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n Tydskrif vir die Suid-Afrikaanse Reg - Die reg van die onderhoudsbehoeftige kind kragtens artikel 29 van die grondwet teenoor die reg van skuldeisers van die insolvente boedel van die ouer
The duty of the insolvent estate and the trustee with regards to maintenance of the insolvent and his family
Specific focus is placed on the right of the insolvent's children to education and further education versus the right of the creditors of the insolvent estate to payment out of its proceeds. Must a reasonable amount for the further education of the insolvent's children be paid out of the insolvent estate before the creditors of the insolvent estate's claims are paid out? The law of insolvency is currently based on the important principle of "advantage of the creditors". The rule is that everything that takes place during the sequestration process must be to the advantage of the concursus creditorum. On the other hand, children enjoy protection in terms of the Constitution of the Republic of South Africa 1996. What is the position in the event of the sequestration of the estate of the parents? The authors are of the opinion that the Insolvency Act should contain a provision that a fair and reasonable amount of maintenance, which must be determined with due consideration of all circumstances, must be paid out of the estate by the trustee. If circumstances allow, such maintenance must include an amount for the tertiary education of the child. It is further understood that in cases in which it is, with consideration of the circumstances of the insolvent, not possible to provide an amount for the tertiary education of the insolvent's child(ren), the state has a constitutional duty to provide for the child(ren). It is submitted that this duty must include the duty of the provision of further education. It is undeniable that the state does not currently have the ability or the means to provide tertiary education to every child in the country who is in need thereof. The authors are of the opinion that there are circumstances in which such a duty must be put into operation as soon as possible, inter alia in the case of sequestration.
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