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[2012] ZAGPPHC 53
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Kruger N.O and Others v Lamprecht (52120/2010, 61907/2009) [2012] ZAGPPHC 53 (29 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(SOUTH
AFRICA)
CASE
No. 52120/2010
DATE:29/02/2012
In
the matter between:-
PAUL
DANEEL KRUGER
N.O.
.............................................................................
First
Applicant
THEODOR
WILHELM VAN DEN HEEVER
N.O.
.............................................
Second
Applicant
PHILLIP
DAVID BERMAN
In
their capacities as the joint liquidators of Spitskop village
properties Limited (In
Liquidation)
...........................................................................................................
Third
Applicant
PAUL
DANEEL KRUGER
N.O.
.........................................................................
Fourth Applicant
ERNEST
LODEWYK BESTER
N.O.
....................................................................
Fifth Applicant
ADEL
DOREEN McQUARRIE N.O
In
their capacities as joint provisional judicial managers of Copper
Moon Trading 248 (Pty) Ltd
(Celtis
Plaza)
........................................................................................................
Sixth
Applicant
P
J MARYN VAN STADEN
N.O.
.....................................................................
Seventh
Applicant
JUANITO
MARTIN DAMON
N.O.
......................................................................
Eighth
Applicant
PHILLIP
DAVID BERMAN N.O
In
their capacities as the joint provisional
liquidators
of Blue Dot Properties 1330 (Pty)
Ltd
............................................
Ninth
Applicant
and
HENDRIK
CHRISTOFFEL
LAMPRECHT
................................................................
Respondent
CASE
No. 61907/2009
In
the matter between:-
PAUL
DANEEL KRUGER
N.O.
.............................................................................
First
Applicant
PHILLIP
DAVID BERMAN
N.O.
.......................................................................
Second
Applicant
THEO
W VAN DEN HEEVER N.O
In
their capacities as the joint liquidators of
Spitskop
Village Properties Limited
(InLiquidation)
......................................................................................................
Third
Applicant
In
Re:
PAUL
DANEEL KRUGER
N.O.
.............................................................................
First
Applicant
PHILLIP
DAVID BERMAN
N.O.
......................................................................
Second Applicant
THEO
W VAN DEN HEEVER N.O
In
their capacities as the joint liquidators of
Spitskop
Village Properties Limited (In
Liquidation)
...........................................................................................................
Third
Applicant
and
H
C
LAMPRECHT
.............................................................................................
First
Respondent
J
J VAN
ZYL
...............................................................................................
.Second
Respondent
H
C LAMPRECHT N.O
In
his capacity as Trustee of the HCL Familie
Trust
IT No.
190/04
.........................................................................................
Third Respondent
LADIKELA
GAME LODGE (PTY)
LTD
.........................................................
Fourth Respondent
CORNELIUS
ASPLIN DE KLERK N.O
(En
his capacity as Trustee of the CA Family
Trust
TMP
3927)
...............................................................................................
Fifth
Respondent
ROSA
DE KLERK N.O
(In
her capacity as Trustee of the CA Family
Trust
TIUIP
3927)
............................................................................................
Sixth
Respondent
JACOB
JOHANNES VAN ZYL N.O
(In
his capacity as Trustee of the Jozymiel
Family
Trust IT 194/97
)
..............................................................................
Seventh
Respondent
MARIN
DA VAN ZYL N.O
(In
her capacity as Trustee of the Jozymiel
Family
Trust IT
194/97)
.................................................................................
Eighth
Respondent
RUDOLF
JOHANNES BRITS N.O
(In
his capacity as Trustee of the Jozymiel
Family
Trust IT
194/97)
..........................................................................................
Ninth Respondent
JUDGMENT
Van
der Byl, AJ:-
Introduction
[1]
There are two appiications before me, namely -
(a)
firstly, an application for the confirmation of a provisional order
of sequestration granted against the Respondent under Case
No.
52120/2010 by Webster J on 5 October 2010; and
(b)
secondly, an application for the confirmation of a so-called Mareva
injunction in so far as it was granted against the Respondent
(cited
as the First Respondent) under Case No. 61907/2009) by Molopa J on 13
October 2009.
