Abuse of the requirement of publication of notice in applications for voluntary surrender : a look at Letitia Ndema v ABSA & Others and related cases : notes & comments

• Date: 01 January 2015
• Published date: 01 January 2015
• DOI: 10.10520/EJC177113
• Author: Kuenaesele Ramabele-Thamae
• Pages: 151-159

ABUSE OF THE REQUIREMENT OF

PUBLICATION OF NOTICE IN

APPLICATIONS FOR VOLUNTARY

SURRENDER: A LOOK AT LETITIA

NDEMA V ABSA & OTHERS

1

AND

RELATED CASES

Kuenaesele Ramabele-Thamae*

Introduction

One of the preliminary procedural formalities to be fulfilled by an

applicant for voluntary surrender as stipulated in section 4(1) of the

Insolvency Proclamation of 1957 is publication of a notice of

intention to apply for surrender. Such publication must be made in

the government gazette and newspapers in the district in which the

applicant debtor resides or carries on business. The period of

publication must be not more than 30 days and not less than 14

days from the date of hearing of the application as stated in the

notice.

2

The notice may be withdrawn after the debtor has applied

to the Master for his consent which must be given in writing.

3

In

terms of section 7, a valid withdrawal is one made with the consent

of the Master followed by publication of a notice of withdrawal in

the government gazette. The substantive requirement for a valid

withdrawal is that the publication of notice of surrender must have

been made in good faith and the withdrawal must be for a good

reason.

4

* BSc (NUL), LLB (NUL), LLM (Westminster, London), Lecturer, Department of

Private Law, National University of Lesotho. k.ramabele-thamae@nul.ls

1

Case No 583/10 [2012] ECD.

2

Ibid.

3

Section 7.

4

Ibid.