Bibliographie sélective OHADA

The home of a debtor has never enjoyed specific statutory protection against forced sale in the individual debt enforcement and insolvency procedures in South Africa. In Jaftha v Schoeman and Others; Van Rooyen v Stoltz and Others (2005 (2) SA 140 (CC)) and Gundwana v Steko Development CC and Others (2011 (3) SA 608 (CC)), the Constitutional Court recognised that in the individual debt enforcement process execution against a debtor's home, even where it has been mortgaged in favour of a creditor, may constitute an unjustifiable infringement of the right to have access to adequate housing, provided by section 26 of the Constitution. The effect of these decisions is that, in every case in which a creditor seeks to execute against a person's home, a court must consider "all the relevant circumstances" to determine whether execution is justifiable, in terms of section 36 of the Constitution. The absence of a properly constructed framework, incorporating clear substantive and procedural requirements, within which these recently established principles must be applied, has led to divergent approaches in the courts and a lack of clarity regarding circumstances in which execution against a debtor's home will be permitted. Further, courts have not considered the impact of section 26 and other rights on the position where a debtor's home is realised by the trustee of an insolvent estate in terms of the Insolvency Act 24 of 1936. This has given rise to a number of unanswered questions as well as to a lack of predictability that potentially hold adverse consequences for bond finance, commerce, and the economy generally. The need to balance the competing interests emphasises the necessity for a coherent contextual framework within which forced sale of a debtor's home may occur. This thesis examines issues surrounding forced sale of a debtor's home in South Africa. It compares the position in other legal systems and suggests mechanisms and an appropriate method, or process, for inclusion in statutory provisions to regulate the forced sale of a debtor's home in both the individual debt enforcement and insolvency procedures in South Africa.

The Law of Insolvency in South Africa is regulated by the provisions of the Insolvency Act 24 of 1936, with foundations in our common law, which has been influenced by different legal systems from Western Europe. But currently there is also other legislation affecting the insolvent debtor and the property in the insolvent estate. The courts too have had to formulate rules to govern aspects of insolvency law in South Africa. These variables created problem areas in insolvency law and in respect of the of the policies upon which the insolvency system hinges. The predominant policy in South African insolvency is the collection of the maximum assets of the debtor for the advantage of creditors in insolvent estates. This strict creditor orientated approach created further problem areas in respect of assets in the insolvent estates of individual debtors. If advantage to creditors cannot be shown in an application for the sequestration of a debtor’s estate, a court will refuse to grant that order. This strict policy overshadows policy concerns in respect of assets in insolvent estates, and regarding exemption law in respect of those assets. This has resulted in insolvency law reformers in South Africa missing the bigger picture, namely, that South Africa is a creditor driven developing society. It is conceivable that in the transformed South Africa, and in the present world economic chaos, there will be an escalation of sequestrations of the estates of individual debtors. Bearing this in mind, a reformed insolvency law system must become more debtor friendly. A change in the philosophy is needed in favour of an exemption policy for insolvent estates. Exemption policy must be based on the interest of the debtor and his dependants, his dignity, creditor and third party interests, social welfare, and human rights imperatives within the South African constitutional framework. Exemption policy must be linked to the policy of a “fresh start” for the debtor. The different policies in insolvency however create a conflict of interest among the different stakeholders, particularly regarding the assets in insolvent estates, thereby creating problem areas. In this thesis several problem areas are identified and critically analysed. The position of property included in, and excluded from, individuals’ insolvent estates is investigated from a brief historical perspective, and in a brief comparative survey of the insolvency systems of the United Kingdom and the United States of America. Acute problem areas are critically analysed in detail, and the constitutional impact on property in insolvent estates is considered in a separate chapter. The South African Law Reform Commission’s review of South African insolvency law is critically analysed in a chapter of this thesis, concluding that the Commission’s review is inadequate. This thesis concludes that there is a need to reform the insolvency system in South Africa and proposes a way forward in respect of property included in, and property excluded or exempt from insolvent estates. This thesis states the law to the end of October 2008.

In a region where there is diversity of laws, the author maintains that law reform is a catalyst for investment and development. This thesis aims at demonstrating that OHADA provides practical lessons for the development of a uniform commercial law structure in the SADC. This is following OHADA’s success in developing uniform commercial rules that are directly applicable in the contracting states. To achieve this, the thesis uses a “structured focused comparison” methodology that allows for two separate, but structurally linked accounts of the structures of both organisations. In exploring the structures of both organisations, the thesis endeavours to: determine whether there is the need for the development of a commercial law structure in the SADC; whether such a structure can be developed within the current SADC structure and whether OHADA can serve as a possible model for the SADC. The findings show that no part of the African continent has witnessed regional legal reform on the scale of that initiated by OHADA. It equally reveals the absence of a uniform commercial law structure in the SADC and the lack of supranational structures to adopt full panoply of business laws and to preserve the uniformity of laws in the member states. The findings from this thesis provide evidence that there is the need forthe development of a commercial law structure in the SADC and improvement of the current SADC structure. There is no doubt that thi swould do away with legal uncertainty in cross-border commercial transactions among SADC states.