(I
may mention that I was informed by counsel that the Mareva injunction
has, as far as it was also granted against the Second to
Ninth
Respondents, become irrelevant since -
(a)
the matter has in respect of the Second, Fifth, Sixth, Seventh,
Eighth and Ninth Respondents in the meantime been settled; and
(b)
the Third and Fourth Respondents were in the meantime, respectively,
sequestrated and liquidated.
[2]
At the commencement of the hearing I was informed by counsel
appearing on behalf of the Applicants that he will, in relation
to
the issues in the application under Case No. 52120/2010 ("the
sequestration application"), restrict the Applicants'
case to
one issue only, namely, whether the "Blue Dot claim"
against the Respondent (dealt with, particularly, in paragraphs
17.4,
17.5 and 41 of the founding affidavit, record pp. 12 and 68 to which
I will refer in detail below) falls within the ambit
of the
provisions of section 226(4) of the Companies Act, 1973 (Act 61 of
1973).
[3]
I was, furthermore, informed by the parties that they are in
agreement that the outcome of the application under Case No.
61907/2009
("the Mareva application"), in so far as it
relates to the Respondent, will depend on the outcome of my finding
on the
first of the aforegoing issues.
[4]
Before dealing with, particularly, the issues, in sequestration
application, the matter calls for a brief exposition of the
history
of the events leading up to the application for the sequestration of
the Respondent's estate.
Brief
history of events which had given rise to this application
[5]
Since about the middle of 2006 Spitskop Village Properties
Proprietary {"Spitskop") embarked on a property development
scheme (also referred to as a syndication scheme) to solicit
investments from the public which was promoted by a company known
as
Bluezone Property Investment (Pty) Ltd ("Bluezone"). The
authorized share capital of Spitskop was R425 000 made up
in 425 000
units, each unit consisting of one ordinary par value share of R1 and
one secured debenture of R999 irrevocably linked
together. The scheme
was intended to raise R425 million on the aforesaid 425 000 units.
The Respondent was at the time a director
and chief executive officer
of Spitskop and the driving force behind the syndication scheme.
[6]
Bluezone obtained investments of approximately R350 million from 1213
investors.
[7]
A property, portions 6 and 7 of the farm known as Spitskop 333,
registration division KT, Mpumalanga, situate in the Steelpoort
area
measuring approximately 198 hectares, formed the subject matter of
the syndication scheme.
[8]
The property was purchased by a company known as Blue Dot Properties
1330 CC ("Blue Dot) for the sum of R1 057 000 on 23
April 2003
and registered in its name on 23 September 2003. The Respondent was
at the time the sole member of Blue Dot.
Blue
Dot was converted into a company during 2007 with the Respondent and
a certain Mr. J J van Zyl, a non-practising attorney at
the time, as
its only directors.
[9]
Blue Dot sold the property to Spitskop for an amount of R118 300 000
(plus VAT) in terms of a written agreement dated 3 July
2006 signed
by the Respondent on behalf of Spitskop and by Mr. Van Zyl, who was
at the time also the legal adviser of Spitskop,
on behalf of Blue
Dot. It would appear that the property was, apart from the
establishment of a rough access road to the property,
at no time
since it was purchased three years earlier by Blue Dot improved at
all. An application for the establishment on the
property of a
township was lodged in May 2007.
[10]
The purchase price was paid out to Blue Dot before the registration
of the property into the name of Spitskop and before the
application
fortownship development was lodged. It also appears that various
other amounts were paid out of investors' moneys,
apparently contrary
to the provisions of General Notice 459 of 30 March 2006 issued in
Government Notice 28690 of that date under
section 12(6) of the
Consumer Affairs (Unfair Business Practices) Act, 1988 (Act 71 of
1988), such as, administration fees of approximately
R9,9 million,
audit fees of R480 000, a due diligence study of R1,2 million, a
feasibility study of R2,7 million, travelling and
accommodation fees
of R1,2 million, unspecified professional fees of R6 million,
unspecified services of R1,1 million, commission
to Bluezone of R32
million and interest to investors of R15,8 million.
