| (1) |
Thereafter any balance of the free residue shall be applied in paying— |
| (a) |
to any employee who was employed by the insolvent |
| (i) |
any salary or wages, for a period not exceeding three months, due to an employee; |
| (ii) |
any payment in respect of any period of leave or holiday due to the employee which has accrued as a result of his or her employment by the insolvent in the year of insolvency or the previous year, whether or not payment thereof is due at the date of sequestration; |
| (iii) |
any payment due in respect of any other form of paid absence for a period not exceeding three months prior to the date of the sequestration of the estate; and |
| (iv) |
any severance or retrenchment pay due to the employee in terms of any law, agreement, contract, wage-regulating measure, or as a result of termination in terms of section 38; and |
| (b) |
any contributions which were payable by the insolvent, including contributions which were payable in respect of any of his or her employees, and which were, immediately prior to the sequestration of the estate, owing by the insolvent, in his or her capacity as employer, to any pension, provident, medical aid, sick pay, holiday, unemployment or training scheme or fund, or to any similar scheme or fund. |
| (a) |
In order to ensure that the balance of the free residue is applied in an equitable manner, the Minister of Justice may by notice in the Gazette determine maximum amounts which shall be paid out in terms of subsection (1) in respect of— |
| (i) |
paragraph (a), any or all the subparagraphs thereof or any single employee; and |
| (ii) |
paragraph (b) or any single scheme or fund, |
and different maximum amounts may be so determined in respect of different schemes or funds.
| (b) |
In order to take into account subsequent fluctuations in the value of money, the Minister of Justice may from time to time supplement, amend or withdraw the relevant maximum amounts by like notice in the Gazette. |
| (c) |
The Minister of Justice may at any time replace a notice referred to in paragraph (a) with a new notice issued under the said paragraph (a). |
| (d) |
The Minister of Justice shall not exercise the powers conferred upon him or her by paragraph (a) or (c), unless he or she— |
| (i) |
has caused to be published in the Gazette a draft of the proposed notice, together with a notice inviting all interested parties to lodge with the Director-General: Justice in writing within a period of 60 days from the date of the publication of the notice any representations that they may wish to make in connection with the proposed notice; and |
| (ii) |
has caused to be forwarded to the National Economic, Development and Labour Council established by section 2(1) of the National Economic, Development and Labour Council Act, 1994 (Act No. 35 of 1994), a copy of such draft.; |
| (3) |
An employee shall be entitled to salary, wages, leave or other payments in terms of subsection (1)(a) even though he or she has not proved his or her claim therefor in terms of section 44, but the trustee may require such employee to submit an affidavit in support of his or her claim for such salary, wages, leave or payment. |
| (a) |
The claim referred to in subsection (1)(a)(i) shall be preferred to the claims referred to in subsections (1)(a)(ii), (iii) and (iv) and (1)(b). |
| (b) |
The claims referred to in subsection (1)(a)(ii), (iii) and (iv) shall be preferred to the claims referred to in subsection (1)(b) and shall rank equally and abate in equal proportions, if necessary. |
| (c) |
The claims referred to in subsection (1)(b) shall rank equally and abate in equal proportions, if necessary. |
| (5) |
For the purposes of this section- |
| (a) |
"employee" means any person, excluding an independent contractor, who works for another person and who— |
| (i) |
receives, or is entitled to receive, any salary or wages; or |
| (ii) |
in any manner assists in carrying on or in conducting the business of an employer; |
| (b) |
"salary or wages" includes all cash earnings received by the employee from the employer; |
| (c) |
"unemployment fund" does not include the unemployment insurance fund referred to in section 6 of the Unemployment Insurance Act, 1966 (Act No. 30 of 1966). |
| (6) |
The Minister may, after consultation with the National Economic, Development and Labour Council established by section 2(1) of the National Economic, Development and Labour Council Act, 1994, by notice in the Gazette exclude from the operation of the provisions of this section a category of employees, schemes or funds specified in the notice |
| (a) |
in the case of employees, by reason of the particular nature of the employment relationship between the employer and the employees; |
| (b) |
in the case of employees, schemes or funds, by reason of the fact that there exists any other type of guarantee which affords the employees, schemes or funds protection which is equivalent to the protection as provided in this section; or |
| (c) |
in the case of schemes or funds, by reason of the fact that the sequestration of the employer's estate will make it impossible to achieve the objects of the schemes or funds. |
Statistics Act, 1999
