Question 1
1.1 Explain the concept "concursus creditorum" as well as what it presupposes. (5)
1.2 ABC Ltd is a British company that owns property which is lying in a warehouse in Cape Town harbour. ABC Ltd does not have a place of business in South Africa. Will the Western Cape High Court, Ca...
question 1 11 explain the concept concursus creditorum as well as what it presupposes 5
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University of South Africa (Unisa)
MRL3701 - Insolvency Law
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MRL3701
INSOLVENCY LAW
PORTFOLIO MEMO
SEMESTER 2 –
OCTOBER/
NOVEMBER
UNISA – 2022
27 OCTOBER 2022
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1.1 Explain the concept "concursus creditorum" as well as what it
presupposes. (5)
In winding-up proceedings, the commencement date of the winding-up and the
establishment of the concursus creditorum (meaning the coming together of the creditors)
play an important role. The purpose behind the establishment of a concursus is to ensure
that the company’s property is collected and distributed amongst its creditors in the
prescribed order of preference.
Every disposition of its property by a company, made after the commencement of the
winding-up, shall be void, unless a court orders otherwise. The commencement date is also
important when considering certain dispositions which were made within or longer than six
months before the commencement date.
Therefore, an earlier concursus date is always preferred by liquidators and creditors.
The commencement date of a winding-up depends on whether the winding-up is compulsory
or voluntary and whether it is a winding-up of a solvent or insolvent company. For present
purposes, we will only discuss the commencement date in the winding-up of insolvent
companies.
Compulsory winding-up
Section 348 of the Companies Act, No 61 of 1973 (Companies Act) states that if a company
is wound-up by the court, the winding-up shall be deemed to commence at the time of the
presentation to the court of the application for the winding-up (the date of the issuing of
the winding-up application);
Voluntary winding-up of an insolvent company
Section 352 of the Companies Act states that a voluntary winding-up shall commence at the
time of the registration in terms of s200 of the special resolution authorising the winding-up.
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