Interrogation proceedings in insolvency circumstances have always been a thorny issue in South Africa, even prior to the advent of the new constitutional democracy. After the adoption of the new Constitution in 1993, a number of court cases seeking adjudication on constitutional compliance came before our courts. The insolvency of both natural and juristic persons necessitates the employment of specified proceedings such as insolvency interrogations. The latter is done to enable an efficient and effective collection and collation of information that would assist in the administration, sequestration and winding-up of the affairs of the affected person. These proceedings are intended to benefit creditors of an insolvent (natural and juristic). The matters of Ferreira v Levin; Vryenhoek v Powell 1996 (1) SA 984 (CC) (1996) (1); Bernstein and Others v Bester 1996 (2) SA 751 (CC); Harksen v Lane 1998 (1) SA 300 (CC; De Lange v Smuts 1998 (1) SA 736 (C) are still leading cases in relation to the constitutionality of interrogations in insolvency circumstances. The Constitutional Court has on a number of occasions, declared the interrogation proceedings in insolvency matters constitutional, with minor amendments on a case-by-case basis. The effect of these judgements is that, in every case in which an insolvent debtor has to undergo an interrogation process, the presiding officer must ensure that compliance with the constitutional requirements are in place. The current position in which the sequestration of insolvent estates and the winding-up of insolvent companies are respectively regulated by two statutes, is a matter for concern. This situation has led to duplication and contradictions in the two statutes. Further, the absence of specialist tribunals or officers dedicated to the administration of insolvency related matters is a further hurdle to the effective and efficient finalisation of the affairs of insolvent estates or insolvent companies’ affairs. The matter of Leong comes to mind. In this case, the Master of the High Court issued a warrant of arrest for a witness who was subpoenaed to appear at the meeting of creditors in his insolvent estate. This was the case, despite the fact that Leong had previously submitted a medical certificate to the effect that he was unable to attend the meeting due to illness. This case is a clear indication of a lack of proper guidelines to deal with insolvency related matters - for non-judicial officers (such as the Master of the High Court). This incident took place in 2016, long after the decision in De Lange v Smuts 1998 (1) SA 736 (CC). Interrogation processes in insolvency circumstances in Namibia and Botswana are almost similar to South Africa’s processes. Divergent provisions in Namibia and Botswana exist, but not to a great extent. Like South Africa, the above-mentioned jurisdictions adopted a constitutional democracy long before South Africa. One would have expected that interrogation proceedings in insolvency circumstances would be in line with human rights. Further, as is the case in South Africa, insolvency of natural persons and of juristic persons are regulated by two separate statutes in these jurisdictions. This thesis investigates issues relating to the interrogation process in insolvency proceedings in the three SADC countries, namely South Africa, Namibia and Botswana. It compares the position to two foreign jurisdictions, namely England and Canada – as leading jurisdictions in human rights. Thereafter, suggestions on processes and methods of information gathering in line with human rights and in specialist tribunals will be made. In addition, recommendations for inclusion in a unified statute regulating insolvencies of both natural and juristic persons will be made. This will be done taking into consideration the economical and socio-political circumstances of South Africa and the SADC countries forming part of this thesis.

The Tanzanian private sector is growing, partly due to the state’s efforts to conform to the global economy. As the economy expands and the National Microfinance Policy of 2001 is realised, more and more credit has been made available to consumers. As a direct consequence of the increase of credit, the number of over- indebted consumers in Tanzania is on the rise. The current debt relief system is regulated by the Tanzanian Bankruptcy Act no. 9 of 1930, a piece of colonial legislation. Unfortunately this law is ineffective, costly and outdated. Some of the problems identified in this study with this debt relief regime include the lack of a cost- effective alternative to bankruptcy and its total reliance on the judiciary, an institution that is itself overburdened and requires reform. The purpose of this study is to make recommendations for the reform of the current debt relief system and propose a debt relief dispensation for consumer debtors in Tanzania that will efficiently cure over- indebtedness. A wide comparative investigation was undertaken in this study of selected common law, civil and mixed legal systems that have substantial experience with the boom in over-indebted consumers now facing Tanzania. A number of solutions were borrowed from these systems that may potentially solve Tanzania’s debt relief problem. One of the main findings of this thesis is that, over time, developed jurisdictions that rely on credit in the private sector appear to be converging on the same type of procedures and moderate philosophies for consumer debt relief. These include less judicial supervision for debt relief procedures, less freedom of choice for over-indebted consumers when it comes to the type of procedures available, and mandatory surplus income repayments for debtors who can afford it. In order to address the problems of the Tanzanian debt relief system, this thesis proposes a complete overhaul of the administration of debt relief procedures in Tanzania and the introduction of a combined alternative to bankruptcy that consists of three joint procedures. A number of amendments are also proposed for the Bankruptcy Act no.9 of 1930. This thesis states the status of legal developments as they were in the selected jurisdictions on 31 December 2012.