Adelakun N.O and Another v Worldpay LLC (3484/19 and 3485/19) [2024] ZAWCHC 129 (26 April 2024)

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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No’s: 3484/19 & 3485/19
In the application between:
JYDE AREMU BREIMMO ADELAKUN N.O. First Applicant
JYDE AREMU BREIMMO ADELAKUN Second Applicant

and

WORLDPAY LLC Respondent

In the application between:
Case No: 3484/19 & 3485/19
TOUCH OF FAME GROUP First Applicant
TOUCH OF ENERGY CORPORATION Second Applicant

and

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WORLDPAY LLC First Respondent
ZEENATH KAJEE N.O. Second Respondent
THABISILE DLAMINI-SMIT N.O. Third Respondent

Coram: Justice V C Saldanha
Heard: 10 November 2023
Finalised: 26 January 2024
Delivered electronically: 26 April 2024
______________________________________________________________________
JUDGMENT DELIVERED
______________________________________________________________________
SALDANHA, J:
[1] In the profound words of Justice Kampepe, writing for the majority of the
Constitutional Court in Zuma v The Secretary of the Judicial Commission of Inquiry into
Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs
of State and Others1 who remarked ‘Like all things in life, like the best of times and the
worst of times, litigation must, at some point , come to an end ’. The two applications for
rescission before this court is however yet the beginning of the inevitable route to higher
courts despite the fact that two courts of this division, the Supreme Court of Appeal and
the Constitutional Court (on no less than three occasions) ha ve already expressed
themselves on the underlying merits of the issues raised in the applications. Needless to
say, it may wind its way back up there.
There are two separate and related rescission applications before this court of judgments
relating to the sequestration of the first applicant, Mr. Jyde Aremu Breimmo Adelakun in
his personal capacity (Mr. Adelakun) and the Jhyhde International Trust Registration No:

1 [2021] ZACC 28
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IT2823/2011 (the Trust, and for convenience are jointly referred to as the applicants )
obtained by Worldpay LLC (Worldpay). The first rescission application relates to case
numbers 3484/19 and 3485 /19 respectively against Worldpay. The second rescission
application brought under the same case numbers relates to that of Touch of Fame Group
(TOF Group) and Touch of Fame Energy Corporation (TOF Energy) against Worldpay.
Ms. Zeenath Kajee N.O. the trustee of the sequestrated estate of Mr. Adelakun and Ms.
Thabisile Dlamini-Smit N.O. in respect of the sequestrated estate of the Trust were also
cited as the 2nd and 3rd respondent respectively in the second rescission application. The
second application was initially brought by Mr. Adelakun and the Trust as a joinder
application to formally join TOF Energy and TOF Group to the first rescission application.
That application was withdrawn and in an “Amended Notice of Motion,” TOF Energy and
TOF Group separately sought the re scission of the sequestration orders and other
declaratory relief against Worldpay and the other two respondents.

[2] The Trust and Mr. Adelakun were provisionally sequestrated by orders of Mantame
J in this division on 28 March 2019 . On the 6 January 2020 t hey were both finally
sequestrated by orders of Steyn J.

[3] The sequest ration process es got underway on 17 January 2020 with the
publication by the Master of the High Court in the Government Gazette (42958) of a Notice
to Creditors which, amongst others, published the notice of the first meeting of creditors.

[4] Mr. Adelakun and the Trust filed an application for leave to appeal the
sequestration orders on 21 January 2020. Th e applications were dismissed on 13
February 2020 by Steyn J who held that the appeal s bore no reasonable prospects of
success.

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[5] On 13 March 2020 Mr. Adelakun and the Trust lodged petitions for leave to appeal
the sequestration orders to the Supreme Court of Appeal (the SCA). On 22 October 2020
the SCA (per Justices Mbha and Goosen) dismissed the petition with costs, holding that
there were no reasonable prospects of success on appeal and that there were no
compelling reasons meriting a further appeal.

[6] On 29 September 2021 under case number CCT106/21 the Constitutional Court
having considered applications for leave to appeal by Mr. Adelakun, the Trust, TOF Group
and TOF Energy concluded that the application s for leave to appeal did not engage it s
jurisdiction. Leave to appeal was refused with costs.

[7] On 24 January 2022 the Constitutional Court again refused leave to appeal the
sequestration orders brought by Mr. Adelakun and the Trust together with an order of
costs.

THE PARTIES
[8] Mr. Adelakun described himself in these proceedings and in that of the
sequestrations as an international businessman, whose primary place of business is
situated in Green Point , Cape Town, as also his residence. Mr. Adelakun was also the
founder trustee of two , for the time being , of the Trust which was registered wi th the
Master of the High Court, Cape Town under reference number IT2823-2011. Mr. Adelakun
claimed that in terms of clause 10 2 of the Trust Deed he had an “ overarching right to
make final and binding decisions relevant to the Trust” and claimed that he therefore had
the requisite authority to bring the application on behalf of the Trust. It is apparent from
the wording of clause 10 of the Deed that he does not obtain any authority therefrom.

2 “Notwithstanding anything to the contrary contained herein, in the event that any difference of opinion may exist
between the trustee(s) and the Founder in respect of any of the above provisions, the decision of the Founder shall be
final and binding, and shall prevail.”
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[9] The first applicant in the second rescission application, TOF Energy is a corporate
entity based and registered in Savannah, Georgia, in the United States of America (the
USA). The second applicant in the second re scission application, TOF Group is a
corporate entity based at the same address as the first in Savannah, Georgia in the USA.

[10] Mr. Adelakun is the Chief Executive Officer (the CEO) of both TOF Group and the
related corporation TOF Energy. He described TOF Energy as being primarily involved in
the business of the sale of oil and its storage.

[11] Worldpay LLC, is a limited liability corporation incorporated in Delaware, USA with
its global and corporate headquarters situated in 8500 Grosvenors Hill Drive, Symmes
Township, Cincinnati Ohio, USA and operates as an international global payment
processing company. Ms. Thabisile Sylvia Dlamini -Smith, is an insolvency practitioner
based in Johannesburg and is the appointed trustee of the insolvent estate of the Trust.
Ms. Zeenath Kajee is an insolvency practitioner based in Johannesburg and a jointly
appointed trustee of the insolvent estate of Mr. Adelakun.

THE PRESENT APPLICATIONS
[12] On 22 September 2023 Mr. Adelakun and the Trust instituted an application against
the Worldpay on an urgent basis in which the following relief was sought:
(i) The order bearing Case No’s 3484/19 and 3485/19 handed down by
Mantame J on 28 March 2019 placing Jhyhde International Trust (Reg No:
IT2823/2011) is set aside;
(ii) The final sequestration orders handed down by Steyn J on 6 January 2020
bearing Case No’s: 3484/19 and 3485/19 are set aside in terms of Section
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145(2) and/or alternatively as contemplated in Section 157(2) of the
Insolvency Act 24 of 1936.
(iii) The Respondent is directed to pay the costs of the application on a punitive
scale of (sic) attorney and own client.

[13] On the same date, 22 September 2023 under the same case number s, the Trust
and Mr. Adelakun issued out a Notice of Motion (the joinder application ) in which the
following relief was sought:
(i) Touch of Fame Group and TOF Energy Corporation are joined as Third and
Fourth applicants respectively in both of the above matters bearing Case
No’s 3484/19 and 3485/19 respectively;
(ii) Whichever party opposes the application is directed to pay the costs
thereof;
(iii) Further and/or alternative relief deemed appropriate by the above court.

[14] Worldpay filed notices of opposition to both applications and file d its answering
affidavits on 2 October 2023. In respect of the first application the applicants filed the ir
replying affidavit on 10 October 2023.

[15] On 23 October 2023, Mr. Adelakun and the Trust filed a notice of withdrawal of the
joinder application against Worldpay.

[16] On 24 October 2023 Samela, J made the following order in respect of both
applications by agreement between the parties, in the following terms;
1. Both matters are postponed to the fourth division roll to 10 November 2023
as arranged with the Honourable Acting Judge President Goliath.
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2. It is recorded that Touch of Fame Group and TOF Energy Corporation
intend:
2.1 revoking the notice of withdrawal of their application dated 23
October 2023 by 3 November 2023;
2.2 proceeding with their application under the aforementioned case
number; and
2.3 amending the notice of motion in relation to their application
aforesaid by 3 November 2023.
3. To the extent that Worldpay LLC may be advised to file a response to the
steps envisaged in 2.1 and 2.3, it will do so by 7 November 2023.
4. It is recorded that the second applicant has indicated his intention to
represent the first applicant and second applicant as well as Touch of Fame
Group and TOF Energy Corporation separately at the hearing.
5. Costs to stand over for later determination.

[17] On 3 November 2023, the applicants in the joinder application filed what they
referred to as “Appellant’s Notice to Revoke the Notice of Withdrawal of Their Application
Dated 23 October 2023”.

[18] On 3 November 2023 , TOF Group and TOF Energy (as the first and second
applicants) filed an “Amended Notice of Motion” (now the second rescission application),
against the three respondents (Worldpay, Zeenath Kajee Trustee for the Time Being of
Mr. Adelakun, Jyde and Thabisile Dlamini-Smit Trustee for the Time Being of the Jhyhde
International Trust) in which the following relief was sought:
1. The initial prayer under no. 1 in the original Notice of Motion be removed
and replaced with,
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1.1 The provisional sequestration order bearing Case No’s 3484/19 and
3485/19 handed down by Mantame, J on 28 March 2019 against
Jhyhde International Trust (Reg No: IT2823/2011) and another, is set
aside;
1.2 The final sequestration orders handed down by Steyn, J on 6
January 2020 bearing Case No’s: 3484/19 and 3485/19 are set aside
in terms of Section 149(2) of the Insolvency Act 24 of 1936.
2. It be declared that the first respondent lacked the locus standi from the
outset, to initiate any legal action or proceedings arising out of or in any way
relating to the Bank Card Merchant Agreement (BCMA) between the
second applicant and the first respondent, and/or pertaining in any way to
the relationship between the second applicant and the first respondent,
outside the exclusive jurisdiction of the State of Ohio, United States of
America.
3. It be declared that the High Court of South Africa , Western Cape Division,
Cape Town lacked the competent jurisdiction to entertain and or hear the
claims of the first respondent.
4. Whichever party opposes this Application is directed to pay the entire costs
thereof.
5. Further and/or alternative relief deemed appropriate by the above court.

[19] On 7 November 2024, Worldpay filed a Conditional Affidavit in answer to the
Amended Notice of Motion. On 9 November 2023 , TOF Energy and TOF Group filed a
supplementary replying affidavit.

[20] The application was heard on 10 November 2023. In the course of the proceedings
and in the light of the short notice of the Amended Notice of Motion served by e-mail on
the second and third respondents, Ms. Zeenath Kajee N.O. and Ms. Thabisile Dlamini -
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Smith N.O., the court directed the legal representatives for Worldpay to make telephonic
contact with the trustees to ascertain their position in respect of the second rescission
application. An affidavit was filed by Worldpay`s attorney later the morning in respect of
their communication with the two trustees. They indicated that they would abid e the
decision of the court in respect of the second application.

[21] At the conclusion of the oral hearing on 10 November 2023, the court issued the
following directive to the parties:
4.1 That the trustees of insolvent estates of Mr. Adelakun’s and the Trust be
provided with a copy of the first rescission application.
4.2 That the trustees’ attitude in relation to the application be ascertained and
that they be requested to indicate whether they intend ed abiding by the
decision of the court or otherwise.
4.3 That the Master of the High Court, the South African Revenue Service
(SARS) and First Rand Bank Limited, a creditor of both the insolvent estates
of Mr. Adelakun and the Trust, be provided with a copy of the first rescission
application. They were likewise requested to indicate their position with
regard to the application. The Master was specifica lly requested to file a
Report.
5. In particular, the court also directed that i) the attorney for Worldpay address
correspondence to the aforesaid parties in relation to the directives issued,
and that such correspondence to be copied to Mr. Adelakun and ii) provide
a service affidavit within 10 (ten) days of the hearing.

[22] On 24 November 2023 the legal representative of Worldp ay filed a compliance
affidavit and the responses by certain of the parties ref erred to in the directive of the 10
November 2023. On 23 November 2023 Ms. Zeen ath Kajee likewise deposed to an
affidavit in which she confirmed receipt of the applications and also confirmed the
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contents of the affidavit deposed to by Ms. Venter filed with the court when the matter
was heard. She confirmed that she would abide the decision of the court and so too Ms.
Mpho Abbey Dlavani (a joint trustee) in respect of the second application. So too did Ms.
Thabisile Sylvia Dlamini-Smit in respect of the second application confirm that she would
abide the decision of the court. In the service affidavit Ms. Venter, advised that no
response had been received from SARS and neither had the Master respond ed. The
court was nonetheless satisfied that service had been provided to SARS of the
application. The application was only served on the Master on 25 January 2024 d ue to
logistical issues. The Master filed her Report on 26 January 2024 wherein she indicated
that she would abide the decision of the court.

HEADS OF ARGUMENT FILED IN THESE PROCEEDINGS
[23] The applicants through their erstwhile legal representatives ZS Incorporated, filed
heads of argument dated 19 October 2023. Worldpay`s counsel filed hers on 23 October
2023.

[24] Mr. Adelakun appeared in person at the hearing of the matter on 10 November
2023 on behalf of all of the applicants in both the first and second application. I will revert
to the issue of his representation of the various applicants at the hearing other than for
himself. He submitted a new set of heads of argument at the hearing.

[25] With the leave of the court , Worldpay`s counsel filed a supplementary note o n
argument on 21 November 2023 in response to the written heads of argument by Mr .
Adelakun and to his oral address in court o f 10 November 2023 and in particular with
regard to the issues raised by the TOF Group and TOF Energy. On 23 November 2023,
Mr. Adelakun took the liberty of filing a supplementary note o n argument in response to
Worldpay`s note of 21 November 2023.

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THE SEQUESTRATION PROCEEDINGS
[26] By way of no more than a thumbnail sketch of the rescission applications,
Worldpay applied for the sequestration of both Mr. Adelakun and the Trust in the following
circumstances. Worldpay claimed that it was the victim of a massive international fraud
and the misappropriation of its funds which amounted to at least USD 12 ,398,662.25
(which at that stage exceeded R17 million) allegedly perpetrated by Mr. Adelakun together
(amongst others ) with the trustees of the Trust. Worldpay traced the proceeds of the
alleged fraud to separate bank accounts held by both the Trust and Mr. Adelakun in Sea
Point, Cape Town.

[27] On 6 December 2018 by way of urgent proceedings in this division under case
number 19409/2018, Worldpay obtained an interim interdict freezing the funds in the bank
accounts of Mr. Adelakun and the Trust held at the First Rand Bank Ltd (FRB) based in
Sea Point, Cape Town. Consequent upon and in terms of the interim order, Worldpay was
permitted to inspect the bank statements of the accounts held by both Mr. Adelakun and
the Trust. Worldpay claimed that it was clear that Mr. Adelakun personally and through
the Trust, inter alia, engaged in the systematic dissipation of funds in the respective FRB
accounts. Moreover, the transfer of funds from these accounts were part of a pattern of
transfers that evidenced a clear intention to evade the creditors of both Mr. Adelakun and
the Trust and in particular, Worldpay. It claimed that both Mr. Adelakun and the Trust were
indebted to it in a liquidated claim and that both had committed acts of insolvency .
Worldpay also claimed that from the information available to it both Mr. Adelakun and the
Trust had insufficient assets to pay their debts to it and were factually insolvent. Worldpay
therefore sought the urgent sequestration of both Mr. Adelakun and the Trust to prevent
the further dissipation of funds which funds, Worldpay claimed belonged to it and to
protect the general body of creditors . Worldpay claimed that large amounts of mon ey
including that which were transferred to South Africa and channeled through the South
African bank accounts remained unaccounted for . A provisional order of sequestration
was granted by Ma ntame J on 28 March 2018 after what was described in those
proceedings as the twist and turns occasioned largely by the regular and successive
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changing of legal representatives by Mr. Adelakun and the Trust. They were eventually
and finally sequestrated on 6 January 2018 by order s of Steyn, J. I will revert to the
background of the sequestration in a little more detail and the order and the judgment of
both Mantame, J and Steyn, J respectively.

THE ALLEGED FRAUD OF USD 12,398,662.25 AND OTHER EVENTS THAT LED TO
THE SEQUESTRATION APPLICATION
[28] The background to the sequestration application s and that of the interdict in
respect of the bank accounts of Mr . Adelakun and the Trust were set out in detail in the
judgment of Steyn, J. I deal with it for no more, than to give a fuller context to the present
applications for rescission.

[29] The founding affidavit in the sequestration applications was deposed to by a Mr.
Ian Belsham, the global head of transaction monitoring of Worldpay. He was at that stage
based in Manchester in the United Kingdom. Worldpay, as indicated, is a global payment
processing company that offers a broad suite of payment processing services. It enabled
merchants to accept and to process credit, debit and prepaid payments, received from
customers in respect of goods and services rendered by the merchant.

[30] In August 2018 , the Worldpay entered into a Bank Card Merchant Agreement
(BCMA) with TOF Energy. When entering into the BCM A, Worldpay claimed it relied on
audited 2017 annual financial accounts purportedly of the TOF Group that were provided
to it by TOF Energy. Worldpay claimed that upon investigation it uncovered that the TOF
Group financial statements were in fact forged as they appeared to have been copied
directly from a 2015 annua l report of a dissolved company , Antrim Energy Incorporated
and filed in 2016 in the Canadian System of Electronic Document Analysis and Retrieval.
The statements were available on the website of Antrim Energy Incorporated. I should
point out that Mr. Adelakun vehemently disputed the provision of the forged accounts by
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TOF Energy and claimed that it was also the subject to a police investigation in which he
had laid formal charges against Mr. Belsham.

[31] In terms of the BCM A, the Worldpay was to provide TOF Energy with payment
services, in particular , automated “clearing house” services. T he automated “clearing
house” services allowed merchants such as TOF Energy to accept and process Visa,
MasterCard and American Express and other debit network card transactions that
originated at the point of sale as well as for e-commerce and mobile transactions for the
purpose of completing sale transactions. T he services included all aspects of card
processing, including authori sation and settlement, customer service, chargeback and
retrieval processing and a network fee and interchange management. The services arose
in the ordinary course of business where a merchant’s customer would present payment
cards to a merchant for payment. Via a terminal at the merchant ’s premises , a
communication would be sent to Worldpay under which an instruction is given by the
merchant to di rectly debit the customer ’s cheque or savings account and to credit the
merchant’s account . This would ordinarily follow the merchant ’s authori sation of th e
transaction at a terminal at the merchant’s premises or online. The instruction is given to
Worldpay, who pays the amount less fees into a bank account stipulated by the merchant
in terms of the BCMA. TOF Energy stipulated the TOF Group bank accounts held at Fifth
Third Bank (FT Bank) in the U SA. Upon receipt of the electronic instruction from TOF
Energy, Worldpay would obtain authorisation from the customer ’s bank . There was
however, often a delay in obtaining that authorisation. In certain circumstances, Worldpay
would transfer funds to the merchant, TOF Energy in respect of a completed transaction
prior to the receipt of the validation of the customer’s authorisation from the customer’s
bank(s). In the event of a problem with payment or return by a customer to the merchant,
Worldpay would receive an error code /response from the customer’s bank and the
merchant would then be required to refund Worldpay with the amount transferred and
associated processing charges . In common parlance , Worldpay described this as an
“advanced payment” made to the merchant, which would become final upon confirmation
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from the customer ’s bank that the transaction was in order . Worldpay claimed that was
the procedure adopted by it in its dealings with TOF Energy.

[32] Worldpay claimed that between the time of TOF E nergy’s registration on its
platform in August 2018 and 10 September 2018, TOF Energy represented to it that it had
purportedly made sales to customers to the amount of USD 46,056,007. The amounts
were thereupon (i) processed through the Worldpay`s automated clearing services
platform (ii) presented by TOF E nergy for payment by Worldpay into the account
stipulated by TOF Energy for payment being the FT Bank account.

[33] Worldpay claimed that it paid an amount of USD 15,310,166.25 in fifteen tranches
into the FT Account in anticipation of receiving payment from TOF Energy`s customers.

[34] Worldpay claimed that before it fully reconciled the transactions as per TOF
Energy’s instructions between August and September 2018 it`s officials became aware of
an alarming number of “rejected transactions” on TOF Energy`s account where response
codes received by the banks of TOF`S alleged customers indicated that (i) there were no
such customer accounts in the first place (ii) the owner of such customer accounts did not
authorise any such payments to TOF Energy or (iii) certain transactions were rejected as
invalid account numbers were provided.

[35] Worldpay explained that it promptly initiated an internal investigation into the
accounts it held with TOF Energy. The investi gations confirmed that all the sales
processed through the accounts were fictitious. For example, in some cases, customers
did not even exist at all or if real had not made purchases from TOF Energy.

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[36] Worldpay realised that it had fallen victim to a sophisticated wire (internet) transfer
fraud in respect of TOF Energy`s request for transfers into the FT Bank Account. It was
able though to debit against and recover from the FT Bank Account the sum of US D
2,911,504 leaving a loss as a result of the alleged fraud of USD 12,398,662.25.

