Insolvency Amendment Act

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GOVERNMENTGAZETTE OF THE

REPUBLIC OF NAMIBIA N$5.20 WINDHOEK - 9 December 2005 No. 3551

CONTENTS

Page GOVERNMENT NOTICE

No. 177 Promulgation of Insolvency Amendment Act, 2005 (Act No. 12 of 2005), of the Parliament .

Government Notice

OFFICE OF THE PRIME MINISTER

No. 177 2005

PROMULGATION OF ACT OF PARLIAMENT

The following Act which has been passed by the Parliament and signed by the President in terms of the Namibian Constitution is hereby published in terms of Article 56 of that Constitution.

No. 12 of 2005: Insolvency Amendment Act, 2005.

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Act No. 12, 2005 INSOLVENCY AMENDMENT ACT, 2005

EXPLANATORY NOTE:

Words underlined with a solid line indicate insertions in existing provisions.

[ ] Words in bold type in square brackets indicate omissions from existing provisions.

ACT

To amend the Insolvency Act, 1936, so as to amend, insert or delete certain definitions; to delete references to laws that are not applicable in Namibia; to abolish the requirement that certain notices be published in newspapers; to provide that certain forms, amounts, fees and tariffs may be prescribed by the Minister by regulation; to adjust certain provisions to be compatible with the Namibian Constitution and other laws of Namibia; to increase certain amounts specified in the said Act; to delete certain provisions which are no longer applicable; to provide for certain notices to be given by registered post; to provide for the termination of an employee's contract of service in accordance with the Labour Act, 2004; to provide for the convening of a special meeting of creditors for the purpose of interrogating an insolvent; to provide that when a trustee disputes a claim, the trustee is required to furnish the claimant with reasons; to provide that the High Court may on application authorize the appointment as trustee of a person who is disqualified on certain grounds; to provide for the deletion of the qualification that the Master of the High Court need not give the actual reason for declining to confirm the election of a trustee; to require an insolvent to give notice of the intention to apply for rehabilitation to all known creditors and to specify the assets of the insolvent estate; to abolish the requirement that an insolvent must keep proper records in Dutch or German; to extend the Minister's power to make regulations; to substitute certain expressions; to repeal the Schedules to the said Act; and to provide for matters incidental thereto.

(Signed by the President on 21 November 2005)

BE IT ENACTED by the Parliament of the Republic of Namibia, as follows:-

Amendment of section 2 of Act No. 24 of 1936, as amended by section 2 of Act No. 16 of 1943 and section 1 of Act No.6 of 1972

1. Section 2 of the Insolvency Act, 1936 (hereinafter referred to as the principal Act), is amended -

(a) by the substitution for the definition of "banking institution" of the following definition:

" 'banking institution' means a banking institution as defined in section 1(1) of the Bankillg Institutions Act. 1998 (Act No.2 of 1998);";

(b) by the substitution for the definition of "building society" of the following definition:

" 'building society' means a building society as defined in section 1 of the Building Societies Act, [1965 (Act No. 24 of 1965)] 1986 (Act No.2 of 1986), and fmally registered or deemed to be finally registered as a building society in terms of section [5] 1.of that Act;";

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(c) by the substitution for the definition of "Court" or "the Court" of the following definition:

" 'Court' or 'the Court' means the High Court or any judge of that Court, an m re ation to any 0 ence un er t IS ct or m secnon x, , , , , 32,72,73,75,76,78 or 147 the expression 'court' or 'the court' includes a magistrate's court which has jurisdiction in regard to the offence or matter in question;";

(d) by the deletion of the definition of "Gazette";

(e) by the substitution for the defmition of "Master" of the following definition:

" 'Master' [in relation to any matter,] means the Master of the [Supreme Court within whose area of jurisdiction that matter is to be dealt with] High Court and includes [an Assistant] a Deputy Master;";

(f) by the insertion after the definition of "messenger" of the following definition:

" 'Minister' means the Minister responsible for the administration of justice;";

(g) by the insertion after the definition of "preference" of the following defini- tion:

