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Human rights issues in South African insolvency law

✍ Scribed by Lee Steyn

Book ID: 102270169
Publisher: John Wiley and Sons
Year: 2004
Tongue: English
Weight: 238 KB
Volume: 13
Category: Article
ISSN: 1180-0518
DOI: 10.1002/iir.115

No coin nor oath required. For personal study only.

✦ Synopsis

The concept of concursus creditorum, or a gathering of creditors, is fundamental to South African insolvency law.' Advantage of creditors'önot one creditor, or some creditors, but the creditors as an entityöhas been described as a recurrent motif which is apparent throughout the Insolvency Act 24 of 1936. 1,2 Indeed, a person's estate may be sequestrated 3 in terms of the Insolvency Act only if it is proved to be to the advantage of creditors. While, to some extent, a debtor's interests are taken into consideration, it is clear, from the provisions of the Act and from the way in which the courts have applied them, that the interests of the creditors and the public interest in the e⁄cient administration of insolvent estates take precedence.

The enactment of the Constitution of the Republic of South Africa, Act 200 of 1993, 4 and the Constitution of the Republic of South Africa, Act 108 of 1996, 5 which replaced it, has brought about what has been described as a complete metamorphosis of South Africa's jurisprudence and legal system. 6 Chapter 2 of the Constitution contains a Bill of Rights, which 'enshrines the rights of all people in our country and a⁄rms the democratic values of human dignity, equality and freedom' . 7 The state is obliged to 'respect, protect, promote and ful¢l' 8 these fundamental rights. Moreover, the Bill of Rights applies both vertically, between the state and its subjects, and, where appropriate, horizontally, between its subjects inter se. 9 Thus constitutional law now in¢ltrates, either directly or indirectly,

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