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[2016] ZAKZDHC 18
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Stuart N.O and Others v Moolla N.O and Others (2816/2016, 2817/2016, 2818/2016, 2819/2016, 2820/2016, 2821/2016, 2822/2016) [2016] ZAKZDHC 18 (29 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NOS: 2816/2016, 2817/2016,
2818/2016,
2819/2016,
2820/2016,
2821/2016 and 2822/2016
In
the matters between:
MICHAEL
LAWRENCE STUART
N.O
.......................................................................
First
Applicant
CHRISTIAAN
FREDERIK DE WET
N.O
...............................................................
Second
Applicant
JERIFANOS
MAS HAM BA
N.O
.................................................................................
Third
Applicant
PULENG
FELICITY BODIBE
N.O
...........................................................................
Fourth
Applicant
(in
their capacity as the duly appointed joint provisional
liquidators
of Carmol Distributors (Pty) Ltd (in Liquidation)
(Master's
reference No. G1 023/2015)
And
YUNUS
GOOLAM HOOSEN MOOLLA
N.O
..........................................................
First
Respondent
FATHIMA
CARAWAN
N.O
....................................................................................
Second
Respondent
PRAKASH
ROBERT DEEPLAL BAICHAN
N.O
..................................................
Third
Respondent
(in
their capacities as the duly appointed trustees of the Yunus Moolla
Trust,
NYM
Family Trust, MZB Famiiy Trust, Carmol Trust, MYM Family Trust,
SM
Family Trust and Mubarakh Trust)
Delivered
on 29
th
of April 2016
TOPPING
AJ
[1]
I have before me seven applications, all
instituted by the First to Fourth Applicant in their capacities as
the joint provisional
liquidators of the insolvent estate of Carmol
Distributors (Pty) Ltd (in Liquidation) (hereinafter referred to as
"Carmor),
seeking orders placing various trusts under
sequestration in the hands of the master of this court. The First to
Third Respondents
are the duly appointed trustees of each respective
trust in respect of which the orders are sought.
[2]
All seven applications were argued
before me simultaneously. Although the applications are not
consolidated, it is convenient to
deal with them in one judgment as
the issues raised in each application are common to all. For the sake
of clarity however I shall
identify the name of the trust in each
application. In the application instituted under case number
2816/2016, the trust is the
Yunus Moolla Trust: in case number
2817/2016, the trust is the NYM Family Trust: in case number
2818/2016, the trust is the MZB
Family Trust: in case number
2819/2016 the trust is the Carmol Trust: in case number 2820/2016,
the trust is the MYM Family Trust:
in case number 2821/2016, the
trust is the SM Family Trust: and in case number 2822/2016, the trust
is the Mubarakh Trust.
[3]
By way of background, it is alleged in
the founding affidavit filed in each of the applications that Carmol
was a private company,
registered in terms of the
Companies Act, No.
71 of 2008
, which has its registered address at 116 Acacia
Greenstone, Edenvale, Gauteng. It is alleged that the First
Respondent was responsible
for the day-to-day running of Carmol and
held himself out as its managing director. The Second Respondent was
however in fact its
sole director. It is stated that the First and
Second Respondents were the initiators, driving forces and
controlling minds behind
Carmol and that the Third Respondent was
involved in its administration and was appointed as its financial
adviser. It is alleged
by the Applicants that Carmol conducted an
illegal scheme in terms of which it ostensibly traded in petroleum
products and obtained
money from members of the public, in the form
of investors, under the pretext that such funds would be used to fund
diesel trading
and the profits generated therefrom would be used to
pay returns to such investors. It is contended that, in truth, the
trading
of petroleum products only occurred a number of years ago.
[4]
It is alleged by the First Applicant,
who deposed to the founding affidavits in each application, that he
had conducted investigations
which revealed that the investors had
signed agreements that were styled as either loan or investor
agreements and that an amount
in excess of R 1 billion had been
invested in Carmol through the scheme. He also stated that there were
approximately 3800 such
investors. It is alleged that the main
business of the scheme was to accept deposits from the numerous
investors and that the “legal
business" was no more than a
front to give an illusion that real business was being conducted.
