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[2018] ZAGPJHC 543
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Prodist (Pty) Ltd v Coca Cola Shanduka Beverages SA (Pty) Ltd and Another; Coca Cola Shanduka Beverages SA (Pty) Ltd v Total Auctioneering Services and Sales CC t/a Consolidated Auction Group (2016/28375) [2018] ZAGPJHC 543 (17 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE NO: 3330/2018
In
the matter between:
PASHA
IMPORT AND EXPORT CC
APPLICANT
And
YANAR
HUSREV
1
ST
RESPONDENT
HACER
YANAR
2
ND
RESPONDENT
JUDGMENT
TSOKA J
[1]
On 30 May 2018, this Court (Molahlehi J) granted a provisional order
of sequestration against the two respondents.
[2]
The application for the sequestration of the estate of the
respondents was brought by the applicant, Phasha Import and Export
CC
(Phasha) whose main business is the importation of carpets from
Turkey into South Africa.
[3]
The two respondents are Husrev Yanar (Husrev) and Hacer Yanar (Hacer)
who are married to each other according to the laws of
Turkey.
[4]
The order referred to in paragraph 1 above was returnable on 19 June
2018. On that day, as it was opposed, it was postponed
to 10
September 2018 for argument. This is the application that served
before me on that day.
[5]
Phasha seeks confirmation of the order while Husrev and Hacer opposed
the order sought. In order for the former to succeed,
it must prove
on a balance of probabilities that the requirements of the provisions
of s12 of the Insolvency Act 24 of 1936 (the
Act) have been met. For
the latter to succeed in resisting the order sought, they merely have
to show that they resist the order
on bona fide and reasonable
grounds.
[6] Section 12 of the Act
provides that –
‘
(1)
If at the hearing pursuant to the aforesaid rule nisi the court is
satisfied that –
(a)
the
petitioning creditor has established against the debtor a claim as is
mentioned in subsection 1 of section nine;
(b)
the
debtor has committed an act of insolvency or is insolvent; and
(c)
there
is reason to believe that it will be to the advantage of creditors of
the debtor if his estate is sequestrated, it may sequestrate
the
estate of the debtor.
(2) If
at such hearing the court is not so satisfied, it shall dismiss the
petition for the sequestration of the estate of the debtor
and set
aside the order of provisional sequestration or require further proof
of the matters set forth in the petition and postpone
the hearing for
any reasonable period but not sine die’.
[7]
Phasha alleges that it is the creditor of Husrev and Hacer who are
indebted to it in an amount of not less than R100 as referred
to in
subsection 1 of section nine of the Act, namely the amount of about
R4.9 million. It is Phasha’s allegations that Husrev
is its
erstwhile employee who was employed as a manager with full authority
to manage the former’s business including the
operation of its
business accounts, its stock inventory programme; its invoicing and
accounting programme; the cash-flow and its
customer relations.
Husrev was entrusted with these responsibilities as Phasha’s
sole member, Fatih Erdogan (Erdogan) was
in Turkey which is the home
country of both Husrev and Erdogan.
[8]
On 24 December 2017, Erdogan came into the country while Husrev was
on leave until 15 January 2018 to oversee Phasha’s
business.
Later that month, the former noticed a customer, one Begashaw
purchasing and removing stock from the business of Phasha
without
paying for it. This was a surprise and shock to him. He, Erdogan
enquired from the bookkeeper what the procedure is in
purchasing
stock. The bookkeeper informed him that it is a normal practice that
customers take stock without paying and that payment
usually is made
only after delivery has been effected.
[9]
In early January 2018, Begashaw again collected stock from Phasha
without any payment having been made. He, Erdogan, then phoned
Begashaw and enquired about the payment. It was only then that
Erdogan learnt that payment was in fact made. Begashaw immediately
sent proof of payment made on
20 December 2017 in the amount of
R28 000 into the bank account of an entity known as Allemris Trading
and Investments (Allemris)
and another one made the following day in
the amount of R520.00 also made into Allemris’ bank account.
[10]
It is common cause that Allemris has no relation with Pasha. The
former, which is also a close corporation, was once run by
Husrev in
Cape Town as a restaurant business. It has since been handed over to
Husrev’s brother while the latter remains
its sole member.
Later Husrev’s brother also disposed of the restaurant business
to a third party. Shocked by the discovery,
he phoned Husrev in
Turkey to return to South Africa.
[11]
On 10 January 2018 Husrev returned to South Africa. On being
confronted of the payment in the sum of R28 520 made into Allemris
instead of Phasha’s account, the former explained that as he
left South Africa in hurry, he forgot to pay the amount into
the
correct account. He then explained that he has since re-transferred
the amount in the bank account of Phasha’s clearing
agent,
namely NC Du Plooy Logistics.
