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[2010] ZAGPPHC 149
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Ramalho NO and Others v Potgieter (23133/09) [2010] ZAGPPHC 149 (12 October 2010)
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Case
no: 23133/09
DATE: 12/10/2010
IN THE
MATTER
OF:
GEORGE DA SILVA RAMALHO NO
..............
FIRST
PLAINTIFF
AMORE YEUN
NO
............................................
SECOND
PLAINTIFF
ANNA FRANCINA VENTER NO
.....................
THIRD
PLAINTIFF
(in their capacity as the duly appointed liquidators
of Money Skills Limited (in liquidation)
And
JUNE MURIEL POTGIETER DEFENDANT
JUDGMENT
BAM
AJ
[1] The plaintiffs in this matter are
the liquidators of Money Skills Limited in liquidation. The
plaintiffs in their capacities
as such sued the respondent
for
the payment of a total amount of R330,250,00 representing separate
amounts as it appears in the particulars of claim to wit
R4 050,00,
R7 750,00, R7 750 and R3010,00.
[2] The plaintiffs averred that the
aforesaid four amount were payments made, respectively on 30-5-2006,
31-07-2006, 30-08-2006
and 1-9-2006, by Money Skills before the final
winding-up of the company on the 22
nd
of March 2007. It is alleged by the plaintiffs that the said amounts
were payments constituting disposition of Money Skill’s
property within the meaning of section 2 of the Insolvency Act, Act
24 of 1936 as read with section 340(1) of Act 61 of 1973, the
Companies Act.
[3] It was further averred by the plaintiffs that the
said dispositions:
(a) were not made for value;
(b) were made within two years of the winding-up of
Money Skills;
(c) fall to be set aside in terms of the provisions of
section 26(1)(b) of the Insolvency Act as read with section 340 of
the Companies
Act, in that Money Skills has been wound-up and is
unable to pay all its debts.
[4] The defendant, in a plea, denied
that this court has jurisdiction to hear and to adjudicate this
matter. It was pleaded that
the defendant did not ordinarily reside
within jurisdiction of this court and that the cause of action did
not arise within its
jurisdiction.
[5] The defendant further denied all
the averments made by the plaintiffs safe for pleading that in the
event of this court finding
that monies were in fact paid to her by
Money Skills, that those monies were paid to her for no other purpose
than “the discharge
of a lawful obligation by Money Skills
Limited to the defendant; alternatively that it constituted payment
by Money Skills to the
defendant on behalf of a third party.”
[6] This matter came before me on 6
August 2010l. Mr Pretorius, appearing for the plaintiffs informed me
that there was no appearance
for the defendant and that the defendant
was clearly in default. My attention was drawn to the notice of
withdrawal, signed by
the defendant’s attorneys of record,
which was purportedly filed on 4 August 2010 but which bore no
official date stamp of
the registrar. In referring me to the bundle
of notices as well as the documents pertaining to the preparation for
trial, including
the Rule 37 notice, Mr Pretorius urged me to rule
that the plaintiff is entitled to proceed with the matter in view of
the fact
that all the relevant documents in the court file indicated
that the respondent knew quite well that the plaintiffs intended to
proceed with the matter and in view of the fact that there is no
excuse whatsoever why the defendant is absent. Mr Pretorius’s
argument included the submission that the plaintiffs would in the
circumstances be extremely prejudiced if the matter would not
proceed.
[7] The submissions made by Mr
Pretorius seemed to me to be correct, I ruled accordingly and the
matter proceeded.
[8] Mr George
da
Silva Ramalho, in his official capacity, first plaintiff, testified
on behalf of the plaintiffs. Mr Ramalho testified about
the
situation pertaining to Money Skills, as on the final date of the
winding-up, when the said company was totally insolvent.
The
liquidation did not realise even a cent for distribution amongst the
creditors. According to this witness the business of
Money Skills,
without doubt, amounted to the fraudulent and prohibited so-called
pyramid scheme. Money was invested by mostly
bona
fide
investors putting their hope on an
extremely profitable interest return on their investments. As it
happens in this type of cases
the money invested by Peter was used to
pay Paul.
[9] According to Mr Ramalho the
amounts in question as reflected in the particulars of claim were
amounts paid to the defendant
by Money Skills which were not done in
terms of the provisions of the Insolvency and Companies Acts.