Investors were offered returns
of between 6% and 8% per month. The
deposits received from investors were applied primarily to effect
return payments to other
investors and to repay participants their
deposits. It is alleged therefore that the scheme’s continued
existence was dependent
on continuously obtaining sufficient
investors in order to obtain the necessary funds to make payment of
the return payment owing
to existing investors. On the First
Applicant’s submission, the scheme’s existence was
temporary and furthermore, by
its very nature, insolvent from
inception.
[5]
The
First Applicant then goes further to state that, as Carmol was
contravening the provisions of section 11 (1) of the Bank Act,
No. 94
of 1990, in that it conducted the business of a bank by soliciting
and accepting loans from the general public in circumstances
where it
was not a registered bank, the South African Reserve Bank issued a
directive to it, the First Respondent and Second Respondent
on the
18
th
of February
2015
to
repay the funds unlawfully obtained by them in accordance with
section 84 of the Banks Act. This led to Carmol being provisionally
wound up on the 1
st
of October 2015, in the Gauteng Local Division, Johannesburg, and
being finally wound up on the 30
th
of November 2015. Attention is drawn to the fact that in the judgment
delivered upon the granting of the final winding up order,
the court
stated that “
there
is more than a prima facie case, and the probabilities favour the
Applicant’s (i.e. the Registrar of Banks) case that
the
business of the Respondent (i.e. Carmol) is unlawful and contravenes
the Banks Act'.
[1]
[6]
Reference is also made to the fact that
an application, pursuant to the provisions of section 131 (1) of the
Companies Act, No. 71 of 2008
, it was instituted in this court on the
26 of November 2015 seeking to place Carmol under supervision and to
commence business
rescue proceedings. Such application was instituted
some four days before the hearing of the application for the final
winding
up order on the 30
th
November 2015. It is submitted by the First Applicant that the sole
purpose of instituting the business rescue application was
to
frustrate the winding up proceedings instituted in the Gauteng Local
Division. If this was the case, it did not have the desired
effect as
the court held, upon the authorities cited in the judgment, that the
institution of the business rescue proceedings did
not have the
effect of staying the winding up proceedings and accordingly granted
an order winding up Carmol on the 30
th
of November 2015. If one has reference to the judgment, concern was
also raised by the court as to the merit of instituting business
rescue proceedings in circumstances where the company to be rescued
was conducting unlawful business. By way of completeness, the
First
Applicant points out that the said business rescue application was
withdrawn on the 29
lh
of February 2016.
[7]
The First Applicant then goes on to
state in the founding affidavits that, pursuant to his
investigations, he has determined that
there are a number of trusts
which have been identified in the scheme that were created solely for
the use as conduits for the
transfer of funds between Carmol, the
First and Second Respondents and their family members. These are the
trusts forming the subject
of the various liquidation applications
before me. This contention appears to be supported by the contents of
the various trust
deed and, in particular, the commonality of the
trustees, the beneficiaries, the founder of the trusts and each
trust’s purpose.
[8]
If one has reference to the various
applications, the trusts appear to fall into two categories, with the
Yunus Moolla Trust, the
NYM Family Trust and the MZB Family Trust all
owning immovable properties and the Carmol Trust, the SM Family
Trust, the MYM Family
Trust and the Mubarakh Trust having no known
assets other than funds standing to the credit of their respective
bank accounts.
It is alleged by the Applicants that none of the trust
conduct business or have any source of income.
[9]
It is demonstrated in the respective
application papers, duly supported by bank statements, that various
payments have been made
by Carmol into the respective trust’s
bank accounts. It is demonstrated in the -5- founding affidavits
filed in each application
that the following amounts have been
transferred from Carmol to the respective trusts: the sum of R
10,635,314.14 to the Yunus
Moolla Trust, the sum of R 3,017,836.00 to
the NYM Family Trust, the sum of R 3,126,761.00 to the MZB Family
Trust, the sum of
R 1,100,000.00 to the Carmol Trust, the sum of R
700,000.00 to the MYM Family Trust, the sum of R 700,000.00 to the SM
Family Trust
and the sum of R 1,100,000.00 to the Mubarakh Trust. It
is alleged by the Applicants that such payments have been made in
fraud
of creditors, or in any event, without just cause. They
accordingly contend that such payments either fall foul of the
actio
pauliana,
or constitute payments
made
sine
causa,
and that as a result, the
Applicants have an enrichment claim for the repayment of such amounts
from the respective trusts.
