Insolvency Act - Selected Regulations
- Written by Gary Watkins
- Published in Insolvency Act
INSOLVENCY ACT 24 OF 1936
TABLE OF CONTENTS
| REGULATIONSGNR.1379 of 24 August 1962 Regulations promulgated under section 158TARIFF OF FEES UNDER SECTION 73 (2)GNR.733 of 1981 Taxation and tariff of fees of attorneysNOTICESGN 2844 of 9 October 1992 Determination of amounts for the purposes of section 100GNR.865 of 1 September 2000 Determination of amounts and exclusion of employees for the purposes of section 98A of the Insolvency Act, 1936 |
REGULATIONS
GNR.1379 of 24 August 1962: Regulations promulgated under section 158
Published in Government Notice No. R. 1379 contained in Regulation Gazette No. 115 of 24th August, 1962 and amended by Government Notice No. R.951 contained in Regulation Gazette No. 3820 of 26 April, 1985.
The State President has been pleased to make the following regulations in terms of section one hundred and fifty-eight of the Insolvency Act, 1936 (Act No. 24 of 1936):—
ARRANGEMENT OF REGULATIONS
| 1. | Definitions |
| 2. | Trustee’s report |
| 3. | Objections to proved claims |
| 4. | Interrogation of witnesses |
| 5. | Publication of notices |
| 6. | Liquidation account: objections |
| Form 1 | Appointment of trustees and proof of claims in sequestrated estates |
| Form 2 | Meeting of creditors in sequestrated estates |
| Form 3 | Extension of time within which to lodge liquidation accounts and plans of distribution or contribution in sequestrated estates |
| Form 4 | Liquidation accounts and plans of distribution or contribution in sequestrated estates |
| Form 5 | Payment of dividends and collection of contributions in sequestrated estates |
| Form 6 | Application for rehabilitation |
| Form 7 | Notice of trustees |
1. Definitions.—In these regulations, unless the context otherwise indicates—
“prescribed form” means a form prescribed in the Annexure to these regulations;
“presiding officer” means the officer before whom a meeting is held or has been duly convened to be held;
“the Act” means the Insolvency Act, 1936 (Act No. 24 of 1936); and a word or expression to which a meaning has been assigned in the Act, shall bear that meaning.
2. Trustee’s Report.—The trustee’s report referred to in section eighty-one of the Act shall be lodged, in triplicate, with the presiding officer and the original thereof shall be annexed to the minutes of the proceedings of the meeting.
3. Objections to Proved Claims.—(1) When, under section forty-five, a trustee reports to the Master his reasons for disputing a claim, he shall—
(a) furnish the claimant with a copy of such reasons and notify him that he may, within 14 days or within such period as the Master may upon application allow, show cause, in writing, why his claim shall not be disallowed or reduced; and
(b) furnish the Master with a certificate that he has complied with the provisions of paragraph (a).
(2) When showing cause as provided in sub-regulation (1) the claimant shall furnish the trustee with copies of the documents submitted by him to the Master, and the trustee shall thereupon submit his remarks thereanent to the Master in writing.
4. Interrogation of Witnesses.—(1) If the attendance of any person is necessary for purposes of interrogation or for producing any book or document as is provided by sub-sections (2) and (3) of section sixty-four of the Act, a notice to attend for interrogation shall be served on such person.
(2) The notice referred to in sub-regulation (1) shall be served on the person named therein by the messenger of the magistrate’s court within whose area of jurisdiction the said person resides, in the manner provided for the service of a subpoena issued out of that court in a civil case, or it may be served by the trustee or his clerk by delivering it to such person.
(3) The fees and charges prescribed for the service of a subpoena issued out of a magistrate’s court in a civil case shall mutatis mutandis apply in respect of the service of the notice by the messenger of the court.
(4) The person serving the notice shall, if he is the messenger of the court, set forth in his return or, if he is the trustee or his clerk, in an affidavit, the manner and the date of service and such return or affidavit shall be prima facie proof of the service of the notice as stated therein.
5. Publication of Notices.—(1) Every notice which is in terms of the Act required to be published in the Gazette and for which a form is prescribed shall be published as far as possible in such prescribed form.
(2) The particulars of every such notice, arranged in the prescribed form under the headings concerned and signed by or on behalf of the person who is in terms of the Act required to publish it, shall be delivered to the Government Printer.
