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[2010] ZAGPPHC 531
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Marquand and Another v Van Aardt and Others (37288/2009) [2010] ZAGPPHC 531 (19 April 2010)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE NUMBER:
37288/2009
DATE: 19 APRIL 2010
In the matter
between:
CHRISTOPHER IAN
MARQUAND
.................................................................................
FIRST
APPLICANT
CHARLES ALFRED LE
FEURVRE
............................................................................
SECOND
APPLICANT
And
FRANS JOHANNES VAN
AARDT
I.D.:
5[...]
........................................................................................................................
FIRST
RESPONDENT
NYABELA CABINS (PTY)
LTD
REG. NO:
1978/02806/07
..........................................................................................
SECOND
RESPONDENT
SIVER WATERS GAME
AND HOLIDAY
FARMS (PTY)
LTD
......................................................................................................
THIRD
RESPONDENT
REG. NO:
1998/016906/07
ERNA VAN
AARDT
.................................................................................................
FOURTH
RESPONDENT
EAGLE VALLEY
PROPERTIES 139
CC
.....................................................................
FIFTH
RESPONDENT
REG. NO:
2004/087346/23
JOHANNES FRANS VAN
AARDT
.............................................................................
SIXTH
RESPONDENT
I.D.: 7[...]
JUDGMENT
TLHAPI. V V
[1] An interim order
(‘anti dissipation interdict’) by way of an ex parte
application was granted in favour of the applicants
against the
respondents, who had to show why the said order should not be made
final on the return date.
The order read as
follows:
1. That an interim
order with immediate effect be granted, pending the return date:
1.1. Interdicting
the First Respondent from ceding, pledging, alienating, disposing or
in any way encumbering any of his assets,
excluding stock in trade of
businesses which may be sold in the ordinary course of business;
1.2. Interdicting
the First Respondent from drawing funds out of investment or savings
account or in any way reducing the investment
or savings held to the
credit of the First Respondent at any bank, other financial
institution or broker;
1.3. Interdicting
the First Respondent from ceding, pledging, alienating disposing or
in any way encumbering any shares, interest
or loan accounts held by
the First Respondent in the Second, Third and Fifth Respondents;
1.4. Interdicting
the Second and Third Respondents from registering any transfer of
shareholding of any shares presently registered
in the name of the
First Respondent, nor to pay any dividends or repay any portion of
any loan account held by the First Respondent
in the Second and Third
Respondent to the First Respondent, or any other person;
1.5. Interdicting
the First and Second Respondents from registering any transfer of any
shares of which the First Respondent is
the beneficial owner,
notwithstanding other persons or entities holding such shares as
nominee/s on behalf of the First Respondent;
1.6. Interdicting
the Second and Third Respondents from ceding pledging alienating
disposing or in any way encumbering any of their
assets excluding
stock in trade of businesses which may be sold in the ordinary course
of course of businesses;
1.7. Interdicting
the Fourth Respondent from ceding pledging alienating disposing or in
any way encumbering any of her assets excluding
stock in trade of
businesses which may be sold in the ordinary course of business,
alternatively interdicting the Fourth Respondent
from ceding pledging
alienating or disposing her right title and interest including the
right to ask for a transfer into her name
of the immovable property
known as Erf [...] M[...] Mpumalanga;
1.8. Interdicting
the Fifth Respondent from ceding pledging alienating disposing or in
any way encumbering any of its assets including
Portion [...] of the
farm D[...] H[...] a portion of Portion [...], Registration Division
KS in extent [...], 3058 hectares;
1.9. Interdicting
the Fifth Respondent from registering any transfer of the member’s
interest presently registered in the
name of the Sixth Respondent,
nor pay any dividends or repay any portion of any loan accounts to
any person;
1.10. Interdicting
the Sixth Respondent from selling or ceding his member’s
interest or any loan accounts held by him in the
Fifth Respondent;
1.11 Interdicting
the First to Fifth Respondents from transferring any money out of the
Republic of South Africa;
1.11. The interdicts
in prayers 1.1 to 1.11 will not apply if the Respondents either
obtain the prior written consent of the Applicants,
which consent
will not be unreasonably withheld, or the leave of the above
Honourable Court;
1.12. The First, the
Fourth and Fifth Respondents are to furnish to the Applicants within
5 days of the granting of this order,
an inventory of all assets held
by them be it directly or indirectly. It is recorded that after such
inventory has been furnished
the Applicants and the Deputy Sheriff
are authorised to enter and inspect what ever premises are necessary
in order to verify the
information on the inventories;
1.13. Alternatively
and in the event of the First, the Fourth and the Fifth Respondents
failing to forthwith comply with prayer
1.13 supra, then and in that
event, the Applicants, and/or their deputy authorised South African
representatives and the Deputy
Sheriff are authorised to enter and
inspect whatever premises are necessary to compile the necessary
inventories without releasing
in any way the First, the Fourth and
the Fifth Respondents from their obligation of this order to do so;
1.14. That a rule
nisi be issued calling upon the Respondents to show cause, if any, on
the 31 July 2009 why the interim order as
set out in prayer 1 above,