[10]
It is contended, in respect of those
trusts owning immovable properties, that the funds were utilised to
purchase the immovable
properties owned by them. As far as the
non-property owning trusts are concerned, it is demonstrated that
such funds were paid
into the respective trust’s bank account
but the Applicants have no knowledge as to the extent of the funds
currently standing
to the credit of such accounts. The contention is
made that the balances would have diminished since the date of the
funds being
paid into such accounts as a consequence of either the
funds being withdrawn or bank and related charges being levied
thereon.
[11]
The Applicants rely on the provisions of
section 9
(1) of the
Insolvency Act, No. 24 of 1936
in all the
applications and contend that, upon the investigations conducted by
the First Respondent, it is apparent that each of
the trusts are
factually insolvent. It is contended in this regard that Carmol’s
claim against each respective trust exceeds
its assets. As far as the
trusts that own immovable properties are concerned, it is
demonstrated in the respective application
papers that each of the
-
6
-
respective immovable properties is valued at an amount less
than the amount demonstrated as having been paid by Carmol into the
respective trust’s bank account. This being the case, it is
demonstrated that the Yunus Mooia Trust’s liabilities exceed
its assets by the sum of R3,160,319.14, the NYM Family Trust’s
liabilities exceed its assets by the sum of R 617,836.00 and
the MZB
Family Trust’s liabilities exceed its assets by the sum of R
776,761.00. Although the Applicants were not able to
state what the
balances of the bank accounts of those trusts that do not own
immovable property were, the Respondents put up an
extract from a
report compiled by KPMG Services (Pty) Ltd, pursuant to its
investigation of Carmol and the respective trusts at
the instance of
the South African Reserve Bank, which demonstrates that, as at the
19
th
of June 2015 (the date of the report) the funds
standing to the credit of each of the trust’s bank accounts
were less than
the funds that had originally been paid into them by
Carmol. The SM Family Trust had a deficit of R 854.00, the MYM Family
Trust
had a deficit of R 830.00, the Carmol Trust had a deficit of R
568,600.00 and the Mubarakh Trust had a deficit of R 1,480.00. The
Applicants therefore reiy on the inference to be drawn, in respect of
those trusts that do not own immovable property, that, by
virtue of
all the trust not having any known income, or not conducting any
business, that the amounts in the respective bank accounts
would have
diminished and that they were also factually insolvent
[12]
It is accordingly contended by the
Applicants that the sequestration of the respective trust’s
estates would allow a trustee,
once duly appointed, to institute the
necessary proceedings to recover the shortfall between the amount
realised through the sale
of the immovable properties and the amounts
owing to Carmol. It is further contended that the trustee could
further identify and
take control of other assets of the trusts,
wherever such can be found, and can also institute and convene an
insolvency enquiry
for the purposes of interrogating persons as to
the whereabouts of other assets and other funds that may be available
to it. It
is accordingly contended that the sequestration of the
respective trust estates would be to the advantage of their
creditors.
[13]
In response to the applications, the
First and Second Respondents filed an initial answering affidavit and
a supplementary answering
affidavit which were identical in content
in each application. In such affidavits the Respondents do not
materially challenge the
allegations made by the Applicants in the
respective founding affidavits. Instead, they attacked the
locus
standi
of the Applicants, as the
provisional liquidators of Carmol, to proceed with the sequestration
applications in the light of an
application that has allegedly been
instituted in this court for Carmol to be placed under supervision
and for business rescue
proceedings to be commenced. It is alleged by
the Respondents that as business rescue proceedings had been
commenced against Carmol
the Applicants lacked the necessary
authority to continue with these sequestration proceedings by virtue
of the provisions of
section 131
(6) of the
Companies Act, No. 71 of
2008
.
