
obtain; and
(ii) notify such application by notice in the Gazette.
(c) furnish security to the Registrar of the Court in the amount of or to the
value of the prescribed amount in respect of the costs of any person who
may oppose the application for rehabilitation and who may be awarded
costs by the Court.
(5) The Minister may amend the amount mentioned in subsection (4)(c) by
notice in the Gazette so as to take account of subsequent fluctuations in the value of
money.
(6) The notice referred to in subsection (4)(a) or (b) must state the estimated
value and reflect full details of the assets of the insolvent at the time of the application.
(7) (a) An insolvent must in support of his or her application for
rehabilitation-
(i) submit an affidavit that he or she has made a complete surrender
of his or her estate;
(ii) that he or she has not granted or promised any benefit to any
person or entered into any secret agreement with intent to induce
the liquidator of the estate or any creditor not to oppose the
application for rehabilitation.
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(b) That affidavit must contain a statement of-
(i) the insolvent’s assets and liabilities;
(ii) his or her earnings; and
(iii) his or her own as well as his or her spouse's contribution to his
household,
on the date of the application.
(c) The Court must be apprised of-
(i) the dividend (if any) paid to that insolvent’s creditors;
(ii) what further assets in the insolvent estate are available for
realisation and the estimated value thereof;
(iii) the total amount of all claims proved against the estate; and
(iv) the total amount of his or her liabilities at the commencement of
liquidation of his or her estate.
(d) If application is made for rehabilitation pursuant to subsection (1)(b),
the insolvent must-
(i) set out the particulars of the composition;
(ii) state whether there are or are not creditors whose claims against
the estate have not been proved, and if there are such creditors,
state their names and addresses and particulars of their claims.
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(8) A liquidator who has received a notice contemplated in subsection
(4)(a) or (b) must report to the Commissioner any facts which in his or her opinion
would warrant the court to refuse, postpone or qualify the insolvent’s rehabilitation.
(9) A partnership whose estate has been sequestrated may not be
rehabilitated.
Opposition to rehabilitation or refusal of rehabilitation by court
116. (1) (a) The Commissioner must report to the Court on the
merits of the application and furnish a copy of the report to the applicant or the
applicant's legal practitioner.
(b) The Commissioner, the liquidator or any other person having an interest
in the insolvent estate may appear in person or through a legal
representative to oppose the application.
(2) If the Court is satisfied on the strength of a certificate by the
Commissioner or on any other evidence that the insolvent has intentionally impeded,
obstructed or delayed the administration of his or her insolvent estate -
(a) through failure to submit a statement of affairs in accordance with the
requirements of the Act; or
(b) through failure to make available to the liquidator of the estate in
accordance with written directives by the liquidator or the
Commissioner property belonging to the insolvent estate which was in
his or her possession or custody or under his or her control or any book,
document or record relating to his or her affairs which was in his or her
possession or custody or under his or her control; or
(c) through failure to notify the liquidator of the estate of the existence of
any book, document, or record relating to his or her affairs which was
not in his or her possession or custody or under his or her control, and
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as to where such book, document, or record could be found, or of any
property belonging to his or her insolvent estate which was not
mentioned in his or her statement of affairs, and as to where such
property could be found; or
(d) through failure to keep the liquidator of the estate informed of any
change of his or her address during the period of three years after the
liquidation of his or her estate; or
(e) through failure to comply with section 29(4); or
(f) through any other act or omission,
the Court must refuse to grant a rehabilitation order until the expiry of a period of 10
years after the commencement of liquidation that insolvent’s estate.
(3) (a) The Court may refuse the application or postpone the hearing of
the application or grant the application for rehabilitation subject to any
condition the Court finds to be just.
(b) The Court may order the insolvent to consent to judgment against him
or her for the unpaid portion of a debt proved against the estate or which
could have been proved against the estate, or for such lesser amount that
the Court may determine.
(c) If the Court made a judgment contemplated in paragraph (b) no
execution may take place in terms of the judgment save with permission
of the Court and after proof that the insolvent has since the
commencement of liquidation of the estate acquired property or income
which is available for the payment of his or her debts.
(c) Apart from such judgment the Court may impose any other condition
with regard to any property or income which may in future accrue to the
insolvent, the Court may order the insolvent to pay the costs of any
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opposition to the application for rehabilitation, unless the Court is
satisfied that the opposition is vexatious.
(4) When granting an order for rehabilitation in respect of an application
made in terms of section 115(1)(b), the Court may order that any obligation incurred
by the applicant on or before the date that applicant’s estate was liquidated and which,
but for the order, would be discharged as a result of the rehabilitation, remains of full
force and effect notwithstanding the rehabilitation.
(5) The Registrar of the Court must forthwith give standard notice to the
Commissioner of every order for rehabilitation which is granted by the Court.
Rehabilitation by effluxion of time
117. (1) Any insolvent not rehabilitated by the Court within a period of
ten years from the commencement of liquidation of his or her estate, is deemed to be
rehabilitated after the expiry of that period unless a Court upon application by an
interested person after standard notice to the insolvent orders otherwise prior to the
expiration of the said period of ten years.
(2) If a Court makes an order under subsection (1), the Registrar of the
Court must by standard notice send a copy of the order to the Commissioner and to the
Registrar of Deeds and the Commissioner must send a copy of the order by standard
notice to the liquidator.
(3) Whenever the Registrar of Deeds receives such order he or she must
enter a caveat against the transfer of all immovable property and the cancellation of
every bond registered in the name of the insolvent or which belongs to the insolvent.
(4) The caveat referred to in subsection (3) remains in force until the date
on which the insolvent is rehabilitated.
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Effect of rehabilitation
118. (1) Subject to the provisions of subsection (2) and any conditions
which the Court may have imposed when granting an order for rehabilitation, the
rehabilitation of an insolvent has the effect of-
(a) putting an end to the liquidation;
(b) discharging all debts of the insolvent which were due, or the cause of
which had arisen, on or before the commencement of liquidation, and
which did not arise out of any fraud on his or her part or the commission
by him or her of any offence referred to in section 213(1)(e) or section
213(1)(c) in respect of a previous liquidation; and
(c) relieving the debtor of every disability resulting from the liquidation.
(2) The rehabilitation of an insolvent does not affect -
(a) the rights of a liquidator or of creditors under a composition;
(b) the power or duties of the Commissioner or the duties of the liquidator
in connection with a composition;
(c) the right of the liquidator or of creditors to any part of the insolvent’s
estate which is vested in the liquidator but as yet not distributed by him
or her;
(d) the liability of a surety for the insolvent;
(e) the liability of any person to pay any penalty or suffer any punishment
under any provision of this Act.
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(3) Evidence of a conviction on any offence contemplated in subsection
(1)(b) is admissible in subsequent civil proceedings as prima facie evidence that the
insolvent committed the offence in question.
Penalties for unlawful inducement to accept compromise or in connection with
rehabilitation
119. (1) (a) It is unlawful for any person to offer or promise to any
other person any benefit in order to-
(i) induce that person to accept an offer of composition;
(ii) agree to or refrain from opposing an application for the
rehabilitation of an insolvent;
(iii) as a consideration for his or her acceptance of an offer of
composition; or
(iv) for supporting or refraining from opposing an application for the
rehabilitation of a debtor.
(b) Any person who has accepted or agreed to accept any such benefit,
whether for that person or for any other person, is liable to pay, by way
of penalty, for the benefit of the other creditors of the insolvent estate -
(i) a sum equal to the amount of any claim proved by that person
against the estate; and
(ii) the amount or value of the benefit promised or given; and
(iii) in the case of a composition, the amount paid or to be paid to
that person under the composition.
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(2) The liquidator is competent to enforce the penalty referred to in
subsection (1) and if he or she fails to do so any creditor of the estate may enforce the
penalty in the name of the liquidator, if that creditor indemnifies the liquidator against
all costs in connection with such action.
CHAPTER 4
REORGANIZATION PROCEEDINGS
PART 1
DEFINITIONS
Definitions
120. (1) For purposes of this Chapter-
"interim order" means an order made under section 125;
"proposal" means a proposal made by a debtor to the debtor's creditors for a
composition in satisfaction of the debtor's debts or a scheme of arrangement of the
debtor's financial affairs;
"provisional supervisor", in relation to a proposal, means the person designated as
referred to in section 125(1)(d);
“statement” means the prescribed sworn statement referred to in section 121 which a
debtor must submit to the court together with his or her offer of a composition;
"supervisor", in relation to a voluntary arrangement, means the person who is for the
time being performing the functions imposed as a result of the approval of the
arrangement by the creditors of the debtor under the arrangement;
“the court”, for purposes of section 121 means the Magistrate’s Court of the district
where a debtor normally resides, carries on business or is employed;
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"voluntary arrangement", in relation to a debtor, means a proposal that has taken effect
in accordance with section 130(1).
PART 2
PRE-LIQUIDATION COMPOSITION
Pre-liquidation composition with creditors: magistrate’s court
121. (1) Any debtor who cannot pay his or her debts less than the
prescribed amount and who wants to offer his or her creditors a composition, may lodge
a signed copy of the offer of composition and a sworn statement with the court in the
form set out in Schedule 4.
(2) If the offer of composition provides for the immediate payment of a
cash amount for distribution among creditors, the amount must, pending the outcome
of the offer of composition, be invested in an interest-bearing savings account in trust
with a legal practitioner or someone else whom the court approves, whereupon the
debtor must offer proof that the cash amount has been invested in this manner.
(3) (a) If a debtor incurs debt during the period from lodging the offer
of composition with the court until creditors have voted on the offer, the debtor
must inform the creditor who offers him or her credit of the pending offer of
composition and at the first appearance before the court in connection with the
offer of composition, the debtor must provide full particulars concerning any
such debt incurred by him or her.
(b) During the period contemplated in paragraph (a) or after an offer of
composition has been accepted, a debtor may not alienate, encumber or
voluntarily dispose of any property which must be made available to
creditors in terms of the offer of composition or do anything which can
impede compliance with that offer.
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(c) A debtor who contravenes these provisions is guilty of an offence and
upon conviction is liable to a fine or to imprisonment not exceeding six
months or to both such fine and such imprisonment.
(4) (a) On receipt of the offer of composition and the statement, the
court must determine a date of hearing for the questioning of the debtor and the
consideration by the creditors of the offer of composition of the debtor, if it
appears to the court that no such date has been determined during the preceding
six months.
(b) The date determined by the court must give the debtor sufficient time to
notify creditors of the hearing, in accordance with subsection (5).
(5) (a) The debtor must at least 14 days before the date determined for
the hearing send by standard notice to each of his or her creditors a copy of the
offer of composition and of the sworn statement and a prescribed notice with
the case number and the place and date of the hearing.
(b) The debtor must before the date of the hearing offer proof to the court
that he or she gave notice in the manner contemplated in paragraph (a).
(6) At the hearing -
(a) a creditor may, whether the creditor has received notice or not, prove
the debt and object to a debt listed in the statement by the debtor;
(b) every debt listed by the debtor in the statement must, subject to any
amendments to it by the court, be deemed to be proved, unless a creditor
objects to it or the court rejects it or requires that it be corroborated by
evidence;
(c) a creditor whose debt is being objected to by the debtor or another
creditor or who is required by the court to corroborate that debt with
evidence, must prove such debt;
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(d) the court may defer the proving of a debt and the consideration of the
offer of composition, or allow the other creditors to vote on the
composition, and if an offer of composition is accepted, an unproven
debt is added to the listed debts at the stage when it is proved;
(e) the debtor may be questioned by the court and by any creditor whose
debt has been acknowledged or proved, or by any other interested party
with the permission of the court, about -
(i) his or her assets and liabilities;
(ii) his or her present and future income and that of his or her spouse
living in with him or her;
(iii) his or her standard of living and the possibility of living more
frugally; and
(iv) any other matter which the court considers to be relevant.
(7) If it appears to the court at the hearing that a debt, other than a debt
which is based upon or derives from a judgment debt, is disputed between the debtor
and the creditor or between the creditor and another creditor of the debtor, the court
may, after it has investigated the objection, admit or disallow the debt or part thereof.
(8) Any person whose debt has been disallowed in terms of subsection (7)
may institute an action or continue with an action which has already been instituted in
respect of such debt.
(9) If a person contemplated in subsection (8) obtains judgment in respect
of a debt contemplated in that subsection, the amount of the judgment is added to the
list of proved debts referred to in subsection (6).
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(10) A creditor may by written power of attorney authorise any person to
appear at a hearing on that creditor’s behalf and to do everything at such hearing which
the creditor would have been entitled to do.
(11) The hearing may be deferred by the court and the proposed offer of
composition may be amended or revoked with the permission of the debtor.
(12) A composition may not be accepted if a creditor demonstrates to the
satisfaction of the court that it accords a benefit to one creditor over another creditor to
which he or she would not have been entitled on liquidation of the debtor’s estate.
(13) If the composition is accepted by the majority in number and two-thirds
in value of the concurrent creditors who vote on the composition, the court must certify
that the composition is accepted as such and thereafter the composition is binding on
all creditors who have been informed of the hearing or appeared at the hearing, but the
right of a secured or otherwise preferent creditor may not be prejudiced by the
composition, unless that creditor consents to the composition in writing.
(14) (a) If the composition provides for payments by the debtor in
determined instalments or otherwise, the acceptance of the offer of composition
has the effect of a judgment in terms of section 65 of the Magistrates’ Courts
Act in respect of the payments.
(b) Any person who in terms of the composition may receive the payments
on behalf of creditors, or if there is no such person, any creditor who is
in terms of the composition is entitled to a benefit out of the payments,
has the rights which a judgment creditor would have in terms of the
section.
(c) If any person is appointed in terms of the composition to execute the
composition, that person is entitled to the remuneration which is payable
in terms of the composition.
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(15) (a) The court may at any time on application of the debtor or an
interested person direct the debtor to appear for any further questioning as the
court may deem necessary, after at least 14 days’ standard notice to creditors
by the debtor or the interested person, as the case may be.
(b) The court may -
(i) revoke the composition for cogent reasons; and
(ii) authorise a debtor who on reasonable grounds is not able to
comply with his or her obligations in terms of the composition
to lodge an amended offer of composition to creditors in the
manner and with the consequences contemplated in subsection
(1).
(c) Without limiting the phrase “cogent reasons” in paragraph (b)(i), it
includes the following:
(i) the debtor does not comply with his or her obligations in terms
of the composition;
(ii) the debtor renders false information in his or her statement or in
the course of the questioning; or
(iii) the debtor gives a benefit in respect of a claim which falls under
the composition to a creditor on whom the composition is
binding and who is not entitled to the benefit in terms of the
composition.
(16) (a) Any creditor who is entitled to a benefit in terms of the
composition can, notwithstanding subsection (15), after 14 days’ standard
notice to the debtor apply to the court to revoke the composition if the debtor
does not comply with his or her obligations in terms of the composition.
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(b) The creditor must lodge an affidavit in support of his or her application.
(c) The court must order that the composition be revoked if the debtor did
not substantially comply with his or her obligations.
(17) If the composition is revoked, or if the estate of a debtor has been
liquidated in terms of this Act before he or she complied with his or her obligations in
terms of the composition, the claim of a creditor is restored to the extent that the claim
has not been satisfied in terms of the composition.
(18) If a composition is not accepted by the required majority, and the court
is of the opinion that the debtor is unable to make available to creditors substantially
more than that which he or she offered in the proposed composition, the court may
either:
(a) declare that the proceedings in terms of this section have ceased and that
the debtor is once again in the position he or she was prior to the
commencement thereof; or
(b) determine whether or not section 74 of the Magistrates Court Act, 1944
(Act No. 32 of 1944 can be applied to the debtor in question and, if so,
apply that section accordingly and within the discretion of the court.
(19) Between the determination of a date for a hearing and the conclusion of
the hearing in terms of this section no creditor with a claim the cause of which arose
before the determination of the date, may without the permission of the court institute
any action against the debtor or apply for the liquidation of the estate of the debtor.
PART 3
VOLUNTARY ARRANGEMENTS: ORDINARY PROCEEDINGS IN HIGH
COURT
Voluntary arrangement not fully implemented
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122. For the purposes of this Part, a voluntary arrangement approved by a
creditors' meeting convened under section 127 ends prematurely if, when it ceases to
have effect, it has not been fully implemented in respect of all persons bound by the
arrangement because of section 130(2)(b).
Application for interim order
123. (1) An application to the Court for an interim order may be made if
the debtor intends to make a proposal to the debtor’s creditors under this Part for a
composition in satisfaction of the debtor’s debts or a scheme of arrangement of the
debtor's financial affairs.
(2) The debtor must ensure that the proposal provides for a person to act as
supervisor of the voluntary arrangement to which the proposal relates.
(3) Only an insolvency practitioner registered under this Act is eligible to
act as supervisor of a voluntary arrangement.
(4) Subject to subsection (2), the application referred to in subsection (1)
may be made –
(a) by the debtor, the liquidator of an insolvent estate or the Commissioner
if the debtor is an unrehabilitated insolvent; or
(b) by the debtor in every other case.
(5) An application may be made by a debtor who is an unrehabilitated
insolvent only if the debtor has given notice of the proposal to the Commissioner and
the liquidator, if any, of the debtor's estate.
Effect of application for interim order
124. (1) While an application under section 123 for an interim order is
pending, the following provisions apply:
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(a) a landlord or other person to whom rent is payable by the debtor may
exercise a right of forfeiture in relation to premises let to the debtor for a
failure of the debtor to comply with a term of the tenancy –
(i) only with the approval of the Court; and
(ii) if in giving approval the Court has imposed conditions, only if
those conditions are complied with;
(b) the Court –
(i) may prohibit any claim from being executed on the debtor's
property or its subsequent sale, or both; and
(ii) may stay any action, execution or other legal process against the
property or person of the debtor.
(2) Any Court, including a magistrate’s court in which proceedings are
pending against a debtor may, on proof that an application has been made under section
123 in respect of the debtor, either stay the proceedings or allow them to continue on
such terms as the Court considers appropriate.
Power of Court to make interim order
125. (1) On the hearing of an application made under section 123, the
Court may make an interim order if satisfied -
(a) that the debtor intends to make a proposal under this Chapter;
(b) that on the day of the making of the application the debtor was an
unrehabilitated insolvent or was able to make an application for the
liquidation of the debtor's estate;
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(c) that no previous application has been made by the debtor for an interim
order during the 12 months immediately preceding the day of the
making of the application; and
(d) that the supervisor designated under the debtor's proposal is willing to
act in relation to the proposal.
(2) The Court must make an interim order if satisfied that it would
facilitate the consideration and implementation of the debtor's proposal.
(3) If the debtor is an unrehabilitated insolvent, the interim order may
contain provisions as to the conduct of the insolvency, and the administration of the
insolvent's estate, during the period for which the order is to have effect.
(4) An interim order may, in relation to a debtor who is an unrehabilitated
insolvent, include a provision relaxing or removing a requirement of Chapter 3 or of
this Part, or of any prescribed requirement, only if the Court is satisfied that the
inclusion of the provision would be unlikely to result in a significant diminution in, or
in the value of, the debtor's estate in relation to the conduct of the insolvency.
(5) Except as otherwise provided by this Part, an interim order as a result
of an application made under section 123 ceases to have effect at the end of 30 days or
any longer prescribed period from the date on which the order was made.
(6) On the making of an interim order, the designated supervisor referred
to in subsection (1)(d) becomes the provisional supervisor.
(7) While an interim order has effect in respect of a debtor –
(a) an application for the liquidation of that debtor’s estate may not be made
or proceeded with;
(b) a landlord or other person to whom rent is payable may exercise a right
of forfeiture by peaceable re-entry in relation to premises let to the
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debtor if the debtor failed to comply with a term or condition of the
debtor's tenancy of the premises only with the approval of the Court;
and
(c) any other proceedings (including execution or other legal process) may
be begun or continued, and distress may be levied, against the debtor or
the debtor's property only with the approval of the Court.
Provisional supervisor’s report on debtor’s proposal
126. (1) As soon as practicable after the making of an interim order, the
provisional supervisor must, before the order ceases to have effect, submit a report to
the Court stating -
(a) whether, in that supervisor's opinion, the proposal has a reasonable
prospect of being approved and implemented;
(b) whether, in that supervisor's opinion, a meeting of the debtor's creditors
should be convened to consider the proposal; and
(c) if that supervisor's opinion is that a meeting referred to in paragraph (b)
should be convened, the proposed date, time and place to hold the
meeting.
(2) For the purpose of enabling the provisional supervisor to prepare that
supervisor's report, the debtor must submit to that supervisor -
(a) a document setting out the terms of the proposal; and
(b) a statement of the debtor's financial affairs containing -
(i) particulars of the debtor's creditors and of the debtor's debts and
other liabilities and of the debtor's assets as may be prescribed;
and
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(ii) any other information as may be prescribed.
(3) If the provisional supervisor has failed to submit the report required by
this section or has died, the Court may, on an application made by the debtor, make an
order directing that supervisor to be replaced by another insolvency practitioner.
(4) If it is impracticable or inappropriate for the provisional supervisor to
continue to act as such, the Court may, on an application made by the debtor or that
supervisor, make an order directing that supervisor to be replaced by another
insolvency practitioner.
(5) If the provisional supervisor has failed to submit the report as required
by this section, the Court may, on an application made by debtor, make an order
directing the interim order to continue, or for the interim order to be renewed if it has
ceased to have effect, for such further period as the Court may specify in the order.