should not be made final, pending the finalization of the following
proceedings which may be instituted:
1.15. An action be
instituted by the Applicants within 30 days of the finalisation of
this application for an order containing inter
alia relief
substantially as follows:
i) Piercing the
corporate veil between the First Respondent, the Second Respondent
the Third Respondent and the Fifth Respondent;
and or
ii) Declaring the
assets presently held by the Fourth and Fifth Respondents executable
in satisfaction of the Applicants’
claim of £483 829.00;
and or
iii) Declaring the
shareholding and loan accounts of the First Respondent in the Second
and Third Respondents executable in satisfaction
of the Applicants’
claim of £483 829.00 against the First Respondent; and or
iv) Declaring the
member’s interest held by the Sixth Respondent in the Fifth
Respondent, and any possible loan account by
the Sixth Respondent in
the Fifth respondent executable in satisfaction of the Applicants’
claim of £483 829.00 against
the First Respondent; and or
v) An Order against
the First Respondent for the payment of £448 696.90 to the
First Applicant together with mora interest
and costs, together with
mora interest and costs; and/or
vi) Setting aside ,
in terms of the action pauliana, the acquisition by the Fourth
Respondent of the right to acquire ownership
of Erf [...] M[...],
Mpumalanga, and against the Fifth Respondent the acquisition of
Portion [...] of the farm D[...] H[...], a
Portion [...] Registration
Division KS in extent [...], 3058 hectares and held by the Fifth
Respondent under the title 2[...] and
against the Sixth Respondent
the acquisition by him of the member’s interest in the Fifth
Respondent; and or
vii) An application
by the Applicants, provided that it is instituted within 30 days of
the finalisation of this application, for
an order sequestrating the
First Respondent and, it granted, the appointment of a final trustee
for the First Respondent and then,
the finalisation of proceedings to
be instituted by the trustee within one month of his appointment as
such to set aside in terms
of Sections, 26, 29, 30, 31, or any other
provision of the
Insolvency Act 24 of 1936
, alternatively the common
law, any disposition by the First Respondent to any of the Second to
Sixth Respondents, alternatively,
and if the Fifth Respondents
trustee fails to institute such proceedings, then pending the
finalisation of such proceedings to
be instituted by the . Applicants
within one month and failure by the trustee to institute such
proceedings, acting in terms of
the provisions of
Section 32
of the
Insolvency Act, 24 of 1936
;
The purpose of this
application was for the protection of assets in which the first
respondent had interest. A final relief would
enable the applicants
to apply for the first respondent’s sequestration and a duly
appointed trustee or, creditors would
be enabled to set aside
impeachable dispositions or, the applicants would be in a position to
invoke
section 32
of Act 24 of 1936, alternatively to institute
action against the first respondent based on breach of contract.
THE FACTS
[2] The applicants
are peregrines. The founding affidavit was deposed to by the second
applicant having been duly authorised to
do so by the first
applicant.
The first, fourth
and sixth respondents were South African citizens and were related to
each other. The fourth respondent was the
wife of the first
respondent and was married to him out of community of property, the
sixth respondent was the son of the first
and fourth respondents. The
second and third respondents were private companies in which the
first respondent, either directly
or indirectly held shares. The
fifth respondent is a closed corporation in which the sixth
respondent held the member’s interest.
[3] The second
applicant was introduced to the first respondent by a mutual friend a
certain Mr Botes ('Botes’) who lived
in Jersey with his wife.
Botes recommended that the second applicant invest in property in
South Africa and invited him to be part
of a development project, in
the picturesque D[...] H[...] D[...] V[...],(’D[...] H[...]’)
engaged by the first respondent
for a select few, that is, 'a few
friends and handpicked investors.’ The applicants showed
interest and the second applicant
travelled to South Africa to see
for himself. He accompanied the first respondent to D[...] H[...].
The first respondent told him
that he owned immovable property
adjacent to the water frontage, but but did not inform him in which
capacity he held such ownership.
The second applicant was impressed
by the area and, it was not important at the time to him whether he
held shares in a company
which had an interest in the immovable
property or whether he owned a portion of the immovable property.
Rouleti Investments (Pty)
Ltd was later mentioned as a company which
would acquire land for the investors. He was brought under the
impression that he would
acquire exclusive use of a plot or stand so
purchased. He was impressed by the representations made to him by the
first respondent.
He discussed the investment prospects with his
family and, he communicated their approval to the first respondent
who was so pleased
that he promised to procure a free stand for the
second applicant and send the paperwork. There was a delay in
obtaining these
papers. Second applicant travelled to Jersey to
prepare for payment of the initial amount.
[4] The second
applicant returned to South Africa in June 2007 in order to finalize
the necessary paper work. He again met up with
the first respondent
who assured him that everything was going according to plan. In order
to avoid regulatory processes for importing
funds into South Africa
and ,to facilitate payment of his initial deposit into the
investment, he was instructed to pay £35
132.10 into the bank
of Ms Use Eiselen, wife of Botes, who held a bank account in Jersey.