[37] Worldpay contacted FT Bank on 11 September 2018 in an attempt to confirm its
suspicions of the fraudulent activities perpetrated through the FT Bank account of TOF
Group. FT Bank responded by providing details of suspicious transactions on the FT
account. As a result of that exchange Worldpay and FT Bank as well as recipient bank(s)
into which funds were routed from the FT Bank to accounts in the United Kingdom,
Nigeria, Sierra Leone and the United Arab Emirates. Worldpay engaged relevant criminal
intelligence authorities in the United States and other affected jurisdictions, who initiated
investigations into the affairs of TOF Group and TOF Energy and the alleged fraud
perpetrated against Worldpay.

[38] On 26 September 2018 Worldpay received an e-mail from the United States Secret
Service (the USSS) confirming that the fraud was being investigated and a suspect had
been apprehended in the US A and that the following persons and their related entities
were regarded as “persons of interest”; (i) Mr. Adelakun in person, (ii) TOF Energy, (iii)
TOF Energy Company Limited incorporated under the laws of the Federal Republic of
Nigeria with its registered office in Lagos, Nigeria (TOF Nigeria) and (iv) the TOF Group.

[39] Worldpay was able to establish that TOF Energy, TOF Nigeria and TOF Group
were all linked to Mr. Adelakun via the internet and in company searches (all of which they
attached to the founding affidavit in the sequestration proceedings).

[40] On 2 October 2018 Worldpay obtained bank statements of the relevant FT Bank
accounts which confirmed the difference between the funds transferred by Worldpay into
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the FT Bank account and from which funds were promptly transferred out of the account.
The TOF Group held two separate bank accounts with FT Bank. Funds were transferred
from the account into which Worldpay had deposited the payments to TOF Ene rgy into
the second bank account at FT Bank. The statements also evidenced the transfer of funds
into the FT Bank account by the Worldpay and the transfers of those funds from the FT
Bank accounts (the statements were likewise attached to the founding affidavit ). The
significance of the statements is that Mr. Adelakun and the Trust nonetheless disputed
that Worldpay had deposited funds into the designated account of TOF Energy in respect
of the alleged fraudulent transactions.

[41] Wordpay graphically, through an elaborate flow chart and with reference to the
bank statements demonstrated the flow of funds tracked by it that originated from its own
bank accounts into that of TOF Group at the instance of TOF Energy between August and
September 2018 as follows:
(i) The TOF Group through Mr. Adelakun or otherwise at his instance had
transferred a substantial part of the funds allegedly procured fraudulently
from the FT Bank account into a further account held with FT Bank by the
TOF Group (the second FT Bank Account).
(ii) The TOF Group through Mr. Adelakun or otherwise at his instance debited
the second FT Bank account through transferring USD 2,045,600 in seven
tranches to an account in South Africa held at First Rand in Sea Point, Cape
Town by the Trust.
(iii) Worldpay attached the relevant extracts from the FT Bank wire transfer
statements which confirmed the transfers from the FT Bank account and
the FT Bank provided a letter confirming the transfers and the steps taken
by it to freeze the FT Bank of TOF Group accounts in the USA.

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[42] Worldpay established that the FRB account into which the amounts had been
transferred from the FT Bank account was held in the name of the Trust. Various amounts
were thereupon transferred from the account of the Trust to amongst others, an account
of Mr. Adelakun held in his personal capacity at FRB in Sea Point.

[43] Worldpay explained the steps it took through its attorneys in the endeavor to have
the two accounts at FRB, Sea Point, that of Mr. Adelakun and that of the Trust frozen
pending investigation. Worldpay claimed that aside from the transfers to the bank account
of the Trust account and into that of Mr. Adelakun’s personal bank account, substantial
sums of the alleged misappropriated funds were also traced to having been paid from the
FT Bank accounts to bank accounts located in other jurisdictions including Nigeria, the
United States, Sierra Leone and the United Arab Emirates and to persons related to Mr.
Adelakun and/or the TOF Energy. Worldpay claimed that it had taken steps to freeze and
recover some of those funds.

[44] Worldpay explained that despite the initial uncertainty concerning who held the
accounts, their lawyers filed a report with the Sandton branch of the South African Police
Services (SAPS) on its behalf and sent a copy of the statement to FRB and requested
that they maintain a hold over the Trust and Mr. Adelakun’s accounts. FRB undertook to
do so for a limited period on condition that Worldpay obtained a court order authorising it
to freeze the bank accounts. The interdict proceedings to freeze the accounts of both Mr.
Adelakun and the Trust ensued. It also appeared that on 17 October 2018 the Nigerian
Economic and Financial Crimes Commission obtained an ex-parte order in the Federal
High Court in Lagos against Mr. Adelakun for an interim hold over accounts in Nigeria into
which some of the alleged misappropriated funds had been transferred. On 8 November
2018 Worldpay also procured an ex-parte freezing injunction over funds transferred into
bank accounts in Sierra Leone from the High Court of that country. The order was
subsequently stayed pending an appeal.

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[45] Worldpay claimed that neither Mr. Adelakun nor the Trust delivered any substantive
responses to the claims made by it in the founding affidavit in the interdict proceedings. It
claimed that Mr. Adelakun and the Trust took a series of steps aimed at no more than
delaying th e application such as the filing of a Notice in terms of Rule 35 (12) of the
Uniform Rules of Court delivered on no less than two days’ prior the hearing of the matter
and also a Notice in terms of Rule 47 demanding security for cost s from Worldpay.
Worldpay`s attorneys tended an amount of R200,000 as security of costs but no response
was received from either Mr. Adelakun nor the Trusts legal representatives. T here was
also a substantive application brought for the postponement of the interdict proceedings
by Mr. Adelakun and the Trust.

[46] The court was not inclined to grant the postponement but by way of a consent
order FRB were compelled to provide the identities of the account holders in respect of
monies that had been deposited into them from the FT Bank accounts. A mechanism was
established whereby Worldpay and its legal representative could inspect but not copy the
statements relating to the two bank accounts (that of Mr. Adelakun and the Trust) under
the supervision of an independent facilitator. T he hearing of the remaining relief was
postponed together with a procedural timetable. Worldpay pointed out that neither Mr.
Adelakun nor the Trust filed an answering affidavit and on the return date they appeared
without any legal representation . Mr. Adelakun filed an affidavit which was headed
“Affidavit in Support of the Notice of Preliminary Objection o n the basis of Lack of
Competent Jurisdiction in This Matter” in which Mr. Belsham’s authority was challenged
in bringing the application and in which Worldpay claimed, included baseless and
defamatory allegations about Mr. Belsham. An interim order freezing the accounts was
granted on 6 December 2018. Worldpay also pointed out the various delays adopted by
Mr. Adelakun and the legal representatives of the Trust in facilitating the inspection of the
bank accounts by Worldpay`s attorneys.

[47] After eventually inspecting the bank accounts, Worldpay`s attorneys were able to
provide a detailed analysis of the relevant transactions in the bank accounts of the Trust
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and that of Mr. Adelakun’s personal account. The analysis not only provided the details of
the flow of funds through the accounts but evidence of clear attempts by Mr. Adelakun
and the Trust to conceal funds from the creditors of both Mr. Adelakun and that of the
Trust. The analysis was attached to the founding affidavit and its accuracy was confirmed
by the attorney of Worldpay who produced it.

[48] Worldpay also pointed out the following pattern of transactions into the two FT
Bank accounts and which were confirmed by investigations conducted by the American
authorities; (i) that the FT Bank accounts in August and September 2018 were used only
for the receipt of funds from Worldpay and the funds were promptly transferred out of the
account into the second FT Bank account, (ii) similarly, the second FT account also held
by TOF Group were used sorely to receive funds from the first FT account during this
period and the funds were promptly transferred out of the account. The funds, as already
stated were transferred from the account into several accounts in five different countries
including South Africa.

[49] The detailed analysis of the bank accounts held by Mr. Adelakun and that of the
Trust not only demonstrated the flow of funds into the respective accounts held by Mr.
Adelakun and that of the Trust but also showed that prior to the transfer of funds into the
Trust`s bank account, the balance in that account was no more than R376.57. In respect
of Mr. Adelakun’s personal account, it showed that prior to the transfer of funds into the
account the balance was zero rand. Worldpay was able to demonstrate that an amount
of R3,360,000.00 was paid from the FRB account of the Trust into that of Mr. Adelakun’s
personal account. The analysis also showed that an amount of USD 2,045,600 (ZAR 29,
769,654) had been transferred into the Trust`s account in seven tranches from the second
FT Bank account.

[50] Worldpay was also able to show that there were thirty-seven inbound transfers into
the FRB account of Mr. Adelakun for the period August to October 2018 with a total of
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R16,850,413. These transfers appeared to be internet, mobile banking applications or
ATM transfers. Worldpay also showed that as at the end of October 2018 there was no
more than a balance of R2,645,699.48 in Mr. Adelakun’s personal account and that the
amount of R7,047,542.62 which had been transferred out of it remained unaccounted.
Worldpay however, was able to show that some of the unaccounted funds may have been
transferred into a further F RB bank account controlled by Mr. Adelakun namely , in the
name of TOF Oil and Mineral Refinement (Pty) Ltd.

[51] Worldpay attached an extensive table to its founding affidavit with the analysis of
the transfers into the various banks accounts and contended that there was no question
of a pattern which emerged by the inflow and the transfer of funds. It contended that the
accounts including that of Mr. Adelakun’s personal account had been used to disperse
the funds allegedly misappropriated from it.

[52] Worldpay contended that it had not only been able to establish the extent of the
alleged fraud in a liquidated amount of USD12,398,662.55 but was able to trace some of
those funds in the South African bank accounts of Mr. Adelakun and that of the Trust as
follows:
52.1 R29,769,654 into the Trust’s primary FRB Account, of which a balance
remained of only R574,482.27;
52.2 R3,360,000 into the F RB Account of Mr. Adelakun, of which a balance
remained of only R2,645,699.48.

[53] Worldpay contended that it was evident from the analysis of the bank statements
that Mr. Adelakun and the Trust had actively dissipated funds prior to the freezing of the
accounts.

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[54] Worldpay explained that since the hearing and the grant of the interim interdict in
December 2018 it had continued to take steps to trace the funds. It also sought to obtain
details of the Trust from the Master and whether it held any assets. It appeared that the
Trust had an immovable property registered in its name situated in Parow, Cape Town.
Worldpay explained that it appeared that whil e it was busy securing the freezing of the
accounts with FRB, there were attempts made by TOF Oil and Mr. Adelakun to lift orders
in which other amounts were held at FRB. Worldpay contended that it was not able to
obtain further information with regard to the amounts relating to the TOF Oil application
but that such could be investigated by the trustees once appointed.

[55] Worldpay contended that it had met the requirements for the provisional
sequestration of Mr. Adelakun and the Trust. It contended that it was a creditor of both Mr.
Adelakun and the Trust with liquidated claims arising from the alleged internet fraud in the
amount of USD12,398,662.55 alternatively it was undeniable that it had a claim against
Mr. Adelakun in his personal capacity in the amount of R3,360,000.00 being the alleged
misappropriate funds that had been traced and channeled into his personal FRB account.
Likewise, it claimed that it had a liquidated claim against the Trust for the amount that was
received from the FT Bank accounts less that the amount remaining in the account and
that transferred to Mr. Adelakun. It explained that it held no security for such amounts.

[56] Worldpay contended that Mr. Adelakun in his personal capacity and the Trust had
committed acts of insolvency and had dissipated assets as follows:
1. That the analysis of Mr. Adelakun’s First Rand Bank account demonstrated
the dissipation of funds paid into the account. Of the R16,850,413 paid into
the bank account of the Trust (which included the R3,360,000 transfer
directly from the Trust account only R2,645,699.48 remained).
2. In respect of the Trust, an amount of the R29,769,654 paid into the FRB
account from the FT Bank only R574,482.27 remained in the account upon
it being frozen.
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Worldpay contended th at such conduct amounted to (i) a dissipation of
property of both the Trust and Mr. Adelakun’s which had or would have had
the effect of prejudicing their creditors in terms of Section 8 (c) of the
Insolvency Act3 or (ii) the removal or attempt at removal of property with the
intent to prejudice their creditors particularly, Worldpay or to prefer creditors
other than Worldpay in terms of Sections 8(d)4 of the Insolvency Act.

[57] Worldpay had also contended that both Mr. Adelakun and the Trust were factually
insolvent. In that regard it claimed, whether the liquidated claim against the Trust was
R16,850,413 or R 3,360,000, the only identified asset was the R2,645,699.48 frozen in
Mr. Adelakun’s FRB account.

[58] Worldpay contended that the sequestration of both the trust and Mr. Adelakun’s
personal estate was to the advantage of creditors in that the re remained in excess of
R2,645,699.48 in the accounts. It contended that large amounts of money , literally tens
of millions were transferred through the bank account of Mr. Adelakun, the Trust and TOF
Oil which included R16,850,413 which had been paid into Mr. Adelakun’s bank account
at FRB of which only R2,645,699.48 remained. Worldpay contended that duly appointed
trustees could investigate the affairs of both Mr. Adelakun and the Trust to trace the
missing “funds”. That would include the powers of the trustees under the insolvency laws
to obtain their bank statements and to conduct an insolvency inquiry , if necessary .
Worldpay contended that placing Mr. Adelakun’s estate and that of the Trust estate under
sequestration prevented the further dissipation of funds and allowed the full extent of their

3 if he makes or attempts to make any disposition of any of his property which has or would have the effect of prejudicing
his creditors or of preferring one creditor above another
4 if he removes or attempts to remove any of his property with intent to prejudice his creditors or to prefer one creditor
above another;


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affairs to be examined, assets determined and realised to the benefit of their general body
of creditors.

THE OPPOSITION BY THE TRUST AND MR. ADELAKUN TO THE SEQUESTRATION
PROCEEDINGS
[59] I should point out that the answering affidavit deposed to by Mr. Adelakun in
respect of both himself and that of the Trust was filed under the hand of his then attorneys
PA Mdanjelwa Attorneys with correspondent, L Twalo Attorneys.

[60] In the preamble to the affidavit Mr. Adelakun denied any knowledge of the alleged
fraud perpetrated by TOF Energy against Worldpay as alleged in the founding affidavit.
He disputed that Worldpay had established a liquidated debt against both him in his
personal capacity and against the Trust. He sought to dismiss the claims made by the
Worldpay as nothing more than an attempt by Worldpay to cover up alleged claims of an
unlawful demand of USD800,000 that staff of Worldpay based in the UK had apparently
sought to extort from him. He also disputed that the deponent to the founding affidavit Mr.
Belsham was duly authorised to have done so on behalf of Worldpay based in the United
States all of which he sought to raise by way of points in limine.

[61] Mr. Adelakun described the objectives of the Trust as being business in nature, to
hold immovable property, shares and other property and assets for the benefit of its
beneficiaries of which he was one . He confirmed that the Trust was the owner of the
immovable property in Plattekloof, Parow, Cape Town. He claimed to have the necessary
authority to depose to the answering affidavit on behalf of the Trust in terms of clause 10
of the Trust Deed which, as already indicated, did not grant him any such authority . In
respect of his own business he explained that he had interests in the crude oil trade, gas
refined petroleum products, exploration and mining. He confirmed that he was the Chief
Executive Officer of both TOF Group and TOF Energy.
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[62] He raised a further point in limine under the heading “Lack of Jurisdiction.” He
claimed that the court lacked the necessary jurisdiction to adjudicate the matter on the
basis that Worldpay was not an “incola” of the republic and more so that the deponent to
the founding affidavit did not work for Worldpay in the USA but rather worked for an
unrelated company in the United Kingdom. He claimed that Worldpay had no business in
South Africa nor did it hold any realisable property in the Republic and on that basis alone
the application should be dismissed with cost s. He also referred to the BCMA between
TOF Energy and the Worldpay which provided:
“23. Clause of law, jurisdiction, venue: This agreement shall be governed by and
consumed and enforced in accordance with, the laws of the State of Ohio without
regard to conflicts of law provisions. The parties hereby consent and without God
to conflicts of law provisions. The parties hereby consent and submit to serve of
process, personal jurisdi ction and venue in the state of and federal courts of
Cincinnati Ohio or Hamilton county, Ohio and select such courts as the exclusive
forum with respect to any action or proceedings arising out of or in any way relating
to this agreement, and or pertainin g in any way to the relationship between
Merchant and processor. Merchant and processor hereby waive the right to trial by
jury in any matter under, related to, or arising out of this agreement or any
transactions or relationship contemplated hereby.”

[63] Mr. Adelakun claimed that the issues raised by Worldpay were for the courts of the
United States to determine with the application of the laws of that country in terms of the
agreement and not for a South African court in application of South African law. A further
point in limine raised was that of non -joinder. In th at regard they contended that
Wordpay`s allegations of acts of fraud against it were neither perpetrated by him nor the
Trust. He claimed that there were no criminal proceedings pending against him or the
Trust. It was therefore necessary for Worldpay to have joined TOF Energy with who it had
a contractual relationship and claimed “better yet that there is some pending legal dispute
between the two companies which dispute will have a bearing on the outcome of this
matter”. He also claimed that he was not involved in the conclusion of the BCMA between
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TOF Energy and Worldpay and he only received the reports from the treasurer of the
company, amongst others, and claimed “meaning I delegate”.

[64] Mr. Adelakun and the Trust also disputed that there was any evidence tha t
supported the allegation that Worldpay had been a victim of fraud or that it had been
perpetrated by him or his Trust. H e denied that he had masterminded any acts of
criminality through the various entities and claimed that they were “in business around
the world”. He disputed that there was clear evidence to support the claim that the money
transferred from the various bank accounts belonged to Worldpay and that it had failed
to “even prove that they suffered any loss in the first place”. He disputed that he and the
Trust were evading their creditors and denied that the Worldpay was in fact a creditor of
theirs. He even disputed that the matter was urgent. As already indicated he disputed that
the financial statements provided to Worldpay were provided by his companies TOF
Energy or the TOF Group. He likewise disputed the transfers referred by Worldpay and
claimed that inasmuch as there were no bank statements of the Worldpay attached nor
that of his and the Trust, that Worldpay had failed to produce any evidence of such
transfers. The only bank statements produced were that of TOF Energy and TOF Group.
He disputed that the funds referred to in the transfer analysis had in fact originated from
that of Worldpay in payment to TOF Energy into the designated accounts of TOF Group.
He claimed that in respect of the criminal matter , SAPS had since closed their
investigations after, as he claimed, “having found no element of criminality being involved
in my accounts”.

[65] He claimed that the applications by Worldpay in the Nigerian and S ierra Leone
courts had been finalised in his favour and that his accounts were no longer frozen in
those jurisdictions. In response to the claim by Worldpay that the transfers of money from
the FT Bank accounts into that of the Trust was to conceal such funds that had been
misappropriated from that paid by Worldpay, he stated as follows:
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“the primary purpose of the Trust if I must mention it is to invest in the republic through
purchase of properties for investment and not to conceal money”.

[66] In response to the claims made by Worldpay about the transfers of funds from the
FT Bank account to that of the Trust he claimed;
“91 What the statements shows is nothing but interaction between myself and the trust
as a functionary thereof and to ensure that its interests are catered for. Nothing
untoward about any of the transactions made. The funds were once again
transferred into South Africa for investment purposes and I do not feel it necessary
to disclose my business interests to the deponent so as to further its agenda of
extorting money from me making use of the South African Courts.”

[67] Mr. Adelakun also contended that the analysis of the various banks accounts by
the attorneys of Worldpay was nothing more than “a fake analysis”.

[68] In response to the claim that the y were dissipating the funds to the prejudice of
creditors in terms of Section 8 (c) of the Insolvency Act, Mr. Adelakun denied any such
dispositions. He claimed that the transactions that took place from the Trusts account
“remain above board transactions and not a single creditor besides this bogus one in the
form of the alleged applicant has come forward crying foul ”. He also denied that both he
and the Trust were factually insolvent, although he provided no details of their assets nor
for that matter any details of any of their creditors (if any).

[69] In response to the claim that his sequestration and that of the Trust would be to
the advantage of their creditors, Mr. Adelakun disputed that and stated “there exists no
creditors again (sic) me or the trust”.

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[70] In the answering affidavit deposed to by Mr. Adelakun, on behalf of the Trust and
himself in the interdict proceedings in respect of the freezing of the bank accounts, he
repeated the same points raised, in limine in the sequestration proceedings . He again
disputed that he or the Trust had been involved in any act of criminality and stated that
they “never received any funds that a re fraudulently misappropriated nor has the trust
been involved in any act of money laundering ”. Importantly he failed to provide any
explanation or details as to why the trust received funds from the FT Bank account other
than that it was an “investment”.

