72. The provisional trustee shall have the same powers and authorities in respect to the administration and management of the estate, and shall be subject to the same obligations as the trustee elected by the creditors.

He shall, however, have no power to sell any part of the said estate without the authority of the High Court or of a Circuit Court.

NOTES.

A provisional trustee is entitled, on handing over the assets of the insolvent estate administered by him to the final trustee, to retain a sufficient sum of money as a reasonable remuneration for his services (MacColl vs. Rainier, H. 280).

73. At the second meeting of creditors a trustee or trustees, not exceeding two in number, shall be chosen for the administration and management of the estate by the majority of the creditors present, whose collective debts proved shall amount to more than one-half of the whole value of all the debts represented and proved on the estate.

Whenever it shall appear that in the voting the above result has not been attained in manner as herein above set forth, then both the person who shall have obtained the votes of the greatest number of creditors, and the person who shall have obtained the vote of the creditors holding the largest amount in value of the debts represented at the meeting, shall be chosen as trustees.

NOTES.

In an election, only one candidate was nominated. His election was opposed by one creditor, who had the majority in value. The majority in number of the creditors voted for the candidate. He was declared elected, subject to confirmation. The Court held that the law contemplated the nomination of a second candidate if the first candidate proposed was objected to; that the proper course for the opposing creditor was to have nominated another candidate; and that, as there was only one candidate, and a majority both in number and in value had voted for him (and not for another candidate), his election must be confirmed (Gowie & Co. vs. Smith, B. 1868, p. 103).

74. It shall be lawful for every person interested in such estate who shall be aggrieved by such election, upon giving notice in writing of the particulars of such complaint to the officer presiding at the meeting before the election is confirmed, but in any case within two days after the said election, to bring the same under review in the High Court, which shall decide summarily thereon.

It shall also be lawful for any person interested to apply to the Court even after the election has been confirmed to recall the confirmation, and set aside the election on the ground that such election was fraudulently or unlawfully made.

NOTES.

It is only in cases where fraud is alleged that the election of a trustee may be brought in review before the Court after expiry of the period of two days fixed in the section (Hugo and others vs. Moller, O.R. 1895, p. 164). Of course, even after the confirmation, the election itself may be set aside for fraud or illegality.

The chief creditor of an insolvent estate resided at a distance from the town where the election of trustee was to take place. He mistook the post for this town, and in consequence failed to send a power to prove his debt and vote for himself as sole trustee. In consequence another person was elected sole trustee. On the application of the chief creditor, the Court relieved him from the consequences of his mistake and ordered a fresh election (Deare & Dietz vs. Honeyborne, B. 1868, p. 107).

75. Persons disqualified from being elected trustees:
(a) The insolvent himself.

(b) Any person related to the insolvent by consanguinity or affinity within the fourth degree.

(c) A minor.

(d) A law agent or attorney.

(e) Any person whose estate has at any time been placed under sequestration, and who has not been rehabilitated.

(f) Any one non-resident within the jurisdiction of the High Court.

(g) Any person having an interest opposed to the general interest of the creditors in the insolvent estate.

(h) A former trustee disqualified by virtue of the pro

visions of Article 90.

(i) Any person declared to be incapable of being elected by virtue of the provisions contained in the next succeeding article.

NOTES.

(g) Certain creditors of an insolvent estate sought to set aside the election of the trustee on the ground that he had received an undue preference from the insolvent. The alleged circumstances which constituted the undue preference were specially denied by the trustee. The creditors did not allege that they intended to bring an action against the trustee to have the alleged undue preference set aside. The Court refused to set aside the election of the trustee (Turner & Co. vs. Schaefer, 2 J. 101; see also In re Wells, 4 S. 84).

:

76. It shall be lawful for the High Court or a Circuit Court, on the request of any person interested, either before or after the decree confirming the appointment of any trustee, to declare any person elected as trustee to have forfeited his office and further, if it should so think fit, to declare such person incapable of being elected trustee under the provisions of this Law during his natural life, or such period as such Court shall determine, for the offences herein under specified :—

(a) Whenever in order to exercise influence upon his election as trustee he has been guilty of procuring, or been privy to, the omission of the name of any creditor of the insolvent from the schedule of the insolvent as required under § 23 of this Law.

(b) Or either directly or indirectly gives, or promises to give, to any creditor of the insolvent any valuable consideration in order to obtain his vote.