The Botes were friends of the first respondent
and, the second
applicant believed that the funds would reach the first respondent.
The second applicant got his friend, the first
applicant, interested
in the project. They travelled to South Africa during September 2007
and were accompanied by Botes. Construction
at D[...] H[...] had
begun. The first respondent made the same representations to the
first applicant and relying upon them, first
applicant arranged for a
deposit of £100 000.00 to be paid to the first respondent, £85
000.00 was for the D[...] H[...]
project and £15 000.00 for the
Mozambique project.
[5] The second
applicant later learnt through a Mr Steenkamp and his legal
representative that the D[...] H[...] D[...] Project
was a public
project under the Department of Water Affairs and Forestry,
Government of the Republic of South Africa (‘the
government’).
The first respondent had acquired Land adjacent to the Farm D[...]
H[...] which was registered in the name
of the fifth respondent under
title 2[...] (the farm’). Furthermore, the land pointed out by
the first respondent to the
second applicant, as the land over which
he had rights, was not in the same area covered by the farm, and it
appeared as if another
piece of land was acquired.
The first respondent
acquired the farm from a Mr Davel, acting as a trustee for a closed
corporation or a company to be established.
The lay out plan of the
D[...] h[...] Dam basin depicted the farm as part of the general
development and it was situated in a ‘north
western direction
to a south eastern direction. The layout plan depicted, a purchase
line, a township boundary, servitude lines,
a full supply line of the
dam and, a high flood line of the dam. It became apparent from the
lay out plan that the land pointed
out by the first respondent could
not be acquired by the second applicant because it was identifiable
as belonging to others as
far back as the 29 August 2005, a date
appearing on the lay out plan.
[6] The agreements
entered into by the applicants for the purchase of land were invalid
because they were not in writing, furthermore,
no consent was
obtained from the Minister of Agriculture (Republic of South Africa)
for the subdivision of agricultural land. Consequently,
the
applicants claimed that they were defrauded by the first respondent
into parting with their money. They averred that the first
respondent
should have been aware of the legal requirements regarding the
purchase of immovable property. It also came to the second
applicant’s attention that the first respondent had placed
advertisements offering the public, stands for sale on the D[...]
H[...] Dam Project. As a result of the alleged fraud the applicants
had a claim against the first respondent in the amounts £85,
000.00 and £35 132.10 respectively.
[7] The first
respondent and his wife invited the Botes’, and applicants on
holiday to Bara island in Mozambique and there
again first respondent
offered the applicants a share in the holiday home he intended to
construct. The first applicant agreed
to acquire an interest for
£15,000.00 and the first respondent acknowledged receipt of
monies paid in this regard. Payment
was made from the balance of
monies paid in for the D[...] H[...] project.
[8] Another
investment opportunity was put on the table by the first respondent
and Botes, it being an opportunity to invest in
a Gold Mine, (‘the
gold mine project’) for an equivalent of R5 million.
Arrangements were made by both applicants to
pay the said sum into
the account of Ms Eiselen (mrs Botes) who would in turn transfer to
the first respondent. The applicants
were informed that they would
acquire a 10% stake in the mine while the first respondent would
acquire a 100% interest on behalf
of a consortium of investors. No
paper work was finalized. The applicants met the first respondent and
Botes on 22 August 2008
at Belfast Mpumalanga where they were assured
that the legal documents would be viewed and finalized. The only
document which was
produced, was a hand written document titled an
agreement. It mentioned applicants and first respondent as the
contracting parties.
The document was annexed to the application as
annexure ‘M’. According to the second applicant the said
document was
fraudulent. Option 2 of the said document was confusing
and nonsensical. However, the document served to prove that R5million
had
been paid over to the first respondent.
[9] Another hand
written document was obtained from Ms Eiselen marked annexure ‘N’.
The document was signed by the first
respondent and a certain JJ van
Aarde, described as the seller. The document stated that the funds
for the payment of 10% shares
in the gold mine situated at Giyani in
the Limpopo Province, would be paid by Botes into a designated
account which was actually
the account of the first respondent and
not that of the seller. The seller further undertook to pay an amount
of R200 000.00 to
the first respondent. Furthermore, the document
indicated that a ‘share certificate or a member’s
interest’ in
the first respondent’s immovable property
would serve as security to the investors.
[10] JJ van Aarde
was traced to Tzaneen. He denied knowledge of the signature on
annexure ‘M’. However he had held 20%
interest in the
gold mine at Giyani and the agreement entered into between him and
first respondent did not resemble the one conveyed
to the applicants
as their interest in the mine. The rest of the shares belonged to a
black empowerment group and that 10% of the
20% shares were indeed up
for sale for R5million. The first respondent paid a sum of R780
000.00 only to JJ van Aarde, but represented
to the applicants that
R5million had been used for the acquisition of shares in the mine.
[11] With regard to
the three transactions therefore applicants had a claim against the
first respondent for £483 829.00.
The crux of the matter was
that the applicants believed that they were defrauded by the first
respondent. They were under the impression
that they were dealing
with a wealthy South African possessed of significant assets, in
particular immovable assets.