[14]
Section 131
(6) reads as follows:
If
liquidation proceedings have already been commenced by or against the
company at the time an application is made in terms of
subsection
(1), the application will suspend those liquidation proceedings
until-
(a)
the
court has adjudicated upon the application; or
(b)
the
business rescue proceedings end, if the court makes the order applied
for''
[15]
It is contended by the Respondents that,
by virtue of the aforesaid provisions of the
Companies Act, the
commencement of a business rescue application in respect of Carmol
suspends the liquidation proceedings instituted against it until
such
time as the court has adjudicated upon the business rescue
application or the business rescue proceedings end. It is accordingly
contended that, as the liquidation proceedings have been suspended,
any authority that the Applicants may have received to institute
these sequestration applications has also been suspended, as well as
their office as provisional liquidators, and that they are
accordingly not entitled to continue with the sequestration
applications at present. It was submitted on behalf of the
Respondents
in argument that it would be proper, in such
circumstances, for these applications to be adjourned until such time
as the business
rescue application had been adjudicated upon by this
court.
[16]
It
was accepted by the Respondent’s counsel during argument that
in order to rely upon the provisions of
section 131
(6) of the
Companies Act, the
Respondents would have to establish that the
business rescue proceedings in question had commenced. It was also
conceded that,
in order to do so, the Respondents would have to
demonstrate that the business rescue application in question had been
lodged with
the registrar, had been duly issued, that a copy thereof
had been served on the Companies and Intellectual Property Commission
and that each affected person had been properly notified of the
application.
[2]
[17]
In their preliminary answering
affidavit, the Respondents make the allegation that
“
an
application to piace Carmol in business rescue has been delivered
In
support of this submission they annex, as annexure “AA”,
a copy of the relevant notice of motion which they contend
evidences
the filing of the application with the registrar and service thereof
on the First and Fourth Respondents cited therein,
namely Carmol and
the South African Revenue Service, on the 18
th
of April 2016. A perusal of annexure “AA" demonstrates
that the registrar’s date stamp is affixed to the face
of the
notice of motion, indicating that it was issued on the date alleged,
that a date stamp of the South African Revenue Service
is affixed
next to where its address is reflected on the document and that a
manuscript notation indicating receipt is made next
to where the
words “
Carmol
Distributors (Pty) Ltd
,
1
st
Respondent, c/o Mr Yunus Moolla
”
are reflected on the document. The annexure therefore seems to
support the above contentions.
[18]
The Respondents then allege that service
of the business rescue application, via email sent on the 18
th
of April 2016, has been effected on the Second, Third and Fifth to
Eighth Respondents cited therein. In support of this they put
up
annexure “BB” to the preliminary answering affidavit. The
Second Respondent is the Registrar of Banks, although
service is said
to have been effected upon its attorneys, the Third Respondent is the
Companies and Intellectual Property Commission
and the Fifth to
Eighth Respondents are the Applicants herein. It is alleged that
service has been effected on their attorneys.
A perusal of annexure
“BB” indicates that it is an email that has been sent in
two parts. If one compares the email
addresses reflected on the
notice of motion with the respective email addresses reflected on the
annexure itself it would appear
that the document has been emailed to
the persons alleged.
[19]
Service is alleged to have been effected
on the Third Respondent in the business rescue application, namely
the Companies and Intellectual
Property Commission, on the 19
th
of April 2016, via the Deputy Sheriff. The Sheriff’s return of
service is annexed as annexure “CC”. A perusal
of the
document confirms the allegations.
[20]
It is then alleged by
the Respondents in the answering affidavit that
“
[other]
affected parties are the investors in/creditors of Carmol (“the
investors’% Service on the investors was effected
via email on
18
th
April
2016
and
19
th
April 2016. Annexed hereto marked “DD”, is proof of
service on the investors
”
.
If one has reference to annexure “DD” it consists of 21
emails with a number of email addresses reflected on the face
of each
of them. Each email is addressed to The Investors in Carmol”
and advises that one Sameer Kathrada has launch an application
for
Carmol to be placed in business rescue. It also appears that page 1
to 28 of the 80 page application has been attached to each
email.
[21
] It is then alleged by the Applicant that, “
accordingly,
it is respectfully submitted that the application to place Carmol in
business rescue has been made and/or delivered”.
[22]
In their replying affidavit, the
Applicants put up a copy of the founding affidavit in the business
rescue application concerned.
