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Home arrow Law arrow Implementing the Cape Town Convention and the Domestic Laws on Secured Transactions

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Prompt Enforcement of Secured Interests in Case of Default by the Debtor, Including Private Enforcement

Common law remedies in case of default include the right of a creditor to take possession of an aircraft for debts owed by the debtor. However, since the advent of a constitutional dispensation in 1994, such a step needs to court authorization. While it may be permissible under very narrow circumstances for self-help remedies to be legal, i.e. debtor’s rights to prevent prejudice by approaching the courts and no other unduly onerous conditions, the acceptable way is to access the court by way of an urgent application, which may include interim injunctions and ancillary relief.

Enforcement of the Secured Interests Without Being Qualified or Modified Under the Insolvency Procedure

However, the Companies Act of 2008 provides a moratorium on actions against an entity that is in “business rescue” proceedings for companies in financial distress. The rights of creditors are severely limited under this Act.

 
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