[10] Accordingly, according to Mr
Ramalho, to summarise, the payments were not made for value, were
made within two years of the
winding-up of Money Skills, and fall to
be set aside in terms of the provisions of the Insolvency and
Company’s Acts.
[11] I have endeavoured to summarise
the evidence of Mr Ramalho and I therefore do not in detail repeat
his evidence. I was, however,
satisfied that Mr Ramalho’s
evidence was clear and satisfactory, explaining the case of the
plaintiffs.
[12] Mr Pretorius further referred me
again to the bundles of documents including the bundle pertaining to
the liquidation of Money
Skills which Mr Ramalho has referred to in
his evidence.
[13] The only issue in dispute was
the reason and circumstances pertaining to the payment of the amounts
in question by Money Skills
to the defendant.
[14] Admitting that she has in fact been paid the said
amount, the respondent was in fact obliged to adduce evidence proving
that
the said amounts were paid lawfully to her.
[15] Mr Pretorius referred me to two
recent judgments in connection with the same issues; the plaintiffs
being the plaintiffs in
this matter regarding the liquidation of
Money Skills, but with different defendants.
[16] The first matter (not reported)
is case number 08/4999 South Gauteng High Court, Johannesburg; dated
3
rd
of
March 2010;
Ramalho NO and two others
(the plaintiffs in casu) v Mullah Ebrahim;
(the matter has not yet been reported) case number 08/4898 South
Gauteng High Court Johannesburg (dated 25
th
of June 2010);
Ramalho (and two others)
the plaintiffs (plaintiffs in casu) v Lengane Bolokang
.
These two matters were dealt with on trial by respectfully Jajbhay J
and Masipa J.
[17] The facts of these two matters
and the law issues are similar to the issues
in
casu.
[18] Mr Ramalho, the plaintiff’s
witness
in casu
,
testified in both the above named matters, regarding
inter
alia
the fraudulent pyramid scheme
conducted by Money Skills.
[19] In both matters the learned
judges considered the issues regarding the dispositions of money.
Reference was made to various
decisions in that regard and on page 12
paragraph 16 of the decision of Mulah Ebrahim, Jajhbay J made the
following remark:
“In
my view, it cannot be said that a disposition took place in the
normal cause of business where in the determination of
such a
disposition one is confronted with an unlawful and a tainted scheme.
Here, the evidence clearly establishes that current
investors were
being paid by drawing in third party investors. This is a classic
pyramid scheme which cannot be countenanced”
and on page 13:
“The conduct of the company in affecting payment to the
defendant in circumstances which are dishonest if
not fraudulent,
could not possible constitute disposition in the ordinary cause of
business:”
[20] I am in respectful agreement
with the learned judge in this latter matter. My finding in this
regard is based on the evidence
of Mr Ramalho referred to above,
which is clearly in accordance with his evidence in
Ebrahims
case.
[21] In the
Lengane
Bolokang
matter
supra,
Masipa J, dealing with, as I have said, similar facts, pointed out
what obligation rests on the defendant in such circumstances.
The
defendant has to prove
inter alia
that the payments were indeed made for value, as pleaded
in
casu.
[22] I am satisfied that the
undisputed evidence of the plaintiffs
in
casu
proves the averments made in the
particulars of claim. I am accordingly ruling in favour of the
applicants.
[23] The jurisdiction point falls away by virtue of the
defendant’s default in pursuing the issue.
I make the following order:
(1) It is ordered that the following
dispositions are set aside in terms of the provisions of section
26(1)(b) of the Insolvency
Act, as reads with section 340(1) of the
Companies Act, in the following amounts:
1.1 30 May 2006 – R4 750,00
1.2 31 July 2006 – R7 750,00
1.3 30 August 2006 – R7 750,00
1.4 1 September 2006 – R310
000,12.
(2)
The defendant is ordered to pay the following amounts to the
plaintiffs:
2.1
R4 750.00
2.2
R7 750,00
2.3
R7 750,00
2.4
R310 000,12;
(3)
The defendant is ordered to pay interest on the aforesaid amount,
calculated at the rate of 15.5% from the date on which each
and every
disposition was made.
(4)
Costs of suit.
AJ
Bam
Acting
Judge of the High Court