The investigation by
their attorney revealed that not a single immovable property was
registered in first respondent’s name.
The conduct of the first
respondent was such that no creditor could obtain judgment against
him nor could a creditor execute against
his assets.
[12] Extensive
litigation would have to be instituted in order to identify first
respondent’s assets, either litigation including
piercing the
corporate veil, alternatively sequestration proceedings against the
remainder of the respondents. Assets obtained
by the fourth and sixth
respondents from the first respondent were invalid in title against
the first respondent’s creditors.
The applicants give the
following reasons for their contention:
1. The first
respondent is the sole director of the second respondent which owns
three immovable properties:
1.1 Remaining extent
of Farm M[...] 5[...] RegistrationDivision JS under title T2[...];
1.2 Farm M[...]
5[...] Registration Division JS in extent [...],0472 hectares under
title T2[...];
1.3 Portion of farm
M[...] in exten 13628 hectares under Title T4[...]
The
mineral rights on the above properties are the subject of a dispute
between the second respondent and Bethlehem Eiendome (Pty)
Ltd, while
another company Marlyn Granite acquired mineral rights in the same
properties and, are currently paying R10 000.00 to
the second
respondent for the benefit of the first respondent. The applicants’
prima facie
view
was that the first respondent was receiving payments as a share
holder of the second respondent and, that the truth of such
fact
could only be established by a trustee if the first respondent is
sequestrated, consequently it the applicants would have
a claim
against the first respondent that is why it was necessary to preserve
first respondent’s shareholding in the second
respondent.
[13] The first
respondent is one of five directors in the third respondent and he
might own direct or indirectly hold shares in
the properties owned by
the third respondent. These assets have to be preserved to satisfy
the applicants claims and the assets
are:
1.1. Another portion
of Farm M[...] 5[...] in extent […], 6808 hectares under title
T6[...]
1.2. Portion [...]
of the farm M[...] 5[...] in estent […], 4361 hectares under
title T1[....]
[14] Although the
fourth respondent had not defrauded the applicants nor made any
misrepresentations, the applicants contend that
as spouse of the
first respondent she owned assets which were invalid in title to the
first respondent’s creditors. One such
asset was the property
at M[...], which according to Mr Steenkamp was purchased from funds
deposited by Botes into the account
of the first respondent. This
occurred during the time that they were defrauded by the first
respondent, therefore it appeared
to be a gift between spouses which
is a disposition without value by the first respondent. In an
application for the sequestration
of the first respondent it was
possible to trace the funds used to purchase the property to the
applicants and the entire assets
of the fourth respondent would fall
to be administered under the insolvent estate until she can prove
that her acquisitions in
title were valid to the first respondent’s
creditors. The fourth respondents assets had to be preserved because
the applicants
feared that she might conceal the assets of the first
respondent before an application for sequestration was brought.
[15] The first
respondent was instrumental in funding the acquisition of the farm
owned by the fifth respondent. The applicants
believed that the sixth
respondent merely held the members interest for the first respondent.
The loan accounts
and the farm had to be preserved and applicants believed that they
had prospects in ‘piercing the corporate
veil’ in respect
of the fifth respondent.
[16] The first
respondent was authorised by the second to the sixth respondents to
depose to the answering affidavit. He denied
having defrauded the
applicants. According to him this application was premature and
vexatious; he denied that the applicants ever
became his creditors
and contended that they entered into the transactions of their own
free will; he denied ever having communicated
to Botes that the
D[...] H[...] project was reserved for a select few; He denied making
any misrepresentations which caused applicants
to part with their
money; he however admitted to having met the applicants during their
visits to South Africa.
[17] First
respondent contended that the court had no jurisdiction to adjudicate
on the Mozambique project because the entire cause
of action arose in
Mozambique. He denied having made any payments to the second and
sixth respondents and that if any payments
were made they were not
invalid in title to his creditors. It was common business practice
that different entities would be used
to run separate business. On 23
August 1998 second respondent purchased shares from the estate of
Late Yvonne Grobler. At the time
of purchase the farms mentioned in
paragraph 11 above were assets of the second respondent. The third
respondent was a shelf company
which purchased the assets mentioned
in paragraph 12 above from the estate of Late Yvonne Grobler. The
fifth respondent was a shelf
company purchased during 2005 to
register ownership of Portion [...] of D[...] h[...]. Part of D[...]
H[...] had been expropriated
and registration in favour of the fifth
respondent would only be finalized as soon as subdivision had been
completed. The first
respondent as trustee for a close corporation to
be established acquired from Mr Chris Davel for the fifth respondent
property
at D[...] H[...], a Portion of Portion [...] Division KS in
extent [...] 3058 ha. Held under T[...].
