Question:
I am considering declaring myself (as a private individual) insolvent. Please give me advice on this.

Answer:
Many people are under the impression that if they get into financial difficulty they can simply declare insolvency (the correct term is sequestration) and start with a clean slate. Nothing could be further from the truth.

If you have come to a point where your debt is out of hand and you just cannot repay it, you may have a choice between sequestration and debt counselling.

What are the pros and cons of each of these options?

The sequestration order.

You must apply for a sequestration order and it will not necessarily be granted. It depends on whether or not you own assets that can be sold to repay the creditors. There are costs associated with sequestration and your creditors will have to pay them out of your insolvent estate. If your assets are too small to cover the costs and bring in at least some money to the creditors it will not be worth it.

If you get a sequestration order your assets will be sold and each of your creditors who applies to be repaid will get a percentage. This percentage is expressed as a certain number of cents per Rand owed and is usually no less than 10 cents. The balance will be legally written off and this means you never have to pay it. For you this is probably the major benefit of sequestration — potentially getting up to 90 percent of your debt written off for good. There is also the peace of mind of knowing there will be no more harassment from creditors.

Creditors must make a claim against your insolvent estate and if they don’t their claims will be written off. Those who do make a claim will have to help pay the costs of sequestration. Only if there is any money left over will they share what’s left between them.

The best aspect of this option is that your creditors cannot keep coming back to you for more after they have made their claim and received their share. The only exception is if you suddenly start earning a substantial income that is considered to be significantly more than your monthly needs in which case some of that excess could be taken to settle your creditors’ outstanding claims. This rarely happens.

The downside of all this is that you lose your assets, have no control over how much they are sold for and you get none of the proceeds.

Debt counselling or administration.

Neither of these options allows any of the debt to be written off. You still owe the money. (I need to qualify this statement, however, because in the early stages of the debt counselling process, all indications are that the creditors may well agree to write off some of the capital or interest.) Debt counselling or administration simply allows the debts to be restructured and allows for payment to be made over a far longer time period, thereby decreasing the monthly instalment required. Unfortunately, in the long run you always pay more because interest mounts up.

The advantage of this approach is that it is possible that you can avoid losing everything this way. You may also manage to repay your creditors, get into a better position, bring down your expenses, perhaps get a better paying job and then pay more than is required. By doing this there is the potential that you might repay those debts once and for all rather than paying and paying and paying and not seeing any reduction in the amount still outstanding!

To summarize:

Sequestration allows you to write off some of your debt, perhaps even most of it, but you lose your assets. You will not be able to get credit again without the approval of the trustee (the person appointed by the court to manage your assets). You are very unlikely to get more credit and you will have to apply to be rehabilitated later, which isn’t that easy. It usually takes at least four years, meaning that for four years you cannot qualify for a loan or enter into any credit or financial agreements. Even once you have been rehabilitated you will battle to get credit for another five years (so that’s nine years all in all!) as the notice of rehabilitation which gets added to your credit record will discourage creditors from lending to you even though they are now allowed to. Also, you must first persuade your creditors that sequestration is the best option for them too. Because they pay something towards the costs, they can refuse to do this and then you have to go for the second option — debt counselling.

Debt counselling or administration means you keep your assets. However, someone else will decide how much you repay your creditors every month and they will only leave you with enough to live on. Stretching out your repayments in this way will help to make them more affordable and help you stay afloat. If you choose this route, try and find a way to reduce your monthly expenses so you can repay the debts faster. Consider moving in with family and renting out your house, sell your new car and buy an older one, sell as many possessions as you can (as long as they will bring in reasonable sums of money), etc.

The third option — do nothing, let your creditors take judgement against you and take your assets or a portion of your monthly salary. The consequences of this are a black mark on your credit record and you won’t be able to get credit. You will have sleepless nights for years to come, worrying whether the Sheriff will come knocking at any moment to take away your possessions. You may also have the Sheriff serve a garnishee order on your employer. This means they are forced to pay a portion of your salary directly to the creditor. This is very embarrassing and can reflect badly on your reputation at work. After all, this is personal information — not the kind of thing you want your employer or colleagues to know about. You may even have your home sold if the creditors cannot get enough by selling your other assets or garnishing your salary. Remember that most of your possessions lose value the moment you buy them, even your car. So your house, your one real asset, is at risk.