[71] He claimed that nothing prevented T OF Group from transferring money to South
Africa especially “in line with the fact that no proof exists to show that money left the
applicants (Worldpay`s) coffers destined for TOF Energy Corporation which trail is then
followed to Touch of Fame Group company again a separate company .” Notably no
mention was made whatsoever as to the details and to why the monies were transferred
from the TOF Group into the account of the Trust. Again in denial of the allegations of
misappropriation he state d “no one has received any misappropriated funds. It is clear
that there are no misappropriated funds but there is clear evidence of an attempt by the
deponent to steal money from me and the trust through the use of the South African
courts”. He likewise claimed that monies that were transferred to the South African bank
accounts did not belong to Worldpay. He therefore sought the discharge of the Rule Nisi
with a punitive cost order against Worldpay.

THE ORDER OF MANTAME J AND THE JUDGEMENT OF STEYN J
[72] The estates of Mr. Adelakun and that of the Trust were provisionally sequestrated
by Mantame, J having been satisfied that a prima facie case had been made out for such
orders. Inexplicably, and despite the p rovisions of the Insolvency Act, Mr. Adelakun and
the Trust brought an application for leave to appeal against the orders of provisional
sequestration. Needless to say, the beleaguered applications were correctly and promptly
refused by Mantame, J.
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[73] In the judgment of Steyn, J, she set out by way of a preamble, in some detail the
manner in which Mr. Adelakun had litigated the defenses of the sequestration proceedings
against both himself and the Trust. She expressed her strong concerns about the manner
in which he repeatedly changed legal representatives, sought postponements and that
he had inappropriately addressed emails directly to her and with threats against her. Most
unconventionally, she attached a copy of an e -mail addressed by Mr. Adelakun to her
after the final hearing of the application. She pointed out that it was done no more than to
cause confusion and distraction and supported the impression of a lack of reliability and
credibility on the part of Mr. Adelakun. He also falsely accused her of conversing with the
legal representative of the Worldpay in her chambers despite her not having previously
met the counsel and who had hailed from Johannesburg.

[74] The interdict proceedings also served before Steyn, J. In the judgment she also
referred to the manner in which Mr. Adelakun and the Trust dealt with those proceedings.

[75] As already indicated she dealt extensively with the background to the application,
she was satisfied with the conclusions reached by Mantame, J to the effect that Worldpay
had successfully shown the flow of funds from Worldpay to TOF Energy through the bank
accounts held by the TOF Group in the FT Bank and from the FT Bank accounts disbursed
into the FRB account of the Trust and the further disbursements into the account of Mr .
Adelakun at FRB and others. Steyn J found that the provisional sequestration orders were
“justifiably and duly granted ”. She was satisfied that the requirements for the final
sequestration orders in terms of Section 12(1)5 of the Insolvency Act had been met and

5 Final sequestration or dismissal of petition for sequestration
(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 such as is mentioned in subsection (1)
of section 9; and
(b) the debtor has committed an act of insolvency or is insolvent; and
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that Worldpay had shown on a balance of probability that it had a liquidated claim against
Mr. Adelakun and the Trust in excess of R100 (Sections 12(1)(a) of the Insolvency Act).
In fact, Steyn, J correctly pointed out that Worldpay had demonstrated that it was owed
substantial amounts comprising millions of rand by Mr. Adelakun and the Trust. Steyn, J
was of the view that Mr. Adelakun personally and in his capacity as a Trustee were
complicit in the alleged fraudulent conduct that resulted in the unlawful flow of funds into
their accounts at FRB. She was satisfied that Worldpay had established a liquidated claim
against both Mr. Adelakun and the Trust that conferred locus standi on it in compliance
with the provisions of the Act. Steyn, J also found that Mr. Adelakun and the Trust were
moreover factually insolvent and that they had committed acts of insolvency. In this regard
she referred to the various amounts which remained in the bank accounts of Mr. Adelakun
and the Trust in the analysis provided by Worldpay`s attorney. She was also satisfied that
there had been dispositions in terms of Sections 8 (c) of the Act and that there was a risk
of creditors being preferred as contemplated in the provisions of Sections 8(d) of the Act.
Steyn, J was of the view that there did not appear to be a genuine and bona fide dispute
of fact on any of the relevant issues. Mr. Adelakun, had in respect of his own estate and
that of the Trust failed to set out a defense in particular with regard to providing a
reasonable, probable and good faith explanation as to the flow of funds into his and that
of the Trust`s FRB accounts. She pointed out that the transfers in respect of these
accounts had been explained in detail by the Worldpay and importantly with computer
generated information that was corroborated by the evidence of Mr. Belsham. She was
satisfied by the explanation provided by Worldpay in the analysis of the flow of funds
which she regarded as not only “useful” but was neither persuasively nor at all challenged
by either Mr. Adelakun or the Trust.

[76] Importantly, Steyn, J found that there was no merit in any of the points raised in
limine, such as the lack of joinder of any other party such as TOF Energy and also the

(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.
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challenge to the jurisdiction of the court in respect of the BCMA. The court was satisfied
that it would be to the advantage of the creditors of both Mr. Adelakun’s personal estate
and that of the Trust that they be finally sequestrated . She pointed out that millions of
rand remained unaccounted for and that inquiries may have to be conducted to establish
the whereabout s of such assets for the benefit of creditors. S he pointed out that Mr.
Adelakun and the Trust had no more than boldly asserted that they “do not have creditors”
which had been shown to be patently untrue . Steyn, J was satisfied that the conduct of
Mr. Adelakun in relation to these matters indicated fraudulent dealings with far reaching
consequences that justified investigation and interrogation and a final winding-up order
of the estates of both his and that of the Trust that would be to the advantage of creditors.
Steyn, J also referred to the interdict proceedings in respect of Mr. Adelakun’s and that of
the Trust`s bank accounts. She pointed to the remaining balances that were found upon
the accounts being frozen and that a large amount remained unaccounted for and
“unexplained”.

[77] The interdict proceedings were postponed by Steyn, J with the Rule Nisi extended
(the interdict was subsequently discharged after the appointment of the trustees to the
insolvent estates). The following orders were made by Steyn, J:
1. Final sequestration orders are granted in cases 3484/19 and 3485/19.
2. The costs of the sequestrations, including reserved costs in respect of any
extensions of return days or postponements, save where orders in this regard have
already been made, will be costs in the sequestrations.

THE BASIS FOR THE PRESENT APPLICATIONS FOR RESCISSION OF THE
SEQUESTRATION ORDERS
The first rescission application
[78] In the first application , the Trust and Mr. Adelakun seek the setting aside of the
provisional order of sequestration by Mantame, J. They also seek the setting aside of the
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order of Steyn, J of 6 January 2020 and claim that they do so in terms of Sections 149(2)
and/or alternatively Sections 157(1) of the Insolvency Act. They also seek a punitive order
of costs on an attorney and own client scale against Worldpay.
Section 149(2) of the Act provides;
“149 (2) The Court may rescind or vary any order made by it under the provisions of this
Act.”

Section 157(1) of the Act provides;
“157. Formal defects
(1) Nothing done under this Act shall be invalid by reason of a formal defect or irregularity,
unless a substantial injustice has been thereby done, which in the opinion of the Court
cannot be remedied by any order of the Court.”

[79] The applicants in the rescission application were represented by attorney , Mr.
Saban of the firm ZN Attorneys under whose hand the applications were issued and
served. Mr. Adelakun as with all of the other affidavits in the proceedings deposed to the
founding affidavit on behalf of his personal estate and that of the Trust. In respect of the
Trust, he once again claimed that he was authorised to do so in terms of clause 10 of the
Trust Deed which, as already indicated, does not give him any such authority. He also
claimed that they were not required to cite the trustees appointed in their respective
sequestrated estates as the primary relief sought by the Trust and him relate d to their
legal status as contemplated in Section 23(6) of the Act, which provides;
“The insolvent may sue or may be sued in his own name without reference to the trustee
of his estate in any matter relating to status or any right in so far as it does not affect his
estate or in respect of any claim due to or against him under this section, but no cession
of his earnings after the sequestration of his estate, whether made before or after the
sequestration shall be of any effect so long as his estate is under sequestration.”

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[80] In the founding affidavit Mr. Adelakun refer red extensively to and attache d the
founding affidavit deposed to Mr. Ian Belsham in the sequestration applications . H e
confirmed by way of a general background that he was the Chief Executive Officer of TOF
Group and that TOF Energy had entered into the BCMA with Worldpay. He claimed that
despite being the CEO of TOF Energy he had not involved himself in the day-to-day affairs
of the company. He claimed that all of the business dealings that arose from the BCM A
took place entirely between TOF Energy and Worldpay. He claimed that despite Worldpay
having accused TOF Group and TOF Energy of fraudulent conduct there was no record
that Worldpay had ever taken any steps to recover any monies allegedly paid to TOF
Energy and/or TOF Group by Worldpay and nor has it in fact done so . He claimed that
Worldpay`s “sole reason” for applying for his sequestration and that of the Trust stemmed
from what he referred to as no more than the bold allegations made by Mr. Bel sham
against the Trust and himself with regard to the alleged fraud and misappr opriation of
large sums of money against Worldpay.

[81] Mr. Adelakun contended that Mr. Belsham had misleadingly presented to the court
in the sequestration proceedings that he together with others were involved in the alleged
fraudulent conduct inasmuch as Bel sham stated that the fraud “was being investigated”
by the competent authorities in the USA.

[82] Mr. Adelakun claimed that the bold allegations made by Worldpay were countered
by the following facts:
(1) that a suspect had been arrested in the USA relating to the allegations of
fraud whereas he had simply been flagged as a “person of interest”;
(2) that on 17 March 2020 a charge of fraud had been laid against him based
on the allegations leveled by Worldpay. He claimed that those charges were
based on an affidavit deposed to by a Mr. John Kraemer, a special agent in
the employee of the United States Secret Service (USSS). The detailed
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affidavit by Mr. Kraemer was attached to the founding affidavit, which in brief
set out the following:
i) that Mr. Kraemer was a special agent employed in the United States
Department of Homeland Security , USSS, and set out his extensive
experience in criminal investigations relating to bank fraud and cybercrime.
He deposed to the affidavit in support of a criminal complaint and an arrest
warrant for Mr. Adelakun for the violation of 18 USC SS 1343 (wire fraud),
1344 (bank fraud) and 1349 (conspiracy). The affidavit was submitted for
the limited purpose of securing a criminal complaint and an arrest warrant
and did not contain every fact that he had learned during the course of the
investigation. He only set out facts necessary to establish probable cause
that Mr. Adelakun had violated the statutes referred to above . Under the
heading of “Probable Cause” he explained that in September 2018 the
USSS was contacted by Fifth Third Bank concerning Worldpay`s report
about a suspected fraud in excess of $15,000,000.00 resulting in a total loss
to Worldpay of $12,000,000.00. The USSS had opened an investigation into
the alleged fraud. Through the investigation the USSS had learned that TOF
Group had through Mr. Adelakun and others committed a scheme to defraud
in that they exploited a loophole in the Worldpay’s electronic check
(“eCheck”) processing system.
(ii) He described what he referred to as the “Scheme to Defraud,” which was
largely consistent with that made by Worldpay in the founding affidavit in the
sequestration proceedings (above). His investigations however provided
greater detail in respect of the transfers to the various bank accounts in the
United States.
(iii) He also referred to investigations conducted by a corporate investigator at
FT Bank who reported that the TOF G roup had ran approximately 329
fraudulent electronic checks through Worldpay via an electronic check
processing terminal registered in Georgia. The electronic checks processed
with the terminal totaled approximately USD46,000,000. He pointed out that
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in June and July 2018 the CEO of TOF Group opened up bank accounts at
FT Bank in the name of the company which were used in the scheme of
fraud. He pointed out that in June 2018 the account was opened up with a
deposit of USD100 with the CEO as the signatory to the account . He
reviewed the bank records of the accounts which did not show any deposits
from Worldpay during the months of June and July 2018 . From 16 August
2018 through to September 2018 the FT account received approximately
USD15,000,000,00 acquired fraudulently from Worldpay.
(iv) He pointed out that in July 2018 the CEO opened a further bank account
with FT Bank with an initial deposit of USD100. The account was opened in
the name of TOF Group and Mr. Adelakun was the sole signatory. The bank
record showed t here were approximately 16 transfers from the first FT
account into the newly opened FT account between August and September
2018 totaling approximately USD12,000,000.00. He explained that for the
month of August 2018 there were approximately 24 outgoing wire
transactions from the FT account (the second) which totaled approximately
$7,388,928.00. The majority of these outgoing wire transactions that went
to international destinations, including but not limited to Cape Town, Lagos,
Nigeria, Dubai and the United Arab Emirates.
(v) He pointed out that in addition to the international wires, 5 transfers were
made from FT at a bank in the United States in an amount of
USD548,220.00 also held in the name of the CEO of the TOF Group.
(vi) He explained that once the funds were transferred in the FT accounts and
available (but before the six-day window period was up) the CEO authorised
multiple wire transfers to other financial institutions including the overseas
financial institutions. Out of the USD46,000,000.00 fraudulent checks that
were attempted, approximately USD15,300,000.00 w as illegally obtained
by Mr. Adelakun, the CEO and others associated with the TOF Group.
(vii) He stated that the CEO had stated to USSS agents that the accounts at
Fifth Third bank were set up on instructions provided to her by Mr. Adelakun.
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He reviewed text messages on the CEO’s cellphone on a Whatsapp
platform that confirmed that Mr. Adelakun had provided her with instructions
to set up the accounts at Fifth Third Bank in order to receive the proceeds
of the fraudulent scheme. He claimed that the CEO had also stated to USSS
agents that in addition to using Whatsapp to communicate with Mr.
Adelakun they had conversations over the phone. He claimed that these
conversations were apparently for the purpose of Mr. Adelakun instructing
the CEO what type of transfers to make and also to advise her of the
amounts to be wired into various accounts . He also referred to various
transfers made to accounts in Dubai, UAE and to the accounts made to FRB
in Cape Town.
(viii) He stated that in February 2020 he learned that Mr. Adelakun and a Mr.
Patrick Mwenze were arrested by law enforcement authorities in the UAE .
Those charge s related to the investigation being conducted by him and
other USSS agents.
(ix) He claimed that Mr. Adelakun was the subject of the USS S investigation
into a similar fraud in 2015 wi th accounts related to the Bank of America.
Mr. Adelakun who he claimed resided in South Africa was originally arrested
in London , England but was subsequently released . A dditionally, he
reviewed the written statement made by Mr. Adelakun to the South African
police in 2018. In that statement Mr. Adelakun listed his address in South
Africa and his nationality as Nigerian.
(x) Mr. Adelakun claimed that the Central Authority of the United States
Department of Justice who had investigated the allegations of fraud against
TOF E nergy and him sought assistance from their counterparts in the
United Arab Emirates in the investigation. That appeared to have been done
in July 2020 . He attached a copy of the request to the authorities in the
United Arab Emirates.
(xi) Mr. Adelakun claimed that on 12 December 2021 , once the investigation
had been completed, the United States District Court, Eastern District of
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Michigan ( the Michigan Court) granted a motion brought by the US
government to dismiss the complaint against him, which complaint he
claimed related specifically to the allegations raised by Worldpay in their
founding affidavit which formed the basis for both his and the Trusts
sequestration.
(xii) Mr. Adelakun attached a copy of the order which is headed and reads:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
United States of America Plaintiff
v Case No. 2:20-mj-30135-DUTY
Jyde Adelakun Defendant(s)

ORDER GRANTING LEAVE TO DISMISS COMPLAINT WITH PREJUDICE
This matter coming before the Court on the Government’s motion, with notice having been
provided to the defense, for the reasons stated in the Government’s motion, the Court grants the
Government leave to dismiss the complaint against Jyde Adelakun.

Accordingly, it is hereby ordered that the Complaint against Jyde Adelakun be dismissed without
prejudice, and that the Appearance Bond, if any, and the Order Setting Conditions of Release be
cancelled.

s/Anthony P. Patti
Anthony P. Patti
U.S. Magistrate Judge

Certificate of Service
37 | P a g e

I hereby certify that this Notice was electronically filed, and the parties and/or counsel of record
were served.

By: s/M Williams
Case Manager
Dated: December 12, 2021

[83] Mr. Adelakun further attached to their affidavit an e-mail from a Mr. Mark Chasteen,
Assistant United States Attorney dated 17 March 2022 addressed to him. In the e-mail
Mr. Chasteen states that he had previously communicated with Mr. Adelakun in that “the
criminal complaint in the Eastern District of Michigan case number 20-MJ-3O135 was
dismissed without prejudice.” Mr. Chasteen stated that he had provided Mr. Adelakun with
a copy of the government’s motion and the court order of dismissal. He also stated “there
currently is no pending criminal case against you in this matter in the Eastern District of
Michigan”.

[84] Mr. Adelakun claimed that “as is evident from JA6 (the e -mail from Mr. Mark
Chasteen) the criminal investigation has been finalised and that proof of neither criminal
conduct nor fraud has been brought against him and/or the Trust.”

[85] Mr. Adelakun added that Worldpay`s basis for applying for his sequestration and
that of the Trust was “now debunked and discredited (sic) series of allegations made by
Belsham in his founding affidavit ”. He also claimed that Worldpay was unable to have
pointed to a single act of insolvency b y either himself or the Trust to justify the ir
sequestration.

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[86] He added with the reference to the BCM A, (i) that contrary to provisions of the
BCMA between TOF Energy and Worldpay and with reference to clauses 22, 23 and 24
of the BCMA6 Worldpay had failed to annex copies of the alleged instructions to identify

6 22. Review of Settlement Activity and Reports: Notice of Failure by Processor.
Reports are provided online by Processor for each fiscal day’s activity by 10 AM ET the next calendar day and include
an accounting for each currency with supporting detail of transaction activity. Daily Proceeds, reserves and funds
transfers for transacti on settlement services. Reports will be available for download on the online reporting tool for
period of 14 months from the date of issue. Reports shall be upgraded, enhanced and or modified by Processor in its
sole discretion.
Merchant agrees that it shall review all reports, notices and invoices prepared by Processor or its agent and made
available to Merchant, including but not limited to reports, notices and invoices provided via Processor’s online reporting
tool. Processor reserves the right to send some all of the reports and/or invoices and/or notices of any pricing changes
permitted under this Agreement via communication methods utilized as components of its Service Delivery Process
which method Purchaser may change from time to time with notice via Processor’s Service Delivery Process. Merchant
expressly agrees that Merchant’s failure to notify Processor that Merchant has not received any settlement funds within
5 business days from the date that settlement was due to occur, or fails to reject any report, notice, or invoice within
thirty (30) days business days from the date the report or invoice is made available to Me rchant shall continue
Merchant’s acceptance of the same. In the event Merchant believes that Processor has failed in any way to provide
the Services, Merchant agrees to provide Processor with written notice, specifically detailing any alleged failure within
30 days of the date on which the alleged failure first occurred.
23. Choice of Law, Jurisdiction, Venue.
This agreement shall be governed by, and construed and construed and enforced in accordance with the laws of the
State of Ohio without regard to conflicts of law provisions. The parties hereby consent and submit to service of process,
personal jurisdiction, and venue in the state and federal courts in Cincinnati Ohio or Hamilton County, Ohio, and select
such courts as the exclusive forum with respect to any action or proceeding arising out of or in any way relating to this
Agreement, and/or pertaining in any way to the relationship between Merchant and Processor. Merchant and processor
hereby waive the right to trial by jury in any matter under, related to or arising out of this agreement or any transactions
or relationships contemplated hereby.
24. Limit of liability, Force Majeure
A. EXCEPT FOR THOSE EXPRESS WARRANTIES MADE IN THIS AGREEMENT, PROCESSOR DISCLAIMS
ALL WARRANTIES, INCLUDING. WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MERCHANT HEREBY
ACKNOWLEDGES THAT TH ERE ARE RISKS ASSOCIATED WITH THE ACCEPTANCE OF CARDS AND
MERCHANT HEREBY ASSUMES ALL SUCH RISKS EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN.
B. Without limiting the foregoing neither party shall be liable for lost profits, lost business or any incidental, special,
consequential or punitive damages (whether or not arising out of circumstances known or foreseeable by the
other party) suffered by such party, its customers, or any third party in connection with the Services provided
hereunder. However, nothing in the foregoing sentence is in any way intended, and shall not be construed, to
limit (i) Merchant’s obligation to pay any fees assessments or penalties due under this Agreement, including but
not limited to those imposed by telecommunications services providers, VISA, Mastercard and or Other
Networks or (ii) any damages due from Merchant related to an early termination of this Agreement or (i ii) any
damages due from Merchant related to the failure by Merchant to exclusively receive the Services from
Processor to the extent required by the Agreement, and/or (iv) Merchant’s obligation to indemnify Processor
pursuant to Section 21. In no event sh all Processor be liable for any damages or losses (i) that are wholly or
partially cause by the Merchant, or its employees, agents or Merchant Suppliers that should have been reported
to Processor pursuant to Section 22, (ii) that first occurred, whether o r not discovered by Merchant, more than
39 | P a g e

whom of TOF Energy’s customer were responsible for the alleged fraud. He claimed that
based on the BCMA, Worldpay should have first ensured that sufficient funds existed in
the customer’s account prior to making payment to TOF E nergy (ii) he claimed that
Worldpay had not attempted to implement the provisions of clause 137 read together with