[18] The first
respondent averred that he was introduced to the first respondent by
Botes. At a meeting with the second applicant
he clearly mentioned
that the property pointed out, being Portion [...] of the farm
Uitvlug [...] Division KS Province Mpumalanga
(‘Portion 1’),
had been registered under Rouleti Investments (Pty) (‘Rouleti’)
Ltd as far back as the 4
December 2005 under title T1[...]. The
intentions for the future regarding this land were recorded in a
shareholders meeting of
the 24 April 2005. The first respondent
denied having made any promise to give the second applicant an extra
plot. Furthermore,
he had no reason to make representations to the
second applicant that transfer was still going to occur. A portion of
this farm
had been expropriated during 2007 and the process of
registration had not yet been finalized. The second applicant was
advised
that his entitlement was subject to the expropriation being
finalized. Botes was aware of such fact.
[19] According to
the first respondent he never informed the second applicant what the
purchase price in pound sterling would be.
The proposal was that R500
000.00 would entitle second applicant to 4% share in Rouleti and
conditions of how the land could be
utilized by him were explained.
Payment was made through Ms Eiselen on 23 April 2007, and not after
June as averred by the second
applicant. He played no role in how the
transfer of monies through Use Eiselen’s account was effected.
He did however receive
payment and a share certificate representing
4% was issued and handed over to Botes for transmission to the second
applicant. Botes
lost the certificate and a second one was issued .
The applicants were
aware at all times that the land was the property of Rouleti. The
application was therefore defective in that
they had failed to join
it as a party to the proceedings. Furthermore as purchasers of shares
in Rouleti, it was not required by
law that the agreement for such
purchase be reduced to writing.
[20] The first
respondent averred that the first applicant was introduced by Botes.
He denied having made any misrepresentations
to the applicants
inducing them to part with their money. The first respondent
contended that apart from the fact that he acted
in a representative
capacity in as far as portion 4 D[...] H[...] [...] KS was concerned,
he was not the author of the lay out
plan (V19) which depicted him as
the owner. The lay out plan indicated the purchase line and which
properties would be taken in
expropriation and which would be
retained by the purchaser. The layout plan could only be concluded on
the finalization of the
process of expropriation. Portion 1 which was
left to the purchase line, marked V19 on the diagram was shown to the
applicants
as that portion which could be utilized by them. The
Government would take the property to the right of the purchase line.
The
entitlement to the exclusive use of a plot arose from their
purchase of shares in Rouleti, it was therefore not a requirement
that
such agreement be reduced to writing. The applicants purchased
shares in a company which would entitle them to use and develop,
according to certain stipulations, one hectare of land on Portion 1
as will exist after expropriation. The registration of the
property
into the name of Rouleti would also be finalized after expropriation
by the issue of a new Title Deed. The shareholders
agreement had not
been concluded due to the outstanding finalization of the
expropriation.
[21] The first
respondent was not prepared to deal with Steenkamp with whom he had
‘an axe to grind’ until he was satisfied
that applicants
had properly mandated him. He denied that his attorneys
Brandmuller-Taljaard received an e-mail outlining Steenkamps
mandate.
[22] According to
the first respondent, Portion [...] of the farm D[...] H[...] was
purchased in the name of the fifth respondent
by way of loan funding.
It was never intended that the applicants would acquire interest in
the fifth respondent. The land adjacent
to the D[...] H[...] Dam
project did not belong to him or to any of the companies in which he
was involved and he denied that he
was responsible for the placement
of the advertisement for the sale of public stands adjacent to the
D[...] H[...] Dam project.
The first respondent averred that
applicants had not acquired any claims against him because he was not
in breach of the sale of
share agreement, and as a result applicants
were not entitled to cancellation of the agreement.
[23] The first
respondent denied having purchased the property at Bara, Mozambique.
He had acquired an interest in the property
to establish a ‘Holiday
House and this was subject to a 99 year lease. Together with Botes
and Steenkamp it was intended
to establish a company in which four
shareholders would be involved, with each contributing an initial sum
of R200 000.00. Both
applicants were approached as possible
investors.
The first applicant
expressed interest and paid over a sum of R200 000.00. The land was
lost to a property developer due to delays
on their part to secure
investors. Closer to the latter property, there was another property
to which he had sole personal use
and because this land did not
require other investors he developed it. He informed the Botes that
he was agreeable to making this
property available to potential
investors. First respondent maintained further that this court lacked
jurisdiction to deal with
any claim arising out of the Mozambique
project.
[24] The first
respondent averred that the purchase of the Ospery Goldmine at Giyane
was preceded by discussions between himself,
Mr Joost van Aarde (van
Aarde) and Mr Dries van Rooyen on 6 December 2007. He concluded the
transaction with van Aarde and obtained
a three month option to
purchase the said mine for a sum of R5 million rand. It was agreed
that partial payments could be made
if his funds became available,
however, if the funds were not available, he would have the right of
first refusal in respect of
the transaction and, the purchase price
would not remain at R5 million rand. Van Aarde had agreed to include
his 20% interest in
Palala Resources (Pty) Ltd, (Palala) into the
transaction. It was first respondent’s intention to obtain
investors within
the said three months so that the stipulated
purchase price was paid. He discovered during January 2008 that van
Rooyen had offered
the same mine for sale to Botes for R400 000.00.
