Larisa Myburgh Attorneys

• Sequestration (Insolvency for Individuals/Sole Proprietors): Relies on the Insolvency Act 24 of 1936. Voluntary surrender requires proving to the High Court that your liabilities exceed assets and that surrendering your estate yields a proven monetary benefit to creditors (minimum 10 to 20 cents in the Rand).
• Liquidation (Insolvency for Corporate Entities): Governed by the Companies Act (Act 61 of 1973 for insolvency mechanics / Act 71 of 2008 for solvency/solvency tests). A company can be liquidated voluntarily by a special shareholder resolution or compulsorily via court application if it cannot pay debts as they fall due (commercial insolvency).

Business rescue places a financially distressed company under temporary supervision to rehabilitate its operations. It grants a temporary moratorium (stay) on all legal proceedings and execution of debt against the company, giving the business rescue practitioner time to draft a plan to restructure debt or achieve a better return for creditors than immediate liquidation.

Payments or property transfers made by a company after the formal commencement of winding-up proceedings (or disposition of assets made without value shortly prior to insolvency) are void unless sanctioned by a court order. Liquidators hold statutory powers to set aside these transactions and recover funds for the general body of creditors.

We draft, review, and negotiate tailored commercial agreements, including:

• Share purchase, sale of business, and asset disposal agreements
• Shareholders' agreements and Memorandum of Incorporation (MOI) amendments
• Commercial lease agreements and property distribution deals
• Service Level Agreements (SLAs), supply contracts, and agency distribution terms
• Non-Disclosure Agreements (NDAs) and restraint of trade clauses

Standard contracts frequently fail under South African legislation. We customize terms to align with relevant frameworks, such as the Companies Act, Consumer Protection Act (CPA), Protection of Personal Information Act (POPIA), and National Credit Act (NCA), mitigating breach risks and enforcing clear dispute resolution mechanisms.

The estate is distributed according to the Intestate Succession Act 81 of 1987. The state dictates how assets pass to surviving spouses and descendants via fixed statutory ratios, which can lead to family disputes, delay asset transfers, and require minor children's inheritances to be paid into the Master's Guardian's Fund rather than a managed trust.

1. Reporting: The estate is reported to the Master of the High Court within 14 days of death to obtain Letters of Executorship.
2. Notice to Creditors: Section 29 advertisements are placed in the Government Gazette and local newspapers, giving creditors 30 days to lodge claims.
3. Liquidation & Distribution Account: The Executor drafts the L&D Account detailing all assets, liabilities, administration expenses, and heir allocations.
4. Inspection Period: Once approved by the Master, the L&D Account lies open for public inspection for 21 days (Section 35 advertisement).
5. Distribution: If no objections are lodged, assets, funds, and immovable property are transferred to the designated heirs.

• Testamentary Trust: Created through provisions in a Will and takes effect only upon death. It protects funds and property allocated to minor children or financially dependent beneficiaries until they reach a specified age.
• Inter Vivos (Living) Trust: Established during your lifetime. It assists with long-term financial planning, estate duty reduction, and protecting assets from personal business risk or potential creditors.

• In Community of Property: Default regime without an Antenuptial Contract (ANC). Both spouses merge assets and liabilities into a single joint estate. If one spouse becomes insolvent, the entire joint estate, and both spouses, become insolvent.
• Out of Community of Property WITHOUT Accrual: Estates remain completely separate before, during, and after marriage. Neither spouse is liable for the other's debts, and growth accumulated during the marriage is not shared upon dissolution.
• Out of Community of Property WITH Accrual: Estates remain separate during the marriage, protecting each spouse from the other's business creditors. Upon divorce or death, the spouse whose estate grew less during the marriage has a legal claim to half the difference between the net growth of both estates.

Yes, but only through a formal Section 21 High Court application under the Matrimonial Property Act 88 of 1984. Both spouses must join the application, demonstrate sound reasons for the postnuptial change, give notice to all existing creditors, and prove that no creditor will be prejudiced by changing the marital regime.

1. Section 129 / Letter of Demand: A statutory written notice demanding payment within a specified timeframe (e.g., 7 to 14 business days).
2. Summons: Issued through the Magistrate's Court or High Court if the debtor fails to settle or negotiate terms.
3. Default or Summary Judgment: Obtained if the debtor fails to defend the summons or lacks a genuine legal defense.
4. Execution & Recovery: Enforced via warrants of execution against movable/immovable property, Emolument Attachment Orders (garnisheeing wages), or instituting liquidation/sequestration proceedings against stubborn debtors.

Under the Prescription Act 68 of 1969, standard contractual and commercial debts generally prescribe 3 years from the date the debt became due. Judgments obtained in court, mortgage bonds, and taxation debts remain enforceable for 30 years. Prescription is interrupted if the debtor formally acknowledges liability or receives a court summons.