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[2011] ZASCA 70
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Zwarts v Janse van Rensburg NO and Others (590/10) [2011] ZASCA 70 (25 May 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 590/10
No precedential
significance
In the matter between:
DANIEL JOSEPH ZWARTS
.........................................................................
APPELLANT
and
JACOBUS HENDRIKUS
JANSE VAN RENSBURG N.O.
.................
1
ST
RESPONDENT
PHILIP FOURIE N.O.
..........................................................................
2
ND
RESPONDENT
JACOB LUCIEN LUBISI
N.O.
............................................................
3
RD
RESPONDENT
MAMPINA MALATSI-TEFFO
N.O.
.....................................................
4
TH
RESPONDENT
ENVER MOHAMMED MOTALA
N.O.
................................................
5
TH
RESPONDENT
RABOJANE MOSES KGOSANA
N.O.
...............................................
6
TH
RESPONDENT
(in their capacities as
joint-liquidators of
MP FINANCE GROUP CC [IN
LIQUIDATION])
Neutral citation
:
Zwarts v Janse van Rensburg
(590/10)
[2011] ZASCA 70
(25 May
2011)
Coram:
NAVSA,
HEHER, SNYDERS, SHONGWE JJA and MEER AJA
Heard:
3 May 2011
Delivered:
25 May
2011
Updated:
Summary:
Company –
liquidation – consolidation of corporate entities for purpose
of liquidating pyramid scheme – voidable
disposition – s
29 of
Insolvency Act 24 of 1936
– identification of debtor.
____________________________________________________________________________________
ORDER
On appeal from:
Free State High Court
(Bloemfontein) (Cillié J sitting as court of first instance):
The appeal is dismissed
with costs.
_______________________________________________________________________
JUDGMENT
_____________________________________________________________________
HEHER JA (NAVSA, SNYDERS,
SHONGWE JJA AND MEER AJA concurring):
[1] The liquidators
issued summons against Mr Zwarts in July 2005 claiming an order in
terms of
s 29
of the
Insolvency Act 24 of 1936
setting aside payments
allegedly made to him by the Krion Scheme and payment of R266 425-00
as an alleged undue preference together
with mora interest on that
sum.
[2]
The action was defended and proceeded to trial before Cillié J
in the Free State High Court. The liquidators adduced
the expert
evidence of Mr Harcourt-Cooke and the first appellant testified as
well as two former employees of Ms Prinsloo, on his
behalf. Counsel
for the defendant had conceded the
locus
standi
of the
liquidators. Before this Court he sought to withdraw that concession.
As the issue has been disposed of in the
Steyn
judgment delivered today, which is of
equal application to the present appeal, there is no need to take
that matter further.
[3]
It is unnecessary to repeat my reasoning in relation to the aspects
dealt with in the
Steyn
and
Botha
1
appeals the judgments in which will
be handed down with this judgment. Suffice to say that other than in
regard to the evidence
of the respective defendants in the actions
what I have said there applies with equal force in this appeal.
[4] The remaining issue
at the trial was the identity of the person or entity with whom Mr
Zwarts contracted and by whom he was
paid the ‘dividends’
on his investment. Cillié J said in this regard:
‘
Ten
aansien van paragraaf 1.2 is deurgaans deur Mnr Mills namens die
verweerder tydens die eiser se saak voorgehou dat die verweerder
eintlik by ene Marietjie Prinsloo sy belegging gedoen het en nooit
met enige van die maatskappye wat individueel die saamgevoegde
gelikwideerde boedel daarstel gekontrakteer het nie.
Die
verweerder het egter sommer in hoofgetuienis reeds getuig dat hy sy
belegging by die maatskappy gedoen het. Dit is later uitdruklik
deur
hom toegegee in kruisverhoor dat hy dit nooit verstaan het dat
Marietjie Prinsloo persoonlik sy mede kontraktant was nie.
Ook is
pertinent deur hom getuig dat hy die maatskappy aanspreeklik sou hou
om sy fondse terug te betaal indien ooit nodig. Mnr
Du Toit, namens
die eiser, het hierop op sy betoog gesuggereer dat hierdie ‘n
teoretiese verweer is wat deur ‘n regsverteenwoordiger
uitgedink is en wat nie gefundeer is in enige werklikheid nie. Ek
stem hiermee saam.’
He accordingly made the
order as prayed and subsequently refused leave to appeal. The matter
is now before us with leave of this
Court.
[5]
Substantially the same question must be answered in the appeal: Does
the evidence prove that Mr Zwarts was an investor in the
Krion
Scheme? If it does, there is an end of the matter since, for the
reasons given in the
Steyn
judgment
he is bound by the order made by Harzenberg J.