30 days prior to Processor’s receipt of written notice from Merchant or (iii) that were caused due to errors in data
provided by Merchant to Processor.
C. Processor’s liability related to or arising out of this Agreement shall in no event exceed an amount equal to the
lesser of (i) actual monetary damages incurred by Merchant or (ii) fees paid to and retained by Processor for
the particular Services in qu estion for the three calendar months immediately preceding the date on which
Processor received a written notice from Merchant detailing Processor’s material non -performance under this
Agreement. For avoidance of doubt, the cap on Processor’s liability set forth in the immediately preceding
sentence will not limit Processor’s obligation to settle funds due to Merchant under this Agreement.
D. Processor shall not be deemed to be in default under this Agreement or liable for any delay or loss in the
performance, failure to perform, or interruption of any Services to the extent resulting from a Force Majeure
Event Upon such an occurrence perfor mance by Processor shall be excused until the cause for the delay has
been removed and the Processor has had a reasonable time to again provide the Services No cause of action,
regardless of form shall be brought by either party more than 1 year after the cause of action arose, other than
one for the non -payment of fees and amounts due Processor under this Agreement. Any restriction on
Processor’s liability under this Agreement shall apply in the same manner to Member Bank. In the event that
Merchant has a claim against Member Bank in connection with the Services provided under this Agreement,
Merchant shall proceed against Processor (subject to the limitations and restrictions herein), and not against
Member Bank unless otherwise specifically required by the Operating Regulations.
7 Default. The following events shall be considered an “Event of Default”
(i) Merchant becomes subject to any voluntary or voluntary bankruptcy, insolvency, reorganization or liquidation
proceeding. A receiver is appointed for Merchant, or Merchant makes an assignment for the benefit of
creditors, or admits its inability to pay its debts as they become due or
(ii) Merchant fails to pay or reimburse the fees, expenses or charges referenced herein when they become due;
or
(iii) Merchant is in default of any terms or conditions of this Agreement whether by reason of its own action or
inaction or that of another; or
(iv) Processor reasonably believes that there has been a material deterioration in Merchant’s financial condition;
or
(v) any standby letter of credit if and as may be required pursuant to Section 20, will be cancelled, will not be
renewed, or is not in full force and effect; or
(vi) Merchant ceases to do business as a going concern, or there is a change in ownership of Merchant which
changes the identity of any person or entity having directly or indirectly more than 30% of either the legal or
beneficial ownership of Merchant.
Upon the occurrence of an Event of Default, Processor may at any time thereafter terminate this Agreement
by giving Merchant written notice thereof. However, except in instances where immediate termination is
required by any Association or if Member Bank and/or Processor reasonably believe that the Event of Default
poses material risk to either of them or involves a violation of applicable law, Merchant will have 30 days
following Processor’s notice to cure an Event of Default under Section (ii), (iii), (iv) or (v) prior to termination
under this Section. Termination of Merchant for any reason shall not relieve Merchant from any liability or
obligation to Processor. If prior to the date on which the then current term of this Agr eement is scheduled to
expire, either this Agreement is terminated by Processor as specifically permitted by this Agreement, or
Merchant for any reason discontinues receiving the Services from Processor (except as may be specifically
permitted by this Agreement). Merchant shall be liable to Processor for an early termination fee in an amount
equal to $350. Merchant shall also reimburse Processor for any damage, loss or expense incurred by
Processor as a result of a breach by Merchant, including any damages set forth in any addendum and/or
schedule and/or exhibit hereto and including all past due, unpaid and/or future invoices for services rendered
40 | P a g e

clause 23 of the BCM A in order to secure the return of monies that were allegedly
fraudulently transferred. He further claimed that that was despite the fact that TOF Energy,
himself and TOF Group were “exonerated” in 2021. He claimed that instead , Worldpay
through Belsham had “contented itself with simply a misguided (follow the money) (See
Steyn, J judgment at para 16) approach.”

[87] Mr. Adelakun contended that Worldpay had “inexplicably” proceeded to hold the
Trust and him liable for the alleged damages incurred as a result of the agreement entered
into between Worldpay and TOF Energy. He claimed it did that without even “beginning
to make out a case for the need for piercing the corporate veil ” and based solely on the
allegations made by Mr. Belsham or in “addressing the directing mind doctrine” in order
to hold the Trust liable. He contended that it had not been established in the sequestration
proceedings that neither he nor the Trust were debtors of Worl dpay. He contended that
Worldpay had completely failed nor made out a case as contemplated in Sections 8 and
9 8 of the Insolvency Act . He claimed that Worldpay had approached the court to

by Processor in connection with this Agreement. All such amounts shall be due and payable by Merchant
upon demand. Processor shall also have the option to require. Merchant to reacquire all outstanding sales
transactions acquired by Processor hereunder. In addition to, and not in limitation of the foregoing, Processor
may refuse to provide the Services in the event it has not been paid for the Services as provided herein.
8 9. Petition for sequestration of estate
(1) A creditor (or his agent) who has a liquidated claim for not less than 50 pounds, or two or more creditors (or their
agent) who in the aggregate have liquidated claims for not less than 100 pounds against a debtor who has
committed an act of insolvency, or is insolvent, may petition the Court for the sequestration of the estate of the
debtor.
(2) A liquidated claim which has accrued but which is not yet due on the date of hearing of the petition, shall be
reckoned as a liquidated claim for the purposes of subsection (1).

(3) (a) Such a petition shall, subject to the provisions of paragraph (c), contain the following information, namely—
(i) the full names and date of birth of the debtor and, if an identity number has been assigned to him,
his identity number;
(ii) the marital status of the debtor and, if he is married, the full names and date of birth of his spouse
and, if an identity number has been assigned to his spouse, the identity number is such spouse;
(iii) the amount, cause and nature of the claim in question;
(iv) whether the claim is or is not secured and, if it is, the nature and value of the security; and
41 | P a g e


(v) the debtor’s act of insolvency upon which the petition is based or otherwise allege that the debtor
is in fact insolvent.
(b) The facts stated in the petition shall be confirmed by affidavit and the petition shall be accompanied by
a certificate of the Master given not more than ten days before the date of such petition that sufficient
security has been given for the payment of all fees and charges nece ssary for the prosecution of all
sequestration proceedings and of all costs of administering the estate until a trustee has been appointed,
or if no trustee is appointed, of all fees and charges necessary for the discharge of the estate from
sequestration.
(c) The particulars contemplated in paragraph (a)(i) and (ii) shall also be set out in the heading to the petition,
and if the creditor is unable to set out all such particulars he shall state the reason why he is unable to
do so.
(d) In issuing a sequestration order the registrar shall reflect any of the said particulars that appear in the
heading to the petition of such order.
(4) Before such a petition is presented to the Court, a copy of the petition and of every affidavit confirming the facts
stated in the petition shall be lodged with the Master, or, if there is no Master at the seat of the Court, with an
officer in the public service designated for that purpose by the Master by notice in the Gazette, and the Master
or such officer may report to the Court any facts ascertained by him which would appear to him to justify the
Court in postponing the hearing or in dismissing the petition. The Master or the said officer shall transmit a copy
of that report to the petitioning creditor or his agent.
(4A) (a) When a petition is presented to the court, the petitioner must furnish a copy of the petition—
(i) to every registered trade union that, as far as the petitioner can reasonably ascertain, represents
any of the debtor’s employees; and
(ii) to the employees themselves—
(aa) by affixing a copy of the petition to any notice board to which the petitioner and the
employees have access inside the debtor’s premises; or
(bb) if there is no access to the premises by the petitioner and the employees, by affixing a
copy of the petition to the front gate of the premises, where applicable, failing which to the
front door of the premises from which the debtor conducted any bus iness at the time of
the presentation of the petition;
(iii) to the South African Revenue Service; and
(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 it.
(b) The petitioner must, before or during the hearing, file an affidavit by the person who furnished a copy of
the petition which sets out the manner in which paragraph (a) was complied with.
(5) The Court, on consideration of the petition, the Master’s or the said officer’s report thereon and of any further
affidavit which the petitioning creditor may have submitted in answer to that report, may act in terms of section
10 or may dismiss the petition, or postpone its hearing or make such other order in the matter as in the
circumstances appears to be just.



42 | P a g e

sequestrate the Trust and him based on allegations of fraudulent conduct between TOF
Energy and itself. He maintained that he had since been “cleared of all allegations in that
regard”. He claimed that h is “exoneration’ was of no small moment since Mr. Belsham
had confirmed that the very fraudulent conduct which Worldpay relied on “was still being
investigated”. He claimed that in the circumstances Worldpay had failed to comply with
the provisions of Sections 12(a) of the Act.

[88] He contended further that, based on a reading of the founding affidavit in the
sequestration proceedings nowhere does the deponent ( Mr. Bel sham) po int to “a
liquidated debt ” due to Worldpay by either himself or the Trust. H e claim ed nor does
Worldpay specify which subsections of Section 8 it relied upon. He claimed that in terms
of paragraph 13 of the BCM A, Worldpay was bound by the terms thereof to take steps
against TOF Energy for any monies allegedly owed. Worldpay had to date failed to do so
preferring to infer fraud on his part by referring to h is personal and other banking
accounts.

[89] Mr. Adelakun claimed that he together with his “fellow trustee” (despite not having
been formally cited in the proceedings) therefore sought the relief that both the provisional
order as well as the final order of sequestration be set aside in terms of Sections 149(2)
of the Act. He claimed that t here existed exceptional reasons as to why the orders that
placed them both in provisional and final sequestration be set aside . The reasons he
contended were:
i. That Worldpay`s case for their sequestration was based solely on the
contention that he and the Trust were parties to a fraud. He claimed that
basis had “finally been laid to rest” by the Michigan Court which dismissed
the complaint relating to fraud in respect of the allegations made by
Worldpay.
ii. He also claimed that it had been confirmed by Mr. Chasteen.
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iii. He pointed out that the decision by the Michigan Court was taken on 12
December 2021 after both he and the Trust had already been placed in
final sequestration by Steyn, J.

[90] Mr. Adelakun also claimed that the United Arab Emirates had confirmed his “non-
involvement in the alleged fraud ” as set out in a document annexed to his affidavit. The
documents appeared to be on the official letter head of the United Emirates Minister of
Interior which states under:
“No criminal antecedents of the above subject till date . This certificate is issued upon the
request without any liability towards others”.
A police clearance certificate was also issued under the letterhead of the government of
Dubai - General Department of Criminal Investigation in which the following is stated:
“General Department of Criminal Investigation certifies that the above mentioned
individual is of good conduct and behavior until the issuance date of this certificate. This
certificate is issued upon individual ’s request. The department is not liable towards any
legal rights of others.”
It was signed by the Acting Director of General of C riminal Investigations, a Mr. Jamal
Salim Ali.

[91] Mr. Adelakun explained that he returned to South Africa in June 2023 in order to
follow-up on his status and that of the Trust`s in sequestration. He claimed that he was
unrepresented at the time, he had spent several days being shunted from the Master's of
the High Court and the appointed trustees. He claimed that having faced all of these
difficulties, he then instructed his attorneys of record to act on his behalf since his personal
intervention had not yielded any positive results . He claimed that prior to the Michigan
Court’s ruling, he had been confined to the UA E due to the collaborative investigations
between the US Department of Justice and its UAE counterpart. It was only after the
investigation between the parties had been concluded that he was “exonerated”. He was
thereafter free to travel from the UAE. He claimed that despite the fact that the Michigan
44 | P a g e

Court having dismissed the complaint of fraud against him in December 2021 the UAE
authorities only notified him in 2023 that he had been finally cleared of any wrongdoing .
He claimed that he was thereafter only free to travel from the UAE since late May 2023.

[92] In October 2018 Worldpay`s attorneys filed a complaint with the South African
Police Services as referred to earlier. He again contended that the affidavit filed by Mr.
Belsham with the SAPS failed to point to a single fraudulent act allegedly perpetrated by
him, TOF Group or TOF Energy. He claimed that after investigating the matter the SAPS
as well “failed to find any evidence of fraud as alleged and consequently closed its file ”.
He attached an affidavit from the SAPS in which a police officer, Ms. Charlene De Klerk
of Table Bay Harbour SAPS stated that the ‘Sandton CAS 327-10-2018 reported
by/opened on behalf of Worldpay LLC USA against Jyde Adelakun & others has been
closed and filed on 2018-12-12 and found undetected of any element of criminality after
investigation”. The affidavit was dated 17 January 2019.

[93] Mr. Adelakun claimed that it was evident from the minutes of the statutory meeting
of creditors that with the exception of Worldpay, no other creditors were recorded . He
claimed that the current trustee , Ms. Steenkamp had agreed to hold the further
proceedings in the sequestration in abeyance pending finalisation of this application. As
a consequence the estate of the Trust and his has not been finally wound up which
according to him meant that the absence of any creditors and since the only assets found
in the Trust and that of his comprised cash in the respective bank accounts, a rescission
of the final sequestration would not bring any hardship to bare upon any person or entity.
He claimed that in the event of the orders being granted, the setting aside of the
sequestrations that any financial losses incurred as a result of “misguidedly and
maliciously sought and erroneously granted final sequestration order” would be recouped
as he and the Trust intended issuing summons out against Worldpay and its attorneys for
having recklessly proceeded with the sequestration applications without any legal basis .
He claimed in conclusion that it was clear that the sequestration of both him and the Trust
was based solely “on a nebulous and false allegation of fraud lodged by Worldpay through
45 | P a g e

the affidavit of Mr. Belsham.” He reiterated that despite the “now debunked allegation” at
no stage did or could Worldpay present any evidence at all of a debt which existed
between him, the Trust and Worldpay.

[94] In the alternative, he contended that the final sequestration orders should be set
aside on the basis of sections 157(1) of the Insolvency Act. In this regard he argued that
inasmuch as Worldpay had failed to launch an application for sequestration on one or
more of the peremptory or obligatory grounds set out in Sections 8 and 9 of the A ct,
Worldpay`s conduct constituted “a formal defect or irregularity ” a s contemplated in
Sections 157(1). That being the case, “substantial injustice” was suffered by both him and
the Trust namely a diminution of their legal status and the infringement of their
constitutional rights enshrined in Sections 7(1)9, 9(1)10, 1011, 12(1)(a)12, 14(c)13 and (d)14,
2215 and 25(1)16 of the Constitution.

[95] He claimed that the application was urgent as the Trust had been registered with
the intention of being used as a vehicle through which to conduct and embark about
various business ventures both locally and abroad. He claimed that the Trust was in fact
active in various business transactions prior to its provisional sequestration but had been
prevented from continuing the rewith as a result of the sequestration proceedings. H e
claimed that the persistence of such state of affairs will erode any business confidence

9 This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country
and affirms the democratic values of human dignity, equality and freedom.
10 Everyone is equal before the law and has the right to equal protection and benefit of the law.
11 Everyone has inherent dignity and the right to have their dignity respected and protected.
12 Everyone has the right to freedom and security of the person, which includes the right-
(a) Not to be deprived of freedom arbitrarily or without just cause…;
13 Everyone has the right to privacy, which includes the right not to have –
(c) their possessions seized
14 (d) the privacy of their communications infringed
15 Every citizen has the right to choose their trade, occupation or profession freely. The practice of a trade, occupation
or profession may be regulated by law.
16 No one may be deprived of property except in terms of law of general application, and no law may permit arbitrary
deprivation of property.
46 | P a g e

which the business community had built up in the Trust and permanently damage its
reputable footprint in the business world.

[96] He also claimed that the Trust owned several valuable assets including immovable
property and it was exposed to the real risk of its assets being liquidated resulting in the
permanent loss of the assets. He claimed that there was no other legal procedure which
could be relied upon to rescue the Trust since the latter would be up long before the Trust
could finalise “the dispute via normal motion procedure.”

[97] He further claim ed that his final sequestration prevented him personally from
conducting his business affairs freely whi le the only alternative legal step could take
possibly months if not years to finalise by which time his reputation and ability to conduct
business locally would be permanently lost. He claimed that the longer his sequestration
and that of the trust endured, they suffered ongoing consequences of “unconstitutional
disturbance of their rights to dignity, privacy, privilege and to be economically active.”

WORLDPAY`S ANSWER
[98] The answering affidavit of Worldpay was deposed to by Mr. Gerhard Rudolph a
partner in the firm of attorneys of record, Allen and Overy, having been authorised to do
so by Worldpay.

[99] By way of a preamble Worldpay pointed out that the application was fatally
defective for the following reasons:
(i) That Mr. Adelakun and the Trust had failed to disclose material facts and had
literally come to court with dirty hands.
(ii) That the application was legally indefensible whe ther assessed under Sections
149(2) of the Insolvency Act or the common law.
47 | P a g e

(iii) The application was not urgent.
(iv) Mr. Adelakun and the Trust had failed t o join the trustees of the ir respective
insolvent estates; and
(v) The factual premises for the application was flawed.

[100] In response to the founding affidavit by Mr. Adelakun and the Trust, Worldpay
adopted what it referred to as a thematic response rather than to deal with each of the
claims made by them ad seriatim. It also pointed out that it had been given insufficient
time to prepare the affidavit given the short period to do so by Mr. Adelakun and the Trust.
Worldpay contended that the application was self -evidently an abuse of process;
including but not only limited to the issue of urgency. It nonetheless prepared an affidavit
as quickly as possible in order to deal with the issues as comprehensively as possible.

[101] Worldpay pointed out that it filed an answering affidavit rather than to seek an
extension of time as the application was substantively defective and should be dismissed
or at the very least struck from the urgent roll. It pointed out though that the manner in
which the Trust and Mr. Adelakun litigated was prejudicial to Worldpay and had it been
given sufficient time it would have prepared a more comprehensive affidavit.

[102] Worldpay noted that together with the main application, Mr. Adelakun had also
deposed to the founding affidavit in what purported to be the joinder application in respect
of TOF Group and T OF Energy. Th at application, Worldpay contended like the main
application was even more than an abuse of process but that it would deal with it because
it was relevant to the issue of a de bonis propriis costs order that Worldpay sought against
attorneys, ZS Incorporated.


48 | P a g e

THE MATERIAL NON-DISCLOSURES
[103] Worldpay pointed out that the applications by Mr. Adelakun and the Trust suffered
from several serious non-disclosures.

[104] The first related to the fact that both the Trust and Mr . Adelakun unsuccessfully
applied for leave to appeal the provisional orders of sequestration by Mantame, J. In fact,
the applications were hopelessly defective in law in the light of the provisions of the Act.
They failed to disclose in their affidavits the unsuccessful attempt.

[105] Mr. Adelakun and the Trust again unsuccessfully applied for leave to appeal the
final sequestration orders from Steyn, J. They again failed to disclose their unsuccessful
applications.

[106] Mr. Adelakun thereafter petitioned the Supreme Court of Appeal for leave to appeal
the orders of Steyn, J. The petition was dismissed on 3 November 2020 on the basis that
“there was no reasonable prospect of success of the appeal and there was no compelling
reason meriting a further appeal .” They likewise failed to disclose the unsuccessful
petition.

[107] Mr. Adelakun and the Trust thereafter applied to the Constitutional Court for leave
to appeal on three separate occasions. In that regard , on 29 September 2021 , on 17
November 2021 and 24 January 2022 the Constitutional Court dismissed the applications
for leave to appeal. In the application for leave to appeal dated 29 September 2021 the
TOF Group and TOF Energy were als o applicants. O n 17 November 2021 , the
Constitutional Court also refused leave to appeal the interdict order relating to the freezing
of the accounts. Leave to appeal was refused with costs. The various application to the
Constitutional Court were like wise not disclosed by Mr . Adelakun, the Trust nor TOF
Energy nor TOF Group.
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[108] Worldpay pointed out that these non-disclosures were crucially important and self-
evidently material for the following reasons:
(i) Inasmuch as Mr. Adelakun and the trust relied on the provisions of Section 149(2)
alternatively 157 (1) of the Insolvency Act as the basis of their rescission
applications,
(ii) Worldpay pointed out that the application based on 157 (1) could simply be
dispensed with on the following basis. It was a provision which serves to preserve
the validity of acts performed under the Insolvency Act which were formally
defective in some way . It had absolutely nothing to do with the present case, in
particularly it confers no cause of action whatsoever on the applicant. I should point
out that neither Mr. Adelakun nor the Trust sought to pursue the basis of the
rescission under this section at the hearing of the matter.

[109] In respect of the basis of the application being brought under Section 149(2)
counsel for Worldpay pointed out that Scott, JA in Ward v Smit and Others: In Re Gurr v
Zambia Airways Corp Ltd17 made it clear that :
(i) the power conferred on this court by th e provision of section 149(2) to rescind an
order may only be exercised in exceptional cases;
(ii) the power does not give the court any wider power to rescind other than under the
common law;
(iii) the power cannot be exercised by the court unless the applicant explains why he
did not oppose the sequestration order or appeal it which carries the necessary
implication that if he/she did oppose it or did appeal it, Section 149(2) cannot apply
and even
(iv) if the provision was in principle applicable it cannot be invoked in cases of delay
unless there is full explanation of what caused the delay.

17 1998 (3) SA 175 (SCA)
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[110] In respect of the principles applicable to rescission applications under the common
law the following applies; the judgment to which the rescission application is related to
had to be made in the absence of the applicant and that there is good cause to explain
the applicant’s absence.

