SciELO - Scientific Electronic Library Online

 
vol.14 issue5Seeking deliberation on the unborn in international lawPre- and post-trial equality in criminal justice in the context of the separation of powers author indexsubject indexarticles search
Home Pagealphabetic serial listing  

Services on Demand

Article

Indicators

    Related links

    • On index processCited by Google
    • On index processSimilars in Google

    Bookmark

    PER: Potchefstroomse Elektroniese Regsblad

    Print version ISSN 1727-3781

    Abstract

    EVANS, RG. Legislative exclusions or exemptions of property from the insolvent estate. PER [online]. 2011, vol.14, n.5, pp. 38-56. ISSN 1727-3781.

    SUMMARY The general policy in South African insolvency law is that assets must be recovered and included in the insolvent estate, and that this action must be to the advantage of the creditors of the insolvent estate. But there are several exceptions to this rule and an asset that is the subject of such an exception may be excluded from the insolvent estate. The Insolvency Act, however, does not expressly distinguish between excluded and exempt assets, thereby resulting in problem areas in the field of exemption law in insolvency in South Africa. It may be argued that the fundamental difference between excluded and exempt assets is that excluded assets should never form part of an insolvent estate and should be beyond the reach of the creditors of the insolvent estate, while exempt assets initially form part of the insolvent estate, but in certain circumstances may be exempted from the estate for the benefit of the insolvent debtor, thereby allowing the debtor to use such excluded or exempt assets to start afresh before or after rehabilitation. Modern society, sociopolitical developments and human rights requirements have necessitated a broadening of the classes of assets that should be excluded or exempted from insolvent estates. This article considers assets excluded from the insolvent estates of individual debtors by legislation other than the Insolvency Act. It must, however, be understood that these legislative provisions relate to insolvent estates and thus generally overlap in one way or another with some provisions of the Insolvency Act.

    Keywords : Accrual; assets; bank; exclusion; exemption; human rights; insolvent; insolvency; insurance; legislation; rehabilitation; social security; trustee; trusts.

            · text in English     · pdf in English