oa Fundamina : A Journal of Legal History - Skuldverligtingsmaatre ls vir individue in die Suid-Afrikaanse Insolvensiereg : 'n historiese ondersoek (Deel I)

Volume 2004 Number 10
  • ISSN : 1021-545X
  • E-ISSN: 2411-7870



<b>Debt relief measures for individuals under South African insolvency law : a historical investigation</b><br>It is currently not the main aim of the South African Insolvency Act to provide debtors with debt relief. Neither does South African law provide for a procedure for the release from debt outside the scope of the Insolvency Act. In contrast, many other countries have witnessed large-scale reform of their legal systems in order to address the problem of overspending by individuals. In this regard the American insolvency system leads the way by accepting debt relief by means of a processual discharge as its theoretical basis, and in so doing enables the debtor to make a ""fresh start"". From the 2000 Draft Insolvency Bill of the South African Law Commission, it would appear that the Commission has taken cognisance of international developments regarding the American fresh-start approach. The Commission accepts as its point of departure that bona fide debtors should be given the opportunity of making a new beginning, and that a balance should be achieved between the interests of debtors and creditors. <br>The purpose of this article is to investigate the historical development of debt relief measures under South African insolvency law in order to obtain a better understanding of its current aims. Part 1 contains a discussion of the situation in Roman law, whilst part 2 discusses the position in Roman-Dutch and South African law. From this investigation it is clear that the debtor's position has improved progressively from the time of the Twelve Tables. However, it is submitted that the introduction of the current Insolvency Act resulted in a drastic shift of the balance of rights between creditors and debtors, ultimately favouring the creditors. In the light of international developments regarding the American fresh start approach, it is submitted that the time has come for the reform of South African insolvency legislation that can afford bona fide debtors the opportunity of making a fresh start. It is submitted that the proposals of the Law Commission, namely that provision be made for a pre-liquidation composition in section 74X of the Magistrates' Courts Act and the proposed reform of the administration procedure, would be a step in the right direction.

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