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MRL3701 SEP/NOV PORTFOLIO EXAM 2021 55612792ASHLEIGH HALA 7-8 OCTOBER 2021
UNISA COLLEGE OF LAW
MRL3701
INSOLVENCY LAW
EXAMINATION PORTFOLIO
OF
ASHLEIGH HALA
STUDENT NUMBER 55612792
7 - 8 OCTOBER 2021
1
, MRL3701 SEP/NOV PORTFOLIO EXAM 2021 55612792
ASHLEIGH HALA 7-8 OCTOBER 2021
QUESTION 1
1.1 The concept “concursus creditorum” refers to any time that the creditors come
together, such as when granting a winding-up order, including a provisional order of
sequestration. Thus, a ‘concursus creditorum’ is established by the ‘coming together
of creditors.’ This concept is focused on the rights of the group of creditors, as
opposed to those of the individual creditor and ensures that the assets of the
insolvent party are collected and split proportionally amongst the creditors according
to the order of preference.1
1.2 In the case of Ex Parte Arntzen,2 Gorven J held that even though the court
agreed that the applicant is insolvent, there are still requirements that must be
determined for the voluntary surrender application to comply with s6(1)3 and
therefore be granted. The court must be satisfied with both requirements and the
onus of proof falls on the applicant to satisfy the court on a balance of probabilities.4
Here Gorven J discusses the differences in requirements between granting orders
for sequestration of a voluntary surrender, as opposed to that of a provisional
sequestration order under proceedings for compulsory sequestration. Here it is
shown how the requirements facing a voluntary surrender application are far stricter,
as in compulsory sequestration by creditors, the court only has to be satisfied that
there is reason to believe that sequestration of the estate will be to the advantage
of the creditors and provisional sequestration of the debtors estate under
compulsory proceedings by creditors only requires that the court is of the opinion
that prima facie there is reason to believe that it is to the advantage of the creditors.
Whereas s6(1)5 requires the court to be satisfied that it will be to the advantage of
the creditors. Here the court requires the applicant to make a full and frank
disclosure and without this the court will not be satisfied.6 Gorven J held that the
court requires a high level of disclosure, as this type of application is often brought
on an ex parte basis, as in this case, and therefore requires the utmost faith.
1 Taylor and Steyn NNO v Koekemoer 1982 (1) SA 374 (T) 377.
2
(Nedbank Ltd as Intervening Creditor) 2013 (1) SA 49 (KZP).
3
Insolvency Act 24 of 1936.
4
Ex Parte Arntzen (Nedbank Ltd as Intervening Creditor) 2013 (1) SA 49 (KZP) [4].
5
Insolvency Act 24 of 1936.
6
Ex Parte Arntzen (Nedbank Ltd as Intervening Creditor) 2013 (1) SA 49 (KZP) [5].
2
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