The first respondent denied having made any representations to the
applicants
and stated that Botes had on his own approached them about
the ‘golden opportunity investment' after realizing that the
mine
had indeed been sold to the first respondent. The applicants’
purchase, that is, in respect of the sums of money paid to him,
represented 10% interest in the said mine. It had always been his
intention to acquire 100% of the mine on behalf of a consortium
of
investors.
[25] The first
respondent averred that he became aware, subsequent to the agreement
being entered into that there was a dispute
about the ownership of
Osprey Goldmine, that is , whether it vested with Palala or with van
Aarde. A substantial amount of the
purchase price had been paid over
to van Aarde in his personal capacity as owner of the nine. The funds
included those sourced
from the applicants and those of the first
respondent. It turned out that van Aarde had misled him and van
Rooyen about the ownership
of the mine and, in seeking to protect the
interests of the investors which included himself and the applicants,
he entered into
an agreement with Palala to be appointed transaction
advisor, for the purpose of concluding the sale of 80% of Osprey. The
first
respondent tendered transfer of the 10% shares in Osprey to the
applicants.
[26] According to
the first respondent, the meeting in Belfast of August 2008 was not
meant to sign any legal documents pertaining
to the mine because
there was no clarity regarding ownership thereof. The options put
forward by him in annexure ‘M’
were an attempt at finding
a way in which the applicants’ 10% investment could be secured.
Furthermore, the first respondent
maintained that applicants and
Botes had at all times been appraised of developments herein. He
maintained that Osprey and van
Aarde should have been joined as
parties in this application. The first respondent stated that the
applicants had no claim against
him and that in as far as it
transpired that he had now acquired only 20% shareholding in the
mine. He was prepared to transfer
50% of his shareholding to the
applicants, which was what was paid for as per agreement.
[27] The first
respondent averred that the applicants had failed to provide
sufficient probable evidence to entitle an action for
piercing of the
corporate veil, that the issues involved herein were of a civil
nature, which he was capable of defending successfully.
He had no
creditors and had been free of debt for the past three years.
Furthermore, the applicants had failed to prove a nexus
between him
and the other respondents; they had failed to prove that funds paid
to him by the applicants were used for settling
his creditors. He
stated that there was nothing suspicious in his involvement with the
second respondent which was a property owning
company which did not
have a bank account and that his sequestration would be futile.
Monies paid in respect of the long lease
were paid into the 4
th
respondents Absa account and the amounts were dealt by way of loan
account in the books of the 2
nd
and 4
th
respondents. He was one of five directors in the 3
rd
respondent and that the properties owned by it were purchased from
Estate Late Yvonne Grobler long before his association with
the
applicants.
[28] The first
respondent averred he was married out of community of property to the
4
th
respondent and that the M[...] property was purchased
by her before any claims against him by the applicants and, that the
Steenkamp’s
knowledge regarding the purchase amounted to
hearsay. Applicants had failed to show that there had been a
disposition by him without
title to the 4
th
respondent.
The 6
th
respondent had acquired the property registered in
the name of the 5
th
respondent from proceeds of sale of a
farm he owned in the Roosenkal area. No grounds were established for
the relief sought by
the applicants in respect of the 3
rd
and 4
th
5
th
and 6
th
respondents.
[29] It was averred
by the applicants in reply that it was always the understanding that
they would acquire the properties at D[...]
H[...] in their personal
capacities, and should the version of the first respondent be
accepted, the contracts were as such void
and first respondent had
contravened the Share Blocks Control Act, 58 of 1980 (sections 5, 5A,
9, 11 and 16 thereof). The said
Act provided them with a remedy of
restitution plus interest. Consequently there was no dispute of fact
regarding their claim against
the First Respondent. Furthermore, the
first respondent’s had blatantly ignored Steenkamp’s
letter and his entire responses
were vague and evasive. The
applicants contend that the minutes of the shareholders meeting ‘in
VA14’ reflect the manner
in which the first respondent was
entitled to allocate 1 hectare plots and how the monies paid in by
investors had to be deposited
into an interest bearing Trust account.
The said monies would be paid over to the developer, identified as
the first respondent
after registration of the land.
[30] The valuation
report ‘VA17’ annexed to the first respondent’s
papers confirmed that monies paid over for
the D[...] H[...] project
had to be held in trust. The applicants contend that on the increase
in value of the shares first respondent
initially held in Rouleti he
was liable for capital gains tax he had not charged. If on the
version of the first respondent the
applicants had become
shareholders in Rouletti before expropriation date, he had not
disclosed their entitlements and he had not
allowed them
participation in the proceeds of expropriation. Of concern was that
Rouleti had not commenced business neither did
it have a bank account
when a considerable part of D[...] H[...] was expropriated.
[31] An
investigation on behalf of the applicants conducted on the 18 August
2009 regarding the register of members in Rouleti revealed
that
neither the first respondent nor the applicants were recorded as
shareholders in the Rouleti. Therefore, first respondent
could not
purport to transfer any shareholding to the applicants. Furthermore,
according to the auditors the shares were held by
JAP Trust (‘the
trust’) and they denied any participation in the issue of
shares to the applicants.
