Wentzel v Banxso (Pty) Ltd and Others (23249/2024) [2025] ZAWCHC 376 (22 August 2025)

Case Note

Case: Carol Margaret Wentzel v Banxso (Pty) Ltd — [2025] ZAWCHC 253
Court: High Court of South Africa Western Cape Division | Judge: Le Grange J | Case no.: 23249/2024
Dates: Hearing — Not stated; Judgment — 22 August 2025

Reportability

Reportable: Yes

Cases Cited

• Afrisure CC v Watson NO 2009 (2) SA 127 SCA (para [2])
• Chevron SA (Pty) Limited v Wilson t/a Wilson's Transport and Others (CCT 88/14) [2015] ZA CC 15; (5 June 2015) (para [2])
• Badenhorst v Northern Construction Enterprises (Pty) Ltd 1956 (2) SA 346 (T) (para [28])
• Payslip Investment Holdings CC v Y2K Tec Ltd 2001 (4) SA 781 (C) (para [29])
• Hülse-Reutter & Another v HEG Consulting Enterprises (Pty) Ltd 1998 (2) SA 208 (C) (para [29])
• Drift Supersand (Pty) Ltd v Mogale City Local Municipality and another [2017] 4 All SA 624 (SCA) (para [25])
• Lagoon Beach Hotel (Pty) Ltd v Lehane NO and another 2016 (3) SA 143 (SCA) (para [25])
• Nkengana and another v Schnetler and another [2011] 1 All SA 272 (SCA) (para [25])
• Helen Suzman Foundation v President RSA 2015 (2) SA 115 CC (para [15])
• Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm) (para [15])

Legislation Cited

• Companies Act 61 of 1973; s 345; s 344(h)
• Companies Act 71 of 2008; s 81(c)(ii); s 81(1)(d)(iii)
• Financial Institutions (Protection of Funds) Act 28 of 2001
• FAIS Act; s 8A(a)
• FSR Act; s 139(5)
• Prevention of Organised Crime Act 121 of 1998; s 39

Rules of Court Cited

• Uniform Rule 6(15)
• Uniform Rule 12
• Uniform Rule 38

HEADNOTE

Summary
The court considered an application for the provisional winding-up of Banxso (Pty) Ltd, initiated by Carol Margaret Wentzel, who alleged that Banxso operated as a criminal enterprise defrauding investors. The court found that Wentzel and other intervening parties had established a prima facie case under the condictio ob turpem vel iniustam, asserting that their investments were made under an illegal contract. The court granted the application for provisional liquidation, citing the need to protect the interests of investors and the public.

Key Issues - Whether Banxso is unable to pay its debts as required by the Companies Act. - Whether the winding-up of Banxso is just and equitable. - Whether the transactions between Banxso and its investors are void under the condictio ob turpem vel iniustam.

Held

• Banxso is placed under provisional liquidation (para [90]).
• The Intervening Parties are granted leave to intervene as applicants (para [90]).
• The striking out application of the Applicant and Intervening Parties is granted (para [90]).

THE FACTS

The Applicant, Carol Margaret Wentzel, sought a provisional winding-up order against Banxso (Pty) Ltd, claiming it was unable to pay its debts and operated as a fraudulent enterprise. Wentzel, a pensioner, lost approximately R500,000 as an investor in Contracts for Difference (CFDs) on Banxso's platform. She alleged that her transactions were null and void under the condictio ob turpem vel iniustam, asserting that Banxso's business model was designed to defraud investors.

Banxso opposed the application, claiming it was solvent and had sufficient liquidity to cover debts. It provided security for Wentzel's claim and denied any wrongdoing. The Financial Sector Conduct Authority (FSCA) had provisionally withdrawn Banxso's financial services provider license, citing numerous complaints and investigations into its operations.

The intervening parties, comprising other investors, sought to join the proceedings, asserting they had a direct interest in the outcome. Banxso contested their intervention, arguing they failed to demonstrate a substantial interest and that their claims were disputed.

THE ISSUES

The court had to determine whether Banxso was unable to pay its debts, whether the winding-up was just and equitable, and whether the transactions with investors were void under the condictio ob turpem vel iniustam. Additionally, the court considered the legitimacy of the intervening parties' claims and the striking out applications made by both parties.