[11]
As is apparent from, particularly, the founding and replying papers,
it is the Applicants' case, that the scheme was an illegal
one,
because, inter alia, Spitskop failed to disclose the minimum
information to be contained in a property syndication document
prescribed in the aforesaid Government Notice 459 of 13 March 2006 in
that it failed to disclose to its investors, inter alia -
(a)
that their funds will prior to finalization be deposited into a trust
account of a registered estate agent, a legal practitioner
or its
chartered accountant who controls the funds in that account;
(b)
that the funds shall only be withdrawn from the trust account in the
event of transfer of the property into the syndication
vehicle, ie.,
Spitskop;
(c)
that there was a pending land claim over the property where township
development was in the offing and that mining rights were
registered
over the property in favour of Anglo American, being encumbrances at
the time over the property as it rendered township
development at the
time as a non-starter.
[12]
It was, furthermore, contended that the moneys taken from its
investors constituted deposits which was contrary to the provisions
of the Banks Act, 1990.
[13]
Ismail J, in a judgment handed down on 22 September 2011, held that
there were a deliberate breach of the Unfair Business Practice
Act
and the Banks Act by the directors of Spitskop to the detriment of
the investors and declared the scheme to be an illegal one.
I have
been informed that there is currently a pending application for leave
to appeal against this finding.
[14]
Bertelsmann J, having held that Spitskop has lost its substratum and,
in addition, that it no longer being able "to finalize
the
intended development and that "no realistic opportunity to allow
the investors to reclaim part of their capital has been
established
on the papers", granted an order finally liquidating Spitskop on
21 August 2009.
[15]
It would appear that shortly after receipt of the purchase price of
R118 300 000 over a period commencing on 14 August 2006
an amount of
at least R80 003 000 (Annexure L, record p. 275) was paid by Blue Dot
to the Respondent.
[16]
The Blue Dot claim can now be considered against the background of
the aforegoing brief history.
The
Blue Dot claim against the Respondent
[17]
The Seventh, Eighth and Ninth Applicants are the joint liquidators of
Blue Dot which was finally liquidated on 23 February
2011.
[18]
As already indicated, it is their case (paragraph 41, record p. 68)
that Blue Dot has in terms of section 226(4) of the Companies
Act,
1973, a claim against the Respondent for an amount of R56 720 461,37
in terms of a loan account set out in a detailed ledger
of Blue Dot
for the period 1 March 2006 to 28 February 2007 (Annexure 21, record
p. 308).
[19]
Section 226(4) of the Companies Act, 1973, reads as follows:
"(4)
Any director or officer of a company who authorizes, permits or is a
party to the making of any loan or the provision
of any security
contrary to the provisions of this section, shall -
(a)
be liable to indemnify the company and any other person who had no
actual knowledge of the contravention, against any loss directly
resulting from the invalidity of such loan or security; and
(b)
be guilty of an offence.".
In
terms of subsection (1) of the said section 226 a company is in
compelling terms prohibited from making any loan, directly or
indirectly, to, inter alia, any director of the company
[20]
It is not in dispute that the Respondent was at all relevant time a
director and shareholder of Blue Dot.
[21]
The only question in issue is whether the aforesaid amount of R56 720
461,37 constitutes a loan made to the Respondent by Blue
Dot.
[22]
On this issue I was referred by the Applicants to the following:-
[23]
Firstly, the detailed ledger of Blue Dot (AnnexureZI, record p. 308),
referred to by the Applicants in their founding papers,
which shows,
as an indication that Blue Dot made a loan or loans to the
Respondent, that Blue Dot owed the Respondent on loan an
amount of
R13 539 020,66 on 2 March 2006 which ended up with an amount of R56
720 461,37 on 28 February 2007. According to the
ledger various
entries of drawings and payments were during this period made,
obviously by the Respondent.