(6) On the hearing of an application made by the provisional supervisor,
the Court may make an order extending the period for which the interim order has
effect so as to enable that supervisor to have more time to prepare his or her report.
(7) If, on receiving the provisional supervisor's report, the Court is satisfied
that a meeting of the debtor's creditors should be convened to consider the debtor's
proposal, the Court must make an order directing the extension of the period for which
the interim order has effect for such further period as the Court may specify in the order
so as to enable the debtor's proposal to be considered by the debtor's creditors in
accordance with this Part.
(8) The Court may discharge the interim order if it is satisfied, on the
application of the provisional supervisor -
(a) that the debtor has failed to comply with the debtor's obligations under
subsection (2); or
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(b) that for any other reason it would be inappropriate for a meeting of the
debtor's creditors to be convened to consider the debtor's proposal.
Creditor’s meeting to consider debtor’s proposal
127. (1) If it has been reported to the Court under section 126 that a
meeting of the debtor's creditors should be convened, the provisional supervisor must,
unless the Court otherwise directs, by personal notice to every creditor whose name
and address are known to that supervisor or which he or she can reasonably obtain send
a copy thereof together with his or her report thereon and notice of the date, time and
the place of the meeting at which the proposal will be considered.
(2) For the purpose of this section, the creditors of a debtor who is an
unrehabilitated insolvent include -
(a) each person who is a creditor of the debtor; and
(b) each person who would be such a creditor if the liquidation had
commenced on the date on which notice of the meeting referred to in
subsection (1) was given.
Consideration of debtor’s proposal at creditors’ meeting
128. (1) The main purpose of a creditors' meeting convened under
section 127 is to decide whether to approve the debtor's proposal, with or without
modifications.
(2) At the beginning of the meeting, the creditors present must elect one of
their number to be the chairperson of the meeting.
(3) The chairperson must then divide the meeting into three groups for
voting purposes, with the first group comprising secured creditors (if any), the second
group comprising preferential creditors (if any) and the third group comprising
unsecured creditors.
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(4) Subject to subsection (6), a modification to the debtor's proposal may
be approved only if the debtor consents to it.
(5) A modification to the debtor's proposal may be one that provides for
the provisional supervisor to be replaced by another insolvency practitioner to
perform the functions of supervisor of that proposal if it is approved and takes effect
as a voluntary arrangement.
(6) Notwithstanding subsection (4), a modification to the debtor's proposal
may not have the result that the proposal no longer qualifies as a proposal as defined
in section 120.
(7) If the proposal or a modification to it affects the right of a secured
creditor of the debtor to enforce the creditor's security, the proposal or modification
may not be approved unless -
(a) that secured creditor consents to the proposal; or
(b) if that secured creditor does not consent to the proposal, the creditor -
(i) would be in a position no worse than if the debtor’s estate were
liquidated;
(ii) would receive no less from the assets to which that creditor's
security relates, or from their proceeds of sale, than any other
secured creditor having a security interest in those assets that has
the same priority as the creditor's; and
(iii) would be paid in full from those assets, or their proceeds of sale,
before any payment from them or their proceeds is made to any other
creditor whose security interest in them is ranked below that of the
creditor, or who has no security interest in them.
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(8) Subject to this section, the meeting referred to in subsection (1)-
(a) must be conducted in accordance with rules (if any) as prescribed.
(b) may at any time resolve that it be adjourned, or further adjourned.
(9) As soon as practicable after the conclusion of that meeting, the
provisional supervisor -
(a) must report the result of the meeting to the Court; and
(b) immediately after doing so, must give notice of the result of the meeting
to all persons to whom the notice convening the meeting was sent.
(10) If the report is to the effect that the meeting has decided not to approve the
debtor's proposal, the Court must discharge any interim order that has effect in relation to the
debtor.
Approval of debtor’s proposal
129. (1) A debtor's proposal, including any modifications is deemed to
be approved if that proposal is supported by a majority in number and value of the
creditors of each group of creditors present at the meeting of creditors, either in person
or by proxy.
(2) For the purposes only of deciding whether the requisite majority by
value has voted in favour of a resolution to approve the debtor's proposal, the following
provisions apply:
(a) the chairperson of the meeting of creditors referred to in subsection (1)
may -
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(i) admit or reject proof of any claim against the debtor’s estate and
the provisions of section 96 apply with the changes necessitated
by the context to any proof of claims at that meeting; and
(ii) adjourn the meeting in order to admit or reject proof of a claim;
(b) a person whose claim is admitted is a creditor.
(4) At any time before the deadline for making an application under this
subsection, the debtor or any of the debtor's creditors who attended or was entitled to
attend the meeting may make an application to the Court for an order under subsection
(8).
(5) The deadline for making an application under subsection (4) is -
(a) the expiry of 30 days after the date on which the meeting of creditors
was held; or
(b) if the Court extends that period, the expiry of the extended period.
(6) The debtor and any creditor who attended or was entitled to attend the
meeting of creditors is entitled to appear and be heard at the hearing of the application
even if not the applicant.
(7) The right conferred by subsection (6) may be exercised by such a
creditor irrespective of whether the creditor supports or has an interest in the
implementation of the proposal.
(8) On the hearing of an application made under subsection (4), the Court
may -
(a) make an order approving the proposal, with or without the
modifications, put to the meeting of creditors in accordance with section
128; or
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(b) make such other order as the Court finds to be just,
but only if the Court considers that it would be in the best interests of both the debtor
and the debtor's creditors to so.
(9) The Court may make an order under subsection (8)(a) even if the
debtor's proposal (or a modification to it) was not approved at the creditors' meeting
by a majority in number and value of the preferential creditors' group or the unsecured
creditors' group, but may do so only if the proposal (or modification)-
(a) has been approved by a majority of the secured creditors' group;
(b) does not discriminate among the members of the dissenting group or
groups of creditors and ensures that they will be no worse off than they
would have been if the debtor’s estate had been liquidated; and
(c) respects the priorities of preferential creditors over unsecured creditors.
(10) If a provisional supervisor or creditor alleges that a resolution of the
creditors made in terms of this section-
(a) conflicts with this or any other Act or any rule of law; or
(b) is unfair,
that supervisor or creditor may apply to the Court for an order under subsection (11).
(11) If, on the hearing of an application made under subsection (10), the
Court finds that the allegation is substantiated, the Court may make such order, and
give such directions, as the Court considers appropriate to address the conflict or
unfairness.
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Effect of approval of debtor’s proposal
130. (1) A debtor's proposal, with or without modifications, takes effect
as a voluntary arrangement by the debtor on the day after the date on which it is
approved by the Court by order made under section 129(8)(a) or on such later date as
may be specified in the order.
(2) On taking effect as a voluntary arrangement, the approved proposal
binds every person (including a secured creditor and a preferential creditor) who -
(a) was entitled to vote at the meeting (whether present or represented at
the meeting or not); or
(b) would have been so entitled to vote if the person had received notice of
the meeting,
as if the person were a party to the arrangement.
(3) On the approved proposal taking effect as a voluntary arrangement, the
provisional supervisor becomes the supervisor of the arrangement unless that supervisor
has been replaced in accordance with section 128(5).
(4) If -
(a) the voluntary arrangement ends and any amount payable under that
arrangement to a person bound because of subsection (2)(b) has not been paid;
and
(b) that arrangement did not come to an end prematurely,
the debtor must pay to that person the amount payable under that arrangement.
(5) An interim order having effect in relation to the debtor immediately before
the expiry of 30 days from and including the date on which the report with respect to the
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creditors' meeting was made to the Court in accordance with section 128(9) ceases to have
effect at the end of that period.
(6) Subsection (5) applies except to the extent that the Court may direct for
the purposes of any application made under section 132.
(7) If proceedings in respect of a liquidation application have been stayed
by an interim order that has ceased to have effect, the application is, unless the Court
otherwise orders, deemed to have been dismissed.
Additional effect of approved debtor’s proposal on unrehabilitated insolvent
131. (1) If the Court has approved a debtor's proposal in accordance with
section 129(8)(a) and the debtor is an unrehabilitated insolvent -
(a) the insolvent; or
(b) if the insolvent has not made an application within the period prescribed
for the purposes of this section, the Commissioner,
may make an application to the Court for an order under subsection (3).
(2) The application referred to in subsection (1) may not be made -
(a) during the period within which the decision of the creditors' meeting can
be challenged by an application made under section 132(1);
(b) while an application under section 132(1) is pending;
(c) while an appeal in respect of an order made under section 230 is
pending; or
(d) during the period within which such an appeal may be made.
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(3) On the hearing of an application made under subsection (1), the Court
must, subject to subsection (2), set aside the liquidation order, unless the Court is of
the opinion that there are compelling reasons not to do so.
(4) In making an order under subsection (3), the Court may give such
directions about the conduct of the liquidation and the administration of the insolvent's
estate as it considers appropriate for facilitating the implementation of the approved
proposal.
Right to challenge decision taken at creditors’ meeting
132. (1) Subject to subsection (3), any of the persons specified in
subsection (2) may make an application to the Court-
(a) that a debtor's proposal approved by a meeting of creditors held in
accordance with section 127 unfairly affects the interests of a creditor of the
debtor; or
(b) that a material irregularity occurred at or in relation to a meeting of
creditors.
(2) The persons who may make an application referred to in subsection (1)
are -
(a) the debtor;
(b) a person who-
(i) was entitled to vote at the meeting of creditors; or
(ii) would have been so entitled if the person had notice of it;
(c) the provisional supervisor or, if the proposal has taken effect as a
voluntary arrangement, the supervisor of the arrangement; and
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(d) if the debtor is an unrehabilitated insolvent, the liquidator of that
debtor's estate; or
(e) the Commissioner.
(3) An application referred to in subsection (1) may not be made -
(a) after the end of 30 days from and including the date on which the result
of the meeting of creditors was reported to the Court in accordance with
section 128(9); or
(b) in the case of a person who was not given notice of the meeting of
creditors, after the end of 30 days from and including the date on which
the person first became aware that the meeting had taken place:
Provided that such application made by a person referred to in subsection (2)(b)(ii) on
the ground that the voluntary arrangement unfairly affects that person's interests may
be made even after that arrangement has ended, unless it has ended prematurely.
(4) If, on the hearing of an application referred to in subsection (1), the
Court is satisfied as to either of the grounds referred to in that subsection, the Court
may-
(a) make an order revoking or suspending an approval given by the meeting
of creditors in question;
(b) give a direction to any person for the convening of a further meeting of
the debtor's creditors to consider any revised proposal the person may
make; or
(c) in a case to which subsection (1)(b) applies direct that meeting of
creditors to reconsider the debtor's original proposal.
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(5) If, at any time after giving a direction under subsection (4)(b) for
convening a meeting to consider a revised proposal, the Court is satisfied that the
debtor does not intend to submit such a proposal, the Court must revoke the direction
and revoke or suspend any approval given at the previous meeting.
(6) If the Court gives a direction under subsection (4)(b) or (c), the Court
may also give a direction continuing or, as the case requires, renewing, for such period
as may be specified in the direction, the effect in relation to the debtor of any interim
order made under this Part.
(7) If, on the hearing of an application referred to in subsection (1) with
respect to a meeting of creditors, the Court gives a direction under subsection (4)(b) or
(c) or revokes or suspends an approval under subsection (4)(a) or (5), the Court may
give such ancillary directions as the Court considers appropriate and, in particular,
directions with respect to -
(a) action taken since that meeting under any voluntary arrangement
approved by the meeting; and
(b) action taken since the meeting as could not have been taken if an interim
order had effect in relation to the debtor when it was taken.
(8) Except as otherwise provided by this section, an approval given at a
meeting of creditors held in accordance with section 127 is not invalidated by any
minor irregularity occurring at or in relation to the meeting.
Implementation and supervision of debtor’s proposal
133. (1) The supervisor is responsible for implementing and
supervising a voluntary arrangement that has taken effect in terms of section 130 or
137 and has such powers as are necessary to enable that responsibility to be carried
out.
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(2) If a voluntary arrangement has effect in terms of section 130 or 137, a
debtor or a creditor of the debtor or any other person who is dissatisfied by any act,
omission or decision of the supervisor may apply to the Court for an order under
subsection (3).
(3) On the hearing of an application made under subsection (2), the Court-
(a) must -
(i) if the Court finds the action or decision of the supervisor to have
been unfair or unjustified, make an order quashing or modifying
the act or decision; or
(ii) if it does not so find, make an order confirming the act or
decision; and
(b) if the Court makes an order under paragraph (a)(i), may -
(i) give such directions to the supervisor as it considers appropriate;
and
(ii) make such ancillary order as the Court considers appropriate.
(4) On the application of the supervisor to the Court for directions in
relation to any particular matter arising under the voluntary arrangement, the Court
may give such directions in relation to the matter as it considers appropriate.
(5) Whenever -
(a) it is desirable to appoint a person to perform the functions of the
supervisor; and
(b) it is difficult or impracticable for an appointment to be made without
the assistance of the Court,
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the Court may make an order appointing an insolvency practitioner to act as supervisor
in relation to the voluntary arrangement, either in substitution for the existing
supervisor or to fill a vacancy.
(6) The power conferred by subsection (5) is exercisable so as to increase
the number of persons performing the functions of supervisor or, if there is more than
one person performing those functions, so as to replace one or more of those persons.
PART 4
VOLUNTARY ARRANGEMENTS: EXPEDITED PROCEDURE
Expedited voluntary arrangement
134. (1) This section applies if a debtor intends to make a proposal to the
debtor's creditors for a voluntary arrangement and -
(a) the Commissioner is specified in the proposal as the provisional
supervisor in relation to the proposal; and
(b) no application for an interim order has been made under section 123.
(2) If this section applies, the debtor may submit to the Commissioner -
(a) a document setting out the terms of the debtor's proposal; and
(b) a statement of the debtor's financial affairs containing -
(i) particulars of the debtor's creditors, debts, other liabilities and
assets as may be prescribed for the purposes of this section; and
(ii) any other prescribed information.
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(3) If satisfied that the proposal has a reasonable prospect of being
approved and implemented, the Commissioner may make arrangements to secure the
attendance at a meeting of the debtor’s creditors to decide whether to approve such
proposal.
(4) For the purposes of subsection (3), a person is a creditor only if -
(a) the person is a creditor of the debtor in respect of a insolvency debt; and
(b) the Commissioner is aware of the person's claim and the person's
address.
(5) In making arrangements under subsection (3), the Commissioner must
ensure that -
(a) each creditor is provided with a copy of the debtor's proposal; and
(b) each creditor is provided with information about the criteria by
reference to which the Commissioner will determine whether the
creditors approve or reject that proposal.
(6) If a debtor submits documents to the Commissioner in accordance with
subsection (2), an application under section 123 for an interim order may not be made
in respect of the debtor unless the Commissioner -
(a) has made the arrangements referred to in subsection (3); or
(b) has informed the debtor that the Commissioner does not intend to make
such arrangements because the Commissioner is not satisfied that the
proposal has a reasonable prospect of being approved and implemented
or for any other reason.
(7) If a meeting of creditors is convened for the purpose of subsection (3),
the provisions of section 128 apply to the holding and conduct of the meeting.
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Duty of Commissioner to report to Court
135. As soon reasonably practicable after the arrangements under section
134 have been implemented, the Commissioner must report to the Court whether the
proposed voluntary arrangement has been approved or rejected.
Approval of expedited voluntary arrangement
136. (1) If the Commissioner reports to the Court that the debtor's
proposal has been approved, the proposal takes effect as a voluntary arrangement.
(2) On taking effect as a voluntary arrangement, the proposal binds -
(a) the debtor; and
(b) binds every person including a secured creditor and a preferential
creditor who was entitled to participate in the arrangements made in
accordance with section 134(3),
as if each of them were a party to the arrangement.
(3) In addition to submitting the report, the Commissioner may make an
application to the Court to make an order under subsection (5).
(4) An application referred to in subsection (3) may not be made -
(a) during the period within which the voluntary arrangement can be
challenged by an application under section 132;
(b) while an application made under that section is pending;
(c) while an appeal in respect of an application made under that section is
pending; or
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(d) during the period within which such an appeal may be made.
(5) On considering an application made under subsection (2), the Court
must, subject to subsection (4) set aside a liquidation order in respect of the debtor
unless the Court is of the opinion that there are compelling reasons not to do so.
(6) The Court may give such directions about the conduct of the liquidation
and the administration of the insolvent's estate as the Court considers will facilitate the
implementation of the approved voluntary arrangement.
Commissioner may apply to Court if debtor is unrehabilitated insolvent
137. (1) In addition to making the arrangements under section 134(3),
the Commissioner may, if the debtor is an unrehabilitated insolvent, make an
application to the Court to make an order under subsection (3).
(2) Such an application may not be made -
(a) while an application for an order under section 129(7) is pending;
(b) during the period within which a voluntary arrangement can be
challenged by an application made under section 132;
(c) while an application made under section 132 is pending; or
(d) while an appeal in respect of an order made under that section is
pending; or
(e) during the period within which such an appeal may be made.
(3) On considering an application made in terms of subsection (1), the
Court must set aside the liquidation order in respect of the debtor unless the Court is of
the opinion that there are compelling reasons not to do so.
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(4) The Court may give such directions about the conduct of the liquidation
and the administration of the insolvent's estate as the Court considers will facilitate the
implementation of the voluntary arrangement.
Revocation of expedited procedure
138. (1) The Court may make an order revoking a voluntary arrangement
that has effect because of section 136(1) if -
(i) that order unfairly affects the interests of a creditor of the debtor;
or
(ii) a material irregularity occurred in relation to the arrangements
made under section 134(3).
(2) An order in terms of subsection (1) may be made only on the application
of-
(a) the debtor;
(b) a person who was entitled to participate in the arrangements made under
section 134(3);
(c) the liquidator of an insolvent estate (if any); or
(d) the Commissioner.
(3) (a) An application under subsection (2) may not be made after the
expiry of 30 days from and including the date on which the
Commissioner has reported to the Court as required by section 135.
(b) Notwithstanding paragraph (a), a creditor who was not made aware of
the arrangements under section 134(3) at the time when they were
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made may make an application under subsection (2) during the 30 days
from and including the date on which the creditor first became aware
of the voluntary arrangement.
PART 5
SUMMARY INSTALMENT ORDERS
Purpose of summary instalment order
139. A summary instalment order is an order made by the Commissioner
directing the debtor to pay the debtor's debts -
(a) in instalments or in some other way; and
(b) in full or to the extent that the Commissioner considers practicable in
the particular circumstances of the case.
Application for summary instalment order
140. (1) The Commissioner may make a summary instalment order on
the application of-
(a) a debtor; or
(b) a creditor with the debtor's consent.
Requirements for summary instalment order
141. (1) The Commissioner may refuse an application for a summary
instalment order if the application does not comply with subsection (2).
(2) An application does not comply with this subsection unless it -
(a) is in the prescribed form for the purposes of this section;
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(b) states-
(i) that the debtor proposes to pay the creditors in full; or
(ii) the proportion of the outstanding debt that the debtor proposes
to pay;
(c) states the total amount of the weekly or other instalments that the debtor
proposes to pay;
(d) states-
(i) the name and address of the debtor's proposed supervisor and
annex the written consent of that person to be supervisor; or
(ii) if the debtor claims that a supervisor is not necessary, the
debtor's reasons for making that claim; and
(e) includes the following information-
(i) the debtor's full name and address;
(ii) details of the debtor's property;
(iii) the names and addresses of each of the debtor’s creditors;
(iv) the amount and nature of each of the creditors' debts;
(v) whether any of the debts are secured and the value of the charge;
(vi) whether any of the debts are guaranteed by any person;
(vii) the amount of the debtor's earnings;
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(viii) the name and address of the debtor's employer (if any);
(ix) any other matter that may be prescribed for the purposes of this
subsection.
Summary instalment order
142. (1) The Commissioner may make a summary instalment order if
satisfied that -
(a) the debtor's total unsecured debts that would be provable in the debtor's
liquidation do not exceed the amount prescribed for the purpose of this
section; and
(b) the debtor is unable immediately to pay those debts.
(2) The Commissioner may not make such an order without having given
the debtor and the creditors an opportunity to make representations with respect to
whether or not to grant such order.
(3) A summary instalment order is not invalid merely because the total
amount of the debts proved exceeds the amount specified in subsection (1)(a), but if it
does, the supervisor appointed under section 144 must refer the matter to the
Commissioner, in which case the Commissioner must cancel that order.
Commissioner may make additional orders
143. In addition to an order for the payment of the debts in instalments, the
Commissioner may make all or any of the following orders:
(a) an order regarding the debtor's future earnings or income;
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(b) an order regarding the disposal of goods that the debtor owns or
possesses;
(c) an order giving the supervisor appointed under section 144 power-
(i) to direct the debtor's employer to pay such part of the debtor's
earnings to the supervisor as prescribed; and
(ii) to supervise payment, out of the debtor's earnings or income, of
the reasonable living expenses of the debtor and the debtor's
relatives and dependants.
Appointment of supervisor
144. (1) Except as provided by subsection (2), a summary instalment
order is ineffective if it does not provide for the appointment of a suitable and
willing person to supervise compliance by the debtor with the terms of the order.
(2) The Commissioner may dispense with the appointment of a supervisor
if the Commissioner considers it appropriate to do so.
(3) If the Commissioner dispenses with the appointment of a supervisor
-
(a) the provisions of this Part apply as if the debtor was the supervisor,
except for section 145; and
(b) that section applies as if the Commissioner was the supervisor.