[111] Worldpay contended that a re scission application under the common law and
therefore under Section 149(2) of the Act could not be granted where the applicant was
a party to the proceedings - much less where the applicant was not only a party but tried
and failed on multiple occasions to appeal the orders that are the subject of the rescission
applications.

[112] For that reason Worldpay pointed out that, the omitted facts with regard to the
unsuccessful appeals were material and that the rescission applications literally
amounted to an abuse of process. It pointed out that had the application been moved on
an unopposed basis it may have increased the chances of the application being granted
as the court would have been none the wiser. For that reason alone, Worldpay contended
that the applications be dismissed.

[113] It was also not clear on exactly what basis Mr. Adelakun and the Trust sought leave
to appeal to the Constitutional Court in respect of the interdict proceedings. The interdict
had been discharged once the trustees in the sequestrated estates had been appointed
and there could not have been any basis for an appeal against the order. I n fact , it
appeared that Mr. Adelakun and the Trust had simply maintained their opposition to the
interdict proceedings despite the court having made it clear that it was doing no more
than that which they sought, a discharge of the order . If anything their position in the
interdict proceedings were demonstrative of their obfuscatory approach in all of the
proceedings.

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[114] Worldpay filed two opposing statements in the Constitutional Court applications,
which it attached to its answering affidavit. T he statements set out extensively the
background to the sequestration applications and largely the conduct of Mr. Adelakun and
the Trust. Worldpay had also pointed out that notwithstanding the Constitutional Court
having dismissed the application for leave to appeal on 29 September 2021, Mr. Adelakun
and the Trust brought two further applications for leave to appeal . In doing so they had
attempted to couch the second and third applications as raising different issues, but were
in Worldpay’s view, no more than attempting to have a second (and a third bite of the
cherry) by seeking leave to appeal again and again.

[115] Worldpay also submitted that there was no basis for the urgent relief sought by Mr.
Adelakun and the Trust inasmuch as the urgency was self-created. Worldpay however,
was mindful that if the court simply struck the matter off the roll for lack of urgency. Mr.
Adelakun and the Trust would simply seek to ventilate the application in the ordinary
course. F or that reason, Worldpay sought to oppose the application on a substantive
basis so as to prevent unnecessary delay in the winding up of the estates of the Trust and
that of Mr. Adelakun.

[116] Worldpay contended that there was a further reason as to why the matter should
not simply be struck from the urgent roll but instead be dismissed. As already indicated,
Mr. Adelakun and the Trust had fully participated in all of the proceedings before Steyn, J
which was a complete bar to the bringing of the rescission application. However, Worldpay
pointed to the further difficulty facing Mr. Adelakun and the Trust and that related to Steyn,
J havi ng repeatedly found that they had failed to put up any factual response to the
allegations in the founding affidavit . That was abundantly clear as already i ndicated in
both judgment of Steyn, J and Mantame, J.

[117] Worldpay pointed out that inasmuch as Mr. Adelakun and the Trust attached to the
founding affidavit, the affidavit of Mr. Belsham in the applications for sequestration, they
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had not annexed the answering affidavit deposed to by Mr. Adelakun. Worldpay
contended that it was understandable given that they failed to make out a ny defense to
the application. Worldpay contended and correctly so in my view that the merits of the
proceedings before Steyn, J do not arise for re-consideration nor determination in this
matter. As already indicated Steyn J’s judgment remains unimpeached and in my view
both Mr . Adelakun and the Trust failed to put up any meaningful defense in the
sequestration proceedings.

[118] In respect of the criminal proceedings in the U SA, Worldpay pointed out that the
standard of proof on which the sequestration applications were based, as that on a
balance of probability as opposed to the fate of a criminal investigation to secure a
conviction based on guilt been proved beyon d reasonable doubt was an important
distinction that Mr . Adelakun simply overlooked. The dismissal of the charges been
investigated in the USA was therefore entirely irrelevant to the sequestration applications.

[119] Worldpay, pointed out with reference to the founding affidavit by Mr. Belsham that
it had set out a detailed case for the sequestration s, in particular with regard to the
undisputed flow of funds from the TOF Group accounts in the FT bank under the hands
of Mr. Adelakun, into the first FRB accounts held by the Trust and Mr. Adelakun in South
Africa and from which the funds were dissipated . The sequestration application s were
moreover based on a claim that Mr. Adelakun and the Trust were indebted to the
Worldpay. In that regard Worldpay pointed out that was subtly and more importantly
different to a situation where the sequestrations were based on their alleged criminality.
Albeit, that the allegations of criminality were directly relevant to the claimed
indebtedness, the cause of action for the sequestrations was that of the indebtedness to
Worldpay.

[120] Worldpay contended that both Mr. Adelakun and the Trust had the fullest
opportunity to put up detailed allegations of the ir defense to the allegations of
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indebtedness. They simply failed to do so . Likewise, in these proceedings , despite
trumpeting his alleged “exoneration” he failed to do so. Mr. Adelakun and the Trust failed
to explain how the judgment of Steyn, J or indeed the allegations of Worldpay which
supported the order were wrong in any respect. The “exoneration” asserted Mr. Adelakun
was no more than a fiction and an utter failure on his part (and those legal representatives
who initially represented him) to have understood the order of the Michigan Court.
Worldpay contended that it would not be appropriate to rescind the sequestration orders.

[121] Worldpay also dealt at length in its answering affidavit with the issue of urgency
which need not be laboured at this stage . This court will deal with the merits of the
rescission applications and not simply strike it from the roll with its inevitable
consequences.

NON-JOINDER OF THE TRUSTEES
[122] The further defect pointed out by Worldpay and correctly so was that Mr. Adelakun
and the Trust had failed to join the trustees of the ir respective insolvent estates as
respondents in the first rescission application.

[123] Inasmuch as Mr. Adelakun and the Trust contended that they did not need to join
the trustees of the ir estates in the application as they relied on Section 23(6) of the
Insolvency Act Worldpay correctly pointed out that they had totally misunderstood the
provisions. The provision entitles an insolvent to litigate in his or her name without
reference to the trustee relating to the status or any right insofar as it does not affect his
estate. They clearly misunderstood what was meant by status. The whole purpose their
application was to affect their estates by lifting the sequestration order s. Needless to
state, the insolvent estates of both the Trust and Mr . Adelakun through the respective
trustees have a substantial interest in the relief claimed in the rescission applications.

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[124] Moreover, Mr. Adelakun claimed that Mr. Steenkamp, the trustee of his
sequestrated estate had agreed to hold f urther winding up proceedings in abeyance.
Worldpay did not dispute the undertaking but contended that was all the more reason for
Mr. Steenkamp to have been cited as a respondent. More importantly, Mr. Steenkamp as
the trustee of Mr. Adelakun’s estate would crucially have been able to provide information
with regard to the progress in the winding-up of Mr. Adelakun`s estate that would also
impact on the merits of the application. Nonetheless, as indicated, in an attempt to avoid
any delay in the determination of the merits of this matter, the court in the course of the
proceedings directed both Worldpay and Mr. Adelakun to ensure that notice was given to
the trustees and their position sought with regard to relief.

NO FACTUAL BASIS FOR THE APPLICATION
[125] Worldpay correctly pointed out that much of the founding affidavit by Mr. Adelakun
was no more than an impermissible attempt at rearguing the merits of the sequestration
applications. That is neither permitted under Section 149(2) nor as a matter of law , to
which I will revert.

[126] With reference to the decision of the Michigan Court with regard to the criminal
complaint against Mr. Adelakun, Worldpay contended that it was important to note that
neither the order of the Michigan Court no r the e-mail from Mr. Chasteen (referred to
above) supported the claims made by Mr. Adelakun and the Trust inasmuch as:
(i) the dismissal of a criminal complaint on a “without prejudice” basis in the order
referred to the interest of the state concerned (the US federal government) and not
the “defendant” (the term used in the US for an accused person). In other words,
the state and the US federal government was entitled to bring the complaint back
before the court should it have a basis to do so in the future. That of course, carried
the necessary implication that the order of the Michigan Court was in any sense,
evidence that the Mr. Adelakun had been “exonerated”. It simply meant that the
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U.S. federal government was not in the position to proceed with the charges at that
stage.

[127] Worldpay also pointed out that it was clear that the order made by the Michigan
Court of the dismissal was on a “ without prejudice basis” and was made on application
by the US federal government itself and in that regard referred to the part of the order in
which the complaint was dismissed “for the reasons stated in the government’s motion”.
Worldpay pointed out, that yet again , Mr. Adelakun failed to disclose material facts. It
attached to the answering affidavit a copy of the actual motion by the US federal
government filed in support of the order made by the Michigan court. The motion read as
follows:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
United States of America,
Plaintiff
v. Criminal No. 20-mj-30135
Jyde Adelakun
Defendant(s).
_________________________
MOTION AND BRIEF FOR LEAVE TO
DISMISS COMPLAINT WITHOUT PREJUDICE
Pursuant to Rule 48(a) of the Federal Rules of Criminal Procedure, the United States of America
hereby moves for leave to dismiss without prejudice the complaint against Jyde Adelakun. In this
case, the government needs additional time
1) To develop and obtain evidence sufficient to establish defendant’s guilt beyond a
reasonable doubt;
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2) To investigate the full extent of the offense(s) in question and identify all other
individuals who should be held criminally responsible for the offense(s); and
3) To decide whether criminal prosecution of defendant for the offense(s) in question is
in the public interest.

See generally United States v. Lovasco, 431 U.S. 783,790-96 (1977); 18 U.S.C & 3161(d)(1).18
Accordingly, the government requests leave to dismiss the complaint without prejudice and
requests that the Court quash the warrants for defendant’s arrest issued on March 17, 2020 and
September 17, 2021.
Respectfully submitted,
SAIMA S. MOHSIN
Acting United States Attorney

s/Mark Chasteen
Mark Chasteen
Assistant United States Attorney
211 W. Fort Street, Suite 2001
Detroit, MI 48226
mark.chasteen@usdoj.gov
(313) 226 – 9555
Dated: December 8, 2021

[128] As was apparent from the motion and far from any question of Mr. Adelakun having
been “exonerated’, the stated purpose of the motion was to request more time to obtain

18In its ruling in that matter, the court referred to the decision of United States v Lovasco, 431 U.S. 783, 790-96 (1977);
18 U.S.C & 3161(d)(1) (“Lovasco”). Counsel for Worldpay, Ms. Wharton pointed out, t hat matter concerned a
consideration of the circumstances in which the Constitution of the United States “requires a criminal indictment to be
dismissed because of a delay between the commission of an offence and the initiation of prosecution. The majority
judgment by Marshall J was summarised as follows:
“…to prosecute a defendant following investigative delay does not deprive him of due process, even if his defense
might have been somewhat prejudiced by the lapse of time”.


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further evidence to establish Mr. Adelakun’s guilt or innocence and to determine whether
additional persons should be prosecuted alongside him.

[129] Worldpay correctly contended that there was nothing in the order of the Michigan
Court that in the least indicated that Mr. Adelakun had been “exonerated”. So too in the
e-mail of Mr. Chasteen. Mr. Chasteen was no more than responding to a request by Mr.
Adelakun to provide certain documents. More importantly Mr. Chasteen stated “that there
was currently no pending criminal case against you in this matter in the Eastern District
of Michigan”. It does not say anything at all about Mr. Adelakun’s guilt or innocence.

[130] With regard to the affidavit by Ms. Charlene De Klerk of the SAPS dated 17
January 2019, Worldpay pointed to the following:
(i) a chain of correspondence between its attorneys and the SAPS that related to the
investigation by SAPS;
(ii) that when the affidavit of Ms. Charlene De Klerk came to their attention they wrote
to the SAPS to determine whether the document was authentic and enquire d as
to the status of the docket.

[131] A Lieutenant Colonel M Van Niekerk in a letter dated 26 March 2019 explained that
the case had been closed not because no crime had been committed but because SAPS
took the view that the crime was committed in the USA. The e-mail records the willingness
of the SA PS to cooperate with the US authorities and on more than one occasion
expresses the view that “a crime” was committed. Lieutenant Colonel Van Niekerk stated
further and explained that the affidavit by Sergeant De Klerk could incorrectly be
interpreted to mean that no crime was committed when to the contrary, SAPS took the
view that a crime had been committed. Worldpay contended that the position expressed
by Lieutenant Colonel Van Niekerk directly refuted Mr. Adelakun’s interpretation of the
affidavit by Sergeant De Klerk.
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[132] Moreover, Worldpay repeated and correctly so, that the criminal liability of Mr.
Adelakun was in any event irrelevant to the merits of the sequestration applications.

[133] Worldpay also referred to other civil proceedings in which the US federal
government had been granted a civil forfeiture order in respect of funds which were
fraudulently obtained from Worldpay on the basis as described in the affidavit deposed to
by Mr. Belsham. The order was sought against a Mr. Oyeniran Oyewale, an associate of
Mr. Adelakun. Worldpay pointed out that Mr. Adelakun attempted to intervene in the
proceedings to oppose the order which clearly demonstrated his interest in the funds that
were the subject of the order. Mr. Oyewale sought to stay the order pending an appeal
but was unsuccessful as the court held that there were no prospects of success . Mr.
Adelakun in reply pointed out Mr. Oyewale had since been granted leave to intervene on
an in forma pauperis basis. That in my view, does not in any event impact on the merits
of these applications.

[134] The signific ance of all of this is that Mr. Adelakun’s repeated contention in his
founding affidavit that he had been “exonerated” was without any substance and not
supported by the order of the Michigan Court and more importantly the basis on which it
had been sought by the US federal government.

THE JOINDER-APPLICATION
[135] This relates to the aborted joinder application which was removed by Mr. Adelakun
after he and the Trust terminated the mandate of their attorneys.

[136] I do not intend to deal in detail with the joinder application save to point ou t that
the founding affidavit was once again deposed to by Mr. Adelakun in his capacity as CEO
of both the TOF Group and TOF Energy. Of particular significance in the affidavit are the
following claims:
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(i) That TOF Energy had in fact on various occasions submitted claims and /or
invoices for payments for services rendered as alleged by Worldpay in its founding
affidavit in the sequestration applications. The significance of this is that for the first
time Mr. Adelakun admitted contrary to the claims made in the opposing affidavits
in the sequestration applications that Worldpay had in fact made payments to TOF
Energy ostensibly on behalf of its customers.
(ii) Mr. Adelakun contended that from time to time and based purely on bona fide
business transactions between TOF Group and the Trust, funds were transferred
to the bank account of the Trust. H e claimed that the frequency of business
transactions between TOF G roup and the trust varied from time to time which
transactions included periodic and sporadic transfer of funds “legally”.
(iii) Mr. Adelakun and the Trust contended that based solely thereon, Worldpay had in
the main application for sequestration relied on a series of what it referred to as
false allegations in terms of which it was alleged that the TOF Energy and TOF
Group had defrauded Worldpay. He claimed further that the allegations were made
without any proof whatsoever other than to point out that funds had f rom time to
time flowed from TOF Group and TOF Energy to the Trust and Mr. Adelakun. He
claimed that there were no transactions whatsoever between TOF Energy and the
Trust and him in his personal capacity.
(iv) Mr. Adelakun claimed further that Worldpay had simply accused TOF Group and
TOF Energy of fraudulent conduct without either of the companies having been
cited in the sequestration proceedings . He claimed that in doing so TOF Energy
and TOF G roup were denied an opportunity of defending themselves and
presenting their version to the court.
(v) He again pointed to the BCMA agreement that governed the relationship between
Worldpay and TOF E nergy and the detailed provisions for the legal steps to be
followed in the event of a breach. He claimed that it was on record that Worldpay
had failed to take any legal steps whatsoever against TOF Energy as the BCMA
required, in any attempt to claim mon ies allegedly owed to it , if any. He again
referred to the investigation by the US authorities and that in Dubai and with
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reference to the order of the Michigan Court that the complaints of fraud were
“dismissed including a complaint that he acted as an alter ego of the TOF Group
and TOF Energy ”. He therefore complained that Worldpay had “ absolutely no
business dealings with both himself and the Trust and that the latter could therefore
not have been indebted to the respondent(Worldpay) for any amount.” He claimed
that at best Worldpay had a claim against TOF Energy in the United States based
on the BCMA agreement. For these reasons he and the Trust contended that the
TOF Group and TOF Energy had a direct and substantial interest in the litigation
since their reputation had been unlawfully tarnished thus prejudicing their ability to
continue conducting their businesses internationally.

[137] In its answering affidavit Worldpay contended that besides the joinder application
not being urgent and the failure on the part of Mr. Adelakun to have established any
authority to represent the TOF Group and TOF Energy, they had, more importantly failed
to establish any direct and substantial interest in the sequestration orders. Inasmuch as
the TOF Group and TOF Energy contended that they were accused of fraudulent conduct
in the sequestration application they had simply conflated the question as to which parties
were necessary in the litigation which determined w ho should be joined and what
evidence was relevant in the proceedings . Worldpay contended that there was no
obligation to have joined the TOF Group or TOF Energy in the sequestration proceedings.
If any of the parties in that application were of the view that the evidence of TOF Energy
and TOF Group was relevant, that party was wholly at liberty to have procured and placed
it before the court. More importantly, the sole basis on which they contended they had a
substantial and direct interest in the application was that their reputations were unlawfully
tarnished. That did not give them a direct and substantial interest in the applications for
rescission of orders that were not made against any of them. More importantly, neither
the TOF Group nor TOF Energy, had through Mr. Adelakun who was not only their CEO
but clearly their alter ego failed to explain why they had not applied to intervene in the
sequestration proceedings. Moreover, Mr. Adelakun and the Trust had in fact raised their
complaint about the TOF Group and TOF Energy not having been joined by Worldpay in
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the sequestration proceedings. N either the court dealing with the provisional
sequestration Mantame, J nor that of the final sequestration by Steyn J regarded the point
in limine of any merit. If TOF Energy and TOF Group sought to protect their interests or
their reputations their CEO who deposed all of the affidavits and who had quite clearly
managed the defenses on behalf of not only himself and the Trust, could have formally
applied to intervene in the proceedings and the respective courts would have considered
the merit of such application s. The complaint of non-joinder was in my view hopelessly
without any merit and it was not surprising that that application for joinder was withdrawn.

[138] That notwithstanding, Mr. Adelakun on behalf of the TOF Group and TOF Energy
sought to amend the notice of motion and sought to file an entirely separate application
in which it sought the rescission of the orders of sequestration against Mr. Adelakun and
the Trust in terms of Sections 1 49(2) of the Insolvency Act and Rule 42 of the Uniform
Rules of Court. O n this basis , they, represented by Mr . Adelakun, contended that
inasmuch as they were not parties to the proceedings (by either having been joined by
Worldpay or inexplicably not having sought to intervene themselves) claimed that they
were entitled to seek the rescission of the sequestration applications . Once again the
basis was no more that their reputations had been tarnished and that they had not been
given the opportunity of defending themselves against what they regarded as the
meritless claims of fraud against them. The TOF Group and TOF Energy sought that the
first prayer in the original notice of motion (in the joinder application) be removed and be
replaced with relief that sought the provisional sequestration orders of the Trust and Mr.
Adelakun be set aside and so too the final sequestration orders . They also sought a
declaratory order to the effect that Worldpay lacked the locus standi from the outset to
initiate any legal action or proceedings arising out of the BCMA between TOF Energy and
Worldpay and/or “pertaining in any way to the relationship between TOF Energy and
Worldpay outside the exclusive jurisdiction of the state of Ohio United States of America.”
It also sought a declaratory order that the High Court of South Africa, Western Cape
Division lacked the competent jurisdiction to entertain or hear the claims of Worldpay.

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[139] It appear ed that the founding affidavit in th e second application was drafted in
person by Mr. Adelakun.

[140] He claimed that the reason “I am amending my notice of motion ” was because
TOF Energy and TOF Group were erroneously referred to in the judgments as if they were
parties to the proceedings and players in the alleged fraud allegedly committed against
Worldpay but that neither of them had been sighted(sic) as parties to defend themselves
or to be heard in any of the proceedings nor were they given the opportunity to defend
themselves in the interest of justice” about the allegations, accusations and conclusions
of fraud made against them . He claimed that was despite the clear complaint of “non-
joinder and the request made by Mr. Adelakun ” to the court in the sequestration
proceedings in their answering affidavits. The TOF Energy and TOF Group claimed that
they were affected by the judgments, that they had a direct and substantial interest in the
sequestration proceedings and that they had the right to the protection of their rights of
personality and dignity amongst others, with their “affiliates at the time(sic) the Judgments
were delivered in these matters without being heard in the interest of Justice”. Mr.
Adelakun again referred to paragraph 23 of the BCMA and contended that it was
“abundantly clear” that the issues raised by Worldpay were issues for the courts in the
United States of America and not that of South Africa to have dealt with.