6. Liquidation Account: Objections.—(1) Any person objecting to an account in terms of section 111 of the Act shall, when laying his objection before the Master, forward to the trustee a copy thereof together with copies of any documents submitted to the Master in support of the objection not already in the trustee’s possession, and thereupon the trustee shall within 14 days after receipt by him of the copy of the objection submit his written remarks to the Master in duplicate.
(2) The Master may refer the trustee’s remarks to the person objecting or may require the attendance, personally or by agent, of the trustee or the person objecting.
[Regulation 6 inserted by Government Notice No. R.951 of 1985.]
Form 1
APPOINTMENT OF TRUSTEES AND PROOF OF CLAIMS IN SEQUESTRATED ESTATES
| Pursuant to sub-section (3) of section fifty-six, section seventy-seven and sub-section (3) of section forty of the Insolvency Act, 1936, notice is hereby given that the persons mentioned in the Schedule have been appointed trustees, and that persons indebted to the estates are required to pay their debts to them forthwith unless otherwise indicated.Meetings of creditors of the said estates will be held on the dates and at the times and places mentioned in the Schedule, for proof of claims against the estates, for the purpose of receiving the trustees’ reports as to the affairs and conditions of the estates and for giving the trustees directions concerning the sale or recovery of any parts of the estates or concerning any matter relating to the administration thereof.Meetings in a town in which there is a Master’s office, will be held before the Master; elsewhere they will be held before the magistrate.SCHEDULE | |||
| No. of Estate. | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent.) | Name and Address of Trustee. | Date, Hour and Place of Meeting and Period within which Debt must be Paid, if this is not to be done forthwith. |
Form 2
MEETING OF CREDITORS IN SEQUESTRATED ESTATES
| Pursuant to sections forty-one and forty-two of the Insolvency Act, 1936, notice is hereby given that a meeting of creditors will be held in the sequestrated estates mentioned in the Schedule on the dates, at the times and places and for the purposes therein set forth.Meetings in a town in which there is a Master’s office, will be held before the Master; elsewhere they will be held before the magistrate.SCHEDULE | |||
| No. of Estate. | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent.) | Date, Hour and Place of Meeting. | Purpose of Meeting. |
Form 3
EXTENSION OF TIME WITHIN WHICH TO LODGE LIQUIDATION ACCOUNTS AND PLANS OF DISTRIBUTION OR CONTRIBUTION IN SEQUESTRATED ESTATES
| Pursuant to sub-section (1) of section one hundred and nine of the Insolvency Act, 1936, notice is hereby given that after the expiration of a period of fourteen days as from the date of publication hereof, it is the intention of the trustees of the sequestrated estates mentioned in the Schedule, to apply to the respective Masters for an extension of time, as specified in the Schedule, within which to lodge liquidation accounts and plans of distribution or contribution.SCHEDULE | |||||
| No. of Estate. | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent.) | Name and Date of Appointment of Trustee | Date when Account due | Period of Extension required and to which Master Application will be made | |
Form 4
LIQUIDATION ACCOUNTS AND PLANS OF DISTRIBUTION OR CONTRIBUTION IN SEQUESTRATED ESTATES
| Pursuant to sub-section (2) of section one hundred and eight of the Insolvency Act, 1936 notice is hereby given that the liquidation accounts and plans of distribution or contribution in the estates mentioned in the Schedule, will lie open for inspection by creditors at the offices of the Masters and the magistrates stated therein, for a period of fourteen days, or for such a period as stated therein, from the dates mentioned in the Schedule or from the date of publication hereof, whichever may be the later date.SCHEDULE. | |||
| No. of Estate. | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent.) | Description of Account | Account for inspection:—(a)Master’s and Magistrate’s Office.(b)Date (if later than date of publication hereof).(c)Period (if longer than 14 days). |
Form 5
PAYMENT OF DIVIDENDS AND COLLECTION OF CONTRIBUTIONS IN SEQUESTRATED ESTATES
| The liquidation accounts and plans of distribution or contribution in the sequestrated estates mentioned in the Schedule having been confirmed on the dates therein mentioned, notice is hereby given, pursuant to sub-section (1) of section one hundred and thirteen of the Insolvency Act, 1936, that dividends are in the course of payment or contributions are in the course of collection in the said estates as set forth in the Schedule, and that every creditor liable to contribution is required to pay to the trustee the amount for which he is liable at the address mentioned in the Schedule.SCHEDULE | ||||
| No. of Estate. | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent.) | Date when Account Confirmed | Whether a Dividend is being Paid or Contribution being Collected or both | Name and Address of Trustee |
