Insolvency Act 69 of 2002

8/14/2019 Insolvency Act 69 of 2002

1/5

Government Gazette

REPUBLIC OF SOUTH AFRICA

Vol. 451 Cape Town 22 January 2003 No. 24285

THE PRESIDENCY

No. 121 22 January 2003

It is hereby notified that the President hasassented to the following Act, which ishereby published for generalinformation:

No. 69 of 2002: Insolvency SecondAmendment Act, 2002.

AIDS HELPLINE: 0800-123-22 Prevention is the cure


2/5

2 No . 24285 GOVERNMENT GAZETT&Q? JANUARY 2003Ac t ho. 69, 2002 INSOLVENCY SECO ND AMENDMENT A C T 2002

GENERAL E XPL ANAT OR Y NOTE:t 1 Words in boldype in square brackets indicatemissionsro mexisting enactments.

Words underlined with a solid linendicatensertions inexisting enactments.

(Eng lish text signed by {he President.)(Assented to 30 December 2002.)

ACTTo amend the Insolvency Act , 1936, so as to require notice of a petition for theseque stration of a deb tors estate to be g iveno employees of the debtor , registere dtrade unions represent ing such employees, the South African Revenue Service andthe debtor; to provide for the service of sequestration orders on such employees,t rade unions and the South African Revenue S erv ice; to make fur ther provis ionregarding a debtors r ights to compensat ion; and so as to effect certain textualcorrect ions; o amend he Companies Act , 1973, so as o require notice of anapplica tion for he wind ing-up of a com pany o be given to employees of thecompany, registered t rade unions represent ing such employees, the South AfricanRevenue Service and the company; to provide for the servicef winding-up orderson such employees, rade unions, he South African Revenue Service and hecompany: to make provision regarding a companys rights to compensat ion; and toprovide for matters incidental thereto.

B IT ENACTED byhe arliament of theRepublic f SouthAfrica, sfollows:-Amendment of section 4 of Act 24 of 1936, as amended by section 3 of Act 16 of1943. section 19 of Act 62 of 1995 and sect ion 1 of Act 39 of 1996

1. Section 4 f the Insolvency Act, 1936. is hereby amended by the substitution for(2) ,a)Within a period of seven days as rom the date of ublication of the saidnotice in the Gaze t fe , he petitioner [shall] must deliver or post a copy of the saidnotice to every one of the creditors of the debtor in question whose addre ss he-he knows or an ascertain.( b )The petitioner must further, within the period referred to in paragra ph ( a ) ,furnish a copy of the notice-( i ) by post to every registered rade union that. to the petitioners know ledge,

( i i ) to the employees themselves-

subsection (2 ) of the following subsection:

represents any of the debtors em ployees; and(aa)by affixing a copy of thenotice to anynoticeboard to which heemp loyees hav e access inside the debtors premises: or(bb) f there is no access to the premise s by the employee s, by affixing a copyof the notice to the front gate of the premises, where applicable, failingwhich to the front door f the prem ises from which the debtorconducted

any business immediately prior to the surrender; andiiii) by post to the South African Revenue Service..

5

10

15

20


3/5

4 No. 24285OVERNMENT GAZElTE\&? JANUARY00 3Act No. 69,2002 INSOLVENCY SE CO hi AMENDMENT ACT, 2002e

Amendment of section 9 of Act 24 of 1936, as amended by section 6 of Act 16 of1943, section 2 of Act 99 of 1965 and section 1 of Act 122 of 19932. Sectio n 9 of the Insolvency Act, 1936, is hereby amended by the insertion aftersubsection (4) of the following subsection: ( 3 A ) (a) When a petition is presented to the court. thepetitioner must

furnish a copy of the petition-(i ) to every registered trade union that, as far as thq et iti on er can reasonably(ii) to the employees themselves-ascertain, represents any of the debtors employees: and

