Abstract:
The focus of this article is on the international trend of providing debt
relief to all hopelessly insolvent individuals, so allowing them a fresh
start. Such debtors include those with ‘no income and no assets’ (NINA),
whose access to insolvency proceedings would yield no benefit for their
creditors. The initial ultra-liberal American ‘straight discharge’, or ‘fresh
start’, is contrasted with the ‘earned fresh start’ approach in Europe. The
European approach is investigated in some detail and key elements in
the German and French consumer-insolvency systems are specifically
considered, as these systems respectively illustrate the traditional and
the new European approaches to providing debt relief to NINA debtors.
Internationally regarded principles and guidelines are considered as a
subtext. The purpose of the investigation is to ascertain whether there
are any lessons to be learnt by South Africa from the European approach,
and to indicate a way forward for future law reform as regards debt-relief
measures for NINA debtors. The research concludes with an evaluation
of the different approaches within the South African context and offers
some remarks on the way forward.
