Insolvencies
 

English  |  Afrikaans

sequestration rehabilitation

rehabilitation after sequestration Download application form for sequestration

 

Sequestration Rehabilitation

There is definitely hope after an insolvency. You can apply for rehabilitation after sequestration to repair your name as “insolvent”. If you should prefer not do apply for rehabilitation after sequestration, the sequestration will be held against your name with the credit buro for 10 years and you will not be able to make any debt within this time period. Debt before sequestration cannot be an issue – it forms part of the insolvent estate and is something of the past.

 

  • To be able to apply for Sequestration Rehabilitation the relationship between you and your curator must at all times be upheld. The curator can refuse to give permission for rehabilitation after sequestration if for example you made debt after sequestration. I have also had a case where the insolvent did not want to vacate the property after it was sold – the insolvent drove to the curator’s offices and threatened them – in such an event the curator will never give permission for a rehabilitation.
  • Some of the curator sets certain requirements to the insolvent, to which they must adhere for the sequestration period. I know that some curators require monthly income and expenditure statements. Then there are also some curators that require meetings to be attended – if the curator did not require this of you, then they will not keep it against you when you would like to rehabilitate.
  • We can only start the rehabilitation after sequestration process once the permission has been received from the curator and after the L&D (liquidation and distribution)account has been enforced by the Master of the High Court. The curator drafts this account to submit to the High Court wherein it shows how the monies have been utilized and calculated.

 

The Rules of Court states that you can apply for your Sequestration Rehabilitation:

  • Not before a period of four years has lapsed since you date of sequestration. E.g. if you were sequestrated on 01 February 2005 you may apply for rehabilitation of 01 February 2009. This is the most favourable manner; the High Court prefers is this way, and the Master will always present a positive report if these conditions are met.
  • One year after the L & D is confirmed. Meaning that the distribution of funds was completed by the curator and the report was handed over to the Master. The Master agrees with the content and confirms the report.

 

In the event that you owned a property during sequestration:

Lets say the scenario was that a property was sold for R500 000.00 and the outstanding bond at the bank was R700 000.00, there is a conspicuous shortfall. In this instance no creditor can claim against the insolvent estate. The only institution that is guaranteed to have accounts paid is the city council and a body corporate (if you lived in a complex). To have the L & D account balanced is there a contribution payable. In abovementioned instance the contribution will be between R8000 and R25000. In the more than 12 years that I have been doing insolvencies, R25000 was the most contribution payable (an insolvent’s house was sold for R100 and his contribution was R25000.00). The contribution has to be paid with the curator before permission for rehabilitation will be granted by the said curator.

 

When we receive the application for rehabilitation, permission has to be granted by the curator before we can begin the rehabilitation after sequestration process. There are also documents that need to be obtained in order for us to bring the rehabilitation i.e:

  • the sequestration order;
  • certificate of appointment of curator;
  • The Article 81 report;
  • The first and final liquidation and distribution account (L & D);
  • Enforced letter in respect of the first and final liquidation and distribution account;
  • Date when the first and final liquidation account was enforced by the Master of the High Court.

 

In respect of the above we can try to get the rehabilitation process going:

  • If there, for example was claims lodged against the insolvent estate and there is a shortfall, then there should have lapsed, at least, one year after the L & D was enforced by the Master, before application for rehabilitation can be lodged.
  • If it has not been the first time application for rehabilitation is applied for then a period of three years should lapse before the application can be made for rehabilitation.
  • If you have been found guilty and a judgement has been placed against you for deceitful action, should at least five years have lapsed, before application for rehabilitation can be lodged.
  • If no claims were lodged against the insolvent estate and it is the first time that application for rehabilitation is made, and if there has been no judgements or guilty verdicts have been made against you, application for rehabilitation can be applied for directly after the L & D has been enforced by the Master. (The Master is normally not positive when such an application is lodged, due to the fact that a number of cases exist whereby the client withdrawn all funds from the credit card, applied for a voluntary surrender of his estate, pay the curator with the money withdrawn from the credit card, and then applies for rehabilitation.)

 

As soon as abovementioned documents have been received, an affidavit is drafted that the client must sign and we publish the notice in terms of the application for rehabilitation in the Government Gazette.