" 'prescribed' means prescribed by regulation;";

(h) by the insertion after the definition of "property" of the following definition:

" 'regulation' means a regulation made under section 158;";

(i) by the deletion of the definition of "Republic";

(j) by the substitution for the definition of "special mortgage" of the following definition:

" 'special mortgage' means a mortgage bond hypothecating any immov- able property [or a notarial mortgage bond hypothecating specially described movable property in terms of section one of the Notarial Bonds (Natal) Act, 1932 (Act No. 18 of 1932)], but excludes any [other] mortgage bond hypothecating movable property;";

(k) by the deletion of the definition of "Supreme Court", "Division of the Supreme Court" and "Provincial or Local Division of the Supreme Court"; and

(1) by the deletion of the definition of "the Territory".

Amendment of section 3 of Act No. 24 of 1936

2. Section 3 of the principal Act is amended by the substitution for subsection (2) of the following subsection:

"(2) All the members of a partnership (other than partners en commandite [or special partners as defined in the Special Partnerships Limited Liability Act, 1861 (Act No. 24 of 1861) of the Cape of Good Hope or in Law No. 1 of

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1865of Natal]) who reside in [the Republic] Namibia, or their agent, may petition the court for the acceptance of the surrender of the estate of the partnership and of the estate of each such member.".

Amendment of section 4 of Act No. 24 of 1936, as amended by section 3 of Act No. 16 of 1943 and section 19 of Act No. 62 of 1955

3. Section 4 of the principal Act is amended -

(a) by the substitution for subsection (1) of the following subsection:

"( 1) Before presenting a petition mentioned in section 3 the per- son who intends to present the petition (in this section referred to as the petitioner) shall cause to be published in the Gazette [and in a newspaper circulating in the district in which the debtor resides, or, if the debtor is a trader, in the district in which his principal place of business is situate,] a notice of surrender in [a] the prescribed form [corresponding substantially with Form A in the First Schedule to this Act]. The said notice shall be published not more than thirty days and not less than four- teen days before the date stated in the notice of surrender as the date upon which application will be made to the court for acceptance of the surrender of the estate of the debtor [: Provided that when a petition is presented as aforesaid in the High Court of South- West Africa the periods to be observed as aforesaid shall be thirty-five days and twenty-one days respectively, instead of thirty days and fourteen days: Provided fur- ther that if the last seven days of the said period of thirty-five days do not fall wholly within a term for the dispatch of civil work of the High Court of South- West Africa then the said period shall be extended so as to embrace the first seven days of the next succeeding term].";

(b) by the substitution for subsection (2) of the following subsection:

"(2) Within a period of seven days as from the date of publication of the said notice in the Gazette, the petitioner shall personally deliver or [post] send by registered post a copy of the said notice to every one of the creditors of the debtor in question whose address he or she knows or can ascertain.";

(c) by the substitution for subsection (3) of the following subsection:

"(3) The petitioner shall lodge at the office of the Master a statement in duplicate of the debtor's affairs, framed in [a] the prescribed form [corresponding substantially with Form B in the First Schedule to this Act]. That statement shall contain the particulars for which provision is made in the said [Form] prescribed form, shall comply with any requirements contained therein and shall be verified by an affidavit [(which shall be free from duty)] in the form set forth therein."; and

(d) by the substitution for subsection (5) of the following subsection:

"(5) If the debtor resides or carries on business as a trader in any district [(other than the district ofWynberg, Simonstown or Bellville in the Province of the Cape of Good Hope)] wherein there is no Master's office, the petitioner shall also lodge a copy of the said statement at the office of the magistrate of the district, or, if the debtor resides or so carries on business in a portion of such district in respect of which an additional or assistant magistrate permanently carries out the functions of the magistrate

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of the district at a place other than the seat of magistracy of that district, at the office of such additional or assistant magistrate.".

