Question posted in the General Law category relating to Western Cape
Good Day, I was here previously. My estate had been finally sequestrated but no creditors meeting had been convened as yet. The provisionally appointed Trustees had, during this week began to summons family and friends to appear in an insolvency enquiry. On the summons, they refer to section 152 of the Insolvency act. According to my understanding, the Master can give instructions for an enquiry under section 152. As no creditors meeting had been held, nor any advertisement in the Government Gazette been placed, up to today, I think that no insolvency enquiry can be held before the correct procedures had been followed.
1- Can I request the Provisional Trustees to proof that the Master had approved an enquiry?
2- Can an enquiry proceed before the creditors meeting and Trustees being finally appointed?
My sister, who was summoned lives 1200 k's away and she must look after my ill mom who is bedridden and cannot take care of herself. My Mother in Law is 80 and also lives 1200 k's away. Both of these two ladies will find it nearly impossible to get to the enquiry. 3- Can we organise with the Trustees that these ladies be excused and the question been sent to them?
Answer to the Question
Hi there and thank you for your question,
I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.
Section 152 of the Insolvency Act is quite clear that it is the Master who holds the enquiry and who subpoenas documents and information. So, any summons to appear must be signed by the Master. The enquiry would also be held at the Magistrates Court, before a presiding officer. This is NOT the provisional trustee. So, my suggestion is that you look at the summons, etc to see if the presiding officer (Magistrate) signed it, or the Master. If it was the provisional trustee - it would be invalid.
Q: Can an enquiry proceed before the creditors meeting and Trustees being finally appointed? --> Look at section 152 because it speaks about "If at any time after the sequestration of the estate...". So my answer would be, yes.
Q: Can we organise with the Trustees that these ladies be excused and the question been sent to them? --> The Insolvency Act doesn't make provision for this, but in practice, my answer would be yes. If the person so summoned "plays ball" and answers the questions and provides the documents, there is no real reason for that person to attend the enquiry.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
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