A comparative analysis of an insolvent's capacity to earn a living within the South African constitutional context

Abstract

An insolvent person in South Africa faces many statutory restrictions regarding his capacity to earn a living. These impediments can be grouped into three stages: impediments before sequestration, impediments during sequestration, and impediments after sequestration. This thesis aims to consider the constitutionality of the impact that the restrictions imposed on unrehabilitated insolvents have on their capacity to earn a living; whether such restrictions are still justifiable given international best practice; and to make recommendations for law reform. This thesis also aims to re-evaluate the rationale for the existence of the current restrictions coupled with the long rehabilitation period generally provided for in our insolvency law within the context of modern needs and realities. Moreover, the goal is to establish whether such restrictions' internal dynamics and characteristics are constitutionally justifiable and aligned with international best practice. In this regard, it is argued that the restrictions imposed on unrehabilitated insolvents in South Africa limit their capacity to earn a living and are not always justifiable in light of constitutional values and international best practice. Therefore, this thesis concludes by making recommendations that could be considered by lawmakers embarking on law reform.