Cap. 6:07
INSOLVENCY
No. 7/2018
( 6) Proof that(a)
the liabilities (including prospective and contingent liabilities) of the
debtor exceeded its assets, fairly valued, when the debt was incurred; or
(b)
that the particular person committed an offence in respect of the accounting
records of the debtor in respect of the period during which the debt was
incurred; or
(c)
that the particular person failed to take all reasonable steps to ensure that
the accounting records in respect of the period during which the debt was
incurred are surrendered or transferred to the liquidator;
is proof until the contrary is proved that the particular person, at the time the debt was
incurred, had reasonable grounds to believe that the debtor would not be able to pay
its debts as they fell due.
(7) Without prejudice to the defences that may be raised against an application
under this section, a person, if he or she establishes one or more of the following
defences, will not be held liable in terms of subsection (I) where, at the time the debt
was incurred-
(a)
he or she had no knowledge of the transaction and could not reasonably
be expected to have had knowledge of such a transaction; or
(b)
he or she believed that the debtor would be able to repay the debt because
a competent and reliable person was responsible for monitoring the
solvency of the debtor and for reporting to him or her and was fulfilling
that responsibility satisfactorily; or
(c)
he or she did not take part in the management of the debtor on account
of illness or for some other good reason; or
(e)
he or she took all reasonable steps to prevent the debtor from incurring
such debt; or
(f)
he or she took all reasonable steps to ensure that the creditor is informed
that the debtor had reasonable grounds to believe that it would not be
able to repay that debt when it fell due.
(8) The provisions of this section shall apply notwithstanding that the person
or persons in question may be criminally liable in respect of the matters on which the
declaration by the Court is based.
PART XXII
COMPOSITIONS
119 Pre-liquidation composition with creditors
(I) Any debtor with debts less than $20 000, other than a debtor who is a company,
who cannot pay his or her debts and who wants to offer his or her creditors a composition,
may lodge a signed copy of the composition and a complete sworn statement in the
form prescribed in the Third Schedule with an administrator(a)
who is not disqualified from being a liquidator in terms of section 74; and
(b)
has agreed to act in the matter; and
(c)
has furnished security to the satisfaction of the Master within whose area
of jurisdiction the debtor is resident for the amount determined by the
Master.
(2) If the composition provides for the immediate payment of a cash amount
for distribution among creditors, the debtor must, pending the outcome of the offer
of composition, pay the cash to the administrator to im·est the amount in an interestbearing sm ings account.
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