(4) The Commissioner may require a supervisor to provide a security
acceptable to the Commissioner to secure the supervisor's performance of the
supervisor's obligations under this Act.
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(5) In imposing a requirement referred to in subsection (4), the
Commissioner must specify the amount of the security and the person to whom it
is to be given.
Role of supervisor
145. (1) The supervisor is responsible for supervising the debtor's
compliance with the terms of the summary instalment order and any other
orders made under section 143.
(2) The supervisor may charge the debtor remuneration for carrying out
the supervisor's responsibilities as supervisor at the amount or rates not exceeding
the prescribed amount or rates.
Commissioner may require supervisor or past supervisor to provide documents
146. (1) The Commissioner may, by notice, require a supervisor or a
past supervisor to provide the Commissioner, within not less than seven days from
the date of the notice, with any specified documents, or any documents of a
specified class, that relate to the debtor's property, conduct or dealings during the
tenure of that supervisor or past supervisor, as the case may be.
(2) A supervisor or past supervisor who fails to comply with a notice
given to him or her under subsection (1) commits an offence and on conviction is
liable to a fine not exceeding N$75,000 or to imprisonment for a term not exceeding
six months, or to both such fine and such imprisonment.
Termination of supervisor’s appointment
147. (1) If the Commissioner is of the opinion that the supervisor has
failed to supervise the debtor's compliance adequately, the Commissioner must
terminate the supervisor's appointment and appoint a replacement supervisor.
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(2) The Commissioner may only act in accordance with subsection (1) if
the Commissioner has given that supervisor an opportunity to be heard.
Period of payment of instalments
148. The payment of instalments under a summary instalment order can
be spread over a period not exceeding -
(a) three years; or
(b) if justified by special circumstances acceptable to the supervisor, five
years.
Variation or discharge of summary instalment orders
149. (1) The debtor, any creditor or the supervisor may at any time apply
in writing to the Commissioner to vary or discharge a summary instalment order.
(2) After considering an application made under subsection (1), the
Commissioner must vary or discharge the order as the Commissioner considers
appropriate.
Effect of summary instalment orders
150. (1) The debtor must pay all instalments payable under a summary
instalment order in the prescribed manner.
(2) The Commissioner must cancel a summary instalment order on being
satisfied on reasonable grounds that the debtor has failed to comply with subsection
(1).
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Restrictions on bringing proceedings against a debtor while summary
instalment order is in force
151. (1) In this section, "proceedings", in relation to a debtor in
respect of whom a summary instalment order has been made, means proceedings
brought against the person or property of the debtor in respect of a debt that has
been -
(a) shown in the debtor's application for the summary instalment order;
(b) included in the summary instalment order; or
(c) notified to the supervisor.
(2) While a summary instalment order has effect, a person may not begin
or continue proceedings against the debtor unless -
(a) the Commissioner has given prior written approval for a creditor to
begin or continue the proceedings; or
(b) the debtor is in default under the order.
(3) In giving any such approval, the Commissioner may impose such
conditions as appear to the Commissioner to be fair and reasonable.
(4) In the case of proceedings that are pending before a court at the time
when the summary instalment order is made, the Court, unless the conditions specified
in subsection (2)(a) or (b) apply —
(a) must stay the proceedings on receiving notice of the order; and
(b) may award all or part of the creditor's costs incurred up to the time of
the Court's notification, and may certify accordingly for the purpose
of the creditor proving the debt under this Part.
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Supervisor to give notice of summary instalment order
152. (1) The supervisor must send a notice of the summary instalment
order to every creditor -
(a) who is known to the supervisor;
(b) whose name is shown on the debtor's application for the order; or
(c) who has proved a debt under section 156.
(2) A supervisor who, without reasonable excuse, fails to comply with
subsection (1) commits an offence and on conviction is liable to a fine not exceeding
N$75,000 or to imprisonment for a term not exceeding six months, or to both such fine
and such imprisonment.
Public register of debtors subject to summary instalment orders
153. (1) The Commissioner must establish and maintain a public register
of persons who are subject to current summary instalment orders.
(2) The Commissioner must maintain the register in accordance with
Chapter 7.
When summary instalment order not current
154. A summary instalment order is not current if it has been discharged or
all the instalments required to be paid under the order have been paid in accordance
with the order.
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Claims of creditors when summary instalment order has effect
155. (1) A creditor who has proved the creditor's claim to the
satisfaction of the supervisor is entitled to be included as a creditor in the
administration of the debtor's estate under the summary instalment order for the
amount of the debt.
(2) A creditor may object to the supervisor's acceptance or rejection of any
creditor's claim by applying to the Commissioner.
(3) If a creditor objects under subsection (2), the Commissioner may give
any directions that the Commissioner considers appropriate regarding the acceptance
or rejection of the claim.
Payment of debtor’s earnings to supervisor
156. (1) This section applies if the supervisor, under a power conferred
by a summary instalment order made by the Commissioner, directs the debtor's
employer to pay part of the debtor's earnings to the supervisor.
(2) The amounts that the employer must pay to the supervisor are
recoverable as a debt from the employer, and the supervisor's receipt is a complete
discharge to the employer for the debt.
(3) Payment by the employer in contravention of the supervisor's direction
to pay the supervisor discharges the liability of the employer to the supervisor for the
amount of the payment only if the payment is made -
(a) with the consent of the supervisor or the Commissioner; or
(b) to a person who is not the debtor and who has a better legal claim to it
than the debtor.
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Default by debtor to pay instalments
157. (1) A debtor who fails to pay an amount due under a summary
instalment order is presumed, unless the contrary is proved -
(a) to have been able to pay the amount from the date of the order; and
(b) to have refused or neglected to pay it.
(2) Subject to subsection (3), if the debtor fails to make a payment in
accordance with the order -
(a) proceedings that have been stayed under section 151 may begin or
continue;
(b) any period during which a proceeding was stayed under that section are
to be added to any period of limitation that applies to the proceeding in
terms of the Prescription Act, 1969 (Act No. 68 of 1969) or any similar
Act.
(3) Subsection (2) is subject to any order of the Court to the contrary.
(4) As soon as practicable after a debtor fails to make a payment in
accordance with a summary instalment order, the supervisor must give notice of the
failure to the Commissioner.
Offence for debtor to obtain credit when summary instalment order in in force
158. (1) A debtor in respect of whom a summary instalment order is in
effect commits an offence if, before all creditors have been paid the amounts to which
they are entitled under the order, the debtor-
(a) alone or jointly with another person, obtains credit of N$20,000 or more;
239
(b) incurs a liability to another person for N$20,000 or more for the purpose
of obtaining credit for another person; or
(c) enters into a credit purchase transaction under which the debtor is liable
to pay N$20,000 or more.
(2) In proceedings for an offence under subsection (1), it is a defence to
prove -
(a) in a case to which subsection (1)(a) applies, that, before obtaining the
relevant credit, the debtor informed the credit provider that the debtor was
subject to a summary instalment order;
(b) in a case to which subsection (1)(b) applies, that, before the defendant
incurred the relevant liability, the credit provider was informed that the
defendant was subject to a summary instalment order; or
(c) in a case to which subsection (1)(c) applies, that, before the defendant
entered into the relevant agreement, the other parties to the agreement
were informed that the defendant was subject to a summary instalment
order.
(3) A person who is found guilty of an offence under this section is liable
on conviction to a fine not exceeding N$150,000 or to imprisonment for a term not
exceeding twelve months, or to both such fine and such imprisonment.
PART 6
NO-ASSET PROCEDURE
Debtor with no realizable assets
159. This Part applies to a debtor who has no realisable assets.
Eligibility for admission to no-asset procedure
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160. (1) A debtor who meets the criteria set out in section 161 may
apply to the Commissioner for admission to the no-asset procedure.
(2) A debtor can apply to the Commissioner for admission to the no-
asset procedure by completing-
(a) an application in the prescribed form for the purpose of this section;
(b) a statement in the prescribed form setting out the debtor's financial
position;
(3) The Commissioner may require the debtor to furnish the Commissioner
with any other information, documents, books, records or statements, which the
Commissioner may require to assess the debtor’s application in terms of subsection
(1).
(4) The Commissioner may reject the debtor's application if the application
or statement of the debtor's financial position is, in the Commissioner's opinion,
incorrect or incomplete.
Criteria for admission to no-asset procedure
161. (1) Subject to subsection (3), the Commissioner must admit a
debtor to the no-asset procedure if satisfied on reasonable grounds that -
(a) the debtor has no realisable assets;
(b) the debtor has not previously been admitted to the no-asset procedure;
(c) the debtor’s estate has not previously been liquidated;
(d) the debtor has total debts that are not more and not less than the
prescribed amount; and
241
(e) the debtor does not have the means to repay any amount towards those
debts.
(2) In this section, "realisable assets" excludes any assets that an insolvent
is allowed to retain under section 27(7), but includes assets including gifted assets that
might be recoverable by the Commissioner -
(a) if the liquidation of a debtor’s estate was to commence on the date of
application for admission to the no-asset procedure; and
(b) if Part 4 of Chapter 3 applied.
(3) The admission of a debtor to the no-asset procedure does not take
effect unless approved by the Court upon application by the Commissioner or the
debtor.
Debtor disqualified in certain cases
162. The Commissioner may not admit a debtor to the no-asset procedure
if satisfied, on reasonable grounds, that -
(a) the debtor has concealed assets with the intention of defrauding the
debtor's creditors (such as by transferring property to a trust);
(b) the debtor has engaged in conduct that would, if the debtor were
declared insolvent, constitute an offence under this Act;
(c) the debtor has incurred a debt or debts knowing that the debtor does
not have the means to repay them; or
(d) a creditor intends to apply for the debtor to be declared insolvent and
it is likely that, if the debtor were to be declared insolvent, the
242
outcome for the creditor would be materially better than if the debtor
were admitted to the no-asset procedure.
Notification to creditors
163. As soon as practicable after receiving an application from a debtor
for admission to the no-asset procedure, the Commissioner must send a summary
of the debtor's assets and liabilities to each known creditor of the debtor.
Restrictions on debtor obtaining credit
164. (1) A debtor who has applied for admission to the no-asset
procedure may not obtain credit, including credit under a credit purchase
transaction, either alone or jointly with another person, of more than N$5,000
without first informing the credit provider that the debtor has applied for admission
to the no-asset procedure.
(2) A debtor who contravenes subsection (1) commits an offence and
on conviction is liable to a fine not exceeding N$75,000 or to imprisonment for a
term not exceeding six months, or to both such fine and such imprisonment.
Debtor admitted to no-asset procedure
165. (1) A debtor is admitted to the no-asset procedure when the
Commissioner sends the debtor a notice in the form prescribed for the purposes
of this section.
(2) As soon as practicable after a debtor is admitted to the no-asset
procedure, the Commissioner must -
(a) notify that fact to each creditor of the debtor of whom the Commissioner
is aware; and
(b) publish notice thereof in a publication and in the prescribed manner.
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Public register of persons admitted to no-asset procedure
166. (1) The Commissioner must establish and maintain a public
register of persons admitted to the no-asset procedure and persons discharged from
that procedure in terms of section 174.
(2) The Commissioner must maintain the register in accordance with
Chapter 7.
Creditors may not enforce debts of debtor admitted to no-asset procedure
167. (1) A creditor of a debtor may not, after the debtor has been
admitted to the no-asset procedure, begin or continue any step to recover or
enforce a debt -
(a) that the debtor owes to the creditor at the time when the debtor applies
for entry to the no-asset procedure; and
(b) that would be provable in the debtor's insolvency if the debtor were to
be declared insolvent.
(2) Despite subsection (1), the following debts remain enforceable-
(a) amounts payable under a court order made under the Maintenance Act,
2003 (Act No. 3 of 2003);
(b) amounts payable under the Combating of Domestic Violence Act,
2003 (Act No. 4 of 2003);
(c) amounts payable under a divorce order by the Court;
(d) amounts owed in respect of a loan to secure the education of a dependent
child or step-child of the debtor.
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Debtor’s duties after admission to no-entry procedure
168. (1) On being required by the Commissioner to do so, the debtor
must provide the Commissioner with such assistance, documents and information as
are reasonably necessary in order to apply the no-asset procedure to the debtor.
(2) As soon as practicable after any change occurs in the debtor's
circumstances that would allow the debtor to repay an amount towards the debts
referred to in section 166(1), the debtor must give written notification of such
change to the Commissioner.
(3) The debtor may not obtain any credit, either alone or jointly with
another person, of more than N$ 20 000 without first informing the credit provider that
the debtor is subject to the no-asset procedure.
Offence to obtain credit while under no-asset procedure
169. (1) A person commits an offence who, while admitted to the no-
asset procedure -
(a) alone or jointly with another person, obtains credit of one N$20,000 or
more;
(b) incurs liability to a credit provider for N$20,000 or more for the
purpose of obtaining credit for another person; or
(c) enters into a credit purchase transaction under which the person is liable
to pay N$20,000 or more.
(2) In criminal proceedings under subsection (1), it is a defence to prove -
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(a) in a case to which subsection (1)(a) applies, that, before obtaining the
relevant credit that the credit provider was informed that the defendant
was admitted to the no-asset procedure;
(b) in a case to which subsection (1)(b) applies that, before the defendant
incurred the relevant liability, the credit provider was informed that
the defendant was admitted to the no-asset procedure; or
(c) in a case to which subsection (1)(c) applies that, before the defendant
entered into the relevant agreement, the other parties to the agreement
were informed that the defendant was admitted to the no-asset
procedure.
(3) A person who is found guilty of an offence under this section is on
conviction liable to a fine not exceeding N$150,000 or to imprisonment for a term not
exceeding twelve months, or to both such fine and such imprisonment.
Termination of debtor’s admission to no-asset procedure
170. A debtor's participation in the no-asset procedure terminates when -
(a) the Commissioner causes such termination in terms of section 171;
(b) the debtor is discharged under section 175;
(c) the debtor applies for his or her liquidation; or
(d) a creditor who is entitled to do so applies for the debtor's liquidation
and the debtor is declared insolvent.
Commissioner may cause termination of no-asset procedure
171. (1) The Commissioner must serve in accordance with
subsection (2) on a debtor a notice of intention to cancel that debtor's
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participation in the no-asset procedure if the Commissioner is satisfied on
reasonable grounds -
(a) that the debtor was wrongly admitted to the no-asset procedure or
misled the Commissioner; or
(b) that the debtor's financial circumstances have changed sufficiently to
enable the debtor to repay an amount towards the debtor's debts.
(2) The Commissioner must serve on the debtor, in accordance with the
Rules of the Court the notice referred to in subsection (1) containing the reasons
relied upon by the Commissioner for issuing such notice.
(3) A debtor’s termination in the no-asset procedure comes into effect
when the Court upon application by the Commissioner sets aside the order granted
in terms of section 161(3).
(4) As soon as practicable after the termination of a debtor's participation
in the no-asset procedure, the Commissioner must send a notice of the termination to
each creditor of the debtor known to the Commissioner.
Commissioner may apply for preservation order
172. (1) If the Commissioner, in accordance with section 171 cause the
termination of a debtor's participation in the no-asset procedure on the ground that the
debtor has concealed assets or misled the Commissioner, the Court may, on the
application of the Commissioner, make an order for the preservation of the debtor's
assets pending an application for the debtor's estate to be liquidated.
(2) The Court may make an order under subsection (1) on the terms that the
Court considers appropriate.
Effect of termination of debtor’s participation in no-access procedure
247
173. (1) On termination of the debtor's participation in the no-asset
procedure -
(a) the debtor's debts that became unenforceable on the debtor's entry to the
no-asset procedure become enforceable; and
(b) the debtor becomes liable to pay any penalties and interest that may have
accrued.
(2) Subsection (1) does not apply if the debtor's admission to the no-asset
procedure is terminated by discharge under section 174.
Creditor may apply to Commissioner for termination of debtor’s participation in
no-asset procedure
174. A creditor may apply to the Commissioner for termination of the
debtor's participation in the no-asset procedure on the ground –
(a) that the debtor did not meet the criteria for admission to the no-asset
procedure; or
(b) that there are reasonable grounds for the Commissioner to conclude that
the debtor was disqualified under section 162.
Automatic discharge of debtor from no-asset procedure
175. (1) A debtor who is participating in the no-asset procedure is
automatically discharged from that procedure at the end of 12 months after the date
when the debtor was admitted to it.
(2) Subsection (1) does not apply if the Commissioner -
(a) upon application by the debtor or at the Commissioner’s volition is
satisfied that the 12-month period should be extended for the purpose of
248
properly considering whether the debtor's participation in the no-asset
procedure should be terminated; and
(b) serves a written deferral notice in accordance with the Rules of the Court
at the debtor's last known address before the end of that period.
(3) The Commissioner must specify in the deferral notice an alternative
date for automatic discharge, which may be not later than 60 days after the end of the
12-month period.
(4) As soon as practicable after sending a deferral notice to a debtor, the
Commissioner must send a copy of that notice to each creditor of the debtor known to
the Commissioner.
(5) The debtor is automatically discharged from the no-asset procedure
on the date specified in the deferral notice.
(6) The Commissioner may revoke a deferral notice in the same way
in which it was sent, in which case, the debtor is automatically discharged from
the no-asset procedure –
(a) if the notice is revoked on or before the end of the 12-month period
specified in subsection (1), at the end of that period; or
(b) if it is revoked after the end of that period, on the date of revocation.
Discharge of debtor’s participation in no-asset procedure
176. (1) On discharge under section 175-
(a) the debtor's debts that became unenforceable on the debtor's admission
to the no-asset procedure are cancelled; and
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(b) the debtor is no longer liable to pay any part of the debts, including any
penalties and interest that may have accrued.
(2) Subsection (1) does not apply -
(a) to any debt or liability incurred by fraud or fraudulent breach of trust to
which the debtor was a party; or
(b) any debt or liability for which the debtor has obtained leniency through
fraud to which the debtor was a party.
(3) The debts and liabilities referred to in subsection (2) again become
enforceable on discharge under section 175, and the debtor is liable to pay any penalty
or interest that may have accrued.
Discharge does not release debtor’s business partners and others
177. A discharge under section 175 does not release a person who, at the
date of discharge, was –
(a) a business partner of the discharged debtor;
(b) a co-trustee with the discharged debtor;
(c) jointly bound or had made any contract with the discharged debtor; or
(d) a guarantor or in the nature of a guarantor of the discharged debtor.
PART 7
POST-LIQUIDATION COMPOSITION
Post-liquidation composition
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178. (1) Any debtor, may at any time after the issuing of the provisional
liquidation order but after he or she has sent his or her statement of affairs by standard
notice as required by section 17(3), lodge with the liquidator of his or her estate a
written offer of composition.
(2) (a) If the liquidator is of the opinion that there is a likelihood that
the creditors of the estate will accept the offer of composition, he or she must
as soon as possible after the receipt of the offer sent a copy thereof together
with his or her report and notice of the date, time and the place of the meeting
at which the offer of composition will be considered by standard notice to every
creditor whose name and address are known to the liquidator or which he or she
can reasonably obtain.
(b) If a special meeting is convened to consider an offer of composition a
notice in the Gazette must be published not less than 14 days and not
more than 21 days before the date fixed for the meeting.
(3) (a) If the liquidator is of the opinion that there is no likelihood that
creditors will accept the offer of composition, he or she must inform the debtor
that the offer is unacceptable and that he or she does not propose to send a copy
thereof to the creditors.
(b) The debtor may thereupon require the Commissioner to review the
liquidator's decision and the Commissioner may, after having
considered the offer and the liquidator's report thereon, direct the
liquidator to submit the offer to the creditors of the estate in the manner
provided in subsection (2).
(4) If the offer is accepted by a majority in number and two-thirds in value
of the concurrent creditors who have voted on the offer and payment under the
composition has been made or security for such payment has been given as specified
in the composition, the debtor is, subject to subsection (5), (6) and (7), entitled to a
certificate under the hand of the Commissioner of the acceptance of the offer.
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(5) An offer of composition is invalid if it contains any condition under
which any creditor would obtain as against another creditor any benefit to which he or
she would not have been entitled upon the distribution of the estate in the ordinary
manner.
(6) Subject to subsection (5), a condition providing for the discharge of a
provisional liquidation order or the setting aside of a final liquidation order upon the
acceptance of an offer of composition is valid.
(7) If the composition provides for the giving of security, the nature of the
security must be fully specified and if it consists of a surety bond or guarantee, every
surety must be named.
(8) Despite the absence of a resolution of creditors authorising him or her
to do so, the liquidator may approach the Court for-
(a) the cancellation of a composition;
(b) the setting aside of an order providing for the discharge of a provisional
liquidation order;
(c) an order setting aside a final liquidation order; or
(d) for other relief,
if-
(i) the debtor or any other person has failed to give effect to the terms of
the composition or to comply with the provisions of this section; or
(iii) the offer of composition contained incorrect information which caused
a majority of of creditors voting in favour of its acceptance.
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(9) An offer of composition which has been accepted as aforesaid is binding
upon the debtor and upon all creditors of the insolvent estate in so far as their claims
are not secured or preferent but the right of any secured or preferent creditor may not
be prejudiced thereby, except in so far as the secured or preferent creditor waived such
preference or security in writing.
(10) If the composition is subject to the condition that any property in the
insolvent estate must be restored to the debtor, the acceptance of the composition
divests the liquidator of such property and vests such property in the debtor as from the
date on which such property is in pursuance of the composition to be restored to the
debtor, but subject to any condition provided for in the composition.
