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INSOLVENCIES

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WAIVER OF RIGHTS IN INSOLVENCY

The North West High Court, Mafikeng in the unreported judgment of Kroese and Kroese (NWM) (unreported case no 145/13, 18-4-2013) (Landman J) and Hattingh and Hattingh (NWM) (unreported case no 144/13, 18-4-2013) (Landman J) had the opportunity to consider whether the waiver of the rights provided in s 82(6) of the Insolvency Act 24 of 1936 (the Act) is an infringement of a constitutional right of the applicants.

By Moffat Ndou LLB (UJ) a law researcher at the North West High Court in Mafikeng.

Read the full article here: http://www.derebus.org.za/waiver-rights-insolvency/

SECTION 156 OF THE INSOLVENCY ACT: A THIRD PARTY’S FORGOTTEN REMEDY?

The principle of subrogation is well established in South African law and allows an insurance company to litigate under the name of the insured for the recovery of damages incurred. Any judgment obtained for, or against, the insured is thereafter settled by the insurance company, subject to the terms and conditions of the agreement of insurance entered into between the parties. Should an insurance company fail to uphold their contractual duties to the insured, the insured holds the applicable contractual remedies to enforce such a claim against the insurance company, however, the insured party shall remain liable to the third party.

By Nicole Bell BA (Law) LLB (SU) an attorney at Goldberg & de Villiers Inc in Port Elizabeth.

Read the full article here: http://www.derebus.org.za/section-156-of-the-insolvency-act-a-third-partys-forgotten-remedy/

FORECLOSURE PROCEEDINGS: RECENT JUDGMENTS PROVIDE GREATER CERTAINTY

When a homeowner defaults on their home loan agreement, which is secured by a mortgage bond, the credit provider can generally seek recourse by making application for payment of the outstanding amounts owed and an ancillary order declaring the property to be executable. Until the recent cases of ABSA Bank Limited v Mokebe and 3 related matters [2018] 4 All SA 306 (GJ) and Standard Bank of South Africa Limited v Hendricks and Another and related matters [2019] 1 All SA 839 (WCC), there has been uncertainty about whether – the application for payment and an order declaring the property executable have to be determined simultaneously; the court is required to set a reserve price when it declares an immovable property executable and what onus rests on the credit provider in regard to the setting of a reserve price; and execution against movables is a bar to reviving a credit agreement under s 129 of the National Credit Act 34 of 2005 (NCA).

By slam Moosajee BCom (UKZN) LLB (Wits) Cert in Insolvency Law (UJ) Cert in Competition Law (Wits) a legal practitioner and Joshua Davis BSocSci PPR (Hons) LLB (UCT) (cum laude) MA (King’s College, London) a candidate legal practitioner at ENSafrica in Johannesburg.

Read the full article here: http://www.derebus.org.za/foreclosure-proceedings-recent-judgments-provide-greater-certainty/

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Insolvencies – Fish Hoek Cape Town