[141] He further claimed that in November 2022 the trustees of their respective estates
(who were cited as the second and third respondents in the second application) had been
requested “to file for legal review on these matters ” to this court but to his surprise no
response was forthcoming from them. He claimed that it was clear that nothing would be
done except through his personal presence in the Republic moreover since he had no
legal representat ion. In th at regard he referred to an e -mail addressed by him to the
trustees and a whole host of other recipients in which he stated that he was requesting
that they file applications to the Master of the High Court to review the sequestration
orders “for the ir reversal.” He further claimed in the e -mail that “dirty roles played by
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everyone are all right there and clear. Now you have the last chance to act in the interest
of justice”.

REPLYING AFFIDAVIT OF MR. ADELAKUN
[142] In the reply to the answering affidavit filed by Worldpay in the first application much
of Mr. Adelakun’s response was no more than argumentative . In respect of the aborted
joinder application he claimed that it was brought contrary to the advice of his attorneys
but on the basis that he was adamant that both TOF Group and TOF Energy were unfairly
accused of fraud in the sequestration applications and by not having been cited as parties
to the application. He claimed for that reason he did not persist with the joinder application
“at this moment”.

[143] Mr. Adelakun claimed that the rescission application in terms of section 149(2) was
based on the interpretation of th e section as well as the new facts that “had not served
before the courts when dealing with the sequestration application” that he claimed
“effectively trump Worldpay’s fallacious basis for the sequestrat ion applications.” He
further claimed that these “defects” had emerged only after the unsuccessful applications
for leave to appeal which he brought without the benefit of legal representation. He again
claimed to having been “cleared of any fraudulent activity involving Worldpay by the US
department and the latter’s counterpart in UAE as well as by the South African police ”.
He further claimed that when he applied for leave to appeal the order s of Steyn, J and
the applications for leave to appeal to the Supreme Court as well as the Constitutional
Court he did so without any knowledge of the legal procedure s which governs such
applications. He decided on that approach as by that time he had “lost all faith in the legal
profession and the judiciary based on confidential information which he had at his
disposal”. He accepted with hindsight and on advice of his attorneys that his applications
for leave to appeal were inadequate. He claimed though that he was unaware as to how
the order made by the Constitutional Court on 17 November 2022 in respect of his
application for leave to appeal against the interdict proceedings came about and claimed
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that he bore no knowledge thereof . Mr. Adelakun however did not indicate in either his
heads of argument nor in his oral address to the court , what interpretation the court was
required to give to the provisions of section 149(2) of the Act other than its ordinary
grammatical meaning.

[144] He claimed that he did not approach the court for relief in terms of “Rule 42 or the
common law” and that Worldpay`s responses with regard to him having fully participated
in the proceedings was therefore irrelevant.

[145] Mr. Adelakun claimed that he was a law graduate from a USA university and that
he was therefore able to comment on the application of the law of the United States. He
contended that in the event of a “complaint” being dismissed “without prejudice” it meant
that there was no longer a need to conduct further investigations into the alleged
complaint except in the event of a “new complaint” being lodged, based on “new facts
which differ from the previous complaint.” He contended that inasmuch as the complaint
of fraud that was investigated in the US prior to 2018 , that the statute of limitations for
mail and w ire fraud prescribed after 5 five years of the commencement of the
investigation. He contended that the five-year period had since elapsed. He also claimed
that Worldpay failed to file a civil suit against TOF Group and TOF Energy despite being
invited to lay a claim to the funds held in USA. The upshot of it was that he could never
be charged for fraud in the USA based on Worldpay`s allegations nor could TOF Group
or TOF Energy be sued in the USA as the claims had prescribed. He claimed moreover
that Worldpay could not stake a claim against the attached funds referred to in the
application involving Mr. Oyeniran Oyewale . He also sought to contradict Worldpay`s
reference to the correspondence with the South African Police Services with regard to the
investigation. He contended that the views of the S APS were “irrelevant besides being
incorrect.” That despite the fact that he raised the alleged position of SAPS in his founding
affidavit in support of the applications. He also pointed out that Mr. Oyeniran Oyewale had
since been granted leave to file “a good faith basis to appeal the final default judgment ”.
None of these claims are in my view of any significance or of assistance and as indicated
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are no more than argumentative and the personal views of Mr. Adelakun. Significantly
though, he attache d a further letter dated 30 September 2022 from the U S State
Department to a Mr. Terry Eaton , a trial attorney for the U .S. Department of Justice
Criminal Division from a Mr. Dawn N Ison United States Attorney and Mark Chasteen (the
Assistant U.S. Attorney referred to above ). In the letter they point to the order made by
the Michigan Court on 12 December 2021 in which leave was granted to dismiss the
complaint without prejudice. They state:
“(a) The criminal action against Mr. Jyde Adelakun in case number 20-mj-30135 is
terminated upon entry;
(b) The phrase “without prejudice” means that the court’s order does not prevent the
United States from re -initiating prosecution of Jyde Adelakun by filing charges in
the future in a new criminal complaint or indictment.”
Once again, Mr. Adelakun sought to rely on this letter as a basis of claiming that he had
been “exonerated” by the Michigan Court. Needless to say, it is self-evident that was not
the position.

FURTHER AFFIDAVITS FILED BY WORLDPAY AND MR. ADELAKUN
[146] Worldpay as indicated filed a Conditional Affidavit in answer to the supplementary
affidavit deposed to by Mr. Adelakun on 3 November 2022 in support of the amended
notice of motion.

[147] It pointed out that the further conduct order taken by agreement between the
parties on 24 October 2023 before Samela, J did not make provision for the filing of any
further affidavits. It therefore objected to the filing of the supplementary affidavit by Mr.
Adelakun. It also pointed out that Mr. Adelakun and the Trust who initiated the application
were legally represented by both attorneys and counsel up until 24 October 2023. There
was no factual explanation given to justify why a further affidavit had to be accepted at
that stage of the proceedings . Nonetheless it pointed out , in the event of the court
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admitting the supplementary affidavit it asked that Worldpay’s own supplementary
affidavit be admitted. I am inclined to admit the supplementary affidavits by parties given
that Mr. Adelakun acted in person at th e time and was not familiar with court procedure
and more so for the convenience of allowing him to give full expression and explanation
to the position of both TOF Energy and TOF Group. Worldpay pointed out though, that of
particular significance were the allegations made by Mr. Adelakun on behalf of TOF Group
and TOF Energy that the transfer of part of the alleged misappropriated funds in the TF
Bank account of TOF Group were made as a “temporary business loan” to the Trust. That
was an entirely new averment, one never made before in any of the proceedings hitherto,
not during the entirety of the sequestration proceedings no r in the founding affidavit in
these proceedings . Moreover, such “ business loan ” was not supported by any
documentation or by any of the other officials of the various entities. Worldpay contended
that the claim of a “business loan” was both false and a misleading afterthought. I agree.

[148] Worldpay also pointed out that the transcript of the proceedings before Steyn, J
which Mr. Adelakun had attached to the supplementary affidavit had notably shown that
he and the Trust were represented by both an attorney and coun sel on the return date
and that the allegation that no evidence was presented in the sequestration proceedings
to show that the misappropriated monies originated from Worldpay was clearly false .
Worldpay also pointed out also that it was not competent for a lay person despite being a
shareholder or an officer of th at cooperation to represent the corporations in legal
proceedings.

[149] Worldpay contended that even if Mr. Adelakun was permitted to represent TOF
Group and TOF E nergy in these proceedings there was absolutely no merit in the ir
application whether for their joinder or the separate application for the rescission of the
sequestration orders in that they had simply not met the most basic of requirements of
establishing a direct and substantial interest in any of applications nor in respect of the
orders made. Worldpay contended that TOF Group and TOF Energy were impermissibly
seeking a rehearing of the sequestration applications.
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[150] Worldpay highlighted that both TOF Group and TOF E nergy had already
unsuccessfully sought leave to appeal the sequestration orders from the C onstitutional
Court. Moreover, it was most unlikely that Mr. Adelakun, the chief executive officer of both
companies could not explain how their application for leave to appeal to the Constitutional
Court came about.

[151] Not to be outdone by Worldpay, Mr. Adelakun filed a further supplementary replying
affidavit to that of Worldpay. Once again, the affidavit was no more than argumentative in
challenging the assertions made by Worldpay. Mr. Adelakun pointed out that the TOF
Group and TOF Energy in the second application were not merely seeking to be joined to
the application for rescission brought by him an d the Trust but that it had now brought
their own separate applications for rescission under the amended notice of motion. He
again contended that the separate interests of the TOF Group and TOF Energy were
asserted to no avail before Mantame, J. He contended that the amended notice of motion
and the relief sought thereon was an entirely “new application based on new facts” in that
the American authorities had “absolved me and the two applicants of any wrongdoing ”.
He claimed that “its crystal clear that no such fraud existed” against Worldpay and that it
was in the interest of justice that the sequestration orders which “incorrectly found” him
and the Trust to be debtors in the context of the Insolvency Act stood to be rescinded and
set aside.

[152] Significantly, Mr. Adelakun, on behalf of TOF Group and TOF Energy and indeed
on behalf of the Trust and himself did not refute the claim made by Worldpay that the
claim of a “temporary business loan” raised for the first time in th e latest affidavits in the
proceedings was no more than false and a misleading afterthought.



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THE LEGAL FRAMEWORK AND APPLICABLE PRINCIPLES
[153] In both applications, the rescission of the sequestration orders made by Mantame,
J and Steyn, J were sought in terms of Sections 149(2) of the Insolvency Act.

[154] The section provides:
“The Court may rescind or vary any order made by it under the provisions of this Act.”

[155] In the second application the co-operations, TOF Group and TOF Energy sought
in the alternative the rescission of the sequestration orders in terms of Rule 42(1)(a). The
rule provides:
“(1) The court may, in addition to any other powers it may have, mero motu or upon the
application of any party affected, rescind or vary:
(a) An order or judgment erroneously sought or erroneously granted in the absence of
any party affected thereby;…”

[156] They (all four of the applicants in the two applications) also contended that based
on amongst others various constitutional rights, that it is in the interests of justice that the
sequestration orders be rescinded. TOF Group and TOF Energy in a further written reply
to Worldpay’s note on argument filed after the hearing also sought to invoke the provisions
on Section 172(1)(b)19 of the Constitution and contended that the court should make a
just and equitable order for what they considered to be a violation of their constitutional
rights.

19 Powers of courts in constitutional matters. –
(1) When deciding a constitutional matter within its power, a court-
(a)…
(b) may make any order that is just and equitable, including-
(i) an order limiting the retrospective effect of the declaration of invalidity; and
(ii) an order suspending the declaration of invalidity for any period and on any conditions, to allow the
competent authority to correct the defect.
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[157] In the early Cape decision of Abdurahman v Estate Abdurahman 1959 (1) SA 872
(C) De Villiers AJ in considering the provisions of Sections 149(2) of the Insolvency Act
remarked as follows:
“The Courts of various Provincial and Local Divisions have in the past not considered the
discretionary power conferred by this section to be limited to rescission on the common
law grounds. They have, nevertheless, however, stressed that some unusual, or s pecial,
or exceptional circumstances, must exist in order to justify relief under sec. 149 (2). With
respect, it appears to me that this approach is based upon sound principle. Inasmuch as
the relief that could be obtained under sec. 149(2) is of an extraordinary nature, special
grounds must needs be required for the exercise of the discretion to grant such relief.
There are ordinary forms of procedure available to a debtor, which, is properly availed of,
should mostly make it necessary for him to seek this form of relief in order to escape
insolvency. He is given full facilities for contesting sequestration proceedings and raising
such defences as he may have on the merits in those proceedings. In addition , sec. 150
of the Insolvency Act provides facilities for appealing against a sequestration order. Where
a sequestration order has properly been granted against a debtor he has available the
ordinary procedure for obtaining rehabilitation under appropriate circumstances. The
consideration has also been stressed, in my opinion correctly, that the question whether a
person who has been properly sequestrated should become solvent again is a matter
which does not affect only that person and his creditors: there are certain aspects of public
interest involved, inter alia, as regards the question whether the debtor is to be re -vested
with full rights of trading and of obtaining credit. It is by reason of these and simila r
considerations that the Legislature has prescribed certain periods which have to elapse
before a rehabilitation order can be granted. For all these reasons it seems clear that in
order to justify the exercise of a discretion under sec. 149 (2) in his favour, the applicant
or plaintiff seeking relief from insolvency should satisfy the Court that his being confined
to the normal forms of procedure available to him would for some reason be inequitable
and not desirable regard being had to his own position, t o that of his creditors and to the
considerations of public interest above referred to.

[158] De Villiers AJ add ed, ‘examples of special and exceptional circumstances that
were found to exist in particular cases were mostly of the kind where the debtor was in
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fact not insolvent or had made a provision for the payment of his creditors in full and
where in addition he had laboured under some disability or difficulty with regard to
contesting the sequestration proceedings (see for example ex parte Belcher 1939 WLD
39) or alternatively, where in addition unnecessary hardship would be involved for himself
and for others in the event of his being confined to the ordinary rehabilitation machinery’.
De Villiers AJ remarked further that he had not come across a single case and none had
been cited to him in which the relief had been granted under Section 149(2) merely upon
the consideration that affected the merits of the sequestration proceedings.

[159] Importantly, he held that it is necessary for an applicant who seeks a rescission
under Sections 149(2) would in addition to the common law grounds for rescission have
to establish unusual , special or exceptional circumstances in order to justify the relief
under the subsection.

[160] In March 1998 in Ward v Smith and Others: In Re Gurr v Zambia Airways Corp
Ltd, the Supreme Court of Appeal considered the requirements for the setting aside of a
winding-up order in terms of the provisions of Sections 354(1) of the Companies Act 61
of 1973. The section provides:
“The Court may at any time after the commencement of a winding-up, on the application of
any liquidator, creditor or member, and on proof to the satisfaction of the Court that all
proceedings in relation to the winding -up ought to be stayed or set aside, make an order
staying or setting aside the proceedings or for the continuance of any voluntary winding -
up on such terms and conditions as the Court may deem fit.”
Scott JA writing on behalf of the court remarked that the language of the section was wide
enough to afford the court a discretion to set aside a winding-up order, both on the basis
that it ought not to have been granted at all or on the basis that it falls to be set aside by
reason of subsequent events (Meskin Henochsberg on the Companies Act at 747; see
also Joubert (ed) The Law of South Africa Vol. 4 first re-issue para 185 (MS Blackman).
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“In the case of the former, the onus on an applicant is such that generally speaking the
order will be set aside only in exceptional circumstances. This has been emphasised by
the Courts of various Provincial and Local Divisions not only in relation to section 354 and
its predecessor (s ection 120 of Act 46 of 1926) but also in relation to s 149(2) of the
Insolvency Act 24 of 1936 which affords a similar discretion to a Court to rescind or vary a
sequestration order (See Herbst v Hessels NO en Andere 1978 (2) SA 105 (T); Aubrey M
Cramer Ltd v Wells NO 1965 (4) SA 304 (W); Abdurahman v Estate Abdurahman 1959 (1)
SA 872 (C)). There is nothing in the section to suggest that the Court’s discretionary power
to set aside a winding -up order is confined to the common -law grounds for rescission.
However, in the Herbst case supra, Eloff J expressed the view (at 109F -G) that no less
would be expected of an applicant under the section than of an applicant who seeks to
have a judgment set aside at common law. I think this must be correct. The object of the
section is not to provide for a rehearing of the winding-up proceedings or for the Court to
sit in appeal upon the merits of the judgment in respect of those proceedings. To construe
the section otherwise would be to render virtually redundant the facilities available to
interested parties to oppose winding -up proceedings and to appeal against the granting
of a final order. It would also ‘make a mockery of the principle of ut sit finis litium’ .
(Abdurahman v Estate Abdurahman (supra at 875G-H)). It follows that an applicant under
the section must not only show that there are special or exceptional circumstances which
justify the setting aside of the winding -up order or appealed against the order. Other
relevant considerations would include the delay in bringing the application and the extent
to which the winding -up had progressed. (Compare Aubrey M Cramer Ltd v Wells NO
(supra) at 305H.)”

[161] The court remarked that as with sections 354, so too, in respect of an application
brought under Section 149(2) of the Insolvency Act, the discretionary power to set aside
the winding-up was not confined to the common law grounds of rescission. Although Eloff,
J was of the view that no less would be expected of an applicant under the section.
Importantly, the court emphasised that the object of the section was not to provide for a
rehearing of the winding -up proceedings nor for a court to sit in appeal on the merits of
the sequestration judgment. And for the same reasons as set out in the decision of De
Villiers AJ in Abdurahman, the court was of the view that such an approach would defeat
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the facilities available to interested parties to intervene in winding-up proceedings and
appeal against the final order.

[162] The SCA, as did De Villiers AJ in Abdurahman, held that an applicant, besides
establishing the common law grounds for rescission would have to demonstrate that there
were special or exceptional circumstances that would justify the setting aside of the
winding- up order in addition to having to provide a satisfactory explanation for not having
opposed the granting of a final order in the first place or having appealed it.

[163] Interestingly, in a judgment handed down on 27 May 1998 Gautschi AJ in Storti v
Nugent and Others and, reported much later in 2001 (3) SA 783 (W) and without reference
to the decision of the Supreme Court of Appeal in Ward above, conducted extensive
research into the history of the origins of the Companies Act in South Africa and with
particular reference to the provisions of sections 354(1) of the 1973 Companies Act. In
that matter he found that the provisions of Sections 149(2) were applicable as opposed
to sections 354(1). He remarked that there was a long and respected line of authority that
the section may be invoked both where the order should not have been granted and
where it was properly made but supervening factors ma de its rescission or variation
necessary and desirable. In that regard, he referred, amongst others to the decision of
De Villiers AJ in Abdurahman referred to earlier. Gautschi AJ remarked as follows:
“The principles to be gleaned from the authorities, often not harmonious, are in my view the
following:
(1) The Court’s discretionary power conferred by this section is not limited to rescission on
common-law grounds.
(2) Unusual or special or exceptional circumstances must exist to justify such relief.
(3) The section cannot be invoked to obtain a rehearing of the merits of the sequestration
proceedings.
(4) Where it is alleged that the order should not have been granted, the facts should at least
support a cause of action for a common-law rescission.
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(5) Where r eliance is placed on supervening events, it should for some reason involve
unnecessary hardship to be confined to the ordinary rehabilitation machinery, or the
circumstances should be very exceptional.
(6) A court will not exercise its discretion in favour of such an application if undesirable
consequences would follow.
In Ex parte Van der Merwe (supra at 72E-H) certain other general principles are enunciated.
The first deals with notice to interested parties. I have not repeated that principle because
it is of course fundamental to all applications. The second is that there should be no dispute
on the facts. I do not agree with this unqualified statement. If the application involves a
rescission of an order which should not have be en granted, an applicant for a r escission
under the common law need only make out a prima facie case (I deal more fully with this
below). The effect of the order is interim on ly, and not final, and therefore factual disputes
are ordinarily not a bar to success. If on the other hand the order was correctly made, but
is to be set aside (permanently) because of, for instance, a composition with creditors, the
order of setting aside is expected to have final effect and factual disputes would then
become an obstacle to the applicant (Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C).”

[164] In respect of an application under both sections 354(1) or 149(2) of the Act he
remarks as follows:
“On either basis, the applicant must at least bring itself within a rescission under the common
law. That involves establishing ‘sufficient cause’, which in turn involves two essential
elements-
(1) The party seeking relief must present a reasonable and acceptable explanation for his
default, and
(2) On the merits such party must have a bona fide defence which, prima facie, carries
some prospect of success.
(Chetty v Law Society, Transvaal 1985 (2) SA 756 (A) at 764I-765D.)”

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[165] The common law grounds for rescission s were set out in the oft -referred to
decision of Miller, JA in Chetty v Law Society, Transvaal 1985 (2) SA 756 (A). There the
court set out the requirements for the rescission of a judgment obtained by default of
appearance provided that sufficient cause therefore was shown. In dealing with what was
meant by ‘sufficient cause’ the court remarked:
“The term “sufficient cause” (or “good cause”) defies precise or comprehensive definition, for
many and various factors require to be considered. (See Cairn’s Executors v Gaarn 1912 AD
181 at 186 per INNES JA.) But it is clear that in principle and in the long -standing practice of
our Courts two essential elements of “sufficient cause” for rescission of a judgment by default
are:
(i) that the party seeking relief must present a reasonable and acceptable explanation
for his default; and
(ii) that on the merits such party has a bona fide defence which, prima facie, carries
some prospect of success. ( De Wet’s case supra at 1042; PE Bosman Transport
Works Committee and Others v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794
(A); Smith NO v Brummer NO and Another; Smith NO v Brummer 1954 (3) SA 352
(O) at 357-8.)
It is not sufficient if only one of these two requirements is met; for obvious reasons a party
showing no prospect of success on the merits will fail in an application for rescission of a
default judgment against him, no matter how reasonable and convincin g the explanation of
his default. And ordered judicial process would be negated if, on the other hand, a party who
could offer no explanation of his default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him resci nded on the ground that he had reasonable
prospects of success on the merits.”