(11) A composition does not affect the liability of a surety for the debtor or
any liability regarding transactions that are invalid or liable to be set aside.
(12) (a) When the estate of a partnership and the estate of a partner in
that partnership are simultaneously under liquidation, the acceptance of an offer
of composition by the separate creditors of the partner does not take effect until
the expiration of a period of six weeks as from the date of a standard notice in
writing of that acceptance given by the liquidator of the partner's separate estate
to the liquidator of the partnership estate, or if the liquidator of the partner's
estate is also the liquidator of the partnership estate, as from the date of the
acceptance of the composition.
(b) The notice referred to in paragraph (a) must be accompanied by a copy
of the deed embodying the composition.
(13) At any time during the period of six weeks referred to in subsection (12)
the liquidator of the partnership estate may take over the assets of the estate of the
insolvent partner if he or she fulfils the obligations of the insolvent partner in terms of
the composition, other than obligations to render any service or obligations which only
the insolvent partner can fulfil: Provided that if the composition provides for the giving
of any specific security, the Commissioner must determine what other security the
liquidator of the partnership estate may give in lieu thereof.
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(14) Subject to subsection (15), any moneys to be paid and anything to be
done for the benefit of creditors in pursuance of a composition must be paid and must
be done, as far as practicable, through the liquidator:
(15) Notwithstanding the provisions of subsection (14), any creditor who has
failed to prove that creditor’s claim before the liquidator has made a final distribution
among those creditors who have proved their claims, is entitled within six months from
the confirmation by the Commissioner of the account under which the distribution was
made, to recover directly from the debtor any payments to which that creditor may be
entitled under the composition and the liquidator has no duty in regard thereto.
(16) After the liquidator has made a final distribution as contemplated in
subsection (15), the creditor referred to in that subsection has no claim against the
insolvent estate.
(17) (a) When a composition has been entered into between a debtor and
the creditors of his or her estate and the liquidation order has not been
discharged or set aside, the liquidator of that estate must frame a liquidation
account and distribution account of the assets which are or will become
available for distribution among the creditors in terms of the composition.
(b) All the provisions of this Act which relate to a liquidation account and
distribution account of assets among creditors apply in connection with
the liquidation account and distribution account referred to in paragraph
(a).
PART 8
CRIMINAL CONDUCT UNDER THIS CHAPTER
False declaration to obtain creditors’ approval
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179. (1) A debtor commits an offence, if for the purpose of obtaining
approval to a proposal for a composition in terms of Part 2 or a voluntary arrangement
in terms of Part 3 or 4 (hereafter jointly referred to as “a proposal”), the debtor -
(a) makes a representation knowing it to be false or misleading; or
(b) fraudulently does, or omits to do, any act.
(2) In subsection (1), the reference to obtaining approval to a proposal
relates to obtaining -
(a) the approval of a proposal for an offer of pre-liquidation composition
held in accordance with section 121;
(b) the approval of a proposal for an offer of post-liquidation composition
held in accordance with section 177;
(c) the approval of a proposal for a voluntary arrangement presented to a
meeting of the debtor's creditors held in accordance with section 128;
or
(d) the approval of a proposal for a voluntary arrangement submitted to the
Commissioner in accordance with section 134.
(3) Subsection (1) applies even if the proposal is not approved.
(4) A person found guilty of an offence under subsection (1) is liable on
conviction to a fine not exceeding N$250,000 or to imprisonment for a term not
exceeding five years, or to both such fine and such imprisonment.
Prosecution of delinquent debtors
180. (1) This section applies to a proposal that has taken effect in
accordance with section 121, 177, 130(1) or 137(1).
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(2) As soon as practicable after forming a reasonable suspicion that a debtor
has committed an offence in connection with a proposal to which this section applies,
the court referred to in section 121, the liquidator referred to in section 177 or a
supervisor of a voluntary arrangement must report the matter to the Prosecutor
General.
(3) On receiving the report contemplated in subsection (2), the Prosecutor
General may request the person who made the report to provide -
(a) such information as is specified in the request; and
(b) access to, and facilities for inspecting and taking copies of, such
documents as are so specified.
(4) The person who made the report must comply with such a request to the
extent that the information or documents are under the debtor's control and relate to the
matter concerned.
(5) If the Prosecutor General takes criminal proceedings following a
report made under subsection (2), the person who made the report must provide the
Prosecutor General with all assistance in connection with the prosecution that that
person is reasonably able to provide.
(6) If the person who made the report fails to comply with subsections
(3), (4) or (5) the Prosecutor General may apply to the Court for an order under
subsection (7).
(7) On the hearing of an application made under subsection (6), the
Court may make an order directing the person who made the report to comply with
subsection (3) or (4), as appropriate.
CHAPTER 5
CROSS-BORDER INSOLVENCIES
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PART 1
INTERPRETATION AND FUNDAMENTAL PRINCIPLES
Definitions
181. For the purposes of this Chapter -
(a) “debtor” means-
(i) a natural person or the estate of such natural person;
(ii) a partnership or the estate of a partnership;
(iii) a trust;
(iv) a company incorporated in terms of the Companies Act,
including an external company;
(v) a co-operative incorporated in terms of the Co-operatives Act,
1996 (Act No. 23 of 1996) and includes a co-operative
agricultural society, co-operative agricultural company, farmers'
special co-operative company and co-operative trading society
deemed to be registered as a cooperative in terms of section 110
of that Act;
(vi) a corporation incorporated in terms of the Close Corporations
Act, 1988 (Act No. 26 of 1988);
(vii) any other person or entity which is a debtor in the usual sense of
the word;
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(b) “curator of an institution” means a curator appointed in terms of section
6 of the Financial Institutions (Investment of Funds) Act, 1984 (Act No.
39 of 1984);
(c) “establishment” means any place of operations where the debtor carries
out a non-transitory economic activity with human means and goods or
services;
(d) “foreign court” means a judicial or other authority competent to control
or supervise foreign proceedings;
(e) “foreign main proceedings” means foreign proceedings taking place in
the State where the debtor has the centre of its main interests;
(f) “foreign non-main proceedings” means foreign proceedings, other than
foreign main proceedings, taking place in a State where the debtor has
an establishment within the meaning of paragraph (c) of this section;
(g) “foreign proceedings” means collective judicial or administrative
proceedings in a foreign State, including interim proceedings, pursuant
to a law relating to insolvency in which proceedings the assets and
affairs of the debtor are subject to control or supervision by a foreign
court, for the purpose of reorganization or liquidation;
(h) “foreign representative"” means a person or body, including one
appointed on an interim basis, authorized in foreign proceedings to
administer the reorganization or the liquidation of the debtor's assets or
affairs or to act as a representative of the foreign proceedings;
(i) “foreign State” means a State designated under section 183(2);
(j) “judicial manager” means a judicial manager defined in section 1 of the
Companies Act and includes a provisional judicial manager;
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(k) “liquidator”, in relation to a company, means a liquidator defined in
section 1 of the Companies Act;
(l) “trustee” means a trustee as defined in section 1 of the Trust Monies
Protection Act, 1934 (Act No. 34 of 1934).
Purpose and aims
182. The purpose of this Chapter is to provide effective mechanisms for
dealing with cases of cross-border insolvency so as to promote the objectives of -
(a) co-operation between the courts and other competent authorities of
Namibia and those of foreign States involved in cases of cross-border
insolvency;
(b) greater legal certainty for trade and investment;
(c) fair and efficient administration of cross-border insolvencies that
protects the interests of all creditors and other interested persons,
including the debtor;
(d) protection and maximization of the value of the debtor's assets; and
(e) facilitation of the rescue of financially troubled businesses, thereby
protecting investment and preserving employment.
Scope of application
183. (1) This Chapter applies where-
(a) assistance is sought in Namibia by a foreign court or a foreign
representative in connection with a foreign proceeding;
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(b) assistance is sought in a foreign State in connection with a proceeding
under the laws of Namibia relating to insolvency;
(c) a foreign proceeding and a proceeding under the laws of Namibia
relating to insolvency in respect of the same debtor are taking place
concurrently; or
(d) creditors or other interested persons in a foreign State have an interest
in requesting the commencement of, or participating in, a proceeding
under the laws of Namibia relating to insolvency.
(2) (a) Subject to paragraph (b), this Chapter applies in respect of any
foreign State not designated by the Minister by notice in the Gazette.
(b) The Minister may designate a foreign State by notice in the Gazette if
the Minister is satisfied that the recognition accorded by the law of such
a State to proceedings under the laws of Namibia relating to insolvency
does not justify the application of this Chapter to foreign proceedings in
such State.
(3) The Minister may at any time by subsequent notice in the Gazette
withdraw any notice in terms of subsection (2)(b), and thereupon any State referred to
in such last-mentioned notice is to be a foreign State for the purposes of this Chapter.
(4) Any notice referred to in subsection (2)(b) or (3) must, before
publication in the Gazette, be approved by Parliament.
(5) Where the Minister issues a notice in terms of subsection (2)(b) or (3),
such notice does not affect any pending legal proceedings and such proceedings must
continue as if the notice had not been issued.
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International obligations of Namibia
184. To the extent that this Chapter conflicts with an obligation of Namibia
arising out of any treaty or other form of agreement to which Namibia is a party with
one or more other States and which treaty or agreement has been ratified or acceded to
in terms of Article 62(2)(c) of the Namibian Constitution or is binding upon Namibia
in terms of Article 143 or 144 of that Constitution, the requirements of the treaty or
agreement prevail.
Competent court
185. The functions referred to in this Chapter relating to recognition of
foreign proceedings and cooperation with foreign courts must be performed by the
Court.
Authorization of insolvency practitioner, trustee, liquidator, judicial manager or
curator to act in foreign State
186. An insolvency practitioner, trustee, liquidator, judicial manager or
curator of an institution is authorized to act in a foreign State in respect of proceedings
under the laws of Namibia relating to insolvency, as permitted by the applicable foreign
law.
Public policy exception
187. Nothing in this Chapter prevents the Court from refusing to take an
action governed by this Chapter if the action would be manifestly contrary to the public
policy of Namibia.
Additional assistance under other laws
188. Nothing in this Chapter limits the power of a Court or an insolvency
practitioner, a trustee, liquidator, judicial manager or curator of an institution to provide
additional assistance to a foreign representative under other laws of Namibia.
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Interpretation
189. In the interpretation of this Chapter, regard must be had to its
international origin and to the need to promote uniformity in its application and the
observance of good faith.
PART 2
ACCESS OF FOREIGN REPRESENTATIVES AND CREDITORS TO
COURTS IN REPUBLIC
Right of direct access
190. A foreign representative is entitled to apply directly to a Court in
Namibia for relief.
Limited jurisdiction
191. The sole fact that an application pursuant to this Chapter is made to a
Court in Namibia by a foreign representative does not subject the foreign representative
or the foreign assets and affairs of the debtor to the jurisdiction of the Courts of
Namibia for any purpose other than the application.
Application by foreign representative to commence proceedings under the laws of
Namibia relating to insolvency
192. A foreign representative may apply to commence proceedings under the
laws of Namibia relating to insolvency if the conditions for commencing such
proceedings are otherwise met.
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Participation of foreign representative in proceedings under the laws of Namibia
relating to insolvency
193. Upon recognition of foreign proceedings, the foreign representative
may participate in proceedings regarding the debtor under the laws of Namibia relating
to insolvency.
Access of foreign creditors to proceedings under the laws of Namibia relating to
insolvency
194. (1) Subject to subsection (2), foreign creditors have the same rights
regarding the commencement of, and participation in, proceedings under the laws of
Namibia relating to insolvency as creditors in Namibia.
(2) Subsection (1) of this section does not affect the ranking of claims in a
proceeding under the laws of Namibia relating to insolvency, except that the claims of
foreign creditors may not be ranked lower than non-preferent claims.
(3) Without derogating from the application of the law and practice of
Namibia generally, the ranking of claims in respect of assets in Namibia is regulated
by the law and practice of Namibia on the ranking of claims.
Notification to foreign creditors of proceedings under the laws of Namibia relating
to insolvency
195. (1) (a) Whenever under the laws of Namibia relating to
insolvency notification is to be given to creditors in Namibia, such
notification must also be given to the known creditors that do not have
addresses in Namibia.
(b) The Court may order that appropriate steps be taken with a view to
notifying any creditor whose address is not yet known.
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(2) (a) Such notification must be made to the foreign creditors
individually, unless the Court considers that, under the circumstances,
some other form of notification would be more appropriate.
(b) For purposes of paragraph (a), no letters rogatory or other, similar
formality is required.
(3) When a notification of commencement of proceedings is to be given to
foreign creditors, the notification must -
(a) indicate a reasonable time period for filing claims and specify the place
for their filing;
(b) indicate whether secured creditors need to file their secured claims; and
(c) contain any other information required to be included in such a
notification to creditors pursuant to the law of Namibia and the orders
of the Court.
PART 3
RECOGNITION OF FOREIGN PROCEEDINGS AND RELIEF
Application for recognition of foreign proceedings
196. (1) A foreign representative may apply to the Court for recognition
of the foreign proceeding in which the foreign representative has been appointed.
(2) An application for recognition in terms of subsection (1) must be
accompanied by -
(a) a certified copy of the decision commencing the foreign proceeding and
appointing the foreign representative;
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(b) a certificate from the foreign court affirming the existence of the foreign
proceeding and of the appointment of the foreign representative; or
(c) in the absence of evidence referred to in paragraphs (a) and (b), any
other evidence acceptable to the Court of the existence of the foreign
proceeding and of the appointment of the foreign representative.
(3) An application for recognition must also be accompanied by a statement
identifying all foreign proceedings in respect of the debtor that are known to the foreign
representative.
(4) The Court may require a translation of documents supplied in support
of the application for recognition into the official language of Namibia.
Presumptions concerning recognition
197. (1) If the decision or certificate referred to in section 196(2)
indicates that the foreign proceedings are proceedings within the meaning of section
181(g) and that the foreign representative is a person or body within the meaning of
section 181(h), the Court may so presume.
(2) The Court may presume that documents submitted in support of the
application for recognition are authentic, whether or not they have been legalized.
(3) In the absence of proof to the contrary, the debtor's registered office, or
habitual residence in the case of an individual, is presumed to be the centre of the
debtor's main interests.
Decision to recognize foreign proceedings
198. (1) Subject to section 187, foreign proceedings must be recognized
if -
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(a) the foreign proceedings are proceedings within the meaning of section
181(g);
(b) the foreign representative applying for recognition is a person or body
within the meaning of section 181(h);
(c) the application meets the requirements of section 196(2); and
(d) the application has been submitted to a Court.
(2) The foreign proceedings must be recognized -
(a) as foreign main proceedings if they are taking place in the State where
the debtor has the centre of his or her or its main interests; or
(b) as foreign non-main proceedings if the debtor has an establishment
within the meaning of section 181(c) in the foreign State.
(3) An application for recognition of foreign proceedings must be decided
upon at the earliest possible time.
(4) The provisions of sections 196, 197, this section and section 199 do
not prevent modification or termination of recognition if it is shown that the grounds
for granting it were fully or partially lacking or have ceased to exist.
Subsequent information
199. From the time of filing the application for recognition of the foreign
proceeding, the foreign representative must inform the Court promptly of -
(a) any change in the status of the recognized foreign proceedings or the
status of the foreign representative's appointment; and
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(b) any other foreign proceedings regarding the same debtor that become
known to the foreign representative.
Relief that may be granted upon application for recognition of foreign
proceedings
200. (1) From the time of filing an application for recognition until the
application is decided upon, the Court may, at the request of the foreign representative,
where relief is urgently needed to protect the assets of the debtor or the interests of the
creditors, grant relief of a provisional nature, including -
(a) staying execution against the debtor's assets;
(b) entrusting the administration or realization of all or part of the debtor's
assets located in Namibia to the foreign representative or another person
designated by the court, in order to protect and preserve the value of
assets that, by their nature or because of other circumstances, are
perishable, susceptible to devaluation or otherwise in jeopardy;
(c) any relief mentioned in section 202(1)(c), (d) and (g).
(2) An order issued in terms of subsection (1) must be dealt with as
contemplated in section 26 of this Act.
(3) Unless extended under section 202(1)(f), the relief granted under this
section terminates when the application for recognition is decided upon.
(4) The Court may refuse to grant relief under this section if such relief
would interfere with the administration of foreign main proceedings.
Effect of recognition of foreign main proceedings
201. (1) Upon recognition of foreign proceedings that are foreign main
proceedings -
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(a) commencement or continuation of individual legal actions or individual
legal proceedings concerning the debtor's assets, rights, obligations or
liabilities is stayed;
(b) execution against the debtor's assets is stayed; and
(c) the right to transfer, encumber or otherwise dispose of any assets of the
debtor is suspended.
(2) The scope, and the modification or termination, of the stay and
suspension referred to in subsection (1) of this section are subject to the provisions of
sections 20 and 28 of this Act, and the Court may, at the request of the foreign
representative or a person affected by subsection (1), modify or terminate the scope of
the stay and suspension.
(3) Subsection (1)(a) does not affect the right to commence individual
actions or proceedings to the extent necessary to preserve a claim against the debtor.
(4) Subsection (1) does not affect the right to request the commencement
of proceedings under the laws of Namibia relating to insolvency or the right to file
claims in such proceedings.
Relief that may be granted upon recognition of foreign proceedings
202. (1) Upon recognition of foreign proceedings, whether foreign main
or non-main proceedings, where necessary to protect the assets of the debtor or the
interests of the creditors, the Court may, at the request of the foreign representative,
grant any appropriate relief, including -
(a) staying the commencement or continuation of individual legal actions
or individual legal proceedings concerning the debtor's assets, rights,
obligations or liabilities, to the extent they have not been stayed under
section 201(1)(a);
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(b) staying execution against the debtor's assets to the extent it has not been
stayed under section 201(1)(b);
(c) suspending the right to transfer, encumber or otherwise dispose of any
assets of the debtor to the extent this right has not been suspended under
section 201(1)(c);
(d) providing for the examination of witnesses, the taking of evidence or
the delivery of information concerning the debtor's assets, affairs, rights,
obligations or liabilities;
(e) entrusting the administration or realization of all or part of the debtor's
assets located in Namibia to the foreign representative or another person
designated by the Court;
(f) extending relief granted under section 200(1);
(g) granting any additional relief that may be available to an insolvency
practitioner, a trustee, liquidator, judicial manager or curator of an
institution under the laws of Namibia.
(2) Upon recognition of foreign proceedings, whether foreign main or non-
main proceedings, the Court may, at the request of the foreign representative, entrust
the distribution of all or part of the debtor's assets located in Namibia to the foreign
representative or another person designated by the Court, provided that the Court is
satisfied that the interests of creditors in Namibia are adequately protected.
(3) In granting relief under this section to a representative of foreign non-
main proceedings, the Court must be satisfied that the relief relates to assets that, under
the law of Namibia, should be administered in the foreign non-main proceeding or
concerns information required in those proceedings.
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(4) Without derogating from the application of laws of Namibia generally,
in granting relief under this section the Court must indicate the laws of Namibia relating
to the administration, realization or distribution of a debtor's estate in Namibia that will
apply.
Protection of creditors and other interested persons
203. (1) In granting or denying relief under section 200 or 202, or in
modifying or terminating relief under subsection (3), the Court must be satisfied that
the interests of the creditors and other interested persons, including the debtor, are
adequately protected.
(2) The Court may subject relief granted under sections 200 or 202 to
conditions it considers appropriate.
(3) The Court may, at the request of the foreign representative or a person
affected by relief granted under sections 200 or 202, or of its own motion, modify or
terminate such relief.
Actions to avoid acts detrimental to creditors
204. (1) Upon recognition of foreign proceedings, the foreign
representative has standing to initiate any legal action to set aside a disposition that is
available to a trustee or liquidator under the laws of Namibia relating to insolvency.
(2) When the foreign proceedings are foreign non-main proceedings, the
Court must be satisfied that the legal action relates to assets that, under the law of
Namibia, should be administered in the foreign non-main proceeding.
Intervention by foreign representative in proceedings in Namibia
205. Upon recognition of foreign proceedings, the foreign representative
may, provided the requirements of the law of Namibia are met, intervene in any
proceedings in which the debtor is a party.
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PART 4
COOPERATION WITH FOREIGN COURTS AND FOREIGN
REPRESENTATIVES
Cooperation and direct communication between court of Namibia and foreign
courts or foreign representatives
206. (1) In matters referred to in section 183(1), the Court must
cooperate to the maximum extent possible with foreign courts or foreign
representatives, either directly or through an insolvency practitioner, a trustee,
liquidator, judicial manager or curator of an institution.
(2) The Court may communicate directly with, or request information or
assistance directly from, foreign courts or foreign representatives.
Cooperation and direct communication between insolvency practitioner, trustee,
liquidator, judicial manager or curator of an institution and foreign courts or
foreign representatives
207. (1) In matters referred to in section 183(1), an insolvency
practitioner, a trustee, liquidator, judicial manager or curator of an institution must, in
the performance of his or her or its functions and subject to the supervision of the court,
cooperate to the maximum extent possible with foreign courts or foreign
representatives.
(2) The insolvency practitioner, trustee, liquidator, judicial manager or
curator of an institution may, in the exercise of his or her or its functions and subject
to the supervision of the Court, communicate directly with foreign courts or foreign
representatives.