 

A report is then requested from the curator and as soon as the report has been received, we again apply for a report from the Master of the High Court in which they also give permission that a rehabilitation application may be lodged. The report from the Master takes approximately two weeks to obtain, but there has been instances where the report takes up to three months to obtain. Without this report we cannot precede wit the rehabilitation application.

 

The day that the application has been placed on the roll an Advocate will attend court on the client’s behalf and he/she does not have to appear in Court. When all documents are in place and the order is granted, we wait approximately 10 to 15 days for the typed court order.

 

As soon as we receive the court order, we send the order together with documents that are compulsory, to ITC. We also have to send ITC a letter together with the rehabilitation order, sequestration order and certified copy of clients Identity document.

 

We also send the court order to Compuscan, Experian and XDS. These institutions are other credit bureaus.

 

ITC takes approximately 21 days to update their records. We have had instances where we phoned ITC within the 21 day period, where they stated that they have not received any documents, but after the 21 days have lapsed, it was clearly updated on the system. The conclusion is that should the documentation be received by ITC there is no acknowledgment thereof on their system or that they are busy processing the information, but after the 21 days have lapsed, the information has been updated. I would also like to state that the ITC “principles” and requirements are amended in the event of adaption for example:

  • First we could only fax the court order for the rehabilitation and they would remove all inscriptions and only include the rehabilitation order.
  • Then we had to call to receive a reference in order to fax the rehabilitation.
  • Later it was stated that we were not allowed to call as we were a “third party” – they waited for the High Court to forward the order before they could take any action.
  • Then again we were permitted to send the court order through with a written permission that we may act on their behalf.
  • At another stage we sent the court order through and ITC removed the entire credit record, as if you have just been born, no inscriptions whatsoever of previous debt or the sequestration.
  • Currently there are six documents that we need to send through and we have to wait 21 days.
    • Some of our clients reverted to us within the 21 days, that ITC confirmed with text message that their credit record has been cleared.
    • Another client, after receiving a text message, still had inscription on their credit record, in other words the text message from ITC was false.
    • Some of the institutions (for example Edgars and Woolworths) say that the inscription may not be removed from ITC, but only after two years has lapsed since the inscription was placed. In such an instance I make use of an institution that are agents of ITC. There are unfortunately an additional fee involved, but it is quite
      reasonable.

In other words I would like to stipulate that we battle with ITC and that their policy is not consistent, and they should apply with the new national credit act’s regulations. But be assured that we will do all in our power to have our client’s name restored.

 

I can honestly say (that may give you hope) that we applied for rehabilitation on behalf of one of our clients in September 2009. The client applied fro a loan to purchase a property – three banks declined the application but a forth bank granted the loan. According to the bank that granted the home loan their motivation for granting the application was that after the sequestration, they handled their account in a sensible and good manner. Her salary was paid into that account each month, none of her debit orders were sent back. They always had money in her account – even if it was just R50.00. The bank said that in respect of how she handled her account that she had rehabilitated and that she was ready to delivery a positive contribution to the economy.

 

The cost for the sequestration rehabilitation is as follows:

 

We have 2 options available to make rehabilitation as easy as possible:The payment should be made in our rehabilitation account with details as follow:

M BOTHA INSOLVENSIES,

Absa Bank,

account number 9227872003,

branch code 632005.

 

1. Pay the full amount immediately, cost being R 6840.00, or

2. Pay an initial fee of R 2000.00, and then we set up a debit order for 8 months for R 750.00 per month. The total cost for the rehabilitation will then be R 8000.00.

 

Rehabilitation fees generally fluctuate between R15000.00 payable immediately, to a R 20 000 deposit and then still an account of up to R 10 000.00 due. There is an attorney in Mpumalanga that charges R 40 000 to do rehabilitations.

 

We can also try to impress you with false promises that we know cannot be upheld. Unfortunately there is not more that these above mentioned companies can offer you that we cannot. Everybody has to follow the exact same procedures and steps, and this still remains a Master of the High Court application, that must be approved by a Judge. We do of course present your case to the Court as sympathetically as possible to receive approval.

 

 

 

Should you have further questions, please do not hesitate to contact us.

 

Regards

Maritha Botha

Tel 0845828844 / 0826214198
maritha@insolvensies.co.za

 

There is definitely hope for rehabilitation after sequestration. Apply for Sequestration Rehabilitation to repair your name as “insolvent”.

Insolvency Services

 

 

Cape Town Office

071 360 0038