ANALYSIS

The court analyzed the evidence presented by Wentzel and the intervening parties, noting that they had established a prima facie case for the winding-up of Banxso. The court emphasized the importance of protecting investors and the public interest, particularly given the allegations of fraud and deception surrounding Banxso's operations.

The court applied the principles of the condictio ob turpem vel iniustam, which requires that the transfer of money must have occurred under an illegal contract. The court found that the evidence suggested Banxso's business model was illegal, as it relied on misleading advertisements and high-pressure sales tactics to solicit investments.

The court also addressed the striking out applications, determining that Banxso's allegations against the attorneys representing Wentzel and the intervening parties were scandalous and vexatious, warranting their removal from the record. The court concluded that the allegations made by Banxso did not contribute to the resolution of the real issues at hand.

Ultimately, the court found that Banxso's operations were not compliant with the law, and the refusal of Wentzel and the intervening parties to accept security from Banxso was not an abuse of process. The court determined that the balance of probabilities favored the winding-up of Banxso, given the substantial evidence of its fraudulent activities.

ORDER

IT IS ORDERED THAT: 1. The Intervening Parties are granted leave to intervene as applicants in this application and, in future documents in this application, shall be referred to as the Second, Third, Fourth, Fifth, Sixth, Seventh, Eight, Ninth, Tenth and Eleventh Applicant respectively. The Applicant shall be referred to as the First Applicant. 2. The striking out application of the Applicant and Intervening Parties is granted and the following parts of the First Respondent’s affidavits shall be struck out: - The First Respondent’s answering affidavit: Paragraphs 113 -120, 293.1 (the portion which reads ‘I refer to what I have set out above concerning the touting activities of the applicant’s attorney.’) 312.4; and the annexures referred to in these paragraphs. - The First Respondent’s further answering affidavit: Paragraphs 5.2, 5.4 (the portion which reads, ‘have touted their way to twelve disgruntled Banxso clients.’), 6 -11, 12 (the portion which reads, ‘Those offers are rejected out of hand by M&B.’), 17 (the portion which reads, ‘and/or proceeded to give this bad advice to their clients thereafter.’), 18,21 -22,31 (the portion which reads, ‘It appears that the FSCA was asked for these items and proceeded to advise M&B to simply issue them with a subpoena as a “cover” for being able to justify their delivery.’), 195 (the portion that reads, ‘M&B has proceeded in this liquidation for their own interests.’), 196 (the portion which reads, ‘given that Ms Wentzel et al appear to be M&B proxies.’), and the annexures referred to in these paragraphs. 3. The First Respondent’s striking out application is dismissed. 4. The First Respondent is placed under provisional liquidation. 5. A rule nisi do issue calling upon the First Respondent and all other interested parties to give reasons, if any, on 17 October 2025 why: - The First Respondent should not be finally liquidated. - The costs of this application should not be costs in the liquidation of the Respondent, which costs are to include the costs of two counsel, with scale C to apply in respect of senior counsel and scale B in respect of junior counsel. 6. Service of this order be effected by: - one publication in each of the Cape Times and Burger newspapers and the government gazette. - service on the South African Revenue Service at 1 [...] L[...] L[...] Street, Cape Town. - service on the Respondent at the Respondent’s registered address being 2nd Floor H[...] W[...], 1[...] S[...] Street, De Waterkant, Cape Town, - service on the Respondent’s employees, if any, at the Respondent’s business address being 2nd Floor H [...] W[...], 1 [...] S[...] Street, De Waterkant, Cape Town, by affixing a copy of the application and order to any notice board to which the employees have access inside the Respondent’s premises or, if there is no access to the premises by the employees, by affixing copies to the front gate, if applicable, failing which, to the front door of the premises. - service on all registered trade unions, if any, representing the Respondent’s employees.

LEGAL PRINCIPLES

• The condictio ob turpem vel iniustam requires a transfer of money under an illegal contract (para [33]).
• In winding-up applications, the applicant must establish entitlement on a prima facie basis (para [28]).
• The court's processes should not be abused, particularly in liquidation proceedings (para [28]).

COSTS

The costs of this application are to include the costs of two counsel, with scale C to apply in respect of senior counsel and scale B in respect of junior counsel (para [90]).

NOTES

None.