Forms of cooperation
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208. Cooperation referred to in sections 206 and 207 may be implemented
by any appropriate means, including -
(a) appointment of a person or body to act at the direction of the Court;
(b) communication of information by any means considered appropriate by
the Court;
(c) coordination of the administration and supervision of the debtor's assets
and affairs;
(d) approval or implementation by courts of agreements concerning the
coordination of proceedings;
(e) coordination of concurrent proceedings regarding the same debtor.
PART 5
CONCURRENT PROCEEDINGS
Commencement of proceedings under the laws of Namibia relating to insolvency
after recognition of foreign main proceedings
209. (1) After recognition of foreign main proceedings, proceedings
under the laws of Namibia relating to insolvency may be commenced only if the debtor
has assets in Namibia.
(2) The effects of such proceedings are restricted to the assets of the debtor
that are located in Namibia and, to the extent necessary to implement cooperation and
coordination under sections 206, 207 and 208, to other assets of the debtor that, under
the law of Namibia, should be administered in those proceedings.
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Coordination of proceedings under the laws of Namibia relating to insolvency and
foreign proceedings
210. Where foreign proceedings and proceedings under the laws of Namibia
relating to insolvency are taking place concurrently regarding the same debtor, the
Court must seek cooperation and coordination under sections 206, 207 and 208, and-
(a) when the proceedings in Namibia are taking place at the time that the
application for recognition of the foreign proceeding is filed,
(i) any relief granted under sections 200 or 202 must be consistent
with the proceedings in Namibia; and
(ii) if the foreign proceedings are recognized in Namibia as foreign
main proceedings, section 201 does not apply;
(b) when the proceedings in Namibia commence after recognition, or after
the filing of the application for recognition, of the foreign proceedings:
(i) any relief in effect under sections 200 or 202 must be reviewed
by the Court and must be modified or terminated if inconsistent
with the proceedings in Namibia; and
(ii) if the foreign proceedings are foreign main proceedings, the stay
and suspension referred to in section 201(1) must be modified
or terminated pursuant to section 201(2) if inconsistent with the
proceedings in Namibia;
(c) in granting relief or in extending or modifying relief granted to a
representative of foreign non-main proceedings, the Court must be
satisfied that the relief relates to assets that, under the law of Namibia,
should be administered in the foreign non-main proceedings or concerns
information required in those proceedings.
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Coordination of foreign proceedings
211. In matters referred to in section 183(1), in respect of more than one set
of foreign proceedings regarding the same debtor, the court must seek cooperation and
coordination under sections 206, 207 and 208, and -
(a) any relief granted under sections 200 or 202 to a representative of
foreign non-main proceedings after recognition of foreign main
proceedings must be consistent with the foreign main proceedings;
(b) if foreign main proceedings are recognized after recognition, or after the
filing of an application for recognition, of foreign non-main
proceedings, any relief in effect under sections 200 or 202 must be
reviewed by the Court and must be modified or terminated if
inconsistent with the foreign main proceedings;
(c) if, after recognition of foreign non-main proceedings, other foreign non-
main proceedings are recognized, the Court must grant, modify or
terminate relief for the purpose of facilitating coordination of the
proceedings.
Presumption of insolvency based on recognition of foreign main proceedings
212. In the absence of proof to the contrary, recognition of foreign main
proceedings is, for the purpose of commencing proceedings under the laws of Namibia
relating to insolvency, proof that the debtor is insolvent.
Rule of payment in concurrent proceedings
213. Without prejudice to secured claims or rights in rem, a creditor who has
received part payment in respect of its claim in proceedings pursuant to a law relating
to insolvency in a foreign State may not receive a payment for the same claim in
proceedings under the laws of Namibia relating to insolvency regarding the same
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debtor, so long as the payment to the other creditors of the same class is proportionately
less than the payment the creditor has already received.
CHAPTER 6
OFFENCES
Offences
214. (1) A debtor is guilty of an offence if he or she-
(a) before or after the liquidation of his or her estate conceals or parts with
or intentionally destroys any book or accounting record relating to his
or her affairs or if he or she intentionally erases the information
contained therein or makes it illegible or permits any other person to
perform any such act in regard to any such book or accounting record;
(c) before or after the liquidation of his or her estate, alienates property,
obtained by him or her on credit and not paid for, otherwise than in the
ordinary course of business;
(c) despite having been expressly asked about his or her financial standing
and credit worthiness, falsely conceals his or her insolvent status and as
a result thereof obtains credit for more than the prescribed amount;
(d) offers or promises to any person any reward in order to procure the
acceptance by a creditor of his or her estate of an offer of compromise
or to induce a creditor not to oppose an application for rehabilitation or
to give up any investigation in regard to the estate or to conceal any
information in connection therewith;
(e) any time within two years before the commencement of liquidation of
his or her estate with intent to obtain credit or the extension of credit,
intentionally gave false information or concealed any material fact in
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connection with his or her assets and liabilities to a creditor or to anyone
who became his or her creditor;
(f) at any time before the date of liquidation of his or her estate deducted
an amount from salary paid to an employee for payment to someone
other than the debtor and failed to pay the amount to the person entitled
thereto when required or, if payment is not required within a specified
period, within 14 days after payment of the salary;
(g) before the liquidation of his or her estate carried on any business or for
his or her own account practised any profession or occupation and failed
to keep proper accounting records of all business transactions, income,
expenditure, assets and liabilities and to retain the accounting records
for a period of at least three years;
(g) at any time when his or her liabilities exceeded his or her assets or at
any time within six months immediately prior to the commencement of
liquidation of his or her estate, reduced his or her assets through
gambling, betting or risky speculation or contracted debts which were
not reasonably necessary in connection with business or occupation or
for his or her own maintenance or that of his or her dependants;
(h) contracted any debt of N$500 or more or debts to the aggregate of
N$1000 or more, without any reasonable expectation of being able to
discharge such debt or debts;
(i) without good cause fails to submit a statement of his or her affairs as
required by section 60(1)(b);
(j) without lawful cause fails to attend any meeting or continuation of a
meeting of creditors of his or her estate of which he or she has been
notified in writing or the continuation of such meeting which he or she
has been directed by the presiding officer of the meeting to attend at the
date, time and place determined by the presiding officer; or
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(k) at any time during the liquidation of his or her estate, knows or suspects
that any person has lodged or intends to lodge a nomination
contemplated in section 50 which is false or has proved or intends to
prove a false claim against his or her estate and fails to inform the
Commissioner in the case of a nomination and the Commissioner and
the liquidator of his estate in the case of a claim in writing of that
knowledge or suspicion within 14 days as from the date upon which he
or she acquired that knowledge or upon which his or her suspicion was
aroused.
(2) A person commits an offence if that person -
(a) evades the service of a summons on or a notice to him or her as
contemplated in sections 29(6)(a), 86, 87, 88, or 90 or who without
lawful cause fails to attend at the date, time and place determined in the
summons or notice or having appeared, without lawful cause fails to
remain in attendance until he or she is excused from further attendance
by the presiding officer of the meeting concerned;
(b) has been called up for questioning in terms of sections 29(6)(a), 86, 87,
88 or 90 and who refuses to be sworn as a witness or to take an
affirmation or who without lawful cause refuses or fails to answer any
question lawfully put to him or her or who without lawful cause refuses
or fails to produce any book, document, or record which is in his or her
possession or custody and which he or she is in terms of the summons
or a direction of the presiding officer of the meeting obliged to produce;
(c) without lawful cause fails to comply with a written order of a liquidator
contemplated in section 89(7) or (8);
(d) without lawful cause fails to answer fully and correctly any written
questions put to him or her by the liquidator of an insolvent estate in
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terms of section 89 or to send the said answers within the time and in
the manner contemplated in section 89(3);
(e) receives any benefit or accepts any promise of a benefit as a reward for
having kept in abeyance or stopped any action for the liquidation of the
estate of a debtor or for having undertaken to keep such action in
abeyance or to stop it or for having agreed to a composition or
rehabilitation or for not opposing it or for having undertaken to agree to
such composition or rehabilitation or not to oppose it or for having kept
any inquiry in connection with any matter relating to the insolvent estate
in abeyance or for having undertaken to hold it in abeyance or for having
concealed particulars of a debtor or an insolvent estate or for having
undertaken to conceal such information;
(f) before or after the liquidation of the estate of an insolvent, conceals,
parts with, damages, destroys, alienates or otherwise disposes of
property attached in terms of section 38 or property belonging to the
insolvent or his or her estate with intent to frustrate the attachment of
such property by virtue of a liquidation order, in terms of that section,
or with intent to prejudice creditors of the insolvent estate;
(g) has in his or her possession or custody or under his or her control
property belonging to an insolvent estate and who intentionally fails to
notify the liquidator of the insolvent estate as soon as possible of the
existence and whereabouts of such property and to make it available to
the liquidator;
(h) intentionally impedes or hinders a liquidator appointed in terms of
section 51 or a liquidator appointed in terms of this Act or any person
acting under his or her command, in the execution of his or her duties;
or
(i) makes or causes to be made or allows to be made a false nomination in
terms of section 50 or who signs such a nomination without reasonable
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grounds for believing it to be correct, or who knowingly submits a false
nomination to the Commissioner.
(3) A liquidator of an insolvent estate who intentionally or negligently fails
to lodge with the Commissioner an account or to pay over a sum of money within 30
days from the date on which he or she became obliged to submit such account or pay
over such sum of money, or fails to comply with the duties in section 59 within 30
days from the commencement of liquidation is guilty of an offence and liable on
conviction to a fine or imprisonment for a period not exceeding six months or to both
such fine and such imprisonment.
(4) (a) Any person who is convicted of an offence contemplated in
subsection (1)(a) or (b) or subsection (2)(f), (g) or (h) is liable to a fine or to
imprisonment for a period not exceeding three years or to both such fine and
such imprisonment.
(b) Any person who is convicted of an offence contemplated in subsection
(1)(c), (d), (e), (f), (g), (h), (i), (j) or (k) or subsection (2)(e) is liable to
a fine or imprisonment for a period not exceeding 12 months or to both
such fine and such imprisonment.
(c) Any person who is convicted of an offence contemplated in subsection
(1)(h) or subsection (2)(a), (b), (c), (d) or (h) is liable to a fine or to
imprisonment not exceeding six months or to both such fine and such
imprisonment.
CHAPTER 7
PUBLIC REGISTERS
Public registers relating to insolvents and others
215. This Chapter applies to a public register established under sections 24,
153 and 165.
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Access to public registers
216. (1) The Commissioner must ensure that all public registers are
available for access and inspection by members of the public during the
Commissioner's ordinary business hours.
(2) However, the Commissioner may refuse access to a public register or
suspend the operation of a public register, wholly or partly -
(a) if the Commissioner considers that it is not practical to provide access
to the register; or
(b) for any other reason as may be prescribed for the purposes of this
section.
Purposes of public registers
217. (1) The public register kept under section 24 has -
(a) the purpose of providing information about unrehabilitated and
rehabilitated insolvents; and
(b) the further purposes specified in subsection (4).
(2) The public register kept under section 153 has -
(a) the purpose of providing information about persons subject to a current
summary instalment order; and
(b) the further purposes set out in subsection (4).
(3) The public register kept under section 165 has -
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(a) the purpose of providing information about persons currently admitted
to the no-asset procedure and persons discharged from that procedure
under section 174; and
(b) the further purposes set out in subsection (4).
(4) The further purposes of the public registers are -
(a) to facilitate the compliance, audit, and other supporting and
administrative functions of the Commissioner, the Minister, the Court
or any other person under this Act or any other law;
(b) to facilitate the enforcement functions and the exercise of the powers of
the Commissioner, Minister, the Court, or any other person under this Act
or any other law; and
(c) to provide statistical information and information for research purposes
in relation to insolvency, summary instalment orders and the no-asset
procedure.
General information to be included in public registers
218. (1) The Commissioner must ensure that the public registers contain
the required information in respect of the following persons-
(a) a person who is or has been an insolvent;
(b) a person who is subject to a current summary instalment order;
(c) a person who is currently admitted to the no-asset procedure, or who
has been discharged from that procedure under section 174.
(2) The required information for the purposes of subsection (1) is the
following:
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(a) the person’s full name;
(b) whether the person-
(i) is currently insolvent, or has been discharged from insolvency;
(ii) is subject to a current summary instalment order; or
(iii) is currently admitted to the no asset procedure, or has been
discharged from the no-asset procedure under section 174;
(c) the liquidation, summary instalment order, or no-asset procedure
number (if any);
(d) the person’s address as contained in -
(i) a statement of the person's financial position;
(ii) an application for a bankruptcy order in respect of the person;
(iii) an application for a summary instalment order in respect of the
person; or
(iv) an application by the person for admission to the no-asset
procedure;
(e) if the person has notified the Commissioner of a change of address, that
address;
(f) if the person has been declared insolvent on a creditor's application, the
person's address as contained in the application;
(g) the person's occupation and current employment status, if known;
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(h) if a liquidation order has been made in respect of the person, the time
and date of the on which the order was made;
(i) if the person is admitted to the no-asset procedure, the date of that
admission;
(j) if the person is discharged from the no-asset procedure under section
174, the date when the person was so discharged;
(k) if the person is a rehabilitated insolvent, the date, type, and conditions
(if any) of the rehabilitation;
(1) if the liquidation order has been set aside, the provision of this Act
under which it was set aside;
(m) if the Court has refused to rehabilitate an insolvent, the details of the
refusal;
(n) if the Court has suspended an insolvent’s rehabilitation, the details of
the suspension;
(o) in the case of a person subject to a current summary instalment order,
the full name and business postal address of the supervisor;
(p) any other information or documents prescribed for the purposes of this
section.
(3) The Commissioner must ensure that a public register does not contain
information relating to a person in respect of whom a liquidation order has been set
aside.
(4) The Commissioner must ensure that all information relating to a person
who has been declared an insolvent and who was rehabilitated from insolvency is
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removed from the public register kept under section 24 as soon as practicable after the
expiry of four years after the date of discharge.
(5) The Commissioner must ensure that all information relating to a person
who has been admitted to the no-asset procedure is removed from the public register
kept under section 165 as soon as practicable after -
(a) the expiry of four years after the date of discharge under section 174; or
(b) the person's participation in the procedure is terminated in accordance
with section 169(a), (c) or (d).
Information kept indefinitely in public registers
219. (1) This section applies to a person who -
(a) is or has been declared an insolvent on two or more occasions; or
(b) is or has been both declared an insolvent and discharged from the no-
asset procedure under section 174.
(2) The Commissioner must ensure that information about a person referred
to in subsection (1) is not removed from a public register kept under this Act.
(3) Subsections (4), (5) and (6) of section 217 do not apply to a person
referred to in subsection (1).
(4) The Commissioner must ensure that the relevant public register contains
all of the information required by this Act about such a person and each insolvency
event.
(5) A person declared insolvent under the repealed Insolvency Act, 1936
(Act No. 24 of 1936) counts for the purposes of subsections (2) and (4).
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Restricted information
220. The Commissioner must ensure that a person only has access to the
documents contained in a public register which are not private and confidential.
Commissioner may omit, remove, restrict access to or amend information in
public registers
221. (1) The Commissioner may omit, remove, or restrict access to
information contained in a public register in respect of a person if the Commissioner
considers that the disclosure of the information via the public register would be
prejudicial to the person's safety or welfare or the safety or welfare of the person's
family.
(2) The Commissioner may amend the information contained in a public
register in order to update the information or correct any error in, or omission from, the
information.
(3) The Commissioner may refuse to provide access to any information in
a public register if, in the Commissioner's opinion, it is impractical to provide the
volume of information requested.
Information in public registers may be used for statistical or research purposes
222. Nothing in this Chapter prevents the use of information contained in the
public registers for statistical or research purposes if the information -
(a) does not identify anyone; and
(b) is not published in any form that could reasonably be expected to
identify anyone.
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Government and Commissioner not liable for certain acts or omissions
223. Neither the Government nor the Commissioner is liable for any act or
omission in relation to the maintenance of a public register under this Division done
or omitted to be done in good faith and with reasonable care.
CHAPTER 8
GENERAL PROVISIONS
Court may stay or set aside liquidation
224. (1) The Court may at any time after the commencement of the
liquidation of an insolvent on the application of a liquidator or creditor and on proof to
the satisfaction of the Court that all proceedings in relation to the liquidation ought to
be stayed or set aside, make an order staying or setting aside the proceedings or for the
continuance of any voluntary liquidation on such terms and conditions as the Court
may deem fit.
(2) The Court may, as to all matters relating to a liquidation, have regard to
the wishes of the creditors as proved to the Court by sufficient evidence.
(3) Notice of an application to set aside liquidation proceedings must be
furnished to-
(a) the head office of every registered trade union that, as far as the
applicant can reasonably ascertain, represents a debtor’s employees, if
any at the commencement of liquidation;
(b) all employees whose addresses can be obtained from the liquidator.
(4) An order setting aside liquidation proceedings must detail the effect of
the order on-
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(a) the assets of the debtor immediately before the commencement of
liquidation;
(b) actions taken by the liquidator during the liquidation; and
(c) contracts of service terminated during the liquidation.
Meetings to ascertain wishes of creditors and others
225. Where by this Act the Court is authorised, in relation to a liquidation,
to have regard to the wishes of creditors -
(a) the value of the respective creditors' claims must also be taken into
consideration; and
(b) the court may, if it thinks fit, for the purpose of ascertaining the wishes
of such creditors direct meetings of the creditors to be called, held and
conducted in such manner as the Court directs, and may appoint a person
to act as chairperson of any such meeting and to report the result thereof
to the Court.
Dispositions after liquidation void
226. (1) Every transfer of an interest in a trust, shares of a company,
members’ interest in a close corporation or other right conferred by agreement effected
after the commencement of the liquidation of an insolvent estate without the sanction
of the liquidator, is void.
(2) Every disposition of its property (including rights of action) by any
debtor being liquidated made after the commencement of the liquidation, is void unless
the Court otherwise orders.
General provisions relating to Part 4, Chapter 3 proceedings
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227. (1) Subject to the provisions of this section and any resolution of
creditors passed at a meeting of creditors, a liquidator has the power, in his or her own
name but on behalf of creditors of an insolvent estate-
(a) to commence any proceedings contemplated in Part 4 of Chapter 3;
(b) to settle or compromise any such proceedings or claims relating thereto;
and
(c) to receive any amounts pursuant to any such proceedings or settlement
or compromise.
(2) Prior to commencing any proceedings referred to in subsection (1), the
liquidator must advise all proved creditors by liquidator’s notice of the steps he or she
proposes to take, with reasons and an explanation of this section and its effect.
(3) Any creditor who does not within two weeks object in writing to the
proposed steps will be deemed to have approved such steps and will, for purposes of
such proceedings and claims, be regarded as a participating creditor.
(4) If any creditor does object-
(a) the objecting creditor will, for purposes of the proceedings and claims
in question, be regarded as an excluded creditor;
(b) the liquidator may not exercise any of the powers referred to in
subsection (1)(b) on behalf of such creditor.
(5) All receipts and expenditure in connection with the proceedings and
claims in question must be accounted for in a special account in such a way that only
participating creditors will benefit from any proceeds and contribute to any
expenditure, and further subject to any directions which the Court may give.
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(6) The liquidator will not be required to give security for the costs of any
such proceedings, unless the Court on application of the defendant or respondent is
satisfied that the proceedings are frivolous or vexatious.
(7) Any amounts received by the liquidator arising from any such
proceedings or claims is, for purposes of remuneration and distribution of proceeds,
treated as if they were proceeds of estate assets.
(8) The proceedings referred to in subsection (1) may be brought by a
liquidator on behalf of creditors who extended credit to the insolvent while the
insolvent was engaged in insolvent trading or, if the liquidator refuses or fails to obtain
the necessary authority or directions from creditors in terms of section 66 of this Act,
by such a creditor or group of creditors.
(9) If any creditor has taken proceedings under subsection (1) no creditor
who was not a party to the proceedings may derive any benefit from any moneys or
from the proceeds of any property recovered as a result of such proceedings before the
claim and costs of every creditor who was a party to such proceedings have been paid
in full.
(10) (a) Proceedings in terms of subsection (1) may be launched by way
of notice of motion.
(b) If the Court is unable to decide the case by way of application procedure
disputes of fact must be referred to oral evidence as may be necessary.
(11) In any proceedings in terms of subsection (1), the Court may give such
further directions, whether in regard to limitation, quantification, procedure,
distribution of proceeds or otherwise as the Court thinks proper for the purpose of
giving effect to any order it may make.
(12) In particular the Court may declare that a person is liable for the costs
of investigating the liability of such person or the costs of administration in the
insolvent estate or such part thereof as the Court may direct.
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(13) Where the Court makes a declaration contemplated in subsection (12),
the Court may give such further directions as the Court thinks proper for the purpose
of giving effect to the declaration, and in particular may-
(a) make the liability of any such person under the declaration a charge on
any debt or obligation due from the insolvent to the person referred to
in that subsection, or on any mortgage or charge or any interest in any
mortgage or charge on any assets of the insolvent held by or vested in-
(i) that person;
(ii) any company or person on the person’s behalf;
(iii) any person claiming as assignee from or through that person; or
(iv) any company or person acting on the assignee’s behalf.
(b) from time to time make such further orders as may be necessary for the
purpose of enforcing any charge imposed under this subsection.
(14) For the purposes of subsection (13), the expression “assignee” includes
any person to whom or in whose favour, by the direction of the person liable, the debt,
obligation, mortgage or charge was created, issued or transferred or the interest was
created, but does not include an assignee for valuable consideration given in good faith
and without notice of any of the matters on the ground of which the declaration is made.
