116.   Voluntary assignments not affected

            Nothing in this Act shall apply to a voluntary assignment entered into by a debtor with the consent of all his creditors.

117.   Meaning of assignment of estate by debtor

            (1) An assignment under this Act (hereinafter called "an assignment") shall mean an agreement whereby a debtor transfers or agrees to transfer his property to a person (hereinafter called "assignee") for the benefit of his creditors.

            (2) The instrument in which such an agreement is contained (is hereinafter called "the deed").

118.   Debtor may assign his estate

            Any debtor who is not an insolvent may assign his estate in the manner hereinafter prescribed.

119.   Who may execute deed of assignment

            (1) A deed of assignment may be signed and executed-

     (a)     by the debtor or by any person who might under the like circumstances present a petition, in terms of section 3, on behalf of the debtor;

     (b)     by any creditor whose claim, not being a conditional claim, would be provable under this Act at a meeting of creditors, if the debtor were insolvent (hereinafter referred to as a "creditor entitled to sign"); and

     (c)     by assignees not exceeding two in number, designated as such in the deed and not disqualified under this Act for election as trustees.

            (2) There shall be annexed to the deed the debtor's schedule which shall be framed as nearly as may be in the Form B set out in the First Schedule and shall contain the particulars and shall be verified by the affidavit thereby required.

120.   Effect of execution of deed of assignment

            (1) Upon the execution of the deed of assignment by the debtor, by the assignee, and by at least one creditor having a liquidated claim of not less than P100 or by creditors having liquidated claims in the aggregate of not less than P200 against the debtor, the assignee shall take immediate possession, as against the debtor, of all movable property of which the debtor can give or order possession, and shall retain that property as against the debtor until the assignment is set aside or the Master certifies that the assignment has been declined by the creditors.

            (2) The assignee shall immediately transmit to every officer charged with the duty of registering title to any immovable property or interest in minerals in Botswana appearing in the debtor's schedules of his property a notice in the Form E set out in the First Schedule, which shall be notice to every such registering officer that the debtor is unable in any way to deal with the said property or interest until the assignment is set aside or the Master certifies that the assignment has been declined by the creditors.

121.   Duties of debtor assigning estate to transmit schedules and give notice

            (1) Immediately upon the execution as aforesaid of the deed of assignment the debtor or the person who executed the deed on behalf of the debtor shall transmit the deed and the schedules of the debtor to the Master and shall publish in the manner hereinbefore provided for the publication of notice of surrender a notice in the Form F set out in the First Schedule (hereinafter called a "notice of assignment").

            (2) The deed and schedules and, if need be, a duplicate of the deed and schedules, shall lie for the inspection of creditors for such time and at such place or places as is prescribed by this Act in cases where a debtor is about to surrender his estate under the provisions thereof.

122.   Effect of publication of notice of assignment

            (1) The publication of the notice of assignment in the Gazette shall have the following effect-

     (a)     it shall have the same effect as the publication of notice of surrender in regard to property and the proceeds of property of the debtor in the hands of the sheriff or bailiff; and

     (b)     except as hereinafter provided, it shall have the effect of staying all proceedings for the sequestration of the debtor's estate, whether on his own petition or the petition of a creditor:

            Provided that any creditor may, at any time after the publication of the notice of assignment and before registration of the deed as hereinafter provided, apply to the court, after notice to the Master, for the sequestration of the debtor's estate on the ground that the schedules of the debtor do not fully disclose the debts or the property of the debtor, or, if the court so allows, on any other ground.

            (2) The court may supersede the assignment and place the estate under sequestration provisionally or may set aside the assignment altogether, or may make such order as it may deem fit.

123.   When deed may be signed by creditors entitled to sign

            (1) The deed or the duplicate thereof may be signed by creditors entitled to sign, at any office in which that deed or duplicate is advertised to be open for inspection of creditors and at any time during office hours and before the expiry of the period for which it is advertised.

