Insolvency Restrictions, Disabilities and Disqualifications in South African Consumer Insolvency Law: A Legal Comparative Perspective
Journal of Contemporary Roman-Dutch Law, Vol. 81, p. 393-417, 2018
25 Pages Posted: 12 Feb 2019
Date Written: August 1, 2018
Abstract
The first aim of the article is to investigate the legal position in respect of the insolvency restrictions, disabilities and disqualifications that apply to natural person debtors in terms of the Insolvency Act and other legislation. Secondly, a legal comparative investigation is done with the aim of making recommendations for law reform regarding current restrictions that may be unnecessary and unjustified. The comparative investigation is an analysis of the legal position in England and Wales, Australia and the United States of America. The historical connections and the English law’s influence on the development of the South African insolvency law, but particularly the English legislator’s efforts since 2004 to reduce the restrictions that have previously automatically been imposed on all unrehabilitated insolvents motivated the selection of English law. The Australian and American systems represent the two opposite poles regarding insolvency restrictions. The Australian system, like the South African system, subjects natural person insolvents to a wide range of restrictions while the American system does not impose any direct restrictions.
Keywords: insolvency law, insolvency restrictions, insolvency disabilities, insolvency disqualifications
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