(aa) by affixing a copy of the petition to anynotice board to which hepetitioner and the emp loyee s have access inside the eb tors premises: or(bb) f there is no acce ss to the prem ises y th&petitionerand the employees,by affixing a copy of the petition to the front gate of the premises. whereapplicable. failing which to the front door f the premises from whichhedeb tor conducted any business at1 the ime of the presentation of thepetition:i i i i) to he South .4frican Revenue Service; and

( i v ) to the debtor. unless the court, at its discretion. dispenses with the furnishin gof a copy where the court is satisfied that it would be in the in terest of thedebtor or of the creditors to dispense with it.(b)The petitioner must, before or during the hearing, file an affidavit by heperson w ho furnished a copy of the petition which sets ou t the manner in whichparagraph ( a )was complied with..

Substitution of section 11 of Act 24 of 19363. Th e follow ing section is hereby substituted for section 11 of the Insolvency Act,1936:

Service of rule nisi [upon the debtor]11. ( 1 ) If the court sequestrates the estate of a debtor provisio nally it[shall] must simultaneously grant a rule nisi calling upon the debtor upon a

day me ntioned in the rule to appear and to show cau se why his &restateshould not be sequestrated finally.( 2 ) f the debtor has been absent during period of twenty-one days romhise sual place of residen ce and of his busine ss (if any ) withinthe Republic, the court may direct that it [shall be] is sufficient service ofthat rule if a copy thereof is affixed to or near the out efd oo r of the buildingswhere the court sits and published in the Garerre. or may direct some othermode of service.

( a ) any trade union referred to in subsection ( 3 ) :( b ) the debtors employees by affixing a copy of the petition to any noticeboard to whichhe employees have ccess inside the debtorspremises, or if there is no access to the premises by the employees,yaffixing a copy to the front gate,where applicable, failing which to thefrontdoor of the premises from which he debtorconducted anybusiness a t the time of the presentation of the petition; and

(?A) A cop! of the ru le nisi must be served on-

IC) the South African Revenue Service.(3) Upon the application of the ebtor the court m ayanticipate the returnday for the purpose of discharging the order of provisional sequestration ftwenty-fourhours notice of such pplication has beengiven to thepetitioning creditor.(4) For the purposes of serving the rule nisi in terms of subsection (2A),the sheriff must establishwhether the employees are epres ented by a

5

10

15

20

25

30

35

40

45

50

registered trade union and determine whether there is a notice board insidethe employ ers premises to which the employees have acc ess. .


4/5

6 No. 24285 GOVERNMENT GAZETTE,@JANUARY 2003Act No. 69,2002 INSOLVENCY SECOND AMENDMENT ACT. 2002d

Substitution of section 15 of Act 24 of 1936$.

4. Th e followin g section is hereby substituted for section 15 of the Insolvency Act,1936:Compensation to debtor if petition is n abu se of courts procedure ormalicious or vexatious 5

15. Wh enever the court is satisfied that a petition fo r the seque stration fa debtors estate is an abuse of the courts proce dure or is malicious orvexatious. the court may allow the debto r forthwith to prove any dam agewhichhe or he mayhave ustained by,qeason of the [provisionalsequestration of his estate] presentation of the petition and award him 0 1 0-er such compensation s it may deemit..\ .

Amendmentof section 49 of Act 24 of 1936, asamended b y section 21 of Act 6 of1963, section 12 of Act 99 of 1965 and section 1of Act 49 of 19965. Section 49 of the nsolvencyAct, 1936, isamended by thesubstitution orsubsection (2) ofheollowingubsection: 15

( 2 )Nothing in this section shall be construed as preventing the [Secretary forInland Revenue] Comm issioner for the South African Revenue Service fromprovin g in the manner provided n this Act aclaimagainst heestate of apartnership in respect of anysum eferred to in paragraph (b ) of section onehundredndne ,r any interest duen suchum.. 20Amendment of section 99 of .Act 24 of 1936,as substituted by section 5 of Act 6 of1972 and amended by section 6 of Act62 of 1973, section 9f Act 29 of 1974, section69 of Act 85of 1974, section50 ofAct 103 of 1978, section 3 of Act 139 f 1992 andsection 3 of Act 122of 1998

