Article 21 of the Insolvency Act states that the estate of the solvent spouse transfers to
the curator of the insolvent spouse's sequestrated estate. The solvent spouse then has the
burden to request the release of property vested in the curator of the insolvent estate. In
accordance with Article 21(2), the spouse is required to prove a lawful title on the
property. Should the spouse be able to prove a lawful title on the property, the curator is
obligated to release the property. Although the constitutionality of this temporarily
"deprivation" of the solvent spouse of her rights has already been confirmed by the
Constitutional Court; it imposes drastic limitations to his/ her rights.
The Insolvency Act does not incorporate procedural measures by means of which the
curator has to establish whether the solvent spouse has exempted his/ her from the proof
burden. In the same breath, the Constitution and the Promotion of Administrative Justice
Act warrant that "everyone has the right to administrative action that is lawful.
reasonable and procedurally fair." If the curator's actions, in accordance with Article 21.
conform to the administrative procedures as set out in the Promotion of Administrative
Justice Act, the spouse shall be entitled to administrative actions which are procedurally
fair as concluded within the Promotion of Administrative Justice Act. The conclusion is
proof that the actions of the curator, in accordance with Article 21 of the Insolvency Act,
is indeed administrative by nature and that the solvent spouse has the right to
administrative actions which is procedurally fair as prescribed in the Promotion of
Administrative Justice Act, as well as the right to reasons for not being granted the
release of property. / Thesis (LL.M. (Estate Law))--North-West University, Potchefstroom Campus, 2007.
| Identifer | oai:union.ndltd.org:NWUBOLOKA1/oai:dspace.nwu.ac.za:10394/1471 |
| Date | January 2006 |
| Creators | Brits, Jacobus Strydom |
| Publisher | North-West University |
| Source Sets | North-West University |
| Detected Language | English |
| Type | Thesis |
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