[6] Mr Harcourt-Cooke a
chartered accountant who after liquidation conducted a forensic
investigation into the affairs of the Scheme,
produced the
defendant’s investor file which had apparently been recovered
from the premises from which the scheme’s
activities were
carried on in Vanderbylpark. Among the documents in the file were:
1. A membership
certificate in MP Finance Sacco reflecting one share in that entity
for an investment of R40 000 for a period of
12 months dated 11
October 2000.
2. An agreement,
apparently in relation to the same share, signed by Mr Zwarts and M J
Pelser as ‘Eienaar’ on 11 October
2000.
3. A share certificate
for one share in Madikor Twintig (Edms) Bpk dated 11 October 2000 at
a recorded price of R40 000,00.
4. An agreement dated 11
October 2000 in which Martburt Finansiële Dienste Bpk
acknowledges receipt of R40 000 and undertakes
to pay to Mr Zwarts
monthly dividends totalling R37 611.41.
5. An agreement,
apparently in relation to the same share, signed by Mr Zwarts and M J
Pelser (Ms Prinsloo) as ‘Besturende
Direkteur’ on 11
October 2000.
6. A ‘Pro Forma’
certificate for one share in Madikor Twintig (Edms) Bpk dated 8 June
2001 for an investment of R40
000,00 for a period of 12 months. (This
is on the letterhead of Martburt Finansiële Dienste Bpk and is
signed by M J Pelser
without further description, although six
directors are named at the foot including M J Pelser and I
Engelbrecht.)
7. A membership
certificate in favour of D J Zwarts dated 8 June 2001 in which H H
Prinsloo on behalf of M & B Koöperasie
Bpk grants one share
in that entity in return for payment of R115 000 for 12 months at a
return of 10 per cent per month.
8. A membership agreement
dated 29 October 2001 between Mr Zwarts and M & B Koöperasie
Bpk acknowledging receipt of R450
000 and undertaking to pay
dividends totalling R1 412 292.77 to Zwarts.
9. A receipt issued to
the defendant by I Engelbrecht as agent for M & B Korporasie Bpk
for R115 000 on 2 November 2001 for
shares purchased in that entity.
10. A notice of
withdrawal ‘van my geld by die maatskappy’ (unspecified)
dated 29 Maart 2002 for an amount of R194 035-70,
signed by Mr Zwarts
and an unidentified member on behalf of the (unspecified) company.
11. An undated
acknowledgement of receipt in which Mr Zwarts states that he confirms
having invested the sum of R1 171 035.20 in
Madikor Twintig (Edms)
Bpk, M & B Koöperasie and Martburt Finansiële Dienste
Bpk and having received that amount
from the three entities as full
and final payment on 1 April 2002.
12. An application for
977 shares in Krion Financial Services Ltd in the name of the
defendant dated 1 April 2002.
[7] The evidence of Ms E
V Denyssschen did not assist the appellant. While insisting that Ms
Prinsloo merely used the companies
as a front, when driven into a
corner she protested,
‘
Wel
om eerlik te wees ons het ook nie geweet wat haar metode van haar
werk was tot op die einde nie. Ons het maar net gedink ons
doen ‘n
eerlike werk vir haar.’
She conceded that ‘die
besigheid was alles maar een besigheid’ irrespective of the
succession of companies.
[8] When Mr Zwarts
enquired about the changing parade of companies he simply accepted
the assurance of Ms Engelbrecht, one of Prinsloo’s
cohorts in
the scheme, that he was investing in a new company. As he admitted,
he was ‘onkundig’. His evidence added
nothing to suggest
that Ms Prinsloo was operating the scheme in person or that she gave
undertakings or incurred obligations in
her own name.
[9] In my view Cillié
J was correct to find that in contracting with the agents
representing the scheme Mr Zwarts was contracting
with the corporate
entities operating its business as from time to time and not with Ms
Prinsloo personally. The debtor that made
the disposition is in the
circumstances deemed to be the consolidated estate into which each of
those entities has been subsumed
and the creditor entitled to claim
repayment is likewise the consolidated estate in the hands of its
liquidators.
[10] The appeal has no
merit. It is dismissed with costs.
____________________
J A Heher
Judge of Appeal
APPEARANCES
APPELLANT: G P Mills
Mills & Groenewald
Attorneys, Vereeniging
Naudes Attorneys,
Bloemfontein
RESPONDENTS: F du Toit SC
Thys Cronje Inc, Pretoria
C/o Van der Merwe &
Sorour, Bloemfontein
1
ZASCA
71 and 72 respectively.