The applicants
contend that the first respondent had also lied about his involvement
with the advertisement placed for the sale
of property at D[...]
H[...]. In response to enquires by Mr Klopper relating to the
advertisements for the sale property at D[...]
H[...], the first
respondent in an e-mail dated 2 April 2009 stated the following:
“
Indien
jy nou inkoop, koop jy aandele in ‘n privaatmaatskappy was
skuldvry is en die grond besit. Jou % aandele sal gelyk
wees aan die
hoeveehied erwe
was
jy besit. Jy sal
ook van die Gps punte van jou erf voorsien word. Wanneer jou erf se
titelakte aan jou oorhandig word, gee jy jou
aandele sertifikaat
terug en vervaI jou aandele in die maatskappy’’
The estate agents
dealing with the sale of the properties was Seeff Estate Agents,
Lydenburg and the proprietor was Early Moon Trading
311 CC of which
first respondent was the sole member. The first respondent was also
the licensee of the said agency. The sixth
respondent was the
attending to the transfers.
[32] According to
the applicants there was sufficient evidence to pierce the corporate
veil. They had been defrauded by the first
respondent who had been
aware of the dispute concerning the shares in Osprey prior to him
receiving R5million from the applicants
for the acquisition of 10%
interest in the mine. He had failed to account for the balance of
approximately R4 million which remained
after R794 000.00 had been
paid to paid to van Aarde. The applicants believed that the monies
had been spirited away to ‘corporate
structures close
corporations and trusts referred to by him. The first respondent had
not provided the applicants with an inventory
of his assets.
[33] The applicants
averred that they were unable to trace any meaningful assets
registered in the first respondent’s personal
name, that
whatever assets were present were linked to corporate companies in
the form of loan accounts in or personal claims to
shares.
THE LAW
[34] It was
submitted on behalf of the respondents that for purposes of this
Application, the aspect of the lack of jurisdiction
of this court to
deal with the Mozambique project would not be pursued. The issue
whether certain parties should have been joined
as contended by the
first respondent shall be dealt during my consideration. Furthermore,
without saying much the matter pertaining
to the Ospery Gold mine
would not be considered in detail because it is my prima facie view,
that from the versions of the parties
a number of disputes of facts
arise which was in any event conceded on behalf of the parties.
[35]
It is trite that in an application for an ‘ anti-dissipation
interdict
in
securitatem debiti
’
,
the applicant must
prima
facie
satisfy
the court that the ‘respondent had no bona fide defence to the
action and that, objectively considered, there were
good grounds for
fearing that he intended to make away with his assets in order to
defeat the applicant’s claim’,
Bester
v Van Niekerk 1960(2) SA 363 (E)
at
365 H
and
Knox D’Arcy
Ltd And Others v Jamieson and Other’s
1994 (3) SA 700
(WLD)
at
706 B-D.
[36] It was
submitted by Mr Van der Merwe that the applicants had on the facts
established on a preponderance of probabilities that
they were
creditors of the first respondent and that there was likelihood that
first respondent, through the remaining respondents,
intended
disposing of assets in order to defeat the applicants claims. Mr
Cilliers argued that the applicants had failed to deal
with the most
important element being, to prove such facts from which the court
could conclude that the respondents intended or,
were in the process
of getting rid of any of their assets in order to defeat any claims
the applicants might have against them.
[37] It was common
cause that the applicants paid £85 000 and £35 132.10
respectively to the first respondent in respect
of their interest in
the D[...] H[...] project. The four versions on the D[...] H[...]
project were the following:
(a) According to the
second applicant it did not concern him under which title he would
have acquired the property, whether in his
personal capacity or as a
shareholder. It was also clear from his version that at an early
stage of the negotiations the possibility
of the property being
transferred into a company for the benefit of investors was discussed
with the first respondent and only
later was the company identified
as Rouleti.
(b) The first
respondent averred that from the beginning the property pointed out
as the property over which the second applicant
would acquire
interest was held by Rouleti and that the purchase price would
entitle the second applicant to 4% shares in Rouletti.
The shares
would entitle the second applicant to the exclusive use of 1 hectare
on a portion of portion 1 of the Farm Uitvlugt.
(c) In his
confirmatory affidavit Botes admits to having informed the second
applicant of the project and that he introduced him
to the first
respondent. He averred further that during 2005 he acquired an
interest in the project in the form of 4% shares in
Rouleti and the
first respondent had informed him that ‘the members’
interest in the company which is the registered
owner of the land,
belonged to him and a partner.
(d) Then the first
respondent’s explanation to Mr Klopper also identified the
purchase of shares in a company, which shares
were equivalent to the
number of properties a purchaser was entitled to and which shares
would be exchanged for the title deed
on registration.
The purpose for
which shares would be sold to obtain interest in the immovable
property were recorded in minutes of the shareholders
meeting in
annexure ‘VA14’.
[38] Having regard
to the above versions and the common factor being, the sale or
purchase of shares to gain an interest in the
immovable property, the
likelihood is that such shares were purchased from Rouleti, in whose
name the immovable property was registered.