Form 6
APPLICATION FOR REHABILITATION
| Pursuant to section one hundred and twenty-four of the Insolvency Act, 1936, notice is hereby given that the insolvents mentioned in the Schedule will apply for their rehabilitation on the dates, at the times and places and upon the grounds as therein set forth opposite their respective names.SCHEDULE | ||||
| No. of Estate. | Full Name and Description of Insolvent (including his Identity Number and Date of Birth) and Place of Business or Residence | Date when Estate Sequestrated | Date, Time and Division Application will be made | Ground of Application |
Form 7
NOTICE OF TRUSTEES
| Notice is hereby given that a period of six months having elapsed since the confirmation of the final trustees’ accounts in the estates mentioned in the Schedule, the trustees of the said estates will, pursuant to section one hundred and fifty-five of the Insolvency Act, 1936, destroy all the books and documents in their possession relating to the said estates (except those which are required to be lodged with the Masters) after six weeks from the date of this notice.SCHEDULE | |||||
| No. of Estate | Name and Description of Estate. (Including Identity Number and Date of Birth of Insolvent) | Date of Sequestration Order | Division of the Supreme Court by which Order made | Date of Confirmation of Final Account | Trustee’s Name and Address |
TARIFF OF FEES UNDER SECTION 73 (2)
GNR.733 of 1981: Taxation and tariff of fees of attorneys
ARRANGEMENT OF REGULATIONS
| A. | Taking instructions |
| B. | Attendance and Perusal |
| C. | Attendance (Formal) |
| D. | Drafting and Drawing |
| E. | Appearance before a Presiding Officer |
| F. | Miscellaneous |
| G. | Bill of Costs |
Under and by virtue of the powers vested in me by section 73 (2) (a) of the Insolvency Act, 1936 (Act 24 of 1936), I—
(1) K. J. Wattrus, Master of the Supreme Court of the Transvaal Provincial Division of the Supreme Court of South Africa;
(2) D. C. Veldtman, Master of the Supreme Court of the Cape of Good Hope Provincial Division of the Supreme Court of South Africa;
(3) H. G. Rainer, Master of the Supreme Court of the Natal Provincial Division of the Supreme Court of South Africa;
(4) F. J. le Roux, Master of the Supreme Court of the Eastern Cape Division of the Supreme Court of South Africa;
(5) M. T. D. Stocks, Master of the Supreme Court of the Orange Free State Provincial Division of the Supreme Court of South Africa; and
(6) C. V. van der Watt, Master of the Supreme Court of the Northern Cape Division of the Supreme Court of South Africa;
hereby frame the following tariff in connection with all costs incurred in terms of section 73 of the said Act and taxed by me after the date of promulgation of this notice.
Notices 677 of 1974, 678 of 1974, 679 of 1974, 680 of 1974, 682 of 1974 and 683 of 1974 are hereby withdrawn.
A. Taking Instructions
| R | ||
| 1. | To institute proceedings for an interrogation | 5,00–60,00 |
| 2. | For advice | 5,00–30,00 |
| 3. | For case on opinion, or for advocate’s guidance | A fee equivalent to the fee allowed under Section D2 or drafting the document |
| 4. | For statement of witness | 5,00–30,00 |
| 5. | To set down cause issue subpoena or writ or any other simple instructions | 1,50 |
| 6. | To draft affidavit | A fee equivalent to one-half of the fee allowed under Section D5 for drafting the document: Provided that in cases where no affidavit is actually drawn the Master shall allow a fee in his discretion, but not less than R5,00 |
B. Attendance and Perusal
| R | ||
| 1. | Attending the receipt of and perusing, and considering— | |
| (a)any summons, petition, affidavit, pleading, advocate’s advice and drafts, and report and important notice or document, per folio or part thereof | 1,00 | |
| (b)any letter, record, judgments or any other material document not elsewhere specified: 25c per folio or part thereof, with a minimum fee of | 1,00 | |
| 2. | Attending the receipt of and considering— | |
| (a)any book, ledger, plan or exhibit or other material document in respect of which the basis of remuneration set out in Section B1 cannot be applied | 1,50 | |
| (b)batches of similar letters or documents necessarily examined, e.g. paid cheques or promissory notes—for each of the first 20 | 0,50 | |
| thereafter per batch of 20 | 1,50 | |
| 3. | Making searches in offices of record—per half-hour or spart thereof | 2,50 |
| 4. | Sorting out, arranging and paginating papers for pleading, advice on evidence or brief on trial or appeal—per half-hour | 2,50 |
| 5. | Attending on witness to obtain particulars of his claim and to settle such claim | 2,00 |
| 6. | Attending to bespeak and thereafter to procure translation | 2,00 |
| 7. | Other attendances including telephone calls other than formal telephone calls—per half-hour | 2,50 |
| Note.—The fees allowed under this Section shall be in addition to such fees as may be allowed for instructions under Sections A. In computing the fees chargeable for perusal of documents in connection with instructions under Sections A1 and A6, the number of words in all documents to be perused shall be added together and the total divided by 100. |