THE APPLICATION OF THE LEGAL PRINCIPLES TO THE TWO APPLICATIONS
[166] In respect of the first application it was incontrover tible that both applicants, Mr.
Adelakun in his personal capacity and the Trust had fully participated in the proceedings
both before Mantame, J and Steyn, J. T hey were also legally re presented in such
proceedings although at times Mr. Adelakun appeared in person whe re they had
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terminated the services of his legal representatives . The answering affidavit by both of
them had been prepared by their legal representatives and it was evident from a copy of
the record of the proceedings before Steyn, J at the return date of the provisional
sequestrations they were represented by a Mr. De Pontes, a practicing advocate. There
can be no question that they were not aware of the proceedings and were given the fullest
opportunity by the court (despite repeated postponements and who accommodated them
to appoint new legal representatives whenever requested). There appeared to be some
suggestion that because Mr. Adelakun had appeared in p erson he had suffered from
some disability by not being properly and fully familiar with the law on sequestrations and
its requirements . As indicated when the merits of the applications were argued , both
before Mantame, J and Steyn, J they were legally represented. There can be no question
that they were in any way disadvantaged by the lack of legal representation in the various
hearings on the merits of the applications and the many postponements that they sought
and which were granted.

[167] The repeated grounds of attack on the judgments of both Mantame, J and Steyn,
J by Mr. Adelakun and the Trust were amongst others , that Worldpay had failed to
establish a liquidated claim against them or that an act of insolvency had not been
established and what they regarded as without any basis the claim that they had
deliberately sought to dissipate their assets to the prejudice of the Worldpay and other
creditors (of which they disputed that any existed).

[168] Needless to say, counsel for the Worldpay contended and correctly in my view,
that the contentions by both Mr. Adelakun and the Trust were neither sustainable both in
fact nor in law . Their challenge on Worldpay`s locus standi in the sequestration
proceedings and its failure to meet the requirements of Section 12(1) of the Act amounted
to no more than a vain attempt by Mr. Adelakun and the Trust at seeking a rehearing of
the sequestration applications. As already indicated , the settled law endorsed by the
Supreme Court of Appeal is that Section 149(2) cannot be invoked to obtain a rehearing
of the sequestration application or for that matter as Scott JA in the Ward remarked for
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the court to sit in appeal upon the merits of the judgments in those proceedings . The
applicants have moreover exhausted all of their avenues o f appeal both before the
Supreme Court of Appeal and the Constitutional Court. It would as the authorities stated,
make a mockery of the legal process and in particular that of the appeal courts for this
court to in any way revisit not only the question of loc us standi o f Worldpay in the
sequestration applications but also the affirmative findings by Steyn, J and Man tame, J
that both Mr. Adelakun and the Trust committed acts of insolvency, and importantly, that
the transfer of funds into the ir various accounts was tantamount to a dissipation of their
property to defeat the interests of creditors such as Worldpay. It was thus incontrovertible
that it was to the benefit of their creditors that the estates of both Mr. Adelakun and that
of the Trust be placed into the hands of their trustees. More importantly given the large
amounts of money that was unaccounted for, the trustees would not have been able to
conduct the necessary investigations.

[169] In respect of the second leg as to whether the applicants have established any
bona fide defense which prima facie carried some prospect of success, Mr. Adelakun and
the Trust, as did TOF Energy and TOF Group in the second application claim that the
alleged “exoneration” by the Michigan Court constituted not only exceptional
circumstances but a bona fide defense to the claims of misappropriation by Worldpay in
the sequestration applications.

[170] It was apparent from the motion brought before the Michigan Court by the federal
government of the U.S and the order of that court that the dismissal was granted on a
“without prejudice basis” and that the stated reason for the dismissal was to enable the
state to be given the opportunity of conducting further investigations, and whether to join
other parties, if necessary in the investigations. It was clearly not an “exoneration” of Mr.
Adelakun nor any of his counterparts and his repeated claims of having been vindicated
or as he put it, found and cleared of all allegations of fraud were wholly without substance.
More importantly though, as pointed out by the Worldpay, the basis of the sequestration
of Mr. Adelakun and that of the Trust was not premised simply on the allegations of fraud
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which he was alleged to have masterminded through the use of TOF Energy on Worldpay
to obtain the payments but that there had been a clear tracing and tracking of the flow of
funds that belonged to Worldpay to that of TOF Group (having been the stipulated account
by TOF Energy) and from which further transfers were made into a secondary TOF Group
account and of which approximately USD 2 million were transferred into the account of
the Trust. The monies received by the Trust were thereafter dispersed to Mr. Adelakun in
his personal capacity and to other entities. O f particular significance was that in the
sequestration proceedings Mr. Adelakun and the Trust disputed that any funds received
into the TOF Group accounts had its provenance from Worldpay and it was repeatedly
disputed and challenged to provide proof and its bank statements of such payments. That
spurious defense was abandoned in these proceedings where both co rporations TOF
Energy and TOF Group acknowledged that payments were made on invoices presented
by TOF Energy to Worldpay who thereupon made several payments into the bank
account of TOF Group at FT Bank. This summersault by Mr. Adelakun as the CEO of both
TOF Group and TOF Energy remained inexplicable. More importantly, as Steyn, J and
Mantame, J found , no reasonable explanation was provided by the Trust through Mr.
Adelakun as principal trustee, as to the reason for the receipt of the monies from TOF
Group. Vague claims were made that it was no more than an “investment” which the Trust
claimed it was entitled to receive. No details were provided of any such “investment”, nor
any basis for it. Moreover, the “investment” morphed into a “short term business loan” as
inexplicably claimed by TOF Group in the second application. The basis of any such loan
was moreover not disclosed nor its terms and absolutely no details were provided about
it. Worldpay correctly pointed out that it was no more than a false and a dishonest claim
and nothing more than an afterthought. So too, did Mr. Adelakun in his personal capacity
wholly fail to provide any explanation as to the receipt of money from the Trust into his
personal accounts. It appeared that in the answering affidavit in the sequestration
proceedings he adopted the remarkable attitude that he did not owe any explanation for
the funds into his account nor that of the Trust. The purported explanation as to the receipt
of the funds from TOF Group, in my view, did not constitute any bona fide defense to the
sequestration application and equally so to o in the applications for the rescission of the
orders. Moreover, Mr. Adelakun as the controlling mind and the CEO of both TOF Group
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and TOF Energy was sufficiently familiar with the business dealings of the corporations
to have provided a cogent explanation in the sequestration proceedings if any existed .
What was even more significant about the revelations of the “short term business loans”
or “investment” in the rescission applications were that they were not supported by any
other official or shareholder (if any) in the corporations other than the mere say so of their
CEO who previously professed not to have been intimately involved in the day to day
business operations of the two corporations.

[171] I am more than satisfied that the applicants in both applications failed to establish
a bona fide defense which prima facie carried some prospect of success. Moreover, what
Mr. Adelakun regarded as the unusual, special, exceptional and supervening
circumstances of the dismissal of the complaint against him in the Michigan Court on a
“without prejudice basis” does not in any way undermine the findings of both Mantame, J
and Steyn, J. Moreover, all four of the applicants have wholly failed to demonstrate that
they would be subject to any unnecessary hardship if confi ned t o the ordinary
rehabilitation machinery. In this regard the remarks of De Villiers, AJ’s in Abdurahman
that the rigors and time expanse of a reh abilitation process also entails the protection of
the public interest in the reinvesting of the estate of an insolvent remains particularly
apposite.

[172] During the course of argument Mr. Adelakun submitted that his status as an
insolvent was prejudicial to the corporation ’s ability to conduct business . In that regard,
he volunteered that , the corporations, TOF Group and TOF Energy stood to conduct
business with the South African government and also in the oil industry but the fact that
he as their CEO was an unrehabilitated insolvent was raised as a bar for doing business
with the corporation s. Counsel for the respondent correctly p ointed out there was no
cogent explanation provided by Mr. Adelakun as to why the corporations could not simply
conduct business with out the involvement of Mr. Adelakun. Except of course, that he
really was and remains the alter ego of both corporations.
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[173] In respect of the second application, TOF Group and TOF Energy contended that
they were deliberately excluded from participating in the sequestration proceedings and
more importantly to defend themselves against the false claims of fraud against them by
Worldpay in its failure to have joined them in the proceedings. In the answering affidavit
both Mr. Adelakun and the Trust had in fact raised as a point in limine the non -joinder of
the corporations. Both Mantame, J and Steyn, J separately rejected the points in limine
initially as a bar to the provisional sequestration of the Trust and Mr. Adelakun and so too
in the final sequestration proceedings. Needless to say , all of that finding s were the
subject of the applications for leave to appeal to the Supreme Court of Appeal and the
Constitutional Court. They found favour with none. Moreover, other than claiming simply
to protect their reput ation against the false accusations of fraud neither TOF Group nor
TOF Energy contended that their participation in the sequestration proceedings would or
could have led to a different outcome in respect of those proceedings. More importantly,
they were not the subject of the sequestration proceedings and if as they seek to suggest
that they may well be creditors of the estates of Mr. Adelakun and the Trust they remain
at liberty to prove such claims in the insolvent estates. Strangely, in this regard Mr.
Adelakun contended that the rescission would not impact on any creditors as there were
none other than what he referred to as the alleged false claims made by Worldpay. That
claim does not square up with the belated explanation of the corporations having made
an investment or short term loan to the Trust. The se contentions were simply
irreconcilable and demonstrative, once again , of the lack of a credible and honest
disclosure about the reasons for such transfers between TOF Group and the Trust.

[174] There was also no explanation provided by TOF Group and TOF Energy through
Mr. Adelakun as to why they had not applied in terms of the Rules of the High Court to
formally intervene in the sequestration proceedings, more so after the point in limine had
been rejected by Mantame, J in the provisional sequestration proceedings. N othing
prevented the corporations from doing so and for the court on the return date to have
considered the merits (if any) of such an application. Mr. Adelakun in the supplementary
heads filed after the oral presentations sought to suggest there was a responsibility on
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both Mantame, J and Steyn, J to have invited TOF Group and TOF E nergy to have
indicated whether they had any interest in the sequestration applications and , if any, to
have invited them to apply to join or intervene in the proceedings . I n this regard , Mr.
Adelakun opportunistically sought to rely on this court having provided the parties with
the opportunity of obtaining the views of the various interested parties such as the
trustees, the Master, SARS and creditors who ought to have been given notice of these
proceedings and to have indicated whether they wished to intervene or to abide the
outcome of this court’s decision. The comparison made was without merit inasmuch as
there was an obligation on the part of Mr. Adelakun and the Trust in the first application
to have cited at the very least the trustees and to have given the Master, SARS and other
creditors notice of these proceedings. There was no obligation on either Mantame, J or
Steyn, J to have invited the corporations or for them to have been given notice of the
sequestration proceedings.

[175] Counsel for Worldpay referred to the decision of Corbett, J in the matter of United
Watch and Diamond Co. v Disa Hotels 1972 (4) SA 409 (C) at 415B:
“…an applicant for an order setting aside or varying the judgment or order of Court must
show, in order to establish locus standi, that he has an interest in the subject-matter of the
judgment or order sufficiently direct and substantial to have entitled him to intervene in the
original application upon which the judgment was given or the order granted.”

[176] The interest required is a legal interest that could prejudicially be affected by the
order and not merely a financial interest which is only an indirect interest . In this regard
Worldpay contended that the findings and reasoning in United Watch & Diamond Co. v
Disa Hotels were of equal application in respect of the rescission brought in terms of
149(2) of the Insolvency Act by the corporations inasmuch as they had failed to show a
direct and substantive legal interest in the sequestration proceedings.

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THE APPLICATION FOR RESCISSION BROUGHT UNDER RULE 42(1)(a) OF THE
UNIFORM RULES
[177] It was incumbent upon the two corporations in reliance on Rule 42(1)(a) to
demonstrate why the order was erroneously granted. In this regard Kampepe, J in Zuma
v Secretary of the Judicial Commission and Others20 stated:
“Ultimately, an applicant seeking to do this must show that the judgment against which
they seek a rescission was erroneously granted because: “there existed at the time of its
issue of fact of which the judge was unaware which would have precluded the granting of
the judgment and which would have induced the judge, if aware of it not to grant the
judgment”.21

[178] In this regard the cooperation sought to suggest that the error committed by both
Mantame, J and Steyn, J was based on the fact that they were not aware that there was
no substance to the fraud allegations which they claimed had subsequently emerged
through the further investigation and the dismissal order by the Michigan Court. Once
again, the error relied upon by the corporations and for that matter also Mr. Adelakun and
the Trust in the first application was that of the dismissal by the Michigan Court as already
indicated, bore no relevance to the actual findings of the court’s in both the provisional
and final sequestration orders, all of which were based on the requirements provided for
in the Insolvency Act . O nce again , the corporations sought to conflate the criminal
investigation with the onus cast upon Worldpay in the sequestration proceedings to have
established on a balance of probability that there was a liquidated debt owed to Worldpay,
that Mr. Adelakun and the Trust had committed acts of insolvency, were factually insolvent
and were in fact dissipating their assets to the prejudice of their creditors and that it was
therefore in the interest s of the creditors for their respective estates to be placed under
sequestration.


20 Refer to the previous footnote at 62.
21 Nyingwa v Moolman N.O. 1993 (2) SA 508 (TK) at 510D-G; see also Daniel above fn 10 at para 6 and fn 20 at para
6.
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[179] In respect of their absence from the sequestration proceedings, I have already
considered that in the context of not only the ir failure to have formally applied for their
intervention in the sequestration proceedings and to have established a direct and
substantial interest in the proceedings they were merely seeking to protect and defend
their reputations against the allegations of fraud against them which is a wholly insufficient
basis for a re scission of the orders. Moreover, from the content of the affidavit deposed
to on behalf of the corporations by their CEO, there appears to be nothing of any value
and merit that would have led the court s to a different decision in the sequestration
applications.

[180] In my view, the applicant and the corporations have likewise failed to make out a
case for rescission under Rule 42(1)(a).

THE CHALLENGE TO THE JURISDICTION OF THE COURT
[181] In the sequestration proceedings Mr. Adelakun and the Trust contended that the
court did not have jurisdiction to deal with the sequestration . They claim that the
allegations of fraud arose out of the contractual relationship between Worldpay and TOF
Energy which was governed by the BCMA in which the parties submitted themselves to
the jurisdiction of the state and federal courts of Ohio . The corporations also sought
declaratory relief in the second application where in reliance on the provisions of clause
23 of the BCMA they contended that neither the court of Mantame, J nor that of Steyn, J
enjoyed jurisdiction in respect of the applications.

[182] Counsel for Worldpay correctly in my view, contended that the sequestration
applications were not proceedings that arose out of or related to the BCMA and moreover
neither was the sequestration applications brought against a party to that agreement. The
fact that the BCMA contained a choice of law clause was no bar to either Mantame, J or
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Steyn, J dealing with the sequestration of Mr. Adelakun in his personal capacity or that of
the Trust.

[183] In my view, the relief sought by the corporations in the amended notice of motion
was hopelessly without merit in seeking declaratory orders that both the courts of
Mantame, J and Steyn, J had no jurisdiction over the parties and in dealing with the
sequestration application. To the extent that the corporations, Mr. Adelakun and the Trust
sought to suggest in any way that constituted an error on the part of the courts that entitled
it to a rescission of the judgments, is in my view equally without any merit. The remaining
clauses referred to and relied upon by all of the applicants were in my view, likewise of
no relevance to the sequestration application or their rescission.

THE RELIANCE ON VARIOUS RIGHTS UNDER THE CONSTITUTION
[184] The applicants in both the first and second application sought to rely on what they
contended w ere a violation of various of their rights under the Constitution in the
sequestration proceedings and the eventual sequestration orders against Mr. Adelakun
and the Trust. These contentions were not articulated with any coherence and it appeared
that what the four applicants sought to do was to bolster their claims for rescission under
both Sections 49(2) of the Insolvency Act and under Rule 42(1)(a).

[185] In respect of the corporations Mr. Adelakun alleged that certain rights of the
corporations had been violated namely those enshrined in Sections 9(1), (10), 25(1), 34
and 35(3)(a)(c)(e)(h)(i) and Section 36(1) of the Constitution.

[186] Section 9(1) of the Constitution provides that everyone is equal before the law and
has a right to the equal protection and benefit of the law. There is nothing to indicate that
each of the corporations and Mr. Adelakun and the Trust suffered a violation of their right
to equality and the benefit of the law in the sequestration proceedings . S ection 10
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provides that everyone has inherent dignity and the right to have their dignity respected
and protected . In this regard coun sel for Worldpay contended that Section 8 of the
Constitution determines the application of the Bill of Rights. Section 8(4) provides that “a
juristic person is entitled to the rights in the Bill of Rights to the extent required by the
nature of the rights and the nature of that juristic person”.22
“[18] As we have seen, privacy is a right which becomes more intense the closer it
moves to the intimate personal sphere of the life of human beings, and less intense as it
moves away from that core. This understanding of the right flows, as was said in Bernstein,
from the value placed on human dignity by the Constitution. Juristic persons are not the
bearers of human dignity. Their privacy rights, therefore, can never be as intense as those
of human beings. However, this does not mean that juristic persons are not protected by
the right to privacy. Exclusion of juristic persons would lead to the possibility of grave
violations of privacy in our society, with serious implications for the conduct of affairs. The
state might, for instance, have free licence to sea rch and seize material from any non -
profit organisation or corporate entity at will. This would obviously lead to grave
disruptions and would undermine the very fabric of our democratic state. Juristic persons
therefore do enjoy the right to privacy, although not to the same extent as natural persons.
The level of justification for any particular limitation of the right will have to be judged in
the light of the circumstances of each case. Relevant circumstances would include
whether the subject of the limitation is a natural person or a juristic person as well as the
nature and effect of the invasion of privacy.”

[187] Inasmuch as Mr. Adelakun contended that his dignity had been undermined by his
sequestration, that in my view is not a violation of the Constitution insofar as it is permitted
by a law of general application and would in my view survive any limitations analysis
under Section 36(1). Inasmuch as any of the applicant’s complain that they have been
unlawfully accused of fraud by Worldpay or have been the unlawful beneficiaries thereof,
they enjoy all the rights under the law to protect their reputation if found to be unlawful
infringed. Section 25 provides that no one may be deprived of property except in terms of

22 Investigating Directorate: Serious Economic Offences and others v Hyundai Motor Distributors (Pty) Ltd and Others:
In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others 2001 (1) SA 545 (CC) at [18].
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the law of general application and no law may permit arbitrary deprivation of property .
Worldpay correctly pointed out that Section 25(1) could only be invoked in the event that
the corporations could prove that funds in question, those of Worldpay which were proven
to have been transferred to Mr. Adelakun and the Trust via the corporation ’s bank
accounts were the corporation ’s property . T he corporation simply failed to do so .
Moreover, Mr. Adelakun and the Trust were not arbitrarily deprived of their property. They
were given notice of all of the proceedings and fully participated in it. The corporation
were equally fully aware of the proceedings.

[188] Inasmuch as the corporations rely (and to the extent that Mr. Adelakun and the
Trust also rely thereon) on fair trial rights under Section 35 of the Constitution afforded to
every person facing prosecution of a crime, Worldpay correctly asserted that the section
finds no application as neither this application nor the sequestration application was
concerned with a criminal prosecution. In respect of the applicant’s reliance on S ection
34 of the Constitution which provides that everyone has a right to have any dispute that
can be resolved by application of the law decided in a fair public hearing before a court
or where appropriate another independent and impartial tribunal forum, Worldpay
correctly contended that the corporations had simply failed to explain why they had not
sought to have formally intervened in the sequestration proceeding, if they indeed enjoyed
any substantial interest in the proceedings by having brought a formal application for
intervention or joinder . Moreover Mr. Adelakun had personal knowledge of Worldpay`s
claims of the funds found in his and the Trust`s bank accounts since at the very least as
early as 6 December 2018.23

[189] In as much as the corporations and Mr. Adelakun and the Trust rely on the
provisions of Section 36(1) relating to the limitations clause which provides:

23In the interdictory proceedings, a rule nisi was granted under case number 19409/08 inter alia, which called upon all
interested parties to show cause why the bank accounts should not be frozen. The corporations had failed to intervene.
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“rights in the Bill of Rights may be limited only in terms of law of general application to the
extent that the limitation is reasonable and justifiable in an open and democratic society
based on human dignity, equality and freedom, taking into account all relevant factors,
including – (a) the nature of the right; (b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation; (d) the relation between the limitation And its
purpose; and (e) less restrictive means to achieve the purpose.”
All of the applicants would have been required to establish the violation of any of their
rights for a limitations analysis to be relevant in the circumstances of the matter . No
infringement was shown. In my view the reliance on the violation of the constitutional
rights was nothing more than a shotgun approach adopted by all of the applicants in what
was no more than just another desperate attempt to obtain the setting aside of the
sequestration orders.

[190] The applicants also cont ended that it was in the interest of justice that the
sequestrations be set aside.

[191] Khampepe J in Zuma v Secretary for the Commission and Others considered the
question of circumstances in which the interest of justice would warrant a rescission. I n
that regard the court stated; referred:
“[87] This power was alluded to by this Court in Ka Mtuze as follows:
‘If the position were to be that this Court does have the power outside of rule 29 read with
rule 42 to reconsider and, in an appropriate case, change a final decision that it had
already made, one can only think that that would be in a case where it would be in
accordance with the interests of justice to re-open a matter in that way.’
I should emphasise however, before we go any further, that this Court noted that “[t]he
interests of justice would require that that be done in very exceptional circumstances”.