[12]
Erdogan sensing that something untoward was happening, demanded
Husrev to open the latter’s laptop. To his shock Erdogan
discovered that numerous payments intended for Phasha were made into
the account of Allemris. The initial investigation revealed
that
these payments amounted to R4.9 million. Erdogan then realized that
Husrev perpetrated fraud on Phasha and Husrev realizing
that his game
was up, undertook to transfer his immovable property to Erdogan and
immediately surrendered his Mercedez Benz 350ML,
Golf CC and the
Citroen C4 motor vehicles to Erdogan. According to Erdogan, not only
did Husrev confess to the fraud but requested
Erdogan not to publish
his shenanigans in his home country. He also handed Phasha the title
of his immovable property.
[13]
Dissatisfied with Husrev’s tender, Erdogan laid a criminal
charge of fraud against the former. This is still pending.
While the
criminal charges were still pending, Husrev, sold all his other
assets, took his children out of school and left South
Africa.
[14]
Sight should not be lost that Husrev is a Turkish citizen who came
into this country on an inter-company transfer and temporary
permit
that expires on 18 October 2021. For this court to have jurisdiction
over him, an order for attachment of his property to
confirm
jurisdiction had to be obtained.
[15]
From Phasha’s allegations, it is obvious that Husrev is
indebted to the former in an amount of not less than R100 i.e
R4.9
million. His sudden departure from the Republic of South Africa to
his home country; the selling of some of his movable properties
and
the uprooting of his children from school to Turkey envinces an
intention to evade his financial responsibilities to Phasha.
The
inevitable conclusion reached is that he committed an act of
insolvency in terms of section 8(a) of the Act in that his departure
from the Republic was solely with the intention to evade or to delay
his indebtedness to Phasha. In any event other than the immovable
property that is worth R1 million, which he owns, he has no other
assets. The value of Husrev’s assets do not exceed Phasha’s
loss in the amount of R4.9 million. In the circumstances, Husrev has
not only committed an act of insolvency, he is in fact insolvent
as
his liabilities are more than his assets. There is therefore reason
to believe that it will be to the advantage of his creditors
if his
estate is sequestrated.
[16]
Husrev on the other hand contends that the order of provisional
sequestration should not be confirmed. The contention is based
on his
assertion that he resists Phasha’s provisional order on bona
fide and reasonable grounds. This contention is shared
by Hacer.
[17]
According to Husrev, Allemris was used by Phasha to launder money
with the sole aim of defrauding the South African Revenue
Service.
The utilization of the account of Allemris, so the contention goes,
was with the blessing and approval of Phasha. The
latter demanded
from its customers to settle their purchases by utilizing Allemris
and other third partie’s accounts in order
to minimize its
turnover thus reducing its tax to be paid to the fiscus.
[18]
Husrev’s contention is at odds with the objective evidence in
this matter. If indeed there was a scheme devised by Phasha
to
default the fiscus of the tax to be paid, it does not make sense that
Phasha on its own initiative queried Begashaw when the
latter on two
occasions collected purchases without paying for them. At that time
Husrev was on leave and in Turkey and there is
no plausible reason
why Phasha would question the very scheme it devised to defraud the
fiscus.
[19]
It is common cause that Allemris was first given to Husrev’s
brother to operate as a restaurant in Cape Town. It has
since been
disposed of to a third party. In spite of the disposal, Husrev still
remains its sole member. He still has an unlimited
access to the
account of Allemris. He still uses Allemris’ account for his
personal accounts. The third party to whom the
restaurant was sold
to, has also access to the account of Allemris. As to how the R28 520
paid into the latter’s account
in December 2017 was to be
separated from the third party’s personal money and that of
Husrev is not explained. That this
explanation is contrived, admits
no doubt.
[20]
On January 2018 when Phasha confronted him about the December 2017
payment made by Begashaw into Allemris’ account, if
there was
this elaborate scheme to defraud the South African Revenue Service,
his explanation was “I simply forgot to transfer
the money into
Mufy Carpet’s nominated account”, instead of just
reminding Phasha of the existing money laundering
scheme between
Phasha and Allemris. That Husrev’s contention is contrived and
an afterthought to explain his fraud on Phasha,
is clear. In the
result I find that the resistance of the confirmation of the
provisional order is not on bona fide and reasonable
grounds. The
provisional order of sequestration must be confirmed.
[21] The following order
is made –
21.1 The provisional
order granted on 30 May 2018 against the respondents is hereby
confirmed.
21.2 The costs of the
application shall be costs in the sequestration.
____________________
M TSOKA
JUDGE OF THE HIGH
COURT
Date
of hearing: 12 September 2018
Date
of judgment: 20 September 2018
Appearances:
Counsel
for the Applicant: Adv Kaplan
Instructed
by: Hirschowitz Flionis Attorneys
Counsel
for the Respondent: Adv Mostert
Instructed
by: Shaheed Dollie Incorporated