In that affidavit, it is alleged that
“
according
to Mr Mooila”,
which is a
reference to the First Respondent in these proceedings,
“
Carmol
has more than 3500 investors”
and that “a
schedule
of the investors is annexed hereto marked
7T.
It is further stated that, to the deponent’s best knowledge and
belief, the schedule is “a
complete
list of the investors
”.
That schedule is also annexed to the replying affidavit put up by the
Applicants herein. The document consists of some
49 pages reflecting
a schedule of the names of the investors concerned. Apart from the
list of names, and a date next to each name,
no other information is
contained in the schedule. Upon a rough count, it appears that some
75 names are reflected on each page
of the schedule. This would
support the allegation that the schedule reflects the names of some
“3500 investors” of
Carmol. Apart from alleging that
“
service
on the affected persons will be effected by email and appropriate
proof of this will be placed before this Honourable Court
’
the deponent to the founding affidavit in the business rescue
proceedings goes no further.
[23]
If one compares the schedule of
investors put up in the business rescue application to annexure “DD”
in these proceedings,
which the Respondents herein contend evidences
notification of the business rescue application to ail the affected
parties, there
is simply no correlation between the email addresses
reflected in the emails forming annexure “DD” to the
names reflected
on the schedule of investors put up in the business
rescue application itself. I was advised by counsel representing the
Applicants
during argument that he has undertaken the exercise and
has determined that there are only approximately 780 email addresses
reflected
on annexure “DD”. This was not disputed by the
Respondents’ counsel. If one accepts that it is contended in
the
founding affidavit in support of the business rescue application
that there are in excess of 3500 investors of Carmol, annexure
“DD"
to these proceedings certainly does not support the contention that
all affected parties have received notice and
are aware of the
business rescue application. If anything, it leads to the opposite
conclusion. At best, on what has been put up
by the Respondent in
these proceedings, only some 780 of the 3500 investors have in fact
received notice of the business rescue
application. That being the
case, the only conclusion I can come to is that business rescue
proceedings have not commenced in respect
of Carmol, or, at the very
least, that the Respondents have failed to establish such proceedings
have come commenced. I am accordingly
of the view that the
Respondent’s contention that the Applicants are not entitled to
proceed with these applications, by
virtue of the provisions of
section 131
(6) of the
Companies Act, is
without merit
[24]
The Applicants’ counsel raised a
number of further arguments in response to the Respondents’
contention that the Applicants
were not entitled to proceed with
these applications by virtue of the provisions of
section 131
(6) of
the
Companies Act. These
included a submission that the business
rescue proceedings had not been instituted in the correct court as
this court did not have
jurisdiction in respect of the matter as
Carmol’s registered office was in Gauteng and that the
liquidation proceedings had
been instituted out of that court.
Further arguments were raised regarding the merits of the business
rescue application in the
light of the contention that Carmol was
conducting an unlawful business and that business rescue proceedings
were not appropriate
in such circumstances. It was further argued
that the powers of the provisional liquidators were not, in any
event, suspended by
virtue of the provisions of
section 131
(6) in
the present circumstances. In view of my finding that it has not been
established that the business rescue proceedings relied
upon by the
Respondents have commenced, I find it unnecessary to deal with these
further submissions. It is however apparent from
what was contended
before me that should the Applicants succeed in any one of the
arguments raised before me, the Respondents’
opposition to
these proceedings, based on the provisions of
section 131
(6) of the
Companies Act, would
not succeed.
[25]
The First and Second Respondents also
raised the issue of the service of the respective sequestration
applications upon them. In
the Returns of Service placed before me in
these applications, it is evident that all seven applications were
served personally
upon the Third Respondent on the 23
rd
of March 2016. It is further evident from the Returns of Service
filed in respect of service upon the First and Second Respondents
that the applications were alleged to have been served upon them at 3
Athens Avenue, Thorn Valley Estate, Blackrock Street, Greenstone
Hill
as well has Unit 116, Acacia Greenstone, Stoneridge Drive, Edenvale
“by leaving a copy at the mentioned premises”.
There is a
further notation that the first premises were “vacated”
and that the second premises were “kept locked”.
The said
addresses are alleged to be the First and Second Respondent’s
residential address.