Substitution of section 5 of Act No. 24 of 1936, as amended by section 4 of Act No. 16 of 1943, section 1 of Act No. 99 of 1965 and section 1 of Act No. 14 of 1985

4. The following section is substituted for section 5 of the principal Act:

"Prohibition of sale in execution of property of estate after publication of notice of surrender and appointment of curator bonis

5. (1) After the publication of a notice of surrender in the Gazette in terms of section 4, it shall not be lawful to sell any property of the estate in question, which has been attached under writ of execution or other process, unless the person charged with the execution of the writ or other process could not have known of the publication: Provided that the Master, if in his or her opinion the value of any such property does not exceed [R5 000] the prescribed amount, or the Court, if it exceeds that amount, may order the sale of the property attached and direct how the proceeds of the sale shall be applied.

(2) After the ublication of a notice of surrender as aforesaid in the Gazette the Master may appoint a curator bonis to the debtor's estate, who shall forthwith take the estate into his or her custody and take over the control of any business, including any business the debtor is licensed to carry on in terms of the Liquor Act, 1998 (Act No.6 of 1998), or undertaking of the debtor, as if he or she were the debtor, as the Master may direct, but subject in every case, mutatis mutandis, to the provisions of section 70.".

Amendment of section 7 of Act No. 24 of 1936

5. Section 7 of the principal Act is amended by the substitution for subsection (2) of the following subsection:

"(2) A person who has published a notice of surrender in the Gazette may apply to the Master for his or her consent to the withdrawal of the notice, and if it appears to the Master that the notice was published in good faith and that there is good cause for its withdrawal, he or she shall give his or her written consent thereto. Upon the publication, at the expense of the applicant, of a notice of withdrawal and of the Master's consent thereto, in the Gazette [and in the newspaper in which the notice of surrender appeared], the notice of surrender shall be deemed to have been withdrawn.".

Amendment of section 9 of Act No. 24 of 1936, as amended by section 6 of Act No. 16 of 1943 and section 2 of Act No. 99 of 1965

6. Section 9 of the principal Act is amended by the substitution for subsection (1) of the following subsection:

"(1) A creditor (or his or.her agent) who has a liquidated claim for not less than [fifty pounds] N$5 000, or two or more creditors (or their agent) who in the aggregate have liquidated claims for not less than [one hundred pounds] N$lO 000 against a debtor who has committed an act of insolvency, or is insolvent, may petition the court for the sequestration of the estate of the debtor.".

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Amendment of section 13 of Act No. 24 of 1936, as amended by section 7 of Act No. 16 of 1943 and section 3 of Act No. 99 of 1965

7. Section 13 of the principal Act is amended by the substitution for subsection (1) of the following subsection:

"(1) If the court sequestrates the estate of a partnership (whether provisionally or finally or on acceptance of surrender), it shall simultaneously sequestrate the estate of every member of that partnership other than a partner en commandite [or a special partner as defined in the Special Partnerships' Limited Liability Act, 1861 (Act No. 24 of 1861) of the Cape of Good Hope or in Law No. 1 of 1865 of Natal,] who has not held himself or herself out as an ordinary or general partner of the partnership in question: Provided that if a partner has undertaken to pay the debts of the partnership within a period determined by the court and has given security for such payment to the satisfaction of the registrar, the separate estate of that partner shall not be sequestrated by reason only of the sequestration of the estate of the partnership.".

Amendment of section 16 of Act No. 24 of 1936, as substituted by section 4 of Act No. 99 of 1965

8. Section 16 of the principal Act is amended -

(a) by the substitution for paragraph (b) of subsection (2) of the following paragraph:

"(b) within seven days of such service lodge, in duplicate, with the Master a statement of his or her affairs as at the date of the sequestration order, framed in [a] the prescribed form [corresponding substantially with Form B of the First Schedule to this Act], containing the particulars for which provision is made in the said [Form] prescribed form and verified by an affidavit [(which shall be free from stamp duty)] in the form set forth therein."; and

(b) by the substitution for subsection (3) of the following subsection:

"(3) A spouse whose separate estate has not been sequestrated and upon whom a copy of an order referred to in subsection (1) has been served shall within seven days of such service lodge, in duplicate, with the Master a statement of his or her affairs, as at the date of the sequestration order, framed in [a] the prescribed form [corresponding substantially with Form B of the First Schedule to this Act] containing the particulars for which provision is made in the said [Form] prescribed form and verified by affidavit [(which shall be free from stamp duty)] in the form set forth therein." .

