| (1) |
Despite anything to the contrary in any other law or any agreement and without prejudice to any other remedies the Bank may have, the Bank may in respect of advances that it has made take any action envisaged in subsection (3) if any of the circumstances envisaged in subsection (2) exist. |
| (2) |
The circumstances contemplated in subsection (1) are if— |
| (a) |
payment of any sum of money, due in respect of any advance made in terms of this Act, is in arrear, whether it is the capital sum or interest thereon; |
| (b) |
any such advance has been applied for a purpose other than the purpose for which it was made; |
| (c) |
the advance has not within a reasonable time been applied for the purpose for which it was made; |
| (d) |
any other condition to which the advance is subject has not been complied with substantially; |
(e)
| (i) |
the debtor becomes insolvent, commits any act of insolvency in terms of section 8 of the Insolvency Act, 1936 (Act No. 24 of 1936), or is sequestrated by virtue of an order of court in terms of that Act; |
| (ii) |
the debtor is sentenced to imprisonment without the option of a fine; |
| (iii) |
judgment is obtained against the debtor for the payment of any sum of money; |
| (iv) |
any asset of the debtor is by order of a competent court declared executable or is attached in pursuance of an order of any such court; |
| (f) |
the debtor is deceased, and his or her estate is about to be dealt with in terms of section 34 of the Administration of Estates Act, 1965 (Act No. 66 of 1965), or has been sequestrated; |
| (g) |
the debtor is a company or close corporation which has been placed under judicial management or is being wound up or is being deregistered, as the case may be; or |
| (h) |
the debtor is a private company or close corporation and any director, shareholder or member thereof is sentenced to imprisonment without the option of a fine. |
| (3) |
As contemplated in subsection (1) the Bank may— |
| (a) |
refuse to pay any portion of an advance which has been approved, but which has not yet been paid; |
| (b) |
after the expiry of seven days after the Bank has in writing— |
| (i) |
made a demand for the repayment of the advance, addressed to the address of the debtor stated in the form of application for the advance; and |
| (ii) |
given notice to the holder of a preferrent or similar security in respect of the property of the debtor and, if appropriate, to the Registrar of Deeds, |
apply to a court of law for an order contemplated in subsection (4).
(4)
| (a) |
If the Bank makes an application in terms of subsection (3)(b), and if there is evidence supported by affidavit that— |
| (i) |
a liquidated amount in money is due and payable to the Bank; |
| (ii) |
the Bank intends without undue delay to institute an action in that court against the debtor for recovery of the debt; |
| (iii) |
the debtor has no bona fide defence to the intended action; |
| (iv) |
if such action were instituted, the court would have jurisdiction in respect of the debtor and the cause of action; |
| (v) |
the debtor has property at his or her disposal from which the debt or part thereof could be satisfied if the property were available for execution after judgment; |
| (vi) |
a substantial danger exists that if an action for the recovery of the debt is instituted against the debtor, he or she will dispose of such property or will remove it from the area of jurisdiction of the court in order to evade satisfaction of the debt, or that the delay likely to be caused by the institution of an action for recovery of the debt would result in the property having no value due to its perishable nature; |
| (vii) |
arrangements including the giving of security have been or will be made by the Bank in order to protect the interests of the debtor or any other person whose interests might be affected by the granting of the order mentioned herein, |
a court of law, may authorise the Bank to attach and sell by public auction or public tender, so much of the property and rights of the debtor as may be necessary to liquidate the amount owing in respect of the advance made by the Bank, together with interest and costs in respect thereof.
| (b) |
In making such an order the court may impose conditions with regard to the institution of the action and the giving of security by the Bank for any damages which the debtor or any persons might suffer or costs which might be incurred as a consequence of the attachment of any of his or her property. |
| (c) |
If it is reasonable or just in the circumstances or if compelling considerations exist and the Bank has provided necessary guarantees or other safeguards, the court may authorise the Bank to attach and sell the debtor's property and rights without recourse to ordinary court processes. |
| (d) |
Any person affected by an order referred to in paragraphs (a) to (c) may apply to a competent court to have the order set aside. |
| (5) |
The Bank must in pursuance of an order of Court granted in terms of subsection (4) and after the sale of any property of the debtor, transfer that property to the purchaser and give the purchaser a good and valid title thereto without encumbrances. |
| (6) |
The Bank may make an advance in terms of this Act and on such conditions as it may deem fit to the purchaser of the property envisaged in subsection (5), for the purpose of defraying the whole or part of the purchase price. |
| (7) |
The proceeds of a sale pursuant to a court order contemplated in subsection (4) must be applied as envisaged in section 30. |
| (8) |
Where the property sold is immovable property the Bank must submit a certified copy of the court order contemplated in subsection (4) to the Registrar of Deeds who must make the appropriate entries or endorsements on the relevant title deeds to effect the transfer of the property to the purchaser. |
| (9) |
If an attachment in execution of a court order is made by an ordinary creditor against the debtor's property— |
| (a) |
the Bank's statutory preferential right to the proceeds of the realisation of the debtor's property at the sale takes precedence over the rights of the ordinary creditor despite his or her having a writ or similar instrument; and |
| (b) |
the proceeds received must after payment of the costs incurred in connection with the attachment and sale, be paid in their entirety to the Bank, unless they exceed the amount owing to the Bank in respect of the advance and the amount of the interest and costs in respect thereof. |
| (10) |
The sequestration or liquidation of the debtor’s estate does not limit the Bank’s right to apply to court for an order in terms of subsection (4) or its rights to deal with the debtor’s property in terms of this section and section 34, despite any law which provides that the property of the debtor vests in his or her trustee or liquidator in the event of his or her sequestration or liquidation. |
| (11) |
A sheriff, the trustee of an insolvent estate, the assignee of an assigned estate, the executor of the estate of a deceased person or a liquidator or judicial manager of an insolvent company, close corporation or co-operative may not sell property mortgaged to the Bank to secure advances by the Bank, unless the Bank agrees in writing to that sale or has failed to sell that mortgaged property within three months after receipt of a written notice from that person requesting the Bank to sell that property. |
| (12) |
If the Bank has attached land or other security in terms of subsection (4) and that attachment has been noted by the Registrar of Deeds, that land or other security may not in any manner be hypothecated or charged, despite any other law to the contrary, except with the written consent of the Bank. |
| (13) |
A mortgage bond, whether special or general, registered to secure the payment of a debt not previously secured which was incurred prior to the Bank making an advance to the debtor concerned, does not confer any preference if the estate of the mortgage debtor is sequestrated or liquidated, or the Bank proceeds in terms of subsection (3), within a period of 12 months after the registration of that mortgage bond. |
| (14) |
A mortgage bond, whether special or general, registered to secure the payment of a debt which is incurred after the Bank has made an advance to the debtor concerned, does not confer any preference if the estate of the mortgage debtor is sequestrated or liquidated, or the Bank proceeds in terms of subsection (3), within a period of 12 months after the Bank made that advance. |
Statistics Act, 1999