[24]
Secondly, the balance sheet prepared and purportedly signed by the
Respondent in respect of the Respondent's personal affairs
as on 30
September 2007 (Annexure M, record p. 276) which reflects no such
loan owing to him, but in a further balance sheet of
the Respondent
as at 31 {sic) September 2007 (Annexure P, record p. 278), likewise
purportedly signed by the Respondent, shows
a liability of R57 662
000 giving a nett asset value of R56 112 000 owed by him to Blue
Dot.. A note at the end of the document
states that "the
liabilities amount of Blue Dot Properties 1330 is a loan acc of Mr. H
C Lamprecht and not an amount due to
any institution". In notes
to his financial statement for the period ending 30 September 2007
(Annexure N, record p. 279)
the following note appears under the
heading "Bluedot Properties 1330 (Pty):
"
This company owned 198 hectares of land in Steelpoort which was sold
in 2006 for R118 million to Spitskop Village Properties
Ltd. Hennie
Lamptrcht owned the majority of the shares (80%) in this company and
was paid out an amount of R94,4 million in the
form of a dividend
from (sic) sale proceeds. These funds were in turn invested in the
HCL Familie Trust as a loan account. Hennie's
loan account now stands
at R99 million. After the sale of the Steelpoort property this
company is left with no assets of consequences
and no debt".
[25]
Thirdly, a balance sheet, purportedly signed by the Respondent on 19
May 2009, in respect of Respondent's personal affairs
as at 31 March
2009 (Annexure Q, record p. 279) which do not reflect any loan
account with liability to Blue Dot., but a further
balance sheet of
the Respondent's affairs as at 31 March 2009, purportedly signed by
the Respondent on 23 September 2009 (Annexure
R, record p. 280),
shows a liability of R63 832 064 to Blue Dot.
Respondent's
responses to these allegations
[26]
In relation to the first of the aforegoing allegations, ie. the
evidence contained in the ledger of Blue Dot), the Respondent
failed
to respond (record p. 464, para 22).. However, in a supplementary
affidavit (record p. 843, para 9) filed, incidentally
without leave
of this Court, on 9 September 2011, the Respondent denies that Blue
Dot has a claim against him and states that he
received an amount of
approximately R90 million from Blue Dot which, according to him,
represents his share of the profits derived
from the purchase
agreement between Blue Dot and Spitskop,.
[27]
In relation to the contents of Annexures M, N, P, Q and R, the
Respondent explains in his supplementary affidavit (record pp.
846 to
848, para 13) -
(a)
that he has no independent recollection of these annexures and that
he has not had any insight therein as the Applicants have,
apparently
under the Mareva injunction, seized all his documents;
(b)
that his signature was pre-scanned into Blue Zone's financial
electronic system which was available to "relevant personnel
nationwide";
(c)
that the Annexures do not make sense and are not recognized balance
sheets
[28]
He, furthermore, contends that he "cannot see how it can make
any sense for (him) to instruct personnel in (his) company
to draft
two completely different statements on the same day, only for (him)
to sign ninety days and six months later respectively.
[29]
The Respondent's response in this regard is in my opinion for various
reasons clearly untenable and stand to be rejected on
the papers.
[30]
Firstly, he offers no explanation as to why amount of R56 720 461,37
is reflected in Blue Dot's ledger as a loan.
[31]
Secondly, it is apparent that the three signatures on each of
Annexures M, P, Q and R differ to such an extent that it is obvious
that they could not have been scanned as one signature.
[32]
Thirdly, in the Mareva-application (record p. 479, para 23) the
Respondent in dealing with the financial statements filed in
this
application as Annexures M and P, did not deny, as he has done in
this matter, having been the author of those statement and
merely
submitted that "die een balansstaat meer opgedateer is as die
ander.... (d)aar is niks sinisters daaraan nie".
[33]
Fourthly, in relation to the financial statement which was
purportedly signed by the Respondent on 19 May 2009 (Annexure Q)
Pretorius J (as is apparent from the papers filed in the Mareva
application (record p. 828) held in the application under Case
No.
18271/2010 for the final sequestration of the H C L Familie Trust on
23 February 2011 as follows:
"The
financial statements drafted on behalf of Mr. Lamprecht and the
respondent did not reflect the true facts. This can be
gleaned from
the e-mail by the accountant to the CEO of the Bluezone Group dated
23 September 2009:
'Goeiemore
Johan, ontvang asseblief hiermee die balansstate van Hennie. Let we/,
die balansstaat gedateer 19 Met (2009) sluit uit
sekere negatiewe
leningsrekeninge van Hennie soos bv. Die Blue Dot Properties en
Aithenta trustrekeninge. Die rekeninge is nou
ingesluit in die
weergawe wat vandag onderteken is deur Hennie. Die rede vir hierdie
verskille is as gevoig van Hennie wat my gevra
het om sy laste te
verminder vir 'n leningsaansoek by onderskeie banke vroeer hierdie
jaar. Ek glo jy vind dit in orde.'".