            (2) Every such duplicate which has been open for inspection at the office of a magistrate shall, on the expiry of the period aforesaid, be transmitted by the magistrate to the Master, together with his certificate that it has been open for inspection as advertised.

            (3) No stamp duty shall be payable in respect of such certificate.

124.   When deed not signed

            (1) If, within the period during which the deed has been open for inspection, that deed, or that deed and the duplicate thereof together, have not been signed by creditors representing at least three-fourths in value of the claims and three-fourths in number of the creditors entitled to sign and disclosed in the schedules, the creditors shall be deemed to have declined the assignment, and the notice of assignment shall be deemed to be a notice of surrender.

            (2) If, however, a sequestration order is not lodged with the Master within 14 days after the expiry of the period aforesaid, the Master shall notify the assignee under the deed and every officer who has been notified of the assignment that the assignment has been declined; and thereupon the debtor and his estate shall be released from all the effects of the assignment and of the notice of the assignment.

125.   Duty of Master if creditors do or do not take action to set aside assignment or place estate under sequestration

            (1) If no creditor has given to the Master notice in writing that he intends to make application to the court to set aside the assignment or place the estate under sequestration, or if a creditor, having given such notice, has failed within seven days thereafter to obtain and lodge with the Master an order placing the estate under provisional sequestration or setting aside the assignment, then, upon the expiry of the period during which the deed was advertised to be open for inspection or of the said period of seven days (whichever be the later), the Master shall satisfy himself that the deed and schedules and the duplicate thereof (if there be such) have been advertised and have been open for inspection as aforesaid, and that the deed or the deed and the duplicate thereof together have been signed by creditors representing not less than three-fourths in value of the claims and three-fourths in number of all creditors entitled to sign and disclosed in the schedules.

            (2) When the Master is satisfied that the conditions specified in subsection (1) have been complied with he shall register the deed and deliver to the assignee, upon his finding security to the satisfaction of the Master for the full value of the estate and upon payment of fees payable by him, a certificate of appointment in the Form G set out in the First Schedule.

            (3) The certificate or a duly certified copy thereof shall be the only admissible evidence of the assignee's appointment.

            (4) The date of the registration of the deed shall be the date of the assignment.

            (5) Every act purporting to have been done by the assignee in terms of the deed before delivery to him of that certificate, except in so far as that act was done under this Act or was necessary for the better preservation of the debtor's property, shall be of no effect and the assignee shall be personally liable for the consequences thereof.

            (6) For the purposes of this section and section 124 no creditor shall be reckoned in number unless his claim amounts to at least P60, and in computing the value of the claim there shall be reckoned only the amount due after deducting the value of any security which the creditor may hold for his claim.

126.   Attestation of signatures to deed of assignment

            (1) The execution of the deed by the debtor and by the assignee under the deed shall be attested by a legal practitioner, notary, justice of the peace, commissioner of oaths or a police officer of or above the rank of sub-inspector.

            (2) All other signatories to the deed shall be attested by at least one witness.

            (3) Any person executing a deed on behalf of a creditor shall lodge with the Master the power of attorney, or other evidence of authority, or a duly certified copy thereof, whereby he is authorized to sign; otherwise he shall be deemed not to have executed the deed.

127.   Effect of registration of deed of assignment

            (1) From and after registration as aforesaid the deed shall be binding upon all creditors of the debtor (whether they have assented thereto or not) whose claims were due or the cause of whose claims arose before the date of the assignment; but no condition shall be inserted in the deed whereby any creditor may obtain, as against a creditor who has not executed the deed, any advantage or benefit to which he would not be entitled if the estate of the debtor were to be placed under sequestration.

            (2) If any such term or condition is inserted in the deed it shall be of no effect.