While not seeking to
question the route of payment via Mrs Eilsellen, this was regardless
of the fact that payment had been made
to the first respondent in his
personal capacity. Having arrived at this conclusion and, as
correctly submitted for the respondents,
it would have become
necessary in my view, for the applicants to have joined Rouleti as a
respondent.
[39]
It was submitted for the applicants that it made no difference which
version was accepted and that in the event that the respondents
version was accepted then, the transactions for the acquisition of
shares in the project was in contravention of sections 16 and
18 of
the Share Block Control Act, consequently the transactions were void
and the applicants were entitled to restitution. In
my view it was
only if Rouleti was joined as one of the respondents that one would
gain a better understanding of the history of
shareholding of the
company and whether any of the respondents benefitted in any manner
from Rouleti direct or via the trust to
the prejudice of the
applicants; an explanation of the sale of shares in Rouleti and if
the conduct of the first respondent in
as far as it related to the
applicants was fraudulent; whether or not the sale of shares and
interest in the immovable property
at D[...] H[...] constituted a
contravention of the
Share
Block Control Act 59 of 1980;
an
explanation of which shareholders stood to gain from the
expropriation and against whom the applicants had a claim.
[40]
While it would seem that certain explanations of the first respondent
were evasive, for example, his refusal to respond to
enquiries by Mr
Steenkamp who acted on behalf of the applicants, it would serve no
purpose in giving the applicants the opportunity
to join Rouleti. The
question that needs to be asked is whether the applicants have
satisfied the second leg of the application
being to prove on a
balance of probabilities that the first respondent was depleting his
assets or interests in the other respondent
in order to frustrate the
applicants in their intended claims against the first respondent. In
the
Knox D’Arcy
1996(4) SA 348
at
372 E-F,
an
extract from
Mcitiki
and Another
v
Maweni
1913 CPD 684
at
687
is
quoted with approval as establishing the standard:
“
....(T)hey
all proceed upon the wish of the court that the plaintiff should not
have an injustice done to him by reason of leaving
his debtor
possessed of funds sufficient to satisfy the claim,
when
circumstances show that such
debtor
is wasting or getting rid of such funds to defeat his creditors
,
or is
likely
to so
do”
(my
underlining)
It is my view that
even where it is alleged that the first respondent does not have
property registered in his personal capacity,
he seems to be a man of
some substantial wealth through his shareholding in certain
companies, e.g. in Rouleti, in second and third
respondent’s
and the Ospery Gold Mine. The applicants have not satisfied me that
there exists sufficient facts from the founding
and replying
affidavits from which I could objectively determine an intent harmful
to the cause of the applicants, by the respondents.
In as far as the
fourth to the sixth respondent are concerned it would be speculation
to assume that the source for funding of
the acquisition of the
Marlothpark property and that acquired at D[...] H[...] by the sixth
respondent were through income acquired
from the applicants by the
first respondent. Information acquired by the applicants in this
regard amounted to hearsay and could
not be used to confirm their
version of how these properties were funded. It is evident from the
founding affidavit that the first
respondent in all likelihood may
not be the sole shareholder in the in the second and third
respondent.
It
was therefore correctly submitted by Mr Cilliers that an order such
as the one sought had far reaching implications and would
in all
probability infringe upon the Bill of Rights in the Constitution, of
individuals likely to be affected by the order and
reference was made
to the following passage by Stegmann J in the
Knox
D’Arcy matters 1994 (3)
at
708 B-D and (1996)
at
380 A-B:
“
The
exercise of such powered must be attended with due caution; with all
practical safeguards against abuse; and with a careful
attempt to
visualise the ways in which the order may prove to be needlessly
oppressive to the intended defendant. Consideration
must also be
given to the manner in which the order may interfere with the rights
and obligations of third parties, such as banks
or other debtors of
the intended defendant, or other custodians of the intended
defendants assets. Both the oppressiveness of the
order to the
intended defendant and its interference with the rights and
obligations of third parties must be kept to the minimum....”
[41]
Even if the applicants paid the money directly to the first
respondent, which could be viewed as a ground for
prima
facie
establishing
that the applicants were entitled to the interdict, the fact that
there was a genuine apprehension of injury did not
entitle the
applicant to an order unless the requirements for the interdict were
proved on a balance of probabilities.
[42] In the premises
the following order is made:
“
The
interim interdict in respect of the respondents is discharged with
costs.”
TLHAPI VV
(JUDGE OF THE HIGH
COURT)
ATTORNEYS FOR THE
APPLICANTS: JOHAN VAN RENSBURG
ATTORNEYS C/O
COUZYN, HERTOZOG & HORAK, PRETORIA
COUNSEL FOR THE
APPLICANT: MP VAN DER MERWE
ATTORNEYS FOR THE
RESPONDENTS: BRANDMULLER
ATTORNEYS C/O JOHAN
JORDAAN ATTORNEYS
COUNSEL FOR THE
RESPONDENTS: JG CILLIERS SC