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[192] In that regard the Constitutional C ourt dealt extensively with what constituted
exceptional circumstances and did so with reference to Sections 17(2)(f)24 of the Superior
Courts Act that empowers the President of the Supreme Court of Appeal either mere motu
or upon application to reconsider a matter after a refusal of a petition for leave to appeal,
where exceptional circumstances warrant it. In that regard, the court referred to the
interpretation provided in S v Liesching [2018] ZACC 25; 2019 (4) SA 219 (CC); 2018 (11)
BCLR 1349 (CC) (Liesching II) where the following was stated:
“[E]xceptional circumstances , in the context of section 17(2)(f), and apart from its
dictionary meaning, should be linked to either the probability of grave individual
injustice…or a situation where, even if grave individual injustice might not follow, the
administration of justice might be brought into disrepute if no reconsideration occurs.”

[193] The court remarked that Section 17(2)(f) did not allow for a parallel appeal process
or an additional bite at the proverbial appeal cherry and explained that the provision could
only be invoked for the President of the Supreme Court of Appeal to prevent an injustice.
In that matter, the Constitutional Court found that no grave injustice would befall Mr. Zuma
in the event that the court refused to reconsider its order or that the administration of
justice would brought into disrepute. On the contrary, the Constitutional Court was of the
view that the administration of justice would be brought into disrepute if the court did
reconsider its order. In considering whether a reconsideration of its decision had to be
made the applicant had to meet the high threshold of exceptional circumstances. The
Constitutional Court referred to the factual matrix in considering it. So too, in this matter,
the factual matrix points unequivocally to the fact that no exceptional circumstances exist.
The exceptional circumstances relied upon by the applicants with reference to the order
of the Michigan Court was wholly without any merit. I am therefore satisfied that it would
not be in the interest of justice to rescind the sequestration orders against both Mr.
Adelakun and the Trust in as much as no case has been made out for such rescission

24 The decision of the majority of the judges considering an application referred to in paragraph (b), or the decision of
the court, as the case may be, to grant or refuse the application shall be final: Provided that the President of the
Supreme Court of Appeal may in exceptional circumstances, whether of his or her own accord or on application filed
within one month of the decision, refer the decision to the court for reconsideration and, if necessary, variation.
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and more so it would in fact undermine the administration of justice and more importantly
not only the protection of the public but also the creditors of the estates of both Mr.
Adelakun and the Trust.

[194] The Constitutional Court, moreover, emphasised that finality and legal certainty
were the linchpins in the consideration of the interests of justice. In this regard it referred
to its own words in the matter of Minister of Justice v Ntuli [1997] ZACC 7; 1997 (3) SA
772 (CC); (1997) BCLR 677 (CC) at para 29:
“[t]he principle of finality in litigation which underlies the common law rules for the variation
of judgments and orders is clearly relevant to constitutional matters. There must be an end
to litigation and it would be intolerable and could lead to great uncertainty if courts could
be approached to reconsider final orders made”.
In that regard Khampepe, J was of the view that there was good reason for Rule 42, that
had long consolidated the common law permitted and operated only in specific and limited
circumstances. I n that regard she state d “Lest chaos be invited into the process of
administering justice, the interests of justice requires the grounds available for rescission
to remain carefully defined .” She added; “Indeed, a court must be guided by prudence
when exercising its discretionary powers in terms of the law of rescission, which discretion
as exp ounded above should be exercised only in exceptional circumstances , h aving
‘regard to the principle that is desirable that there be finality in judgments’”. In that matter,
the Constitutional Court was also mindful of what it referred to as “the dirty hands” with
which the applicant had come to court that swung the pendulum in the interest of justice
entirely against him. So too, in this matter, as counsel for the Worldpay emphasised, Mr.
Adelakun and others literally approached this court with dirty hands in having failed to
disclose their successive and unsuccessful applications for leave to appeal and the ir
obstinate failure to have joined the trustees as parties to the application all of which were
indicative of their conduct. In my view the belated incantation of the “interests of justice”
does not assist them at all in the light of the facts and their own conduct.

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[195] Lastly, in reliance on the C onstitution, Mr. Adelakun contended that the court
should invoke the provisions of Sections 172(1)(a)25 to provide just and equitable relief
on account of a breach of the constitutional rights of the applicants. Needless to say, such
an invocation was hopelessly without any merit in as much as all four applicants have not
demonstrated in any way that there was a breach of any of their constitutional rights.

MR. ADELAKUN’S REPRESENTATIONS OF THE CORPORATIONS
[196] Mr. Adelakun appeared on behalf of the corporations in the second application and
contended the he had been authorized to act on behalf of them by virtue of Section 38 of
the Constitution as he claimed various rights of the corporation s had been violated .
Section 38 of the Constitution provides:
“38. Enforcement of rights – Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has been infringed or
threatened, and the court may grant appropriate relief, including a declaration of
rights. The persons who may approach a court are –
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their own name;
(c) anyone acting as a member of, or in the interest of, a group o r class of
persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”
Counsel for Worldpay pointed out that the corporation s were neither a n association
neither did Mr. Adelakun contend that he was acting in the public interest nor could he
competently make such an averment. The corporations did not claim to be part of a group
or a class of persons in the sense required nor are the corporations suffering from an
incapacity that precluded them from instructing legal representatives to have appeared in

25 Powers of courts in constitutional matters. –
(1) When deciding a constitutional matter within its power, a court-
(a) Must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency; and …

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court on their behalf. Worldpay contended that Section 38 did not afford Mr. Adelakun a
right to represent the corporations in the second application. Rather , it afforded the
corporations the right to approach a court in appropriate circumstances. For that reason,
counsel for the respondent contended that Mr. Adelakun’s reliance of Sections 38 of the
Constitution was misplaced in as much as Mr. Adelakun was not seeking to apply for relief
in his own name on behalf of the corporations. What Mr. Adelakun was in fact doing was
seeking leave to represent the corporations in the stead of a legal representative in
arguing their case.

[197] The common law provides that the company may not conduct its case in a court
except by appearance of counsel (or an admitted legal practitioner) on its behalf. In this
regard, see also the provisions of the Legal Practice Act Section 33:
“33. Authority to render legal services:-
(1) Subject to any other law, no person other than a practicing legal practitioner
who has been admitted and enrolled as such in terms of this Act may, in
expectation of any fee, commission, gain or reward-
(a) Appear in any court of law or before any board, tribunal or similar
institution in which only legal practitioners are entitled to appear; or
(b) Draw up or execute any instruments or documents relating to or required
or intended for use in any action, suit or other proceedings in a court of
civil or criminal jurisdiction within the Republic.”

[198] At the hearing Mr. Adelakun appeared on behalf of not only his estate and that of
the Trust but also on behalf of the corporations. Worldpay raised no objection during the
hearing to Mr. Adelakun’s representation of the corporations and coun sel for Worldpay
subsequently claimed that it did not intend to do so . In that regard she referred to the
decision of Manong & Associates v Minister of Public Works 2010 (2) SA 167 (SCA) where
the Supreme Court of Appeal recognised the residual discretion of superior courts that
arose from the inherent power of the courts to regulate their own proceedings and so
permit the rule prohibiting corporate entities being represented in court otherwise than by
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legal practitioner to be relaxed where it would be in the interests of the administration of
justice.

[199] Relaxation of the rule was recogni sed as being appropriate, where, inter alia, a
private person that sought to represent a company was “the governing mind of a small
company” and the company was in reality no more than his/her business alter ego. In that
matter Mr. Manong was permitted to represent the company although the court was of
the view that the company was “by no stretch of the imagination be regarded as an alter
ego of Mr. Manong”. Part of the reasoning of the SCA in that regard included that M r.
Manong had already appeared before the SC A in another matter concerning the same
company and “were he to be debarred from representing the company, the matter would
have had to be postponed – occasioning delay and the incurring of additional costs to
both parties (all of which may not have been recoverable from the losing litigant)”.
So too in this matter , counsel for Worldpay correctly contended that had Mr. Adelakun
been prevented from representing the corporations , a postponement would have been
inevitable with the associated costs and delays. She submitted that the court had implicitly
exercised its inherent jurisdiction in the interests of the administration of justice to permit
Mr. Adelakun to represent the corporations in the second application. However, the
circumstances of this matter are peculiar and without opening any flood gates by lay
persons to represent corporations that they are associated with in various capacities, it is
important to note the following:
(i) It appeared that Mr. Adelakun was really the controlling mind of not only the
Trust but also the two corporations.
(ii) More importantly Worldpay had issued a serious threat at seeking a cost order
de bonis propriss against the legal representatives of the applicants in the first
application. Needless to say, that threat and in my view, the merit thereof, may
well have constituted a deterrent for Mr. Adelakun to have secured legal
representation for not only the Trust but also for the corporations. The matter
would have then dragged on for an inordinate time thus frustrating the
finalisation of the sequestration proceedings. That in my view would not be the
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interests of justice. I was therefore inclined, as did the court in Manong to simply
allow Mr. Adelakun to proceed to address the court on behalf of the
corporations. I must make it clear that I do not seek to create an unqualified
precedent as it was only as a result of the peculiar circumstances of the matter
and the real threat of a cost order de bonis propriss against the erstwhile legal
representative of Mr. Adelakun and the other applicants that the court allowed
him to address it on behalf of the corporations.

THE HEARING OF THE APPLICATION
[200] As indicated, Mr. Adelakun appeared in person and addressed the court on behalf
of all of the applicants in both applications . What was of particular interest to the court
was the fact that a firm of attorneys PA Mdanjelwa Attorneys and Mr. Twalo who were fully
robed were also present in court. They were seated on the public gallery. On enquiry by
the court, Mr. Twalo advised that they were there to observe t he proceedings on behalf
of the applicants. It appeared that Mr. Adelakun had only approached attorneys
Mdanjelwa a day before the hearing and that they were not prepared in the short time
and without any time for preparation to appear on his behalf and the other applicants. Mr.
Adelakun therefore instructed them to attend court and to observe the proceedings . I
should point out that Ms. Mdanjelwa’s firm had also been briefed in the sequestration
proceedings and appeared to have drafted the answering affidavit and would have been
familiar with the matter from that perspective . T heir mandate was subsequently
terminated and as indicated various other firms of att orneys and counsel appeared on
behalf of Mr. Adelakun and the Trust in the sequestration proceedings.

[201] The proceedings commenced shortly after 10 h00 am on 10 November 2023 and
was finally concluded well after 18h00. The court had only a short adjournment in which
the attorneys for Worldpay were given the opportunity of contacting the trustees to obtain
their attitude with regard to the second application and whether they intended to oppose
it. As indicated , an affidavit was filed by Worldpay`s attorneys in which the trust ees
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informed them that they would abide the court’s decision. However, during the course of
his reply to the address by counsel for Worldpay, in respect of the second application Mr.
Adelakun remarked that the court had treated him “unfairly and had not given him a fair
hearing and the opportunity of fully addressing it .” For the better part of the day Mr.
Adelakun addressed the court at length besides having read out his heads of argument
which he had only handed up to the court in the morning of the hearing . He also
complained that the court had not provided him with any assistance despite him being a
lay litigant while the court had interacted favourably, in his view, with counsel for Worldpay.
In response to Mr. Adelakun’s complaint of having been treated unfairly, the court invited
him to consult with his attorneys Ms. Mdanjelwa and Mr. Twalo who were present in court
to obtain their views with regard to whether the court had in fact treated him unfairly. The
court pointed out to Mr. Adelakun that the court was prep ared to make no more than
directives with regard to the procedural aspects of the application s with regard to the
service of the application on the trustees and other interested parties and that the court
would not proceed to deal with the merits of the matter and that it would be postponed for
a different judge to re-hear the applications.

[202] Having consulted with both Ms. Mdanjelwa and Mr. Twalo, Mr. Adelakun informed
the court that he was satisfied with the court to proceed to determine the merits of the
applications and that he had reconsidered his position and was of the view and on the
advice from his lawyers that the court had in fact treated him fairly and had given him the
fullest opportunity to address it on all and any aspects he chose to deal with. The court
obtained confirmation from both Ms. Mdanjelwa and Mr. Twalo who stated that they were
satisfied that the court had treated Mr. Adelakun fairly and had listened patiently to his
lengthy address. They were of the view that there was no reason for the court not to
proceed to deal with the merits of the matter. Mr. Adelakun was thereafter given a further
opportunity of addressing the court which he did at length . Needless to say coun sel for
Worldpay, Ms. Wharton contended that any complaint by Mr. Adelakun of having been
treated unfairly by the court was wholly without any merit as the court had indulged him
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endlessly through out the entire day in allowing him to address the court, at times
repetitively and elaborately on his claims and that of the other applicants.

THE ISSUE OF COSTS
[203] In the answering affidavit Worldpay contended that it would seek a punitive order
of cost on an attorney and client scale against all of the applicants on account of the
applications as wholly devoid of any merit and were tantamount to an abuse of the court.
It contended that the applications were nothing short of an attempt to delay the finalization
of the sequestration processes. Worldpay also gave notice that it would seek an order of
costs de bonis propriss against the attorneys ZS Incorporated who initially represented
the applicant . In that regard they informed the court that prior to filing the answering
affidavit on behalf of Worldpay they addressed a letter to the applicant`s attorneys in
which they pointed out that the applications were ill-fated and no more than an abuse of
process and invited them to obtain their clients instructions with regard to withdrawing the
application failing which they will proceed to seek a punitive order of cost s against the
client and an order of cost de bonis propriis against their firm. There was no response to
that letter. I should point out that in the replying affidavit which was filed whil e attorneys
ZS Inc. were still on the record, they did not deal substantively or at all with the prayer for
costs de bonis propriis against them. They no more than simply dismissed it out of hand
and likewise in the heads of argument filed by their erstwhile counsel. I should point out
that the heads of argument initially filed on behalf of the applicant’s in the first application
in my view appeared to have been done without serious thought . Despite the reference
to the decisions of both Abdurahman and Ward referred to above , counsel for the
applicants contended that the court enjoyed a wide discretion under Section 149(2) of the
Insolvency Act to set aside the final sequestration order on any grounds deemed
appropriate and upon an applicant showing special and exceptional circumstances. The
heads of argument thereupon did no better than refer to the claims made by Mr. Adelakun
in the founding affidavit that the applications for sequestration had no more been based
on false, untested and premature allegations of fraud by Mr. Bel sham. The applicant`s
also sought to suggest that the application s for sequestration had been brought as Mr.
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Adelakun contended for unlawful reasons by members of Worldpay to obtain an unlawful
payment from him. The allegation by Mr. Adelakun was wholly incoherent, made little
sense and was well deserving of litt le and no attention by the courts dealing with the
sequestration applications. It was surprising that Mr. Adelakun sought to re-resurrect such
unsubstantiated claims in these proceedings.

[204] In respect of a punitive order of costs sought, counsel for Worldpay contended that
it was appropriate “by reason of special considerations, arising the circumstances which
gave rise to the action or from the conduct of a party, should a court in a particular case
deem it just, to ensure that the other party is not out of pocket in respect of the expense
caused by the litigation.”26

[205] Ms. Wharton contended that the applications were demonstrative of the abuse of
court. S he contended that the applicants had repeatedly misrepresented the factual
position in particular the implications of the Michigan Court order. The applicants also
failed to make material disclosures of facts known to them and they had recklessly forced
Worldpay to engage in litigation entirely devoid of merit and ha s wasted limited judicial
resources and on issues that have long since been finally determined . Worldpay
contended that this was an appropriate matter for it not to be out of pocket resulting from
such vexatious litigations.

[206] In respect of the prayer for an order of costs de bonis propriss against ZS Inc. Ms.
Wharton pointed out that attorney , Mr. Saban was duty bound to promote the efficient
administration of justice and his obligations to his clients were subject to this courts
oversight. S he referred to the recent decision by the Kwazulu-Natal High Court in
Grundler N.O. and Another v Zulu and Another (D8029/2021) [2023] ZAKZDHC 7 (20

26 Nel N.O. v Davis SC N.O. [2017] JOL 37849 (GP) at 25.
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February 2023) where the conduct of a legal practitioner (the first respondent therein)
came under scrutiny. The following was stated:
“37. There is a rising trend in the legal profession of practitioners demonstrating
disrespect (if not outright contempt) for courts and the judiciary. One does not need to look
far to find examples of this sort of behaviour, from the ranks of senior counsel to the most
junior of candidate attorn eys. It manifests not only in how practitioners interact with
opponents and judges in and out of court but also in the launching of prima facie spurious
applications, lacking in factual or legal foundation, that are designed to “snatch bargains”,
achieve ulterior objectives, delay and/or obstruct. It is a “win at all costs” attitude that does
a disservice to the profession and to the country and sets an appalling example to the
public at large. It ignores not only th e oath that all lawyers take upon their admission but
also the distinction between the duty that practitioners owe to their clients and the separate
duty that they owe to the Court.”

[207] In this regard counsel for Worldpay contended that ZS Inc. had caused two entirely
spurious applications to be launched both of which lacked any factual and legal
foundation and which was designed to delay the c ourse of justice. I n this regard she
contended that ZS Inc. had simply not upheld their duties to th e court and the
administration of justice . S he further pointed out that the duty owed by all legal
practitioners to the court was codified inter alia , in the Rules set out in the Code of
Conduct for all L egal Practitioners and Juristic Entities (“the LPCC”) made pursuant to
section 36(1) of the Legal Practice Act 28 of 2014. Part II (Code of Conduct: General
Provisions) Rule 3 provides inter alia:
“3. Legal practitioners, candidate legal practitioners and juristic entities shall-
3.1 maintain the highest standards of honesty and integrity;
3.2 uphold the Constitution of the Republic and the principles and values
enshrined in the Constitution, and without limiting the generality of these
principles and values, shall not, in the course of his or her or its practice or
business activities, discriminate against any person on any grounds
prohibited in the Constitution;
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3.3 treat the interests of their clients as paramount, provided that their conduct
shall be subject always to-
3.3.1 their duty to the court;
3.3.2 the interests of justice;
3.3.3 observance of the law; and
3.3.4 the maintenance of the ethical standards prescribed by this code,
and any ethical standards generally recognized by the profession”.

[208] Sutherland DJP, of the Gauteng Local Division in an article The Dependence of
Judges on Ethical Conduct by Legal Practitioners: The Ethical Duties of Disclosure and
Non-Disclosure described the following provisions of Rule 60 of the LPC as stipulating a
critical injunction:

“Commitment of legal practitioners to an effective court process.
60.1 A legal practitioner shall not abuse or permit abuse of the process of court or
tribunal and shall act in a manner that shall promote and advance efficacy of the legal
process.
60.2 A legal practitioner shall not deliberately protract the duration of a case before a
court or tribunal”.
In this regard Sutherland, J, further stated “bland words belie their cardinal significance.
Abuse undermines the prospect of effective hearings.”

[209] Further, in Grundler the following was stated:
“I accept that courts must be slow to impute mala fides to a legal practitioner, who will not
‘be guilty of negligence merely because he committed an error of judgment, whether on
matters of discretion or law. It is a question of degree and there is a borderline within which
it is difficult to say whether a breach of duty has or has not been committed…An attorney
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is not responsible for any wrongful act committed by him qua attorney within the scope of
his authority: qui facit per alium facit per se. There is, however, a duty of care owed by an
attorney conducting litigation on behalf of a client, to the court, and a duty of care owed
towards his opponent.’”

[210] Ms. Wharton pointed in detail to what w as quite clearly the abuse of the
proceedings at the hand of ZS Inc. The court however pointed out that inasmuch as ZS
Inc. were no longer on record, the court could not in fairness, consider any order of costs
against them . This court however wishes to express its deprecation of the man ner in
which they conducted the litigation and in having placed themselves in the embarrassing
situation of having faced an order of costs de bonis propriss. I should indicate that at the
hearing of the matter a candidate attorney from the firm ZS Inc. was present in court. He
informed the court that he was there out of no more than a professional interest in the
matter. I have no doubt that h is firm would not have allowed him to spend an entire day
in court simply for his curious interest as opposed to their real concern about their own
conduct in having initially prosecuted the matter.

[211] Nonetheless I am more than satisfied that Worldpay is entitled to a punitive order
of costs against the applicants in both applications . Needless to say the order of costs
against the applicants in the first application may well be cold comfort given the ir
sequestrated status. Nonetheless, Worldpay would be fully entitled to proceed to execute
an order of cost against the corporations in the second applications through the
appropriate processes.

CONCLUSION
[212] In conclusion, with reference to the pre amble of this judgment, I echo the strong
sentiment that all litigation must indeed come to end, especially and more so where the
legal proceedings are no more than the subject of abuse.
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The following order is made:
(i) The applications for rescission of the sequestration order s in respect of both
the first and second application are dismissed.
(ii) The further relief including the declaratory orders sought in paragraphs 2 and
3 of the second application are likewise dismissed.
(iii) The applicants are ordered to pay the costs in both applications on an attorney
and client scale.



_________________________
VC SALDANHA
JUDGE OF THE HIGH COURT