(15) Without prejudice to any other criminal liability incurred, where any
business of an insolvent is carried on recklessly or with such intent or for such purpose
as is mentioned in subsection (1), every person who was knowingly a party to the
carrying on of the business in the manner aforesaid, is guilty of an offence.
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(16) The claim of a creditor against the debtor in respect of the debt which
gave rise to a declaration in terms of Part 4 of Chapter 3, will be reduced by the
amount received by the creditor in terms of the declaration.
Giving of evidence after conviction for failure to testify
228. (1) Any person who is serving a term of imprisonment for the
offence contemplated in section 213(2)(c) and who declares himself or herself willing
to give the required evidence or to produce the required books, documents, or records
may, on the written application of the Commissioner or another person who is to
preside at a meeting or to chair a commission, made to the head of the institution where
that person is being held in custody, be brought before the Commissioner or other
person for the hearing of such evidence or the production of the required books,
documents, or records.
(2) A person contemplated in subsection (1) who has given the required
evidence or produced the required books, documents, or records may on his or her own
application be brought before the Court which imposed the sentence and that Court
may, irrespective of whether or not the Court is composed as it was when the sentence
was imposed, suspend the remaining portion of the sentence or any portion thereof
upon the conditions that the Court deems just, if the Court is satisfied that the said
person has answered fully and correctly all questions put to him or her or produced all
books, documents, or records required of him or her, in so far as it was possible for
him or her to do so.
(3) In order to satisfy itself concerning the facts contemplated in subsection
(2), the Court may accept as conclusive proof of those facts a certificate given by the
presiding officer referred to in subsection (1) to the effect that the said person had
appeared before him or her and had answered fully and correctly all questions put to
him or her and produced all books, documents, or records required of him or her.
Criminal liability of partners, administrators, servants or agents
229. (1) Any person who -
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(a) is or was a member of a partnership and who does or omits to do in
relation to any property or to the affairs of that partnership or debtor or
of the insolvent estate of that partnership or debtor;
(b) is or was charged with the administration of an estate and who does or
omits to do in relation to any property or to the affairs of that estate; or
(c) as a servant or agent has had the sole or practical control of any property
or of the affairs of his or her employer or principal and who does or
omits to do in relation to that property or the affairs of his or her
employer or principal or of the insolvent estate or his or her former
employer or principal,
any act which, if done or omitted by him or her in like circumstances in
relation to his or her own property or affairs or to any property belonging
to, or the affairs of his or her insolvent estate, would have constituted an
offence under this Act, is deemed to have committed that offence.
(2) The liability under subsection (1) of a partner, servant or agent does not
affect the liability under that subsection or under any other provision of this Act, of
another partner or of a servant or agent of the same partnership, or of the employer or
principal of the employee or agent who is so liable.
Jurisdiction of Court
230. (1) The Court has jurisdiction in respect of an application for the
liquidation of the estate of any debtor who -
(a) on the date of the application -
(i) is domiciled within the court's area of jurisdiction;
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(ii) owns or is entitled to property situate within the Court's area of
jurisdiction; or
(b) at any time within 12 months immediately before the date of the
application ordinarily resided or carried on business within the Court's
area of jurisdiction.
(2) If the Court has jurisdiction over a debtor or the insolvent estate of a
debtor by virtue of subsection (1), the Court also has jurisdiction in respect of any
matter regulated by this Act arising out of the liquidation of the estate of the said debtor.
(3) Foreign representatives and foreign creditors have access to the Court
as provided in Chapter 5 of this Act, and liquidation of the estate of a debtor must be
limited as provided in that Chapter.
(4) The Court may rescind or vary any order made by the Court under the
provisions of this Act.
Appeals
231. (1) Any person aggrieved by-
(a) a final liquidation order;
(b) by a refusal to grant a provisional order or a final liquidation order
without a provisional liquidation order;
(c) an order setting aside a provisional liquidation order; or
(d) any other appealable order made in terms of this Act,
may, subject to the provisions of section 18 of the High Court Act, appeal against such
order.
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(2) The Rules of the Court applicable to appeals from judgments or orders
given in civil matters by the Court apply, subject to subsection (3), with the changes
necessitated by the context to appeals contemplated in subsection (1).
(3) Notwithstanding the provisions of any other law, the noting of an appeal
against a final liquidation order does not have the effect of suspending the operation of
any provision of this Act: Provided that pending judgment on appeal no property
belonging to the insolvent estate may be realised without the written consent of the
debtor or, failing such consent, permission granted by order of Court on an application
by an interested person who has furnished security to the satisfaction of the Court for
restitution in the event of the appeal being successful.
(4) If an appeal against a final liquidation order is allowed, the respondent
may be ordered to pay all liquidation costs.
Review
232. (1) Any person aggrieved by any decision, order or taxation of the
Commissioner or by a decision by the liquidator or by a decision or order of an officer
presiding at a meeting of creditors of an insolvent estate, including the liquidator, may,
within 90 days or such further period as the Court may allow for good cause shown,
bring such decision, order or taxation under review by the Court upon notice to the
Commissioner or the presiding officer, as the case may be, and to any other person
whose interests are affected.
(2) If all or most of the creditors are affected by an application referred to
in subsection (1), notice need to be given to the liquidator only.
(3) The Court reviewing any decision, order or taxation has the power to
consider the merits of any such matter, to hear evidence and to make any order it deems
just: Provided that the Court may not re-open any confirmed liquidator's account
otherwise than as is provided in section 109.
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(4) If the Court on review confirms any decision, order or taxation of the
Commissioner or officer referred to in subsection (1) the applicant's costs may not be
paid out of the estate concerned unless the Court otherwise directs.
Commissioner's fees
233. The Commissioner must in respect of the matters mentioned in
Schedule 3, ensure that the fees specified therein are recovered in the manner stipulated
in that Schedule.
Custody and destruction of documents
234. (1) The Commissioner has custody of all documents relating to an
insolvent estate.
(2) The liquidator of an insolvent estate may after three years elapsed as
from the confirmation by the Commissioner of the final liquidation account destroy all
books, documents and records in his or her possession relating to the insolvent estate,
unless the Commissioner consents to the earlier destruction of such book, documents
or records or directs that they be retained for a longer period determined by him or her.
(3) The Commissioner may destroy all records in his or her office relating
to an insolvent estate after five years have elapsed from the rehabilitation of the
insolvent.
Insurer's liability in respect of indemnification of debtor
235. Whenever any person (herein referred to as the insurer) is obliged to
indemnify another person (herein referred to as the insured) in respect of any liability
incurred by the insured towards a third party, such third party is, on the liquidation of
the estate of the insured, entitled to recover from the insurer the amount of the insured's
liability towards the third party, but not exceeding the maximum amount for which the
insurer is bound in terms of the indemnity.
295
Non-compliance with directives
236. (1) Nothing done under this Act is invalid merely by reason of the
non-compliance with any directive prescribed by or in terms of this Act, unless in the
opinion of the Court, or if the Court is not involved, in the opinion of the Commissioner
or the presiding officer, a substantial injustice has thereby been caused which cannot
be remedied by an appropriate order of the Court, the Commissioner or the presiding
officer.
(2) No defect or irregularity in the election or appointment of a liquidator
vitiates anything done by him or her in good faith.
Regulations, policy and other powers of Minister
237. (1) The Minister may make regulations prescribing -
(a) the procedure to be observed in Commissioners' offices in connection
with insolvent estates;
(b) the form, and manner of conducting proceedings under this Act;
(c) the manner in which fees payable under this Act must be paid and
brought to account;
(d) rights of members of the public to inspect public registers;
(e) any matter which in terms of this Act is required or permitted to be
prescribed; and
(f) any matter in respect of which the Minister considers it necessary or
expedient to prescribe in order to achieve the objects of this Act.
(2) A regulation made under subsection (1) may provide for the creation of
offences and imposition of penalties which may not exceed a fine of N$ 500 000 or
296
imprisonment for a period not exceeding two years, or both such fine and such
imprisonment.
(3) The Minister may by notice in the Gazette amend Schedule 2.
(4) Where this Act provides that an amount must be determined from time
to time so as to reflect any subsequent fluctuation in the value of money, the Minister
must before 31 March of each year adjust the amount by notice in the Gazette in
accordance with the fluctuation of the weighted average of the consumer price index
for the preceding period from January to December rounded to the nearest N$100.
(5) The Minister may determine policy for the appointment of a liquidator
or judicial manager by the Commissioner in order to promote consistency, fairness,
transparency and the achievement of equality for persons previously disadvantaged by
unfair discrimination.
(6) Any policy determined in accordance with the provisions of subsection
(5) must be published in the Gazette and tabled in Parliament.
Amendment and repeal
238. (1) The laws mentioned in Schedule 3 are hereby amended or
repealed to the extent indicated in the third column of that Schedule.
(2) Anything done under any provision of any law repealed by subsection
(1) which may be done under a corresponding provision of this Act is deemed to have
been done under that corresponding provision.
Short title and commencement
239. (1) This Act is called the Insolvency Act, 2018, and comes into
operation on a date determined by the Minister by notice in the Gazette.
297
(2) Different dates may be determined under subsection (1) for different
provisions of this Act.
298
SCHEDULE 1
FORM A1
STATEMENT OF DEBTOR'S AFFAIRS
FAILURE TO SUBMIT THIS FORM TO THE COMMISSIONER AND THE
LIQUIDATOR WITHIN 7 DAYS IS A CRIMINAL OFFENCE AND MAY DELAY
REHABILITATION, WHERE APPLICABLE
PART 1
BALANCE SHEET
OF______________________________________________________*
* Here insert the name in full of the debtor
Liabilities N$ Assets N$
Debts due as per
Part 5
Immovable property as per Part 2
Movable property as per Part 2
Outstanding claims, etc, as per Part 3
Deficiency/surplus
Total Total
PART 2
IMMOVABLE PROPERTY
Description of
property
Situation and
extent
Mortgages and other
secured claims
Estimated
values in N$
Property situate
in Namibia
Property
situate elsewhere
Total
299
PART 3
ANY MOVABLE PROPERTY WHATSOEVER WHICH IS NOT INCLUDED
IN PART 4 OR PART 5
Description of
property
Estimated
value
Property situate in Namibia . . . . Property situate
elsewhere . . . . . . . . Rc
Total
Note: Movable property includes assets such as insurance policies and credit balances
in accounts with banks or other institutions or persons. Any merchandise mentioned in
this part must be valued at its cost price or at its market value at the time of the making
of this statement, whichever is the lower, and the statement must be supported by
detailed stock sheets relating to such merchandise.
PART 4
OUTSTANDING CLAIMS, BILLS, BONDS AND OTHER SECURITIES
Names and
residential and
postal address
of the debtor
Particulars of
claim
Estimated
amount good
in N$
Estimated
amount bad or
doubtful in N$
In Namibia
Outside
Namibia
Total
N$
N$
300
PART 5
LIST OF CREDITORS
Name and address of
creditor
Nature and value of security for
claim
Nature of
claim
Amount of
claim in N$
Total
PART 6
MOVABLE ASSETS PLEDGED, HYPOTHECATED, SUBJECT TO A
RIGHT OF RETENTION OR UNDER ATTACHMENT IN EXECUTION OF
A JUDGMENT
Description of
asset
Estimated
value of asset
Nature of
charge on
asset
Amount of
debt to which
charge relates
Name of
creditor in
whose favour
charge is
301
PART 7
ENUMERATION AND DESCRIPTION OF EVERY BOOK OR
DOCUMENTING RECORD IN USE BY THE DEBTOR AT TIME OF THE
LIQUIDATION OR AT TIME WHEN THE DEBTOR CEASED CARRYING
ON BUSINESS
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
PART 8
DETAILED STATEMENT OF CAUSES OF DEBTOR'S INSOLVENCY
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
302
PART 9
PERSONAL INFORMATION
State whether the debtor is married, widowed or divorced:
_______________________
If the debtor is or was married, state -
(a) name or names of spouse or spouses (a 'spouse' means not only a wife or
husband in the legal sense, but also a person who in terms of any legal system
or recognised custom is recognised as such a person’s spouse and also any
person with whom such person is cohabitating in a marriage relationship,
irrespective of whether or not he or she is lawfully married to any other person).
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(b) whether the debtor is or was married in or without community of property and
whether the accrual system applies
____________________________________________________________________
____________________________________________________________________
(c) date of marriage
____________________________________________________________________
(d) whether the matrimonial property system has been changed since entering into
the marriage and, if so, the nature of the change
____________________________________________________________________
____________________________________________________________________
(e) full names and date of birth of the spouse and, if an identity number has been
assigned, the identity number of the spouse
303
____________________________________________________________________
____________________________________________________________________
State the debtor's nationality
____________________________________________________________________
State the debtor's place of birth, date of birth and, if an identity number has been
assigned, the identity number
____________________________________________________________________
____________________________________________________________________
Was the debtor's estate or the estate of a partnership in which the debtor is or was a
partner previously liquidated or placed in bankruptcy, whether in Namibia or
elsewhere?
____________________________________________________________________
If the preceding answer is in the affirmative, state -
(a) whether debtor's own estate or his partnership's estate was (i) liquidated; or (ii)
placed in bankruptcy
____________________________________________________________________
____________________________________________________________________
(b) the place where and the date when that estate was liquidated or placed in
bankruptcy
____________________________________________________________________
____________________________________________________________________
(c) whether the debtor has been rehabilitated or his estate released; if so, when
____________________________________________________________________
____________________________________________________________________
PART 10
AFFIDAVIT/SOLEMN DECLARATION
304
I, .......................................... declare under oath/solemnly and sincerely declare* that
to the best of my knowledge and belief the statements contained in this Schedule are
true and complete, and that every estimated amount therein contained is fairly and
correctly estimated.
Signature of declarant: ____________________
Sworn/solemnly declared before me on the _____ day of _____________________ at
__________________
____________________
Commissioner of Oaths
____________________
Full names
____________________
Business address
____________________
Designation and area or office
305
SCHEDULE 1
FORM A2
NOMINATION FOR LIQUIDATOR BY CREDITOR
Section 50
RE:______________________________________________________("the Debtor")
1. I understand that application has been/is to be made to the High Court for an
order for the placing of the Debtor in liquidation.
2. I declare that _________________________________________________
("the Creditor") is a creditor of the Debtor.
3. I hereby nominate _______________________________________________
of ________________________ telephone number ____________________ for
appointment as liquidator and request you to make the necessary appointment. The
Creditor intends proving a claim and voting for the final appointment of the
aforementioned person at the first meeting of creditors in this estate.
4. I declare that the Creditor is not a person disqualified, in terms of the provisions
of sections 42 of the Insolvency Act from voting for the appointment of the aforesaid
person as liquidator. As far as I am aware the nominated person is not disqualified from
the aforesaid appointment by virtue of the provisions of section 89 of the Insolvency
Act.
5. I further declare that I have satisfied myself that the amount reflected herein as
owing by the Debtor to the Creditor is, to the best of my knowledge and belief, true
and correct.
6. Creditor Details:
6.1 Name of creditor:________________________________________________
6.2 Address of creditor
306
____________________________________________________________________
6.3 Telephone number of creditor:
_________________________________________
6.4 Fax number of creditor (if any)
_________________________________________
6.5 E-mail address of creditor (if any)
_________________________________________
7. Amount of claim:
_________________________________________________________ (amount in
words)
8. Cause of action: the amount owing by the debtor to the creditor is owed in
respect of:
____________________________________________________________________
9. If the claim is by an employee who is a member of a registered trade union,
state the name of the union:
_________________________________________________________________
____________________
SIGNATURE
_______________________
PRINTED NAME
______________________
DATE
______________________
CAPACITY
307
SCHEDULE 1
FORM A3
NOMINATION FOR LIQUIDATOR BY REGISTERED UNION
(Section 50)
RE:
__________________________________________________________________
("the Debtor")
1. I understand that application has been/is to be made to the High Court for an
order for the placing of the Debtor in liquidation.
2. I declare that _________________________________________________(the
"Union") is a registered trade union which -
(a) represents the employees of the debtor listed in the annexure to this form
signed by me, who were employed by the debtor at the time of
liquidation; or
(b) represents the following number of employees employed by the debtor
at the time of the liquidation, which number is calculated as indicated in
the annexure to this form signed by me.
3. I hereby nominate
__________________________________of________________________
telephone number ____________________ for appointment as liquidator and
request you to make the necessary appointment.
4.1 NAME OF UNION:
_______________________________________________________
4.2 ADDRESS OF UNION:
____________________________________________________
4.3 TELEPHONE NUMBER OF UNION:
_________________________________________
308
4.4 FAX NUMBER OF UNION (IF ANY)
_________________________________________
4.5 E-MAIL ADDRESS OF UNION (IF ANY)
______________________________________
Official Stamp of Registered Union
_______________________ ______________________
SIGNATURE DATE
_______________________ ______________________
PRINTED NAME CAPACITY
309
SCHEDULE 1
FORM B
AFFIDAVIT FOR PROOF OF ANY CLAIM OTHER THAN A CLAIM
BASED ON A PROMISSORY NOTE OR OTHER BILL OF EXCHANGE
(Section 96)
Strike out inapplicable words where * occurs.
In the insolvent estate of: ________________________________________________
Date of liquidation: ____________________________________________________
Name of creditor: ______________________________________________________
Address of creditor: ____________________________________________________
E-mail address of creditor: ______________________________________________
Fax number of creditor: _______________________________________________
Amount of claim at date of liquidation: ____________________________________
I, ________________________________________________ declare *under
oath/solemnly as follows:
(1) *I am the creditor/I am the .................................(capacity) of the creditor and have
authority to make this declaration and submit the claim for proof as appears from the
attached documentation.
(2) *I have personal knowledge of the nature and particulars of the claim/I have
satisfied myself as to the nature and particulars of the claim.
(3) *The claim was not obtained by cession after the commencement of liquidation
proceedings/The claim was obtained by cession on _______________(date).
(4) The nature of the claim (for instance money advanced, goods delivered, salary due)
is ________________________________________________ as appears from the
attached documentation or declaration.
(In respect of debts which accrued over a period or in respect of which payments were
made a statement must be submitted with a brief description of all debits and credits
310
over the period of 12 months immediately preceding the commencement of
liquidation.)
(5) The debt arose on or since ______________(date). *The debt was due to me on the
commencement of liquidation/The debt or part thereof became due to me or will
become due to me after liquidation as set out on the attached statement.
(6) *I hold no security in respect of the debt/The particulars of security held by me for
payment of the debt and the value placed be me on the security (if a value is placed on
the security) are as follows:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
* I do not rely on my security for the payment of my claim./I rely solely on my
security for the payment of my claim.
(7) *To the best of my knowledge no one except the insolvent estate is liable for the
debt or a part thereof/The particulars of others who are to my knowledge liable for the
debt and the security held in respect thereof are as follows:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(8) *I authorize the liquidator to have any dividend due to me transferred electronically
to my banking account (supply name of account, branch number and account number)
____________________________________________________________________
____________________________________________________________________
__________________
Signature of declarant
*Sworn to/ solemnly declared before me on: ____________________________(date)
at _____________________________________ (place)
311
____________________
Commissioner of oaths
____________________
Full names
____________________
Business address
____________________
Designation and area or office
312
SCHEDULE 1
FORM C
AFFIDAVIT FOR THE PROOF OF A CLAIM BASED ON A PROMISSORY
NOTE OR OTHER BILL OF EXCHANGE
(Section 96)
Strike out inapplicable words where * occurs.
In the insolvent estate of: ________________________________________________
Date of liquidation: ____________________________________________________
Name of creditor: ______________________________________________________
Address of creditor: ____________________________________________________
E-mail address of creditor: ______________________________________________
Fax number of creditor: _______________________________________________
Amount of claim at date of liquidation: ____________________________________
I, ________________________________________________ declare *under
oath/solemnly as follows:
(1) *I am the creditor/I am the ___________________________________(capacity)
of the creditor and have authority to make this declaration and submit the claim for
proof as appears from the attached documentation.
(2) *I have personal knowledge of the nature and particulars of the claim/I have
satisfied myself as to the nature and particulars of the claim.
(3) *The claim was not obtained by cession after the commencement of liquidation
proceedings/The claim was obtained by cession on ______________________(date).
(4) The debtor was on the commencement of liquidation and still is indebted to
me by virtue of the following *promissory note/bill of exchange:
Date of
note or bill
Name of maker
or drawer
Name of
acceptor
Name of person to
whom payable
Date when
payable
Name of
endorser
Amount
in N$
313
(5) The nature of the claim (for instance money advanced, goods delivered, salary due)
is ______________________________________________________________ as
appears from the attached documentation or declaration.
(In respect of debts which accrued over a period or in respect of which payments were
made a statement must be submitted with a brief description of all debits and credits
over the period of 12 months immediately preceding the commencement of
liquidation.)
(6) That the said *note/bill is in all respects genuine and valid.
(7) *I hold no security in respect of the debt / The particulars of security held by me
for payment of the debt and the value placed be me on the security (if a value is placed
on the security) are as follows:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
* I do not rely on my security for the payment of my claim./I rely solely on my security
for the payment of my claim.
