Wessels v De Jager en die repudiëringskonstruksie in die insolvensiereg

Abstract

This mini-dissertation is primarily concerned with finding a solution to the problem regarding the repudiation of an inheritance by an insolvent. It is argued in the Wessels v De Jager case that when an insolvent repudiates an inheritance with the sole purpose of keeping the inheritance from being absolved by his creditors, such repudiation constitutes an act of insolvency. It is trite law that certain acts of insolvency can be rescinded in terms of section 26 of the Insolvency Act. To this end extensive use has been made of cases regarding this issue. Wessels v De Jager is the main point of departure regarding this study as it is the most recent case to establish a precedent. The court in Wessels found that the repudiation by an insolvent did not constitute an act of insolvency. In view thereof, it is suggested that the court erred in its finding in that the court based its decision primarily on the stipulation alteri. The stipulation alteri is an inherent contractual phenomenon. It is suggested that repudiation by an insolvent should be regarded as an act of insolvency. The corresponding reason for this premise is that when even at delatio certain rights exist. These rights are contingent or vested rights. The definition of asset in section 2 of the Insolvency Act is inclusive of contingent interests. Section 8 of the Insolvency Act stipulates that when an insolvent alienates his assets in such a way as to prejudice his creditors, such alienation constitutes a deed of insolvency. It is therefore argued that the repudiation of an inheritance by an insolvent heir is a deed of insolvency in terms of section 8 of the Insolvency Act which can be set aside by the court.