About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2016
>>
[2016] ZAKZPHC 46
|
|
Kruger v Dhlamini and Others (2914/2015) [2016] ZAKZPHC 46 (27 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: 2914/2015
DATE:
27 MAY 2016
In
the matter between:
JOHANNES
GEORGE
KRUGER
...................................................................................
APPLICANT
And
MUSI
JEFFREY
DHLAMINI
.................................................................................
1st
RESPONDENT
THABSILE
BUSISIWE
DHLAMINI
...................................................................
2nd
RESPONDENT
REGISTRAR
OF DEEDS,
PIETERMARITZBURG
..........................................
3rd
RESPONDENT
ORDER
(a)
The rule nisi issued on 13 March 2015 is confirmed.
(b)
The 1st and 2nd respondents are ordered to pay the applicant’s
costs, such costs to include the costs of two counsel.
JUDGMENT
SEEGOBIN
J:
INTRODUCTION
[1]
This is the extended return day of a
rule
nisi
granted
ex
parte
by my brother Mnguni J on 13
March 2015. The first and second respondents (‘the
respondents’) have since opposed
the confirmation of the rule.
At the opposed hearing on 23 May 2016 the applicant was represented
by
Mr Theron SC
and
Mr Combrink
and the respondents were represented by
Mr
Zondi
and
Mr
Dlamini
.
BACKGROUND
FACTS
[2]
The applicant is the appointed repayment administrator in terms of
the provisions of s84(1) read with the provisions of s83(1)
of the
Banks Act 90 of 1990 (‘the Banks Act’).
[3]
On 18 March 2011 the applicant was appointed as an inspector in terms
of the provisions of s11(1) read with the provisions of
s12(1)
of the
South African Reserve Bank Act 90 of 1989
of,
inter
alia
TV1 Express and/or any related
person or entity. The applicant was required to establish
whether or not TV1 Express and any
related person or entity conducted
the business of a bank or mutual bank in contravention of the Banks
Act and/or the provisions
of the Mutual Banks Act 80 of 1998.
TV1 Express is known to be an international scheme operating under
numerous aliases including,
but not limited to, Travel Ventures
International and TV1 (TV1).
[4]
The investigations conducted by the applicant in his capacity as an
inspector revealed that TV1 was being marketed and/or endorsed
and/or
participated in by a number of persons and entities (‘distributors
or participants’), and these included the
respondents herein.
In effect, the TV1 scheme has been found to be a pyramid scheme which
is conducted in complete contravention
and violation of the
provisions of the Banks Act.
[5]
In their opposing papers the respondents have admitted their
participation in the TV1 scheme as distributors. They also
admit that it is a pyramid scheme. They aver, however, that
they too, like many other people, also became victims of the
scheme.
There is no dispute regarding their ownership of the various assets,
both movable and immovable, identified by the
applicant in his
founding papers.
[6]
On 26 September 2014 the applicant was appointed as a repayment
administrator as already mentioned above. On 29 September
2014
the Registrar of Banks issued a directive in terms of the provisions
of s83(1) read with the provisions of s84 of the Banks
Act wherein
the respondents were directed to repay all monies obtained in
contravention of the Banks Act.
[7]
It is common cause that the respondents have failed to review the
decision of the Registrar of Banks to issue the aforesaid
directive
against them.
RESPONDENTS’
DEFENCES
[8]
The respondents’ defences are premised on two points
in
limine
raised by them in their opposing
affidavits: the
first
is that the applicant has failed to disclose material facts in order
to warrant the relief sought in the application; and the
second
is that there is no such provision as s84(1A)(b)(i) in the Banks Act
as relied upon by the applicant. By the time the
matter
was argued on 23 May 2016, the respondents had effectively abandoned
the second point
in limine
relating to the existence of the provisions of s84(1A)(b)(i) in the
Banks Act. In their heads of argument and in oral submissions
counsel for the respondents contended that there was a dispute of
fact regarding the amount to be paid to the applicant as well
as
disputes regarding the actual amount received by the respondents.
Because of these alleged disputes it was submitted that
the matter be
referred for the hearing of oral evidence. Additionally, and
for the first time, the respondents also contended
that their rights
to property would be seriously violated in terms of section 26 of the
Constitution (Act 108 of 1996) if the rule
nisi
were to be confirmed. It was argued that the confirmation of the rule
would result in an arbitrary deprivation of property and
this should
not be allowed.
FINDINGS
[9]
Dealing firstly with the constitutional issue as set out above, it is
clear that the respondents have not applied their minds
fully to the
purpose of the application and the powers, duties and obligations of
the applicant which flow from the general scheme
of the Banks Act.
The purpose of the application is clearly to effect an attachment of
the respondents’ assets, the
Registrar of Banks having
satisfied himself that the respondents had obtained monies by
carrying on the business of a bank.
In my view, issues relating
to the deprivation of property do not arise at this stage. They could
well arise at a later stage if
and when the applicant wishes to
exercise his powers under sub-section 84(4)(b) to liquidate assets
which says represent assets
into which unlawfully obtained monies
were converted. Those investigations will also be relevant to
establish who is owed
any money by way of repayment pursuant to the
unlawful obtaining of deposits. I have no doubt that when that
stage is reached
(if it is) the respondents will be afforded ample
opportunity of raising whatever issues they want to in connection
therewith.
[10]
The respondents’ contention that there are disputes of fact
regarding the amount to be paid to the applicant and the
actual
amount received by the respondent is, in my view, irrelevant.
What is relevant is the attachment of the respondents’
assets
in terms of the Banks Act pursuant to a written directive issued by
the Registrar of Banks in terms of s83(1) of the Act.
This
directive is contained in annexure ‘JGK8’ to the founding
papers. The respondents have not taken any steps
to review or
otherwise set aside the Registrar’s decision and the directive
therefore stands
[1]
.
[11]
In terms of s84(1A)(b) the applicant is obliged to recover and take
into his possession all of the assets of the persons subject
to the
directive, in other words, he is obliged to take into possession all
of the respondents’ assets, and not only any
assets that may
somehow be connected to the respondents involvement with the TV1
scheme. At issue in this application is
simply the attachment
of the respondents’ assets at this stage and not whether they
have contravened the provisions of the
Banks Act or not.
[12]
In my view, the respondents have clearly misconstrued the true nature
and purpose of the application. I find no merit
in any of the
defences raised by the respondents whether in their answering papers
or belatedly in their heads of argument.
I am accordingly
satisfied that the rule must be confirmed. The costs of two
counsel are justified and this will be reflected
in the order I make.
ORDER
[13]
The order I make is the following:
(a)
The rule
nisi
issued on 13 March 2015 is confirmed.
(b)
The 1
st
and 2
nd
respondents are ordered to pay the applicant’s costs, such
costs to include the costs of two counsel.
Date
of Hearing : 23 May 2016
Date
of Judgment : 27 May 2016
Counsel
for Applicant : EL Theron SC & LE Combrink
Instructed
by : Bowman Gilfillan Inc.
c/o Austen
Smith Attorneys
Counsel
for Respondents : S Zondi & MW Dlamini
Instructed
by : Thungo Attorneys
c/o
LB Majola Inc.
[1]
Ouderkraal
Estates (Pty) Ltd v City of Cape Town and Others 2004(6) SA 222
(SCA).