[26]
The First and Second Respondents denied
that the aforesaid addresses are their residential addresses and
contend that the First
Applicant ought to have known that their
address in Gauteng is 128 Greenstone Crescent, Greenstone Hill,
Greenstone, Johannesburg,
Gauteng and that their address in
KwaZulu-Natal is 201B Point Vista, The Executive, 220 Umhlanga Rocks
Drive, Umhlanga. They therefore
contend that copies of the
applications have not been furnished to them, as is required in terms
of the provisions of
section 9
(4A) (a) (iv) of the
Insolvency Act,
No. 24 of 1936
.
[27]
The First Respondent however states in
the supplementary answering affidavit that he had received a copy of
the applications from
the attorney representing the Third Respondent
upon service of the applications upon him. it is therefore common
cause that both
the First and Second Respondents are in possession of
copies of the sequestration applications, have opposed same and were
in a
position to depose to an answering affidavit in opposition
thereto. The point raised by the Respondents’ counsel in
argument
was that, as sequestration involved an issue of status,
service of the application papers had to be effected upon the First
and
Second Respondents, via the Sheriff, personally.
[28]
The provisions of
section 9
(4A) (a)
(iv) of the
Insolvency Act read
as follows:
“
When
a petition is presented to the court, the petitioner must furnish a
copy of the petition—
(iv)
to the debtor; unless the court, at its discretion, dispenses with
the furnishing of a copy where the court is satisfied that
it would
be in the interest of the debtor or of the creditors to dispense with
if.
It
is apparent from the aforesaid provisions that the manner in which a
copy of the application for sequestration is to be “finished”
upon the debtor is not prescribed. I am therefore of the view that
any method of delivery is permissible as long as the application
is
thereby brought to the attention of the debtor.
[3]
I therefore do not agree with the Respondents’ counsel’s
submission that personal service had to be effected formally
by the
Sheriff. It appears that the intention of the provision is to ensure
that, save where the court is satisfied that such circumstances
exist, the
audi
alteram partem
rule is to be upheld by giving the debtor notice of the application
and affording him an opportunity to be heard. This has occurred
in
the present instance and 1 accordingly reject the Respondents’
submission that the applications cannot be proceeded with
as formal
service has not been effected upon the First and Second Respondents.
[29]
As already mentioned herein, the
Respondents have not challenged the allegations contained in the
founding affidavits filed in the
respective sequestration
applications in any material respect. Save for making the bald
statement that the various trust bank accounts
had been frozen by
KPMG at the time of its investigation and that, to the best of his
recollection, the balance in the various
accounts exceeded R 5
million as at that date, the First Respondent makes no other
submission in response to the allegations made
in the founding
affidavits. The document put up by the Respondents in support of such
contention however does not support the notion
that the bank accounts
have been frozen and, if anything, supports the Applicants
submissions as to what the status of the various
bank accounts are.
Should the Applicants’ submissions regarding the status of the
bank accounts not be correct, I am of the
view that it would have
been a simple matter for the Respondents, who must, by virtue of
their position as trustees of the respective
trusts, be in possession
and control of their accounting records, to have put up copies of the
respective bank statements to show
that the Applicants’submissions
are wrong. The First Respondent however contents himself by simply
stating that “
unfortunately,
the Second Respondent and I cannot recall the precise balances in the
accounts
”.
[30]
I am therefore of the view that,
prima
facie,
the Applicants have
established in the respective applications before me that they are
entitled to orders provisionally sequestrating
the estates of the
respective trusts and placing them in the hands of the master of this
court. The Applicants also sought to motivate
me to direct the master
of this court to consider the urgent appointment of a provisional
trustee to take control and preserve
the trusts’ respective
estates. During argument however it appeared that such a direction
would, in reality, have no effect
as the master would, in any event,
appoint a provisional trustee within a week of the grant of this
order. I accordingly decline
to make such direction. Although not a
requirement in sequestration applications, counsel for the Applicants
submitted, by virtue
of the large number of investors in Carmol, that
it might be prudent to publish the provisional order of sequestration
in the Government
Gazette and in the Citizen Newspaper. 1 am in
agreement with that submission.