Bearing
in mind that this judgment was handed down on 23 February 2011 and
the supplementary affidavit deposed to on 9 September
2011, it is
difficult to understand why the Respondent failed to deal with the
e-mail or the judgment.
[34]
I in any event fail to understand how he as a director of Blue Dot
could have shared in the profits without it being paid to
him as a
dividend or as director's remuneration. The Respondent failed to show
on what basis he, as a director or shareholder,
could otherwise have
been entitled to the amount. The amount was obviously a profit in the
hands of Blue Dot in respect of which
Blue would have been liable to
income tax. Similarly the Respondent would also have been so liable
to tax. It would accordingly
appear that the only way to avoid tax
was to provide the amount to the Respondent as a loan. It was argued
on behalf of the Respondent
that I should, notwithstanding the loan
account in the books of Blue Dot, not regard it as a loan as it was
never intended to be
recovered. This submission is not supported by
the entries in the ledger (AnnexureZI) which shows that over the
period 14 June
2006 to a date in 2007 various repayments were indeed
made to such an extent that, for example, the account has on 28
August 2006
turned into a debit account.
[35]
In view of the aforegoing it is clear that the Respondent's
explanations are obviously untruthful and is accordingly rejected.
[36]
I am accordingly satisfied that the Applicants on all the
probabilities proved that Blue Dot made, in contravention of section
226 of the Companies Act, 1973, a loan to the Respondent as a
director of that company and that he is liable to indemnify Blue
Dot
and its creditors against any losses they may have suffered resulting
from the invalidity of such loan.
[37]
This brings me to the question of the Respondent's factual insolvency
or whether he committed a deed of insolvency.
Insolvency
of Respondent
[38]
It is common cause -
(a)
that in a matter between the Industrial Development Corporation
("/DC") and the Respondent and five others the defendants
were, as is apparent from the court order, Annexure FF, record p.
310) on 6 August 2009 ordered to pay, jointly and severally,
the one
paying the other to be absolved, to the IDC an amount of R30 million
and an amount of R3 million, together with interest,
on or before 4
December 2009; and
(b)
that those amounts remained unpaid which, bearing in mind the
interest payable on those amounts, may have increased to and amount
in excess of R80 million.
[39]
In his supplementary affidavit (record p. 844, para 10) the
Respondent concedes that such a judgment was obtained against him
as
surety, but contends that he has a counterclaim against IDC in an
amount of more than R70 million and he could, because of his
provisional sequestration not yet proceed with that claim.
[40]
There would appear, if regard is had to the objective facts as they
are apparent from the papers, to be no merit in this contention.
[41]
Firstly, no information relating to his counterclaim is provided.
[42]
Secondly, as is apparent from paragraphs 3 and the court order
itself, the defendants withdrew their counterclaim against the
IDC
and agreed they will not have any claims against each other in
respect of the matters referred to in the order.
[43]
Thirdly, no such claim is reflected in any of the Respondent's
balance sheet.
[44]
It follows that the Respondent's contentions stand to be rejected.
[44]
Having rejected the Respondent's defence in this regard, it must
follow that his debts amount to at least R137 million.
[45]
It would appear, looking at his financial statements, Annexures Q and
R, that the Respondent has insufficient assets to meet
these
liabilities.
[46]
It, furthermore, appears on his own version (record p. 699, para 5)
that he has further debts of about R4,6 million in respect
of credit
cards and overdrafts.
[47]
Furthermore, he indicated, as is apparent from Annexure OO, record p.
344), that, in relation to a transaction in regard to
Afropulse 6
(Pty) Ltd, in which he, as reflected in Annexure Q, has an interest
in excess of R2,8 million, he is likely to lose
a lot of money.
[48]
The H CL Familie Trust and Bluezone which, according to his financial
statement (Annexures Q and R) are indebted to him in
an amount of R48
million and R25 million, respectively, have been sequestrated and
liquidated.