Amendment of section 19 of Act No. 24 of 1936, as amended by section 11 of Act No. 50 of 1956 and section 5 of Act No. 99 of 1965

9. Section 19 of the principal Act is amended -

(a) by the substitution for subsection (5) of the following subsection:

"(5) The deputy sheriff shall be entitled to fees taxed by the Master according to [tariff A in the Second Schedule to this Act] the prescribed tariff and [the] rules for the construction of that tariff."; and

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(b) by the deletion of subsection (6).

Amendment of section 21 of Act No. 24 of 1936, as amended by section 12 of Act No. 16 of 1943

10. Section 21 of the principal Act is amended -

(a) by the substitution for paragraph (d) of subsection (2) of the following paragraph:

"(d) to be [safeguarded] afforded protection in favour of that spouse by [section twenty-eight of this Act or by the Insurance Act, 1923 (Act No. 37 of 1923) or by the Insurance Ordinance, 1927 (Ordinance No. 12 of 1927 of the Territory)] section 45, 46 or 47 of the Long-term Insurance Act, 1998 (Act No. 5 of 1998); or"; and

(b) by the substitution for subsection (3) of the following subsection:

"(3) If the solvent spouse is in [the Republic] Namibia and the trustee is able to ascertain his or her address, the trustee shall not, except with the leave of the court, realize property which ostensibly belonged to the solvent spouse, until the expiry of six weeks' written notice of his or her intention to do so, given to that spouse. Such notice shall also be published in the Gazette and in [a] an English newspaper circulating [in the district in which the solvent spouse resides or carries on business] throughout Namibia, and shall invite all separate creditors for value of that spouse to prove their claims as provided in subsection (5).".

Amendment of section 23 of Act No. 24 of 1936, as amended by section 13 of Act No. 16 of 1943

11. Section 23 of the principal Act is amended by the substitution for subsection (3) of the following subsection:

"(3) An insolvent may follow any profession or occupation or enter into any employment, but [he] may not, during the sequestration of his or her estate without the consent in writing of the trustee of his or her estate, either carry on, or be employed in any capacity or have any direct or indirect interest in, the business of a trader who is a general dealer or a manufacturer: Provided that anyone of the creditors of the insolvent's estate or the insolvent himself or herself may. if the trustee gives or refuses such consent, appeal to the Master [, whose decision shall be final].".

Amendment of section 27 of Act No. 24 of 1936

12. Section 27 of the principal Act is amended by the substitution for subsection (1) of the following subsection:

"(1) No immediate benefit under a duly registered antenuptial contract given in good faith by [a man] one spouse to [his wife] the other spouse or any child to be born of the marriage shall be set aside as a disposition without value, unless [that man's] the estate ofthe spouse giving such benefit was sequestrated within two years of the registration of that antenuptial contract.".

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Amendment of section 29 of Act No. 24 of 1936, as amended by section 17 of Act No. 16 of 1960, section 9 of Act No. 64 of 1960 and section 6 of Act No. 99 of 1965

13. Section 29 of the principal Act is amended by the deletion of subsection (4).

Amendment of section 34 of Act No. 24 of 1936, as amended by section 12 of Act No. 32 of 1952 and section 2 of Act No. 14 of 1985

14. Section 34 of the principal Act is amended -

(a) by the substitution for subsection (1) of the following subsection:

"(1) If a trader alienates any business belonging to him or her, or the goodwill of such business or any goods or property forming part thereof (except in the ordinary course of that business) and such trader does not publish a notice of such intended alienation in the Gazette, and [in two issues of an Afrikaans and two issues of an English newspaper circulating in the district in which that business is carried on] send or cause to be sent by registered post a copy of that notice to each of his or her creditors who has a claim against him or her in connection with his or her business, within a period not less than thirty days and not more than sixty days before the date of such alienation, the said alienation shall be void as against his or her creditors for a period of six months after such alienation, and shall be void against the trustee of his or her estate, if his or her estate is sequestrated at any time within the said period."; and

(b) by the substitution for subsection (3) of the following subsection:

(a) in the High Court or in the magistrate's court of the district in which the said business is carried on; or

(b) in any other magistrate's court, and the person to whom the said business was alienated knew at the time of the alienation that those proceedings had been instituted,

the alienation shall be void as against him or her for the purpose of such enforcement." .