(c) Or to have agreed to secure and make good to any creditor some certain sum or dividend in discharge or diminution of his debt, upon condition and in order to obtain his vote.

(d) Or to have offered or agreed with any creditor to abstain from opening up or investigating some previous transactions between such creditor and the insolvent which were, or were supposed to be, of questionable validity, upon condition and in order to obtain his vote.

(e) Or if he has been guilty of or privy to any plan or arrangement by which debts belonging to some one or more persons have been divided among a greater number of persons for the purpose merely of increasing the number of votes, and thereby influencing his election as trustee.

(f) Or if he has undertaken to accept from any agent, auctioneer or other person by him employed for and on behalf of the estate, any share of his commission or remuneration, or any other benefit whatsoever.

In all the aforesaid cases, the Court declaring the same shall order a new trustee to be elected.

77. It shall be lawful for the High Court, or any Circuit Court, upon petition by the Master, or by any person interested setting forth the grounds of the same, to remove any trustee :—

(a) For insolvency.

(b) For any misconduct in the said trust, under which shall be deemed to be included any neglect or refusal to satisfy any lawful claim, made upon him by the Master of the High Court, or by any commissioner appointed by the Court.

(c) On account of absence from this Republic.

NOTE.

The Witwatersrand High Court has no jurisdiction to remove the trustee of an insolvent estate, where the insolvent is not resident within the jurisdiction of the High Court. But an order for such removal will be granted by the Judge of the High Court, sitting as a Judge of the Supreme Court in chambers (Ex parte Fass & Co. [1902], T.H. 95).

78. The Court shall in the case aforesaid, and as often as any trustee shall die, or shall become incapacitated, or shall obtain leave from the Court to resign, order a new trustee to be elected, and at the same time may make such order as the Court may deem necessary or expedient for the preservation of the insolvent estate until such new trustee shall be elected and confirmed.

During the period of time which shall elapse between the death or removal of any trustee and the confirmation of the election of a new trustee, the insolvent estate shall vest in the Master of the High Court, unless there shall still be left in office a trustee of the said estate.

79. The newly-appointed trustee shall be entitled to the same rights and be subject to the same obligations in respect to the estate as his predecessor in office.

He shall be entitled to demand from the latter an account of his administration of any part of the estate administered by him in his capacity as trustee.

All things lawfully done by him in his capacity as such trustee shall remain in full force and effect.

80. Every election of a trustee shall be confirmed by the Master of the High Court, who shall deliver a letter of appointment to the trustee so elected, authorising him to administer and distribute the estate.

Whenever any objection to the election of a trustee has been taken, in accordance with the provisions of § 74 of this Act, before the High Court, then the final confirmation of the election shall be made by the said Court.

81. Every trustee shall forthwith, after the confirmation of his election as trustee, give notice thereof by advertisement in the Staatscourant. The Master of the High Court shall in like manner give notice of every order for the removal of a trustee.

82. Whenever any trustee desires to resign his office, or whenever the plan of distribution of the insolvent estate has been confirmed, it shall be lawful for such trustee to apply to the High Court for leave to resign his office and to be discharged of his said trust. If no valid objection be stated, and if the Court be satisfied that the trustee has complied with the regulations of this Law, his application shall be granted by the Court, and the Court shall thereupon make such order as they shall see fit for the preservation and administration of the estate until a new trustee be chosen. If any objection be made to the application of the trustee to resign, the Court shall determine the same in a summary manner.

NOTES.

Notice must be given by the trustee of an insolvent estate of his intention to apply to the Court, under this section, for leave to resign his office, so as to enable any person interested to appear and oppose if so advised (In re Wolstenholme, 9 J. 49).

83. Any trustee, before making any application for leave to resign, shall render a full account of his administration of the insolvent estate, together with a full report of the condition thereof, and shall call a meeting of the creditors to consider the same, of which meeting at least twenty-eight days' notice shall be given by advertisement in the Staatscourant.

84. So soon as the appointment of a trustee shall have been confirmed, the Master of the High Court, or any provisional trustee, if any such person shall have been appointed, shall be divested of the estate, and it shall vest in the elected trustee, and remain vested in him as long as the sequestration shall continue, and until the confirmation of the account and of the final plan of distribution.

The trustee shall be entitled to use the same remedies to recover the estate of the insolvent, or any part thereof, in his own name, as the insolvent himself might have had if his estate had not been sequestrated and generally have all powers which were vested in the insolvent before the sequestration.