When having a consultation with a client who wishes to rehabilitate himself, it is of utmost importance to receive the following information:
1. The marital regime of the client and whether the client was married prior to sequestration or thereafter.
2. Which court granted the sequestration order and which court has jurisdiction.
3. The period that has lapsed since the date of sequestration.
4. The contact details of your trustee Complete Form 6 (Notice of Intention to Apply for Rehabilitation).
Further actions to be taken
1. Arrange for a deposit by the client.
2. Arrange for publication of Form 6 in the Government Gazette;
3. Give notice to the trustee of the intention to apply for rehabilitation and ensure that you receive a letter from the trustee confirming that he does not object to the rehabilitation.
4. Give notice to the Master.
5. File a duly stamped security bond with the Registrar.
6. Conduct a search at the Master’s Office to satisfy yourself that the applicant qualifies for rehabilitation, and to obtain the information necessary to finalise the affidavit supporting the application for rehabilitation.
Form of application and contents of affidavit
The short form of notice of motion (Form 2 of the First Schedule to the Uniform (High Court) Rules) is used and service is also effected on the Master. Note that service of the trustee is not necessary. If the relief which is applied for will affect the records of the Registrar of Deeds, the application must also be served on the Registrar.
The affidavit should contain the following:
1. name of applicant, present occupation and address;
2. that the applicant has personal knowledge if the statements made in the affidavit;
3. the date of sequestration and particulars of the court which granted the order;
4. the date of confirmation by the Master of the first liquidation account (s 124(2)): alternatively the date of confirmation of a plan of distribution providing for the payment of all claims;
5. the reasons for the insolvency;
6. the position regarding the assets and liabilities of the insolvent as at the date of sequestration;
7. the amount of all claims proven against the estate and whether the claims were concurrent, secured or preferent claims;
8. the dividend that was paid to creditors, with full details of dividends paid to specific creditors (whether concurrent, secured or preferent);
9. the amount of contribution levied, alternatively a statement that no contribution was levied;
10. a list of assets and liabilities, and earnings at the date of application for rehabilitation;
11. the estimated value of assets;
12. the income and expenditure of the applicant, and income and expenditure of his spouse, if applicable;
13. where there has been a statutory composition, full particulars of it;
14. full particulars of previous sequestrations, alternatively a statement that the applicant was not previously sequestrated;
15. particulars of any criminal prosecutions and/or offences under the Insolvency Act, alternatively a statement that no such offences or prosecutions took place;
16. confirmation that the applicant has completely surrendered his estate and has not granted or promised any benefit to any party or entered into any secret agreement in order to induce any party not to oppose the rehabilitation;
17. an averment regarding timeous publication of the application in the Government Gazette (annex a tear sheet);
18. an averment that the Master was duly notified of the application (annex proof);
19. an averment that the trustee was duly notified of the application (annex proof);
20. an averment that security for the application was lodged with the Registrar (annex proof); and
21. an averment that a Master’s report will be laid before court.