C. Attendance (Formal)
| R | ||
| 1. | To serve or deliver (other than by post) any necessary document or letter or despatch any telegram | 1,00 |
| 2. | To issue or file any document | 1,00 |
| 3. | To arrange date for interrogation | 1,00 |
| 4. | To search for any return | 1,00 |
| 5. | On advocate, e.g., with brief or to make appointment | 1,00 |
| 6. | On signature of power of attorney | 1,00 |
| 7. | On jurat | 1,50 |
| 8. | Other formal attendances, including telephone calls | 1,00 |
| 9. | Attending on receipt of a formal acknowledgement | 0,50 |
D. Drafting and Drawing
| R | ||
| 1. | Drafting instructions for case on opinion, for advocate’s guidance—per folio or part thereof | 1,00 |
| 2. | Drafting instructions to advocate for advice, on evidence or for brief on interrogation—per folio or part thereof | 1,00 |
| 3. | Drafting statement of witnesses—per folio or part thereof | 1,00 |
| 4. | Drawing subpoenas, powers of attorney and formal notices—per folio or part thereof | 1,00 |
| 5. | Drafting affidavit, any notice, except formal notice, and any other important document otherwise not provided for—per folio or part thereof | 5,00 |
| (The minimum charge under this item for drafting an affidavit shall be R8 save that the minimum charge shall not apply in the case of affidavits of service and other formal affidavits.) | ||
| 6. | Letter or telegram—per folio or part thereof (including copy) | 1,50 |
| 7. | Drawing index to brief—per folio or part thereof | 0,50 |
| 8. | Drawing short brief | 1,50 |
| Note 1.—In computing the number of folios of any document referred to in Section D1, 2, 3 and 5, the Master shall deduct, but treat as annexures where relevant, any portions consisting of quotations from other documents and papers. | ||
| Note 2.—The charges allowed in this Section for drafting and drawing do not, save in the case of items 4, 6 and 8, include making the first fair copy, which shall be charged for under Section F2. |
E. Appearance before a Presiding Officer
| R | ||
| 1. | (a)If advocate employed | |
| (i)Attendance at hearing by attorney per half-hour or part thereof | 10,00–20,00 | |
| (ii)Necessary attendance at hearing by articled clerk, per half-hour or part thereof | 5,00 | |
| (b)If advocate not employed | ||
| (i)Appearance by attorney per half-hour or part thereof | 20,00–40,00 | |
| (ii)Necessary attendance at hearing by articled clerk to assist attorney who appears, per half-hour or part thereof | 5,00 | |
| (iii)Appearance by articled clerk, per half-hour or part thereof | 10,00 | |
| The above rates of remuneration shall not be applicable in respect of the time spent in travelling or waiting, but the Master shall, in respect of time necessarily so spent, allow such additional remuneration not exceeding R45 per diem as he in his discretion may deem fair and reasonable, and shall also allow a reasonable amount to cover the cost of necessary conveyance | ||
| 2. | Any conference or consultation with client, advocate, with or without witnesses on any matter which the Master may consider necessary, per half-hour | 10,00–20,00 |
| 3. | Any inspection in situ, or otherwise, per half-hour | 10,00–20,00 |
| The above rates of remuneration shall not be applicable in respect of time spent in travelling, but the Master shall in respect of any necessary travelling time allow additional remuneration not exceeding R45 per diem, and shall also allow the reasonable costs of necessary conveyance. | ||
| 4. | Evidence: Such just and reasonable charges and expenses as may, in the opinion of the Master, have been properly incurred in procuring the evidence and attendance of witnesses whose fees have been allowed on taxation: Provided that the qualifying expenses of a witness shall not be allowed without the consent of the Master. |
F. Miscellaneous
| R | ||
| 1. | Preparation for interrogation | 25,00–100,00 |
| 2. | Typing or copying: For making copies for presiding officer, for counsel or for attorney, or for service or for any other necessary purpose, the charge shall be 40c per folio or part thereof for the first copy (including the first copy of any document drafted in respect of which a charge is recoverable under Section D1, 2, 3, 5 and 8 of this tariff) and for further copies, per folio or part thereof | 0,20 |
| 3. | Opinion by attorney | 10,00–100,00 |
G. Bill of Costs
1. In connection with a bill of costs for services rendered by an attorney, such attorney shall be entitled to charge—
(a) for drawing the bill of costs, making the necessary copies and attending settlement, 5 per cent on the first R200 or portion thereof, 2½ per cent on the second R200 or portion thereof, and 1 per cent on the amount in excess of R400 of the amount of the attorney’s fee allowed on taxation; and
(b) in addition thereto, for arranging and attending taxation, 5 per cent on the first R200 or portion thereof, 2½ per cent on the second R200 or portion thereof and 1½ per cent on the amount in excess of R400 of the fees allowed.
