Select statutory methods of obtaining control of the insolvent estate

Abstract

The trustee or liquidator of the insolvent estate is tasked to take effective control of the insolvent estate. There are various asset tracing- and recovery mechanisms at the trustee's disposal, which are ultimately to be implemented for the benefit of the creditors of the insolvent estate following the advent of the concursus creditorum. In this dissertation the focus is placed exclusively on three distinct statutory remedies which aim to achieve precisely this purpose of the trustee in taking control of the insolvent estate. These statutory remedies are firstly, the process to deal with void dispositions in terms of section 341(2) of the Companies Act, 61 of 1973, with the view of reclaiming the disposed of property in contravention of this section, secondly, the issuing of warrants in terms of section 69(3) of the Insolvency Act, 24 of 1936 with the view of tracing estate property and thirdly, the conducting of private enquiries in terms of section 417(1) of the Companies Act, 61 of 1973 to collect pertinent information relating to assets of the insolvent estate. These three statutory remedies serve to reinforce one another in many respects, as is evident based on the hitherto case law. By way of a comparative study with the laws of England, these same types of statutory remedies hold similar equivalents in the latter jurisdiction. However, the characteristics of such remedies in England differ from the South African context in numerous respects and by analysing these two distinct legal positions relating to these types of remedies, a call for potential legal reform may be apt where a more efficient mode of implementation of such remedies could be supported. In addition to the comparative study conducted, there is a working document for a Draft Bill on Insolvency Law with an explanatory memorandum of the Department of Justice, last informally published to interested parties in 2015, which is also considered since it may be indicative of the way the legislature may ultimately decide to go with the insolvency law reform project in South Africa. In more specificity, it needs to be ascertained how the aforesaid three distinct statutory remedies for taking control of the insolvent estate assets stand to be affected, should the said working document ultimately be enacted as an Act of Parliament in its current format. In having conducted this study, all applicable legal authorities of primary and secondary nature of both South African and English origin were considered as these existed on 31October 2023.