Substitution of section 38 of Act No. 24 of 1936

15. The following section is substituted for section 38 of the principal Act:

"Contract of service terminated by insolvency of employer

38. (1) The sequestration of the estate of an employer shall termi- nate the contract of service between [him] the employer and his or her employees in accordance with section 31 of the Labour Act, 2004 (Act No. 15 of 2004), but any employee whose contract of service has been so terminated shall be entitled to claim compensation from the insolvent estate of his or her former employer for any loss which he or she may have suffered by reason of the termination of his or her contract of service prior to its expiration.

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'''1111\ n $ t

16. Section 40 of the principal Act is amended -

(a) by the substitution for paragraph (b) of subsection (3) of the following paragraph:

"(b) The trustee shall, not less than 14 da s before the date on which the second meeting of creditors is to be held, convene that meeting by notice in the Gazette and by sending or causing to be sent a copy of such notice by registered post to each creditor of the estate whose name and address is known to the trustee."; and

(b) by the deletion of paragraph (c) of subsection (3).

Amendment of section 42 of Act No. 24 of 1936, as substituted by section 3 of Act No. 6 of 1972

17. Section 42 of the principal Act is amended by the addition of the following subsection, the existing section becoming subsection (1):

"(2) The trustee may at any time, and shall whenever he or she is thereto require y acre itor w 0 as prove s or er calm against e estate, provi e the Master consents thereto, convene by notice in the Gazette a special meeting of creditors for the purpose of interrogating an insol vent, and at such interrogation the provisions of section 65 shall mutatis mutandis apply.".

Substitution of section 43 of Act No. 24 of 1936, as substituted by section 10 of Act No. 99 of 1965 and amended by section 3 of Act No. 14 of 1985

18. The following section is substituted for section 43 of the principal Act:

"A creditor may register his or her name and address with trustee

43. Any person who claims to be a creditor of an insolvent estate may register his or her name and address in [the Republic] Namibia, with the trustee of that estate upon payment to the trustee of [a fee of R25] the prescribed fee. Thereupon the trustee shall send to that address a notice of every meetinz of

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this Act]. That affidavit may be made by the creditor or by any person fully cognizant of the claim, who shall set forth in the affidavit the facts upon which his or her knowledge of the claim is based and the nature and particulars of the claim, whether it was acquired by cession after the institution of the proceedings by which the estate was sequestrated, and if the creditor holds security therefor, the nature and particulars of that security and in the case of security other than movable property which he or she has realized in terms of section 83, the amount at which he or..she values the security. The said affidavit or a copy thereof and any documents submitted in support of the claim shall be delivered at the office of the officer who is to preside at the meeting of creditors not later than twenty-four hours before the advertised time of the meeting at which the creditor concerned intends to prove the claim, failing which the claim shall not be admitted to proof at that meeting, unless the presiding officer is of the opinion that through no fault of the creditor he or she has been unable to deliver such evidences of his or her claim within the prescribed period: Provided that if a creditor has proved an incorrect claim, he or she may, with the consent in writing of the Master given after consultation with the trustee and on such conditions as the Master may think fit to impose correct his or....her claim or submit a fresh correct claim.".