[49]
The Respondent elected not to respond in his answering affidavit or
even in his supplementary affidavit to these contentions
all raised
in the founding affidavit.
[50]
In argument it was, however, argued on behalf of the Respondent that
if regard is had to the Respondent's answering affidavit
(record p.
466, para 22.5.3.1), his assets amount to R464 375 447,69.
[51]
This argument in so as it relates to the Respondent's contentions in
this regard is, if regard is had to the founding affidavit
(record p.
46, para 10.18 and p. 48, para 10.20), with respect an opportunistic
one.
[52]
A scrutiny of the aforesaid paragraphs contained in the founding
affidavit, shows that those paragraphs simply constitute a
listing of
the Respondent's balance sheets, Annexures M and P which differ
substantially from each other in so far as the Respondent's
assets
are reflected therein.
[53]
By way of example, in the one statement in respect of the period
ending 30 September 2007 a loan in an amount of R659 149 (see:
record
p. 46, para 10.18.1) is reflected in respect of a company known as
Mystic Blue Trading 161 (Pty) Ltd whilst in the other
statement (see:
record p. 48, para 10.20.9) in respect of the same day and the same
company a loan of R10 260 000 is reflected.
Having added the amounts
referred to in those paragraphs, even, the duplications, he created
an absolute false perception of what
his assets amount to.
[54]
It is accordingly clear that the Respondent elected, instead of
providing this Court with particulars of his assets and liabilities,
to rather rely on misleading information.
[55]
In this application the Applicants rely on the Respondent's most
recent balance sheet (Annexure R) signed on 23 September 2009
reflecting his total nett assets as either R96 407 747 (in which he
omitted his indebtedness to Blue dot in an amount of R63 832
064) or
R41 323 531.
[56]
In the result I am satisfied that the Applicants have on a balance of
probabilities shown that the Respondent is factually
insolvent.
[57]
This brings me to the question whether the Respondent committed an
act of insolvency.
The
act of insolvency in terms of
section 8(g)
of the
Insolvency Act,
1936
[58]
In view of my finding that the Respondent is indeed factually
insolvent, i do not find it necessary to deal with this issue.
[59]
This brings me to the question of advantage to the creditors.
Advantage to creditors
[60]
On his own version the Respondent has assets to the value of at least
R41 million.
[61]
Bearing in mind, that the Respondents has debts totalling at least
R137 million, I am satisfied that there is a reasonable
prospect of a
not negligible dividend.
Compliance
with statutory requirements
[62]
I am satisfied that the Applicants have indeed complied with all the
statutory requirements (see: record p. 86, para 55).
Conclusion
[63]
I am, in the exercise of my discretion, satisfied that it is clearly
necessary to recover the loan account and that the assets
which may
have been squirrelled to away to trusts and, perhaps, to his wife
should be investigated.
Order
In
the result the following order is made:-
1.
In the application launched under Case No. 52120/2010, the
provisional order for sequestration of the estate of the Respondent
granted on 5 October 2010 is confirmed and the estate of the
Respondent is finally sequestrated.
2.
In the application launched under Case No. 61907/2009, paragraphs 1
and 2 of the Rule nisi granted on 13 October 2009, in so
far as those
paragraphs applied to the Respondent, are confirmed and the interim
order is made final.
3.
The costs of the applications referred to in paragraphs 1 and 2,
including the costs attendant upon the employment of two counsel,
are
ordered to be costs in the sequestration..
P
C Van Der Byl
Acting
Judge of the High Court
ON
BEHALF OF APPLICANTS: ADV D M LEATHERN SC
ADV
J HERSHENSOHN
On
the instructions of: SCHABORT INCORPORATED
590
Jorisson Street Sunnyside
PRETORIA
Ref:
KSchabort/L6/10(K)
Tel:
(012) 343 0702
ON
BEHALF OF RESPONDENT: ADV N M DAVIS SC
ADV
J GOUWS
On
the instructions of: LOMBARD & PARTNERS ATTORNEYS
278
Charles Street Brooklyn
PRETORIA
Ref:
Oosthuizen/uv/
Tel:
012 346 6969
DATE
OF HEARING: 9 February 2012
JUDGMENT
DELIVERED:27 February 2012