            (3) The immediate effect of the registration of the deed shall be-

     (a)     to vest in the assignee the estate of the debtor as fully and effectually as if the estate were under sequestration;

     (b)     to relieve the debtor from every debt which was due or the cause of which arose before the date of the assignment, but subject always to the deed of assignment:

                      Provided that the registration of the deed shall not affect the liability of any person who is a surety for the debtor;

     (c)     to stay all legal proceedings against the debtor for any liquidated claim provable against the estate; whereupon the taxed costs of such proceedings by the plaintiff may be added to his claim provable against the estate;

     (d)     to suspend every other action and all proceedings therein by or against the debtor, except such as, if he were insolvent, he would be entitled to commence or continue for his own benefit; every action so suspended may be continued by or against the assignee in like manner and upon the like terms as to notice as if he were the trustee of an insolvent estate;

     (e)     to enable the debtor, if in prison for debt, to apply to the court for his release after notice to the creditor at whose suit he is so imprisoned.

            (4) The additional effect of the registration of the deed of assignment of the estate of one of two spouses shall be to vest in the assignee all the property of the spouse whose estate has not been assigned, mutatis mutandis, in the same manner, to the same extent, subject to the same conditions and with the same rights, remedies and obligations in and on the part of the assignee, the spouse whose estate has not been assigned and the creditors of both spouses as is by this Act in the trustee of the estate of an insolvent spouse.

            (5) The provisions of section 78(16) and (17) shall also apply mutatis mutandis in respect of property of a spouse whose estate had not been assigned but which under this section is vested in the assignee.

            (6) For the purposes of this section the estate shall consist of all the property of the debtor at the date of the registration of the assignment, including property or the proceeds thereof which is in the hands of the sheriff or a bailiff under a writ of attachment, except such property as would be reserved to the debtor, if he were insolvent, and such further property as might by the deed be reserved to him.

            (7) Nothing contained in this section shall be construed as affecting the capacity of the debtor to acquire property, or to bind himself by contract, after the assignment, or to sue on any debt the cause of which arose after the assignment; and nothing contained in this section shall be construed as affecting any claim against the debtor which accrued after the assignment.

128.   Supervision of assigned estate by Master

            (1) From and after the date of the assignment, the estate of the debtor shall be administered and distributed under the supervision of the Master, and all proceedings in relation thereto shall as far as possible be had and taken in the like manner as if the debtor were an insolvent and the date of the assignment were the date of the sequestration.

            (2) The assignee shall have, as against the debtor and as against third persons, the same powers, rights and remedies with regard to the acts of the debtor and with regard to the collection and recovery of the estate of the debtor as may be exercised by the trustee of an insolvent estate with regard to the acts of the insolvent and with regard to the collection and recovery of the estate of the insolvent.

            (3) The assignee shall have, as between the creditors and himself, in addition to any powers expressly granted to him under the deed, the same powers, rights and remedies and shall be subject to the same duties in regard to the administration and distribution of the estate and all proceedings in connection therewith as the trustee of an insolvent estate has and is subject to in regard to the administration and distribution of an insolvent estate.

            (4) Every question of preference or priority and all matters whatsoever arising out of the assignment shall be determined according to the law and practice for the time being relating to insolvency as far as they may be applicable.

            (5) Except as to property acquired by the debtor after the date of the assignment, the court shall have power to make all such orders as it would have power to make if the debtor were an insolvent and his estate had been under sequestration from the date of the assignment.

            (6) The Master, if it appears to him to be desirable, may appoint a person not disqualified from being elected a trustee of an insolvent estate to be co-assignee with the assignee or assignees designated in the deed of assignment.

            (7) When a person referred to in subsection (6) is so appointed, all the provisions of this Act, conferring any powers or rights or imposing any duties on an assignee, shall apply to such co-assignee.

            (8) In the event of a difference arising between the co-assignee so appointed by the Master and the assignee or assignees so designated as to the administration of the estate or the carrying out of the deed of assignment, the Master may, if the difference is referred to him, determine the matter.

            (9) The Master may similarly determine any difference between any assignees.

129.   Costs of assignment

            (1) The costs of the assignment shall be taxed by the Master according to Tariff C set out in the Second Schedule, and upon the registration of the deed shall be paid in preference in like manner as if they were taxed costs of sequestration.

            (2) There shall be added thereto and paid in the like order of preference such taxed costs of any application to the court as it may order.