Regulatory bodies must function properly in order for their duties to be performed. The performance of the regulatory body impacts the entire insolvency system. Academics have noted that the Master does not meet the standards of what is expected of an insolvency regulator. The Constitution requires that the power of the state be defined and regulated by the law to ensure the protection of the interests of society. State regulation must comply with the underlying values of the Constitution which also includes the protection of the interests of society. The state has a constitutional duty to protect societal interests, ensure that justice is promoted and ensure that just administrative action is achieved. The Master also has the requisite duty to protect societal interests. Academics have found that the objectives and outcomes of the regulation of insolvency law are still not in line with the Constitution and the values and principles it enshrines. Criticisms of the Master’s office include the lack of resources and institutional capacity, the lack of sufficient investigative powers and insufficient guidelines for the Master when applying their administrative discretion when appointing provisional insolvency practitioners. The lack of regulation of insolvency practitioners in South Africa has also been criticised which has a negative impact on the performance of the insolvency industry. Academics have proposed suggestions to reform the regulation of insolvency law in South Africa. However, none of these suggested proposals have been implemented as yet. The most recent development is the draft policy on the regulation of insolvency practitioners that has been submitted to NEDLAC in 2012. The policy aims to provide guidelines relating to the appointment of provisional insolvency practitioners. The policy also includes a code of conduct which insolvency practitioners must adhere to in order to be appointed as a provisional insolvency practitioner. The policy has the potential to provide sufficient guidelines to the Master when appointing insolvency practitioners. The precise guidelines in the policy reflect the need for transformation of the industry and the need for administratively fair decision making. Thus, the provisions of the proposed policy will be effective in countering the criticisms and transforming the insolvency industry and profession. Foreign jurisdictions have also encountered the problem of lack of regulation of insolvency practitioners. To circumvent this problem some foreign jurisdictions have made the recent development of adopting (or considered adopting) self-regulation or co-regulation of insolvency practitioners. In comparison to South Africa, they have made more progress towards improving the regulation of insolvency practitioners. The result of this is that South Africa is out of step with foreign jurisdictions. It is imperative that South Africa adopts reform initiatives to strengthen the regulation of insolvency law. / Thesis (LL.M.)-University of KwaZulu-Natal, Durban, 2014.

LL.M. (Commercial Law) / When a debtor runs into financial problems and starts neglecting to satisfy his financial obligations as and when they fall due, there are various statutory procedures or remedies available to both the debtor and his creditor(s). The first and most obvious remedy available to the creditor is to demand the satisfaction of the outstanding claim by the issuance of a letter of demand, followed by a summons and subsequent court proceedings in which the creditor will claim what is due to him. If the debtor still neglects to satisfy the judgement debt, the creditor may proceed to have the judgement enforced by means of a warrant of execution in terms of which the debtor’s property will be attached and be sold at a public auction. Another procedure that is available is for either party to apply for a sequestration order in terms of the Insolvency Act.3 The Insolvency Act provides for two ways in which a debtor’s estate may be sequestrated. These two ways have their own separate requirements. The two ways are: 1. Voluntary surrender; and 2. Compulsory sequestration.