Amendment of section 45 of Act No. 24 of 1936

20. Section 45 of the principal Act is amended -

(a) by the substitution for subsection (3) of the following subsection:

"(3) If the trustee disputes a claim after it has been proved against the estate at a meeting of creditors, he or she shall report the fact in writing to the Master and shall state in [his] that report his cr.her reasons for disputing the claim. [Thereupon the Master may confirm the claim, or he may, after having afforded the claimant an opportunity to substantiate his claim, reduce or disallow the claim, and if he has done so, he shall forthwith notify the claimant in writing: Provided that such reduction or disallowance shall not debar the claimant from establishing his claim by an action at law, but subject to the provisions of section seventy-flve.]"; and

(b) by the addition of the following subsections:

"(4) The trustee shall at the same time furnish a co of the re ort containing his or her reasons for disputing the claim to the claimant and notify him or her that within 14 days of receiving such report, or within such longer period as may be specified by the Master, the claimant may, in

- - .

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or disallowed as contemplated in subsections (4) and (5), reduce or disallow the claim. and if the Master has done so. he or she shall forthwith notify the claimant in writing: Provided that such reduction or disallowance shall not debar the claimant from establishing his or her claim by an action at law, but subject to the provisions of section 75.".

Amendment of section 49 of Act No. 24 of 1936, as amended by section 21 of Act No.6 of 1963 and section 12 of Act No. 99 of 1965

21. Section 49 of the principal Act is amended by the substitution for subsection (2) of the following subsection:

"(2) Nothing in this section shall be construed as preventing the [Secretary for Inland Revenue or the Commissioner for Inland Revenue of the Territory from] proving of a claim, in the manner provided in this Act, [a claim] against the estate of a partnership in respect of any sum referred to in paragraph (b) of section 101, or any interest due on such sum.".

Amendment of section 52 of Act No. 24 of 1936, as amended by section 16 of Act No. 16 of 1943 and section 6 of Act No. 14 of 1985

22. Section 52 of the principal Act is amended by the substitution for subsection (3) of the following subsection:

"(3) The vote of a creditor shall in no case be reckoned in number, unless his ~ claim is of the value of at least [RI00] the prescribed amount.".

Amendment of section 53 of Act No. 24 of 1936, as amended by section 14 of Act No. 99 of 1965

23. Section 53 of the principal Act is amended by the substitution for subsection (5) of the following subsection:

"(5) The majority of creditors (reckoned in number and in value) may direct the trustee to employ or not to employ a particular [attorney] legal practitioner or auctioneer in connection with the administration of the estate and if the trustee has reason to believe that it will not be in the interests of the estate to carry out such direction, he.or....shemay submit the matter to the Master, [whose decision] who shall, after considering any representations in writing by the trustee and the creditors, [shall be final] decide on the matter.".

Amendment of section 55 of Act No. 24 of 1936, as amended by section 17 of Act No. 16 of 1943 and section 15 of Act No. 99 of 1965

24. Section 55 of the principal Act is amended by the substitution for paragraph (i) of the following paragraph:

"(i) an erson who has at an time been convicted whether in Namibia or elsewhere) of theft, fraud, forgery or uttering a forged document, or perjury and has been sentenced therefor to serve -

(bb) a term of imprisonment exceeding three months with the option of a fine,

(aa) any term of imprisonment without the option of a fme; or

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unless the Court on application by the person concerned otherwise I authorizes;".

Amendment of section 57 of Act No. 24 of 1936, as amended by section 17 of Act No. 99 of 1965

25. Section 57 of the principal Act is amended -

(a) by the deletion of the proviso to subsection (1);

(b) by the substitution for subsection (2) of the following subsection:

"(2) When the Master has declined to confirm the election of a trustee or to appoint a person elected as a trustee, or the Minister has under subsection (9) set aside the appointment of a trustee, the Master shall in accordance with the provisions of subsections (1) and (2) of section 40 convene a meeting of creditors of the estate in question for the purpose of electing another trustee in the place of the person whose election as a trustee the Master declined to confirm or whom the Master declined to appoint or whose appointment as trustee has been so set aside. In the notice convening the meeting the Master shall state that he .ouhe has declined to confirm the election of the person previously elected as trustee, or to appoint the person so elected, and the reasons therefor [(but subject to the proviso to subsection (1ยป], or that the appointment ofthe person previously appointed as trustee has been set aside by the Minister, as the case may be, and that the meeting is convened for the purpose of electing another trustee. The Master shall post a copy of the notice to every creditor whose claim against the estate was previously proved and admitted.";

(c) by the substitution for subsection (7) of the following subsection:

"(7) Any person aggrieved by the appointment of a trustee or the refusal of the Master to confirm the election of a trustee or to appoint a person elected as a trustee, may within a period of seven days from the date of such appointment or refusal request the Master in writing to submit his or her reasons for such appointment or refusal to the Minister [of Justice]."; and

(d) by the deletion of subsection (10).