[31]
I
therefore make the following orders:
In
case number 2616/2016:
(a)
The Yunus Moolla Trust (with Trust
number IT103/2013)
(hereinafter
referred to as “the trust”), duly represented by the
Respondents in their capacities as the duly appointed
trustee$ of the
trust, be and is hereby placed under provisional sequestration in the
hands of the Master of the High Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
In case number
2617/2016:
(a)
The SM Family Trust (with Trust number
IT318/2014) (hereinafter referred to as “the trust”),
duly represented by the
Respondents in their capacities as the duly
appointed trustees of the trust, be and is hereby placed under
provisional sequestration
in the hands of the Master of the High
Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
In case number
2618/2016:
(a)
The MZB Family Trust (with Trust number
IT319/2014) (hereinafter referred to as “the trust"), duly
represented by the
Respondents in their capacities as the duly
appointed trustees of the trust, be and is hereby placed under
provisional sequestration
in the hands of the Master of the High
Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents;
and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
In
case number 2619/2016:
(a)
The Carmol Trust (with Trust number
IT1036/2013) (hereinafter referred to as “the trust”),
duly represented by the Respondents
in their capacities as the duly
appointed trustees of the trust, be and is hereby placed under
provisional sequestration in the
hands of the Master of the High
Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
In case number
2620/2016:
(a)
The MYM Family Trust (with Trust number
IT321/2014) (hereinafter referred to as “the trust”),
duly represented by the
Respondents in their capacities as the duly
appointed trustees of the trust, be and is hereby placed under
provisional sequestration
in the hands of the Master of the High
Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
in
case number 2621/2016:
(a)
The Mubarakh Trust (hereinafter referred
to as “the trust”), duly represented by the Respondents
in their capacities
as the duly appointed trustees of the trust, be
and is hereby placed under provisional sequestration in the hands of
the Master
of the High Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
In
case number 2622/2016:
(a)
The SM Family Trust (with Trust number
IT320/2014)
(hereinafter
referred to as “the trust”), duly represented by the
Respondents in their capacities as the duly appointed
trustees of the
trust, be and is hereby placed under provisional sequestration in the
hands of the Master of the High Court.
(b)
A
rule
nisi
is hereby issued calling on
the Respondents, and all other interested parties, to show cause, if
any, to this Court sitting at
Durban on the 24
th
day of June 2016, at 09h30, or so soon thereafter as the matter may
be heard, why the estate of the trust should not be finally
sequestrated in the hands of the Master of the High Court.
(c)
That service of this order be effected:
(i)
on the trust, duly represented by the
Respondents; and
(ii)
on the South African Revenue Service.
(d)
That this order shall be published on or
before the 3
rd
day of June 2016 in the Government Gazette and the Citizen Newspaper.
Date
of hearing :
26 April 2016
Date
Delivered :
29 April 2016
Appearances:
For
the Applicants : Adv CH van Eeden SC
Adv
JW Steyn
Instructed
by: Corien Potgieter Inc
care
of
Venns
Attorneys
Suite
405 Cowie Park
91/123
Problem Mkhize Road Durban
For
the Respondents: K Maharaj
Instructed
by :Asmal and Asmal Attorneys
Suite
1, The Towers
69
Mahatma Gandhi Street
KwaDukuza
Tel:
(032)552 1245
Fax:
(032)522 1112
email:
asmalx2@telkomsa.net
[1]
Reference is made to paragraph 15 of the judgment: Registrar of
Banks v Carmol Distributors (Pty) Ltd: Gauteng Local Division,
Johannesburg, Case No. 29332/2015.
[2]
Reference is made to the case of Taboo Trading 232 (Ptv) Ltd v Pro
Wreck Scrap Metal CC and Others
2013 (6) SA 141
(KZN) at paragraphs
11.3 and 11.4.
See Berranqe NO
v Hassan and Another
2009 (2) SA 339
(N) at 353 B-D where the court
stated that: “Clearly, the legislature intended that in all
cases irrespective of the nature
of the creditors' claim against the
debtor a copy of the petition has to be furnished to the debtor. The
section does not use
the term 'serve
1
but rather uses the
word 'furnish', which is not a term of general application in our
civil practice and procedure. It would
seem that the legislature
intended a form of informal service. The dictionary definition of
'furnish' is 'to provide, contribute,
afford, supply, yield'”