(8) *To the best of my knowledge no one except the insolvent estate is liable for the
debt or a part thereof / The particulars of others who are to my knowledge liable for
the debt and the security held in respect thereof are as follows
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
*(9) I authorize the liquidator to have any dividend due to me transferred electronically
to my banking account (supply name of account, branch number and account number)
____________________________________________________________________
____________________________________________________________________
314
__________________
Signature of declarant
*Sworn to/ solemnly declared before me on: ____________________________(date)
at _____________________________________ (place)
____________________
Commissioner of oaths
____________________
Full names
____________________
Business address
____________________
Designation and area or office
315
SCHEDULE 1
FORM D
FORM AND CONTENTS OF ACCOUNTS
(Section 106)
1. The accounts must be lodged on A4 standard paper and totals must be added up
separately at the foot of each sheet with a total at the end of each account.
2. Heading:
The heading of the account must contain the following information:
(a) The name of the debtor;
(b) the address of the debtor;
(c) the identity number or date of birth or registration number of the debtor;
(d) the commencement of liquidation;
(e) the ordinal number of the account or supplementary account;
(f) the nature of the account (eg liquidation account);
(g) where applicable, whether it is a final or supplementary account;
(h) whether it is a distribution account or a contribution account or both;
(i) the Commissioner's reference number.
3. Liquidation account
3.1 A liquidation account must contain a record of all receipts derived from the
realisation of assets and disbursements made or to be made in defraying the costs of
liquidation, except receipts and disbursements reflected in a trading account.
3.2 The record of receipts and disbursements must reflect full particulars explaining
their nature and state the amount thereof in a money column.
3.3 The gross proceeds of assets must be reflected and the disbursements incidental to
the realisation must be entered as disbursements.
316
3.4 Receipts and disbursements must upon the request of the Commissioner be
supported by satisfactory vouchers numbered consecutively in the top right-hand
corner by reference to the number appearing in the account opposite the relative item.
3.5 The account must reflect separately the distribution to be made (if any) to secured
claims, preferent claims and concurrent claims and the contribution to be levied (if
any).
3.6 If security has been realised, the liquidation account must contain a free residue
account dealing with receipts not subject to security and consecutively numbered
encumbered asset accounts dealing with receipts subject to security.
3.7 If disbursements or income are apportioned amongst the free residue and
encumbered asset accounts the liquidation account must indicate how the
apportionment has been calculated.
3.8 An encumbered asset account must be drawn to indicate the proceeds of the
realization of security, the disbursements payable out of the proceeds of the security
and the amount payable to a creditor or creditors with the period for and rate at which
interest before and after liquidation (if any) has been calculated.
4. Trading account
When the liquidator carried on business by either purchasing stock or entering into new
transactions for the purpose of trading, a separate trading account including the
following items only, must be submitted:
(a) The value of the stock on hand at the commencement of liquidation shown on
the credit side;
(b) the receipts and disbursement on the trading account;
(c) the value of stock on hand at the date on which the accounts were made up shown
on the debit side with a note of the items in the liquidation account reflecting the
proceeds of the stock that has been realised (if any).
317
5. Bank reconciliation
5.1 The liquidator must lodge complete statements up to the date on which the accounts
were made up of all accounts opened in terms of section 75.
5.2 The account must contain a bank reconciliation statement with the following
information:
(a) The balance in the cheque account and the date at which the bank statement
reflected that balance;
(b) the amount of the contribution provided for in the contribution account (if any);
(c) the amount (if any) of each outstanding deposit with sufficient particulars to
explain its nature or a reference to the item in the liquidation account which
together with the even numbered voucher (if any) explain its nature;
(d) the amount of each disbursement in the liquidation account that must still be paid
with sufficient particulars to explain its nature or a reference to the item in the
liquidation account which together with the even numbered voucher, if any,
explain its nature;
(e) the amount of the payment (if any) still to be made to each secured creditor with
an explanation if this amount does not agree with the amount reflected in the
distribution account;
(f) the total amounts to be paid to preferent creditors and concurrent creditors (if
any) with an explanation if these amounts do not agree with the totals reflected
in the distribution account;
(g) the amount (if any) to be transferred to a next account.
6. Distribution account, contribution account or contribution and distribution account
6.1 The liquidator , upon the request of the Commissioner, lodge all proved claims and
unproved claims admitted or compromised by the liquidator or proved in an action at
law.
318
6.2 The account must indicate the basis for contribution if this is not the amount of the
concurrent claim and contain the following columns that are applicable to the account:
(a) claim reference number;
(b) creditor's name and if dividends are to be transferred electronically the account
name, branch number and account number of the creditor's account;
(c) total claim;
(d) concurrent claim;
(e) secured claim;
(f) award in previous accounts;
(g) concurrent award with a separate column for interest after liquidation (if any)
and an explanation in the account of the rate at and period for which interest has
been calculated;
(h) secured or preferent award;
(i) amount of contribution;
(j) shortfall.
7. Certificate
7.1 Each liquidator must sign the certificate under oath or affirmation.
7.2 The certificate must state that the account contains a true account of the
administration of the estate.
7.3 If it is a final account, the certificate must state that so far as the liquidator is aware
all the assets of the insolvent estate have been disclosed in the accounts.
7.4 If it is not a final account, the certificate must reflect a list of all unrealised assets
of which the liquidator is aware with the reason why the assets have not been realised
and an estimate of the value of the assets.
319
SCHEDULE 1
FORM E1
NOTICE IN TERMS OF SECTION 29(6)(a) OF THE INSOLVENCY ACT ___
OF_____ (THE "ACT") TO ATTEND A HEARING IN TERMS OF SECTION
28 (7)(a) OF THE ACT
In re
INSOLVENT ESTATE OF
____________________________________________________________________
COMMISSIONER'S REFERENCE NO.: __________________________________
To: ________________________________________________________________
You are hereby notified in terms of section 28(7)(a) to appear at a hearing to be held
at ______________________________________________________________
(details of venue) on the ______ day of _______________ 2_____, at ___h___ to give
evidence and supply proof of earnings received by you or your dependants out of the
exercise of your profession, occupation or employment and all assets or income
received by you or your dependants from whatever source and the estimated expenses
for your own support and that of your dependants.
Dated at _________________________________this _______ day
of_________________ 2_______
__________________
Magistrate
____________________________________________________________________
____________________________________________________________________
320
(Here insert details of the name, address, telephone number, fax number and e-mail
of the liquidator or the legal practitioner acting for the liquidator)
NOTE:
Your attention is specifically drawn to the provisions of sections 91 and 213(2)(a) and
(b) of the Act which sections are printed on the reverse side hereof.
321
SCHEDULE 1
FORM E2
SUMMONS IN TERMS OF SECTION 96(13) OF THE INSOLVENCY ACT
___ OF 2____ (THE "ACT") TO ATTEND A MEETING OF CREDITORS
FOR QUESTIONING IN TERMS OF SECTION 96(13) OF THE ACT
In re:
INSOLVENT ESTATE OF
____________________________________________________________________
COMMISSIONER'S REFERENCE NO.: __________________________________
To: ________________________________________________________________
You are hereby summonsed in terms of section 96(13) to appear in person at a meeting
of creditors in the above estate to be held at
______________________________________________________(details of venue)
on the ______ day of _______ 2___, at ___h___ to be questioned by the presiding
officer, the liquidator or a creditor who has proved a claim against the estate, or the
representative of the liquidator or such creditor in regard to your claim against the
insolvent estate. You are summonsed to bring with you all books, documents or records
in support of your claim.
Dated at _________________________________this _______ day
of_________________ 2_______
__________________
Presiding Officer
____________________________________________________________________
322
____________________________________________________________________
(Here insert details of the name, address telephone number, fax number and e-mail of
the liquidator or the legal practitioner acting for the liquidator)
NOTE:
In terms of section 96(14), if a person who wishes to prove a claim is called upon to
be questioned as contemplated in subsection (12) of that section and fails without
reasonable excuse to appear or refuses to take the oath or make a solemn declaration
or to submit to questioning or to answer fully and satisfactorily any lawful question put
to him or her, his or her claim, may be rejected.
323
SCHEDULE 1
FORM E3
SUMMONS IN TERMS OF SECTION 86(1) OF THE INSOLVENCY ACT ___
OF 2____ (THE "ACT") TO ATTEND A MEETING OF CREDITORS FOR
QUESTIONING IN TERMS OF SECTION 87 OF THE ACT
In re:
INSOLVENT ESTATE OF
____________________________________________________________________
COMMISSIONER'S REFERENCE NO.: __________________________________
To: ________________________________________________________________
You are hereby summonsed in terms of section 86(1) to appear in person at a meeting
of creditors in the above estate to be held at
______________________________________________________(details of venue)
on the ______ day of _______ 2___, at ___h___ to give evidence and to be questioned
on all matters relating to the insolvent or his or her business or affairs, whether before
or after the liquidation of the estate, and concerning any property which at any time
belonged to the insolvent estate and to produce to the presiding officer at the meeting
all the books, papers and documents specified hereunder:
LIST OF BOOKS, PAPERS OR DOCUMENTS TO BE PRODUCED
Description of book,
paper or document
Date (if any) Copy or original required
324
Dated at _________________________________this _______ day
of_________________ 2_______
__________________
Presiding Officer
____________________________________________________________________
____________________________________________________________________
(Here insert details of the name, address
telephone number, fax number and e-mail of the liquidator or the legal practitioner
acting for the liquidator)
NOTES:
1. A cheque for witness fees in the form of appearance money and travelling
allowances in the sum of N$ _____
(__________________________________________, N$) is attached to your
copy of the summons. You are entitled to make representations to the Presiding
Officer of the meeting for additional necessary witness fees.
2. Your attention is specifically drawn to the provisions of sections 87(3), 87(6),
87(9), 91 and 92(10) of the Act which sections are printed on the reverse side
hereof.
325
SCHEDULE 1
FORM E4
SUMMONS IN TERMS OF SECTION 88(3)(b) OR 88(6) OF THE
INSOLVENCY ACT ___ OF 2____ (THE "ACT") TO ATTEND A
QUESTIONING IN TERMS OF SECTION 88 OF THE ACT
In re:
INSOLVENT ESTATE OF
____________________________________________________________________
COMMISSIONER'S REFERENCE NO.: __________________________________
To: ________________________________________________________________
You are hereby summonsed in terms of section 88(3)(b) or 88(5) to appear in person
at a questioning in the above estate to be held at
______________________________________________________(details of venue)
on the ______ day of _______ 2___, at ___h___ to be questioned on property in your
possession belonging to the insolvent estate, amounts due by you to the insolvent estate
and all matters relating to the affairs of the insolvent and his or her property and to
produce to the presiding officer at the questioning all the books, documents or records
specified hereunder:
LIST OF BOOKS, PAPERS OR DOCUMENTS TO BE PRODUCED
Description of book,
paper or document
Date (if any) Copy or original required
326
Dated at _________________________________this _______ day
of_________________ 2_______
__________________
Commissioner/Court/ Presiding Officer
____________________________________________________________________
____________________________________________________________________
(Here insert details of the name, address
telephone number, fax number and e-mail of the liquidator or the legal practitioner
acting for the liquidator)
NOTES:
1. A cheque for witness fees in the form of appearance money and travelling
allowances in the sum of N$ _____
(__________________________________________, N$) is attached to your
copy of the summons. You are entitled to make representations to the Presiding
Officer of the meeting for additional necessary witness fees.
2. Your attention is specifically drawn to the provisions of sections 87(3), (6), (9),
(10), 87(7), (8) and (10), 91 and 213(2)(a) and (b) of the Act which sections
are printed on the reverse side hereof.
327
SCHEDULE 1
FORM E5
SUMMONS IN TERMS OF SECTION 90(1) OF THE INSOLVENCY ACT
____ OF 2_____ (THE "ACT") TO ATTEND A QUESTIONING IN TERMS
OF SECTION 90 OF THE ACT
In re:
INSOLVENT ESTATE OF
____________________________________________________________________
COMMISSIONER'S REFERENCE NO.: __________________________________
To: ________________________________________________________________
You are hereby summonsed in terms of section 90(1) to appear in person at a
questioning in the above estate to be held at
______________________________________________________(details of venue)
on the ______ day of _______ 2___, at ___h___ to furnish information and to be
questioned on all information within your knowledge concerning the insolvent or his
or her estate or the administration of the estate and to produce to the presiding officer
at the meeting all the books, documents and records specified hereunder:
LIST OF BOOKS, DOCUMENTS OR RECORDS TO BE PRODUCED
Description of book,
paper or document
Date (if any) Copy or original required
Dated at _________________________________this _______ day
of_________________ 2_______
328
__________________
Commissioner
____________________________________________________________________
____________________________________________________________________
(Here insert details of the name, address
telephone number, fax number and e-mail of the liquidator or the legal practitioner
acting for the liquidator)
NOTES:
Your attention is specifically drawn to the provisions of sections 87(3), 87(6), 87(9),
87(10), 90(5), 90(6), 91 and 213(2)(a) and (b) of the Act which sections are printed
on the reverse side hereof.
329
FORM F
STATUTORY DEMAND IN TERMS OF SECTION 16(2)(a) OF THE
INSOLVENCY ACT (ACT NO_ OF 2___)
WARNING
This is an important document. If you should fail to respond to the document within
21 days after service thereof your estate may be liquidated and your assets taken
away from you.
DEMAND
To: ______________________________________________________________
Address: _________________________________________________________
________________________________________________________
The creditor claims that you are indebted to him or her for the following amount which
is now due and payable and that he holds no security for the amount claimed.
When incurred
Type of debt
(cause of action)
Amount due as at
the date of the
demand
The creditor demands that you pay the amount due within three weeks after the service
of this demand or give security to the reasonable satisfaction of the creditor therefor,
or enter into a compromise in respect thereof.
330
Should you fail to comply with this demand, this does not preclude you from opposing
an application for the liquidation of your estate. If you deny indebtedness wholly or in
part, you should contact the creditor without delay.
SIGNATURE: ___________________________________________________
NAME OF CREDITOR: ________________________________________________
(PRINT)
DATE: ___________________________________________________
CAPACITY: ___________________________________________________
(IF NOT CREDITOR PERSONALLY)
ADDRESS:
____________________________________________________________________
____________________________________________________________________
TEL NO: ________________________________________________________
PERSON YOU MAY CONTACT IF NOT CREDITOR PERSONALLY:
NAME: ____________________________________________________________
ADDRESS:
____________________________________________________________________
____________________________________________________________________
If debt obtained by cession or otherwise:
Name
Date of cession or other act
331
Original creditor
Cessionaries
332
SCHEDULE 2
TARIFF A
SHERIFF'S FEES
(SECTION 59)
In this Tariff a reference to the tariff in an item refers to the items in the tariff applicable
according to Part 14 of Rules of the High Court of Namibia made under section 39 of
the High Court Act, 1990 (Act No. 16 of 1990), as amended from time to time.
1. For service or attempted service of documents the tariff in item 2 of Annexure
C.
2. For each separate attachment of property the tariff in item 5 of Annexure C.
3. For making an inventory and the list of books and records referred to in section
59(7) of the Insolvency Act the tariff in item 7 of Annexure C.
4. For reporting on the attachment of assets the tariff in item 7 of Annexure C.
5. For making of all necessary copies of documents the tariff in item 10 of
Annexure C.
6. Travelling allowance, per kilometre or fraction thereof according to the tariff
in item 3 of Annexure C.
7. For each necessary letter, excluding formal letters accompanying attachment or
service of documents the tariff in item 15 of Annexure C.
8. For each necessary attendance by telephone (in addition to prescribed trunk
charges) the tariff in item 16 of Annexure C.
9. For sending and receiving of each necessary facsimile per A4 size page (in
addition to telephone charges) the tariff in item 16 of Annexure C.
333
10. Bank charges: Actual costs incurred regarding bank charges and cheque forms.
11. For any work necessarily done by or on behalf of the sheriff in performing the
duties under section 59 of the Insolvency Act, for which no provision is made
in this tariff: An amount to be determined by the Commissioner.
RULES FOR THE CONSTRUCTION OF THE TARIFF AND THE GUIDANCE OF
THE SHERIFF
(1) Where there are more ways than one of doing any particular act, the least
expensive way must be adopted unless there is some reasonable objection
thereto, or unless the party at whose instance process is executed desires any
particular way to be adopted at his or her expense.
(2) Where any dispute arises as to the validity or amount of any fees or charges the
matter must be determined by the Commissioner.
(3) The sheriff may pay rent, if necessary for premises required for the storage of
goods attached, for a period of one month or such longer period as the
Commissioner or the liquidator may authorize.
334
SCHEDULE 2
TARIFF B
REMUNERATION OF LIQUIDATOR
(SECTION 65)
1. On the gross proceeds of any immovable property sold by the liquidator or the
value at which property constituting security has been disposed of to a creditor
in settlement of his or her claim or the gross proceeds of any sales by the
liquidator in carrying on the business of the debtor, or any part thereof, in terms
of section 45(3)(d): 5 per cent
2. On the gross proceeds of any other movable property sold by the liquidator or
other gross amounts collected by the liquidator: 10 per cent
Provided that the total remuneration of a liquidator in terms of this tariff may not be
less than N$ 5 000.
REMUNERATION OF INTERIM LIQUIDATOR (SECTION 56)
A reasonable remuneration to be determined by the Commissioner, not to exceed the
rate of remuneration of a liquidator under this tariff.
335
SCHEDULE 2
TARIFF C
COMMISSIONER'S FEES OF OFFICE
(SECTION 74(1)(b))
1. On all insolvent estates under final liquidation in which the total gross value of
the assets according to the liquidator’s account for each complete N$5 000
……N$25
subject to a minimum fee of N$500 and a maximum fee of N$25 000.
2. (a) For a copy of or an extract from any document preserved in the office
of a Commissioner, when made in such office (including the
certification of such copy or extract), a fee of N$5,00 must be paid.
(b) For the certification of such copy or extract not made in such office a
fee of N$10,00 must be paid.
3. (a) The fees referred to in item 1 must be assessed by the Commissioner
and is payable on or before a date determined by the Commissioner to
any receiver of revenue. Proof of such payment must be submitted by
the liquidator to the Commissioner.
(b) The payment of the fees referred to in item 2 must be denoted-
(i) by affixing adhesive revenue stamps to; or
(ii) by impressing stamps by means of a franking machine approved
by the Commissioner of Inland Revenue on, the written request
for the rendering by the Commissioner of the service in question.
336
SCHEDULE 3
PROVISIONS OF LAWS AMENDED OR REPEALED
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with solid line indicate insertions in existing
enactments.
No and year of
law
Short title
Extent of amendment or repeal
Act No. 32 of
1944
Magistrates’ Courts Act,
1944
1. The amendment of section 65A by the
addition of the following subsection:
“(6) If it appears to the court during
proceedings in terms of subsection (1) that
there are reasonable grounds for
suspecting that any person has committed
an offence, the court shall transmit the
relevant information and certified copies
of relevant documents to the Regional
Commander of the Commercial Branch of
the Namibian Police, or a similarly ranked
law enforcement official in whose area of
jurisdiction the proceedings was held or
the offence is suspected of having been
committed to enable the Commercial
Branch to determine whether criminal
proceedings should be instituted in the
matter.”.
337
No and year of
law
Short title
Extent of amendment or repeal
2. The amendment of section 67 by the
addition of the following paragraph:
“(h) necessary medicine and medical
devices.”.
2. The amendment of section 74 by the
substitution for paragraph (b) of subsection
(1) of the following paragraph:
“(b) states that the total amount of all
his or her unsecured debts does
not exceed the amount prescribed
by the Minister from time to time
by notice in the Gazette.”.
3. The amendment of section 74B by the
addition of the following subsection:
“(6) If it appears to the court during a
hearing in terms of subsection (1)
that there are reasonable grounds
for suspecting that any person has
committed an offence, the court
shall transmit the relevant
information and certified copies of
relevant documents to the
Regional Commander of the
Commercial Branch of the
Namibian Police, or a similarly
338
No and year of
law
Short title
Extent of amendment or repeal
ranked law enforcement official in
whose area of jurisdiction the
proceedings was held or the
offence is suspected of having
been committed to enable the
Branch to determine whether
criminal proceedings should be
instituted in the matter.".
Act No. 57 of
1951
Merchant Shipping Act,
1951
The amendment of section 51 by the
substitution for subsection (2) of the
following:
“(2) The provisions of subsection (1)
shall be subject to the provisions of
sections 33, 34, 35, 36 and 73 [twenty-
six, twenty-seven, twenty-nine, thirty,
thirty-one and eighty-eight] of the
Insolvency Act, __ (Act No. __ of___
[1936 (Act No. 24 of 1936)]; and in the
application of the said section 73 [eighty-
eight] to the mortgage of a ship or share
the references in that section to the
registrar of deeds and a mortgage bond
shall be construed as references to the
proper officer and a deed of mortgage,
respectively.”.
Act No. 73 of
1968
Usury Act, 1968 The amendment of section 5 by the
substitution for the phrase “Insolvency Act,
339
No and year of
law
Short title
Extent of amendment or repeal
1936 (Act No. 24 of 1936)” of the phrase
“Insolvency Act, __ (Act No. _ of ___).”.
Ordinance No.
11 of 1976
Atmospheric Pollution
Prevention Ordinance,
1976
The amendment of section 15 by the
substitution for subsection (6)(b) of the
following:
“(b) Any amount recoverable under
paragraph (a), together with
interest thereon calculated at the
rate of six percent per annum with
effect from the date upon which
such amount became due, shall,
notwithstanding anything to the
contrary contained in any
ordinance made by Parliament
[the Legislative Assembly] or
any proclamation issued by the
President [Administrator] or any
regulations made under any such
ordinance or proclamation, form a
first charge against the land upon
which the premises concerned are
situated, and shall rank in priority
to all other debts whatsoever other
than expenses, costs, fees and
charges referred to in section 74
[89] of the Insolvency Act, _ (Act
No. _ of ___) [1936 (Act 24 of
1936)], or any other Act. [of the
Parliament of the Republic of
340
No and year of
law
Short title
Extent of amendment or repeal
South Africa which applies in
the Territory]”.