Note 1.—The minimum fee under each item of this Section shall be R2.
Note 2.—The fees under each item of this Section shall be calculated on the same amount.
2. Taxation.
(a) Subject to the right of a party to the matter concerned to be present, the taxation of a bill of costs shall not be attended by any person other than a person referred to in G2 (b).
(b) The taxation of a bill of costs shall, where attended, be attended by the Attorney presenting the bill or on whose behalf the bill is presented either by his partner or full-time employee, being an attorney or articled clerk entitled to appear in terms of section 8 (i) of the Attorneys Act, No. 53 of 1979, or by his correspondent or correspondent’s full-time employee, being an attorney or an article clerk as aforesaid and being, in each case, a person familiar with the subject matter of the taxation; provided that the first-mentioned attorney or his correspondent, as the case may be, shall assume full responsibility for the contents of the bill submitted and for the taxation.
(c) The taxing officer shall not proceed to the taxation of any bill of costs, unless he is satisfied that each trustee concerned has received due notice of the time and place of the taxation and notice that he is entitled to be present thereat and unless the bill bears a short summary at the beginning thereof of the nature and purpose of the service.
(d) No costs shall be allowed which appear to the taxing officer to have been incurred or increased through overcaution, negligence or mistake.
(e) Every bill of costs shall disclose the date on which each service was rendered, the duration of appearances, conferences and consultations and the number of folios where charges are made per folio.
( f ) Proper vouchers shall, wherever possible, be furnished in connection with disbursements.
(g) At the taxation of any bill of costs the taxing officer may call for such books, documents, papers or accounts as in his opinion are necessary to enable him properly to determine any matter arising from such taxation.
(25 September 1981).
NOTICES
GN 2844 of 9 October 1992: Determination of amounts for the purposes of section 100
Under the section of the Insolvency Act, 1936 (Act No. 24 of 1936), specified in Column A of the Schedule, 1, Hendrik Jacobus Coetsee, Minister of Justice, hereby for the purposes of that section determine the amount specified opposite it in Column B of the Schedule.
H. J. COETSEE
Minister of Justice
SCHEDULE
| Column A | Column B |
| Section 100 (1) (a) | R5 000 |
| Section 100 (2) | R2 500 |
GNR.865 of 1 September 2000: Determination of amounts and exclusion of employees for the purposes of section 98A of the Insolvency Act, 1936
I, Penuell Mpapa Maduna, Minister for Justice and Constitutional Development, acting under section 98A (2) and (6) of the Insolvency Act, 1936 (Act No. 24 of 1936)—
(a) hereby determine, in respect of the sections specified in Column A of the Schedule, the maximum amounts payable as specified opposite thereto in Column B of the said Schedule;
(b) hereby determine, in respect of schemes or funds contemplated in section 98A (1) (b), that a maximum amount of R12 000 shall be payable in respect of any individual employee; and
(c) after consultation with the National Economic, Development and Labour Council, hereby exclude from the provisions of section 98A of the said Act and for purposes of subsection (6) (a), a director of the company or a member of the close corporation which is the insolvent contemplated in section 98A.
PM MADUNA
Minister for Justice and Constitutional Development
SCHEDULE
| Column A | Column B |
| Section 98A (1) (a) (i) | R12 000 |
| Section 98A (1) (a) (ii) | R4 000 |
| Section 98A (1) (a) (iii) | R4 000 |
| Section 98A (1) (a) (iv) | R12 000 |
Gary Watkins
Gary Watkins
Managing Director
BA LLB
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