Die effek van sekwestrasie op huiswerkers en die bepaling van voordeel vir skuldeisers weer onder die loep

Abstract

The concept of “advantage to creditors” in insolvency law is not without problems. Inevitably the question arises, and is discussed in this note, whether the notion of creditor advantage ultimately got stuck at determining the dividend, namely, a specific one, which has to be paid to the concurrent creditors. A further interesting aspect highlighted in this note, is the position of the ordinary domestic worker, where an application was made for the sequestration of the employer’s estate. Curiously, both these matters surfaced recently in the same case. Regarding the requirement of “advantage”, the Constitutional Court ruled that an overly rigid interpretation of this notion should be discouraged. Therefore, this note formulates the view that, understandably a fair, reasonable and justified determination of the sequestration and administration costs is still needed to ascertain whether some form of monetary advantage should be paid out to the concurrent creditors and that a proper, meticulous and accurate assessment should be made of the estate’s assets. Nevertheless, a specific dividend should not be presented in such a case. At the very least, a dividend should be paid out to the concurrent creditors, and this amount should be determined by considering all circumstances of the mentioned estate. In this way, it can be established whether the sequestration would be reasonable, fair and sufficient for that specific circumstance. Naturally, the costs of sequestration and administration as well as of valuing the assets, need to be factored in. However, typically all sequestrations differ; in this case there are different circumstances to keep in mind. Furthermore, numerous factors may play a role – or in certain cases, should not play a role. With regard to the circumstances of domestic workers, the view of the authors is that the Constitutional Court’s interpretation is correct and that, for purposes of this note, the term “employees” also refers to domestic workers.