6. Section 99 of thensolvencyct,936, is amended- 25(a) by he substitution fo r the words following subp aragraph ( v) of subsection

but did not pay to the [Secretary for Inland Revenue] Commissionerfor the South African Revenue Service prio r to the sequestration of theestate, and any interest payable under that Act in respect of such am ount 30in respect of any period prior to the date of sequestration of the estate;:an d(b) by the substitution for paragraph (e ) of ubsection (1) of he followin g

( 1 )(b)of the following words:

paragraph:(e) any mountwhich in terms of theUnemploy ment nsurance 35Contributions Act, [1966 (Act No. 30 of 1966)] 2002 (Act No. 4 ofZOO?), was, immediately prior o the seques tration f the estate. dueto theUnemployment nsurance Fund by the nsolv ent in hiscapacitl- as an employer, in respect of any contrib ution, penalty orother payment; and . 40

Am endm ent of section 346 of Act 61 of 1973, as amend ed by section 11 ofAct 70 of19847. Section 346 of the Companies Act, 1973, is hereby amended by the insertion after

(4A) (a) When anapplication is presented to the court in terms of thissection, the applican t must furnish a copy of the application-(i) to every registered rade union that, as far as he applican t can reasonably(ii) to the emp loyees themselves-

subsection (4) of the following subsection:

ascertain, rep resents any of the employees of the compan y; and(aa) by affixing a copy of the application to any notice board to which theapplicant and heemployees have access nside the premises of the

company; or(bb) f there is no access to the premises by the applicant and the employees,by affixing a copy of the application to the front gate of the premises,

45

50


5/5

8 No . 24285 GOVERNMENTAZETTE,$,BJANUARY 2 0 0 3Ac t No. 69,2002 INSOLVENCYECONDAMENDMENTACT, %02

where applicable, failing which to the front door of the premises fromwhich t he . company conducted any business atheime of theapplication;(iii) to the South African Revenu e Service; and(iv) to the company, unless the application is made by the comp any, or the court,at its discretion. dispenses with the furnishing of a copy where the court issatisfied that it would be in the interests of the company or of the creditors todispense with it. x

(b)The applicant must, before or durin g the hearin;, file an affida vit by theperson who furnished a copy of the application which sets out the manner in whichparagraph fa )was complied with..Insertion of section 346A in A ct 61 f 19738 I .\

5

10

8. The following section is hereby inserted after section 346 of the Com panies Act.1973:Service of winding-uprder 15

346A. (1) A copy of a winding-up order must be served on-everv trade union referred to in subsection ( 2 ) :the employees of the company by affixing a copy of the application toany notice board to which the employees have access inside thedebtors premises, or if there is no access to the premises by theemp loyees , by affixing a copy to the front gate, whe re applicable,failing which to the front door of the premises from which the debtorconducted any business at the time of the presentation of theapplication;the South African Revenue S ervice; and

, ,

f d ) the company, unless the application was made by the company.( 2 ) For the purposes of serving the winding-up order in terms ofsubsection ( l ) , the sheriff must establish whether the employees of thecompany are represented by a registered trade union and determine whetherthere is a notice board inside the premises of the compa ny to which the

employees have acc ess..Amendment of section 347 of Act 61 of 19739

20

25

30

9. Section 347 of the Companies Act. 1973, is hereby amended by the insertion aftersubsection (1) of the following subsection:(1 A) Whene ver the court is satisfied that an application fo r the winding-up of 35a company is an abuse of the courts procedure or is malicious or vexatious. thecourt mav allow the company forthwith to prove any damages which it may havesustained by reason of the application and award it such compe nsation as the courtmay deem fit..Short titlend 40

10. This Act is called the Insolvency Second Amendment Act, 2002, and shall comeinto operation on 1 January 2003 or such earlier date as the President may determine byproclamation in the Gazerre.

Documents

Insolvency Act 69 of 2002