Act No. 112 of
1976
Estate Agents Act, 1976 The amendment of section 30 by the
substitution for paragraph (f) of subsection
(1) of the following:
“(f) commits any deed of insolvency
referred to in section 16 [8] of
the of the Insolvency Act, _
(Act No. _ of ___) [1936 (Act
24 of 1936)];”
Act No. 66 of
1965
Administration of
Estates Act, 1965
1. The amendment of section 1 by the
substitution for the definition of “act of
insolvency” of the following definition:
“act of insolvency” means an act of
insolvency in terms of section 16 [8] of
the of the Insolvency Act, _ (Act No. _
of ___) [1936 (Act 24 of 1936)]”
2. The amendment of section 88 by the
substitution for subsection (1) of the
following subsection:
“(1) Subject to the provisions of
subsections (2) and (3), interest calculated
on a monthly basis at the rate per annum
341
No and year of
law
Short title
Extent of amendment or repeal
determined from time to time by the
Minister of Finance, [Cabinet] and
compounded annually at the thirty-first
day of March, shall be allowed on each
dollar [rand] of the principal of every sum
of money received by the Master for
account of any minor, lunatic, unborn heir
or any person having an interest therein of
a usufructuary, fiduciary or
fideicommissary nature, or for an
insolvent in terms of section 112 of the
Insolvency Act, __ (Act No__ of ___).”
3. The amendment of section 34 by the
substitution for -
(a) subsection (4) before the proviso of
the following:
“(4) On the receipt of the notification
under subsection (3), the executor
shall, without delay, by notice in
writing (a copy of which he or she
shall lodge with the Master) report
the position of the estate to the
creditors, informing them that
unless a majority in number and
value of all the creditors instruct
him or her in writing, within a
period (not being less than
342
No and year of
law
Short title
Extent of amendment or repeal
fourteen days) specified in the
notice, to surrender the estate
under the Insolvency Act, __ (Act
No. __ of ___) [Insolvency Act,
1936 (Act No. 24 of 1936)], he or
she will proceed to realize the
assets in the estate and distribute
the proceeds in accordance with
the provisions of subsection (5):”
(b) subsection (5)(b) of the following:
“(b) frame a distribution account
providing for the
distribution of the proceeds
in the order of preference
prescribed under the said
Insolvency Act, ____,
[1936] in the case of a
[sequestrated] liquidated
estate:”.
(c) subsection (7) of the following:
“If any creditor has under
paragraph (b) of the proviso to
subsection (4) placed a value on
any security, the executor may at
any time within six weeks
thereafter deal therewith with the
343
No and year of
law
Short title
Extent of amendment or repeal
changes necessitated by the
context [mutatis mutandis] in the
manner provided in
section 67 [eighty-three] of the
said Insolvency Act __, [1936].”.
(b) subsection (9) of the following
“The provisions of this section
shall not prevent the sequestration
of any estate under the said
Insolvency Act __ [1936].”.
Act No. 26 of
1988
Close Corporations Act,
1988
1. The substitution for the phrase
“Insolvency Act, 1936 (Act No. 24 of
1936)” of the phrase “Insolvency Act,
__ (Act No. _ of ___) ” wherever it
occurs in the Close Corporations Act.
3. The amendment of section 72 by the
substitution for subsection (2)(a) of the
following:
“(2)(a) The provisions of Chapter
4 [sections 119, 120, 123 and
124(1) and (5)] of the
Insolvency Act, ___ (Act No. __ of
__ [1936 (Act 24 of 1936)], relating
to compositions shall with the
344
No and year of
law
Short title
Extent of amendment or repeal
changes necessitated by the
context [mutatis mutandis] apply
in respect of the procedure and
effect of any such compositions,
and the [the liquidator's] functions
of any insolvency practitioner
thereunder.”.
4. The substitution for section 74 of the
following section:
“Appointment of liquidator
74. Sections 53 and 51 to 58 of
the Insolvency Act __ (Act No. _ of
___) apply with the necessary
changes to the appointment of a
liquidator in the case of a corporation
being wound up as a voluntary
winding-up by members: Provided
that the Insolvency Commissioner as
defined by section 1 of that Act must
take into consideration any resolution
or further resolution passed at a
meeting of members nominating a
person as liquidator.”.
Act, No. 16 of
1990
High Court Act, 1990
The amendment of section 111 by the
substitution for paragraph (b) of subsection
(5) of the following:
345
No and year of
law
Short title
Extent of amendment or repeal
“(b) thereafter the claims of other
creditors whose writs have been
lodged with the deputy-sheriff in
the order of preference
appearing in Part 9 of Chapter 2
[section 96 and sections 99 to
103] of the Insolvency Act, ___
(Act No. __ of __ [1936 (Act 24
of 1936)].”.
Act No. 23 of
1992
Local Authorities Act,
1992
1. The amendment of section 1 by the
substitution for item (ii) of paragraph
(a) of the definition of “owner” for the
following:
“(ii) is a person whose estate has been [sequestrated] liquidated, means the [trustee] liquidator in the insolvent estate of such person;”.
2. The amendment of section 78 by the
substitution for the preamble of the
following:
“78. Subject to the provisions of
section 69(4) [89(4)] of
the Insolvency Act, ___ (Act No.
__ of __ [1936 (Act 24 of 1936)]the
registrar of deeds shall not register
a transfer of any immovable
property situated within a local
346
No and year of
law
Short title
Extent of amendment or repeal
authority area, unless there is
produced to him or her-”.
Act No. 34 of
1994
Social Security Act,
1994
The amendment of section 25 by the
substitution for subsection (6) of the
following:
“(6) Subject to the Insolvency Act,
___ (Act No. __ of __ [1936 (Act 24
of 1936)] and the Companies Act, 28
of 2004 [1973 (Act 61 of 1973)], the
executive officer may institute
proceedings for the [sequestration]
liquidation of the estate or the
winding-up, as the case may be, of any
employer in respect of whom a
statement has been filed in terms of
subsection (2), and for such purpose
the executive officer shall be deemed
to be the creditor in respect of any
contributions or interest due or payable
by that employer.”.
Act No. 2 of
1995
Foreign Courts Evidence
Act, 1995
The amendment of section 7 by the
substitution for subsection (1)(c) of the
following:
“(1)(c) at any meeting of creditors to
be held in terms of a law of any such
347
No and year of
law
Short title
Extent of amendment or repeal
country similar to section 80 and 81
[40] of the Insolvency Act, ___ (Act
No. __ of __ [1936 (Act No. 24 of
1936)];”.
Act No. 23 of
1996
Cooperative Societies
Act, 1996
1. The substitution for the phrase
“Insolvency Act, 1936 (Act No. 24 of
1936)” of the phrase “Insolvency Act,
__ (Act No. _ of ___) ” wherever it
occurs in the Cooperative Societies Act.
2. The amendment of section 24 by the
substitution for the postamble of that
section of the following:
“have a preferent claim against
any balance of the free residue of
such member's insolvent estate
after the expenditure referred to in
Part 9 of Chapter 2 [sections 96 to
102, inclusive,] of that Act have
been provided for as contemplated
in those sections.”.
Act No. 2 of
1998
Banking Institutions
Act, 1998
1. The substitution for the phrase
“Insolvency Act, 1936 (Act No. 24 of
1936)” of the phrase “Insolvency Act,
__ (Act No. _ of ___) ” wherever it
occurs in the Banking Institutions Act.
348
No and year of
law
Short title
Extent of amendment or repeal
2. The amendment of section 7 by the
substitution for subsection (2) of the
following:
“(2) Any person referred to in
subsection (1) who refuses or fails to
comply with a direction under that
subsection, shall, for the purposes of
section 345 of the Companies Act, be
deemed to be unable to pay its debts,
or for the purposes of section 16 [8] of
the Insolvency Act, ___ (Act No. __
of __ [1936 (Act No. 24 of 1936)], be
deemed to have committed an act of
insolvency, as the case may be, and
the Bank may apply to the High Court
for the winding-up, or for the
liquidation [sequestration] of the
estate, of such person, as the case may
be.
Act No. 18 of
2003
Payment System
Management Act, 2003
The substitution for the phrase “Insolvency
Act, 1936 (Act No. 24 of 1936)” of the
phrase “Insolvency Act, __ (Act No. _ of
___) ” wherever it occurs in the Payment
System Management Act.
349
No and year of
law
Short title
Extent of amendment or repeal
Act No. 28 of
2004
Companies Act, 2004
1. The substitution for the phrase
“Insolvency Act, 1936 (Act No. 24 of
1936)” of the phrase “Insolvency Act,
__ (Act No. _ of ___) ” wherever it
occurs in the Companies Act.
2. The amendment of section 389 by the
substitution for subsection (1) of the
following:
“(1) The cost of giving security by a
person appointed as liquidator to an
amount which the Master considers
reasonable must, subject to section
69(4) [89(1)] of the Insolvency Act,
___ (Act No. __ of __ [1936 (Act No.
24 of 1936)], be paid out of the assets
of the company concerned as part of
the costs of the liquidation.
3. The amendment of section 392 by the
substitution for subsection (6)(g) of
the following:
“(g) with the necessary changes,
to exercise the same powers as are by
sections 43 and 48 [35 and 37] of
the Insolvency Act, ___ (Act No. __
of __ [1936 (Act No. 24 of 1936)],
350
No and year of
law
Short title
Extent of amendment or repeal
conferred on a liquidator [trustee]
under that Act, on the like terms and
conditions as are mentioned in those
sections, but, the powers conferred
by section 43 [35] of that Act, must
not be exercised unless the company
is unable to pay its debts;
4. Section 418 is amended by the
substitution for subsection (2) of the
following:
“(2) Section 84 [52] of
the Insolvency Act, ___ (Act No. __
of __ [1936 (Act No. 24 of 1936)],
does, with the necessary changes,
apply to the right of any creditor to
vote at a meeting of creditors in a
winding-up of a company.
5. The amendment of section 422 by-
(a) the substitution for subsection (1)
of the following:
“(1) Sections 91, 92 and 93 [66,
67 and 68] of
the Insolvency Act, ___ (Act No.
__ of __ [1936 (Act No. 24 of
1936)], do, in so far as they can be
351
No and year of
law
Short title
Extent of amendment or repeal
applied and are not inconsistent
with this Act, with the necessary
changes, apply in relation to-
(a) any person who is, in terms of
section 420(1) of this Act,
required to attend any
meeting of a company being
wound up and which is
unable to pay its debts, as if
that person were an insolvent
required to attend any
meeting referred to in section
85 [64] of
the Insolvency Act, ___
(Act No. __ of __ [1936 (Act
No. 24 of 1936)]; and
(b) any person summoned,
in terms of section 420(2) of
this Act, to attend any
meeting of the creditors of
that company or to produce
any book or document at that
meeting, and section 87 [65]
of the Insolvency Act, ___
(Act No. __ of __ [1936 (Act
No. 24 of 1936)], does, in so
far as it can be applied and is
not inconsistent with this Act,
352
No and year of
law
Short title
Extent of amendment or repeal
with the necessary changes,
apply in relation to the
production of any book or
document or the questioning
of any person under section
421 of this Act, as if that
person had been summoned
to produce any book or
document or were being
questioned under section 87
[65] of the Insolvency Act,
___ (Act No. __ of __ [1936
(Act No. 24 of 1936)].”.
(b) by the substitution for subsection
(2) of the following:
“(2) In applying sections 91, 92
and 93 [66, 67 and 68] of
the Insolvency Act, ___ (Act No.
__ of __ [1936 (Act No. 24 of
1936)], as contemplated in
subsection (1), any reference in
any of those sections or in section
85 and 87 [64 or 65] of that Act-
(a) to the estate of an
insolvent, must be
construed as a reference to
353
No and year of
law
Short title
Extent of amendment or repeal
the estate of the company
concerned;
(b) to the liquidator
[trustee] of an insolvent
estate, must be construed
as a reference to the
liquidator of that
company;
(c) to a meeting of the
creditors of an insolvent,
must be construed as a
reference to a meeting of
the creditors of that
company;
(d) to a creditor who has
proved a claim against an
insolvent estate, must be
construed as a reference
to a person who has
proved a claim against
that company;
(e) to the business or affairs or
property of an insolvent,
must be construed as a
reference to the business
354
No and year of
law
Short title
Extent of amendment or repeal
or affairs or property of
that company;
(f) to any person indebted to
an insolvent estate, must
be construed as a
reference to a person
indebted to that
company;
(g) to the liquidation
[sequestration] of an
insolvent estate, must be
construed as a reference
to the commencement of
the winding-up of that
company.
6. The amendment of section 441 by the
substitution for subsection (3) of the
following:
(3) [Sections 151 and 151bis] Section
232 of the Insolvency Act, ___ (Act
No. __ of __ [1936 (Act No. 24 of
1936)], apply with reference to any
fixing of remuneration by the Master
under this section.
355
No and year of
law
Short title
Extent of amendment or repeal
7. The amendment of section 442 by the
substitution for subsection (4) of the
following:
“(4) The notice in a newspaper as
contemplated in subsection (3) must
comply with section 82 [40(3)(c)] of
the Insolvency Act, ___ (Act No. __
of __ [1936 (Act No. 24 of 1936)], and
must appear at least 10 days before the
date of the meeting.
8. The substitution for section 444 of the
following:
“Period of judicial management to
be discounted in determining
preference under mortgage bond
444. The time during which any
company being a mortgage debtor in
respect of any mortgage bond, is
subject to a judicial management
order, must be excluded in the
calculation of any period of time for
the purpose of determining whether
that mortgage bond confers any
preference in terms of section 73 [88]
of the Insolvency Act, ___ (Act No.
__ of __ [1936 (Act No. 24 of 1936)],
356
No and year of
law
Short title
Extent of amendment or repeal
as applied to the winding-up of
companies by this Act.
Act No. 29 of
2004
Prevention of Organised
Crime Act, 2004
1. The substitution for the phrase
“Insolvency Act, 1936 (Act No. 24 of
1936)” of the phrase “Insolvency Act,
__ (Act No. _ of ___) ” wherever it
occurs in the Prevention of Organized
Crime Act.
2. The amendment of section 48-
(a) by the substitution for subsection
(2)(a) of the following:
“(2) When the estate of a defendant
who has directly or indirectly made an
affected gift to any other person is
liquidated [sequestrated]-
(a) a court must not set aside the
disposition of that gift under
section 35 and 36 [29, 30 or 31]
of the Insolvency Act, ___ (Act
No. __ of __ [1936 (Act No. 24
of 1936)]”.
(b) the substitution for subsection
(3)(b) of the following:
357
No and year of
law
Short title
Extent of amendment or repeal
“(b) in respect of any property
that the liquidator [trustee]
concerned is entitled to claim from
the insolvent under section 29 [23]
of the Insolvency Act, ___ (Act
No. __ of __ [1936 (Act No. 24 of
1936)].”.
Act No. 11 of
2007
Labour Act, 2007
The substitution for the phrase “Insolvency
Act, 1936 (Act No. 24 of 1936)” of the phrase
“Insolvency Act, __ (Act No. _ of ___) ”
wherever it occurs in the Labour Act.
Act no. 14 of
2015
Deeds Registries Act,
2015
The amendment of section 5 by the
substitution for subsection (1)(e) of the
following:
“(e) destroy or otherwise dispose of, in
the prescribed manner, any
prescribed record cancelled in
terms of this Act or any record in
connection with a caveat that has
expired in terms of section 26
[17(3)] of the Insolvency Act, ___
(Act No. __ of __ [1936 (Act No.
24 of 1936)].
358
SCHEDULE 4
STATEMENT IN RESPECT OF PROPOSED PRE-LIQUIDATION
COMPOSITION: MAGISTRATE’S COURT
(SECTION 121)
PART A
PERSONAL PARTICULARS OF DEBTOR
Full names and surname ________________________________________________
____________________________________________________________________
Address _____________________________________________________________
____________________________________________________________________.
(Documents in connection with the composition may be delivered to the debtor at this
address until such time as he or she has notified the magistrate of a change of address)
Date of birth_________________________________________________________
Identity number, if one has been assigned ________________________
Marital status _________________________________________________________
If married, state—
• full names of spouse (“spouse” means a spouse in the legal sense, and even if
there is such a spouse, also a spouse according to any law or custom or a person
living with another as a spouse)
__________________________________________
• date of birth of spouse ____________________________________________
• identity number of spouse, if one has been assigned _____________________
359
• whether the debtor is or was married in or without community of property and
whether the accrual system applies
_____________________________________________________________
• date of marriage __________________________________________
• whether the matrimonial property system has changed since entering into the
marriage and, if so, the nature of the change
_____________________________________________________________
Whether the debtor’s estate has been placed under administration during the last five
years or whether it is under administration at present and, if so, the date of the
administration order and whether it has been concluded
____________________________________________________________________
Whether the debtor has during the last six months lodged a composition with a
magistrate for submission to creditors
____________________________________________________________________
Whether the debtor’s estate has been liquidated during the last ten years and, if so, the
commencement of liquidation and the High Court that issued the liquidation order
____________________________________________________________________
PART B
APPLICABLE STATUTORY PROVISIONS
The debtor declares that he or she is aware of the following statutory provisions in
connection with his or her application:
1. If the composition provides for the payment of a cash amount for distribution
among creditors, the amount must, pending the outcome of the offer of
composition, be invested with a legal practitioner or someone else whom the
court approves in an interest-bearing savings account in trust. The debtor must
offer proof that the cash amount has been invested in this manner.
360
2. If a debtor incurs debt during the period from lodging the composition with the
magistrate until creditors have voted on the composition, he or she must notify
the creditor who offers him or her credit of the pending composition and at the
first appearance before a magistrate in connection with the composition, he or
she must provide full particulars concerning the said debt incurred by him or
her. During the said period or after a composition has been accepted, a debtor
may not alienate, encumber or voluntarily dispose of any property which must
be made available to creditors in terms of the composition or do anything which
can impede compliance with the composition. A debtor who contravenes these
provisions is guilty of an offence.
3. If the composition provides for payments by the debtor in determined
instalments or otherwise, the acceptance of the composition has the effect of a
judgment in terms of section 65 of the Magistrates’ Courts Act, 1944 (Act No.
32 of 1944) in respect of the payments. Any person who in terms of the
composition must receive the payments on behalf of creditors, or if there is no
such person, any creditor who is in terms of the composition entitled to a benefit
out of the payments, has the rights which a judgment creditor would have in
terms of the section.
4. The magistrate may revoke the composition for cogent reasons. “Cogent
reason” includes the following:
(a) If the debtor does not comply with his or her obligations in terms of the
composition; or
(b) If the debtor renders false information in his or her statement or in the
course of the questioning; or
(c) If the debtor gives a benefit in respect of a claim which falls under the
composition to a creditor on whom the composition is binding and who
is not entitled to the benefit in terms of the composition.
PART C
361
INCOME AND EXPENDITURE
The name and business address of the debtor’s employer or, if the debtor is not
employed, the reason why he or she is not employed:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
The debtor’s trade or vocation and his or her gross weekly or monthly income as well
as the income of his or her spouse living in with him or her, and particulars of all
deductions therefrom by way of debit order or otherwise, supported as far as possible
by written statements by the employer of the debtor or his or her spouse:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
A detailed list of the debtor’s weekly or monthly necessary expenses and the expenses
of persons who are dependent on him or her, including the travelling expenses of the
debtor or his or her spouse to and from work and such expenses of his or her children
to and from school, and expenses required to retain assets that are subject to the
composition:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
The number and ages of persons who are dependent on the debtor or his or her spouse
and their relationship to the debtor or his or her spouse
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
PART D
362
ASSETS
(1) Assets not subject to the composition
Description of asset: Value in N$: Whether subject to
secured claim? (Bond,
property tax, pledge,
cession, hire- purchase,
instalment
contract, etc.)
(2) Assets subject to the composition
Description of asset: Value in N$: Whether subject to
secured claim? (Bond,
property tax, pledge,
cession, hire- purchase,
instalment contract, etc)
363
(3) The debtor affirms that assets which are subject to the composition are in safe
custody, that obligations in respect of the assets are included in “necessary
expenses” in Part C above, and that such obligations will be fulfilled until
conclusion of the composition.
PART E
LIABILITIES
(1) Liabilities not subject to security:
Name and address of
creditor
Amount in N$ Particulars if the debt is
not immediately claimable
(2) Debts subject to security:
Name and address of
creditor
Amount
in N$
Nature of security and
identification of asset
subject to security (Part D
above)
Particulars if the debt is not
immediately claimable
(3) Name and address of any other person who is apart from the debtor liable for
any of the abovementioned debts:
____________________________________________________________________
____________________________________________________________________
364
AFFIDAVIT/SOLEMN DECLARATION
I,___________________________________________________________________
declare under oath/solemnly and sincerely declare* that to the best of my knowledge
and belief the statements contained in this form are true and complete, and that every
estimated amount therein contained is fairly and correctly estimated.
___________________
Signature of declarant
Sworn/solemnly declared before me on the _____ day of _________________at
_______________________.
* Delete which is not applicable.
__________________________________
Commissioner of Oaths
__________________________________
Full names
__________________________________
Business address
__________________________________
Designation and area of office
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