If as an individual you are unable to service your debt obligations, an application can be made to write off 60% of your debt by Sequestrating your estate. In instances where an individual has a large amount of unsecured debt, taking more than 5 years to settle, Sequestration is a better option than Debt Review or Debt Management. It is the best legal mechanism an individual has access to in South Africa to manage debt problems. Not only is the debt owed reduced, but also the repayment term.
What is Sequestration?
An advert is placed in the Government Gazette and Die Burger. This will prevent any further legal procedures against you i.e. execution notices, seizure of your movable and/or immovable property, etc.
An ability statement is drafted that you must sign before a Commissioner of Oaths. This document is lodged for inspection at the Master of the High Court for 14 days or with the local Magistrate in the area in which you reside.
Notice to Credit Providers
Registered letters are forwarded to all your Credit Providers giving notice of the surrendering of your estate. Your Credit Providers will then contact the attorney on record for information. A copy of this letter will also be provided to you to enable you to present it to your creditors if necessary.
The South African Revenue Services are also notified, even if you are not registered with SARS. If you are a registered Tax Payer you are required to apply for a new tax number as you are starting a new estate.
An Advocate will appear on your behalf in court
On the day of the Court proceedings an Advocate will represent you. There will be no need to attend any court hearing in person.
A Curator is appointed
After the application has been approved and granted by the Court, a curator is appointed to handle all financial matters on your behalf. The curator will contact you in order to arrange a consultation to explain the details to you.
The amount you pay back is determined by the Court
The Court Rules will determine the percentage you pay back - please see example below. A fixed fee is already included in the amount payable and in doing so you will not be caught off-guard with unexpected Attorney or Curator costs after Sequestration. The benefit of this approach is that the repayment amount does not accrue interest.
As your estate is surrendered, the moveables are supposed to be sold on auction and the proceeds must be used to the benefit of your Credit Providers. However, arrangements can be made with the Curator to settle the amount in instalments over 18 months with written permission from the Curator. Therefore, should you owe R50,000.00 you can arrange instalments of R2,777.78 per month for 18 months – there are no further interest or other costs thereon.
To generate the money in terms of the Rules of Court the following is done:
You will receive a document, requiring you to list all moveables. You must identify your assets on the document and describe each item e.g TV – Sansui 54cm etc. This document will be forwarded to the Valuator, who will arrange a meeting with you, to establish the value of the items. *No furniture will be removed or sold. Movable assets are merely used as security while you are paying your instalments over the 18 months.
Approval of Application
As soon as the application has been approved and granted, the Curator will contact you to confirm the details in respect of your assets. * Failure to comply with the arrangements made with the Curator will result in removal of the furniture.
Progress updates for Sequestration rehabilitation will occur on a weekly basis, at which time you will be updated with the latest developments with your application.
Your salary and other income is still your own and you do not have to pay any Credit Providers.
Friends, Family Employers
Only your Credit Providers are notified of the process and not your employer or any other person. You will not be discharged from your work because of it.
You will not have to attend Court.
Vehicle on hire purchase or lease agreement
Your Curator may arrange with your financial institution (the bank) to keep your vehicle and if your instalments are up to date, to enter into a lease agreement.
Benefits of Sequestration
Disadvantages of Sequestration
Length of Insolvency
You will be insolvent for at least the next 4 years. There are circumstances where you can apply for Sequestration rehabilitation earlier, keep in mind that this is an exception rather than the rule.
For your insolvency period, you will not be credit worthy. You may receive permission from you Curator in certain circumstances for example when you need to purchase a vehicle – this permission will only be granted on discretion by the Curator and then the financial institution will require someone to stand as security.
Incurring New Debt
You may not have a cheque account or a credit card facility. You may under no circumstances engage in any debt arrangements or incur new debt without explicit permission from your curator.
If you currently owe:
R50,000.00 to Credit Providers, you will only pay back approximately R24,500.00. The R24,500.00 is split over 18 months @ R1,360.00 per month.
R100,000.00 you pay approximately R35,300.00. The R35,300.00 is split over 18 months @ R2,000.00 per month.
R200,000.00 you pay approximately R57,000.00. The R57,500.00 is divided over 18 months @ R3,200.00 per month.
* Please note that these are approximate figures and should not be used to determine your own status.
Example of Sequestration
Cost of Sequestration
It will cost you R10,600.00 to Sequestrate or surrender voluntarily, which is payable in the first month. An arrangement can be made to pay this over 3 months @ R3,540.00 per month and we will still start the application immediately. Once this is paid you are no longer required to pay your normal debt instalments.
Frequently Asked Questions
What will happen to my vehicle?
Should the instalments on the vehicle be up to date, financial institutions may be willing to consider your request to keep the vehicle more favourably and may result in you being able to keep the vehicle. Please keep in mind that there is no guarantee of you being able to keep the vehicle.
If the vehicle is paid off already you can keep the vehicle.
If you are married out of community of property and the vehicle is in the name of the spouse who is not applying for Sequestration, then you can also keep