Amendment of section 63 of Act No. 24 of 1936, as amended by section 12 of Act No. 50 of 1956

26. Section 63 of the principal Act is amended -

(a) by the substitution for subsection (1) of the following subsection:

"( I) Every trustee or curator bonis shall be entitled to a reasonable remuneration for his or her services, to be taxed by the Master according to [tariffB in the Second Schedule to this Act] the prescribed tariff: Provided that the Master may, for good cause, reduce or increase his or her remuneration, or may disallow his or her remuneration either wholly or in part on account of any failure of or delay in the discharge of his m:her duties or on account of any improper performance of his or her duties."; and

(b) by the deletion of subsection (l)bis.

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Amendment of section 65 of Act No. 24 of 1936, as amended by section 20 of Act No. 99 of 1965

27. Section 65 of the principal Act is amended -

(a) by the substitution for the second proviso to subsection (2) of the following proviso:

"and provided further that a person interrogated under subsection (1) shall not be entitled at such interrogation to refuse to answer any question upon the ground that the answer would tend to incriminate him or her or upon the ground that he or she is to be tried on a criminal charge and may be prejudiced at such a trial by his or her answer.";

(b) by the insertion after subsection (2) of the following subsection:

a Where an erson ives evidence in terms of the provisions of this section and is obliged to answer questions which may incriminate him or her or, where he or she is to be tried on a criminal charge, may prejudice him or her at such trial, the presiding officer shall, notwithstanding the provisions of subsection (6) of section 39, order that such part of the proceedings be held in camera and that no information regarding such questions and answers may be published in any manner whatsoever.

(b) No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings where the person concerned stands trial on a charge relating to the administering or taking of an oath or the administering or making of an affirmation or the giving offalse evidence or the making of a false statement in connection with such questions and answers, and in criminal proceedings contemplated in subsection (1) of section 139 relating to a failure to answer lawful questions fully and satisfactorily.

(c) Any person who contravenes any provision of an order contemplated in paragraph (a), shall be guilty of an offence and liable on conviction to the penalty mentioned in subsection (5) of section 154 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).";

(c) by the substitution for subsection (5) of the following subsection:

"(5) Any evidence given under this section shall, subject to the provisions of subsection (2A), be admissible in any proceedings instituted against the person who gave that evidence."; and

(d) by the substitution for subsection (6) of the following subsection:

"(6) Any person called upon to give evidence under this section may be assisted at his OI:..W interrogation by [counsel, an attorney].a legal practitioner or agent.".

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Amendment of section 67 of Act No. 24 of 1936, as amended by section 19 of Act No. 16 of 1943 and section 22 of Act No. 99 of 1965

28. Section 67 of the principal Act is amended by the substitution for subsection (1) of the following subsection:

"( 1) If it appears from any statement made at an interrogation under section 65 that there are reasonable grounds for suspecting that any person has committed any offence the Master shall transmit the said statement, or a certified copy thereof, and all necessary documents to the [Attorney-General] Prosecutor-General [in whose area of jurisdiction the interrogation was held or the offence is suspected to have been committed,] to enable him or her to determine whether any criminal proceedings shall be instituted in the matter.".

Amendment of section 72 of Act No. 24 of 1936

29. Section 72 ofthe principal Act is amended by the substitution for subsection (1) of the following subsection:

"(1) A trustee who, without lawful cause, retains any money exceeding [twenty pounds] the prescribed amount belonging to the estate of which he or she is trustee, or knowingly permits his or..he.rco-trustee to retain such a sum of money longer than the earliest day after its receipt on which it was possible for [him] the trustee or his