The extraordinary in the ordinary : the devil is in the (sometimes unexpected) details of section 34 of the Insolvency Act 24 of 1936 and the actio Pauliana

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dc.contributor.author Smith, Alastair
dc.date.accessioned 2024-05-15T11:17:00Z
dc.date.available 2024-05-15T11:17:00Z
dc.date.issued 2023-06
dc.description.abstract A recent case offers an opportunity to consider two types of impeachable dispositions in insolvency law. One is the transfer of a trader’s business under section 34(1) of the Insolvency Act, and the other is the commonlaw actio Pauliana from which the entire law of impeachable dispositions derives. In the first place, the nature of the application is characterised as an attempt to reverse the transfer of the business and assets. A common feature of section 34(1) and the actio Pauliana is spotted: they straddle sequestration or winding-up. Compliance with sections 34(1) and (2) of the Insolvency Act is discussed, and the trader’s celebration of doing so is then ruined by the pervasive menace of the actio Pauliana, the defence of necessity supplying a sword to cut the Gordian knot. The central insight of the judgment about section 34(1) – the relative meaning of the word “void” – is shown to be well-articulated by a widely followed juristic insight into administrative validity. Some of the finer details of the ambit of the word “void” are then teased out. The uneasy relationship between section 34(1) and sections 26, 29, 30, and 31 of the Insolvency Act and the actio Pauliana is explored, and an answer to a dilemma over the application of section 34(1) ventured. As for applying the requirements of the actio Pauliana to the facts, a comprehensive, nuanced approach considering both the two relevant possibilities is proposed, rather than the single choice plumped for in the judgment apparently because it is the more usual one. The closing remarks underline the wisdom of thoroughly planning, discussing, and creating a Plan B for the client in the pleadings and executing the procedural requirements and administration. en_US
dc.description.department Mercantile Law en_US
dc.description.librarian am2024 en_US
dc.description.sdg SDG-16:Peace,justice and strong institutions en_US
dc.description.uri https://journals.co.za/journal/dejure en_US
dc.identifier.citation Smith, A. ‘The extraordinary in the ordinary: the devil is in the (sometimes unexpected) details of section 34 of the Insolvency Act 24 of 1936 and the actio Pauliana’ 2023 De Jure Law Journal 43-65. http://dx.doi.org/10.17159/2225-7160/2023/v56a4. en_US
dc.identifier.issn 1466-3597 (print)
dc.identifier.issn 2225-7160 (online)
dc.identifier.other 10.17159/2225-7160/2023/v56a4
dc.identifier.uri http://hdl.handle.net/2263/95987
dc.language.iso en en_US
dc.publisher University of Pretoria en_US
dc.rights © University of Pretoria. en_US
dc.subject Insolvency law en_US
dc.subject Impeachable dispositions en_US
dc.subject Insolvency Act en_US
dc.subject actio Pauliana en_US
dc.subject SDG-16: Peace, justice and strong institutions en_US
dc.title The extraordinary in the ordinary : the devil is in the (sometimes unexpected) details of section 34 of the Insolvency Act 24 of 1936 and the actio Pauliana en_US
dc.type Article en_US


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