REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRIICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHE~
(3) REVISED: NO -
Date: 10 March 2025 E van der Schyff
In the matter between:
GEORGE MICHAEL MAAS N.O.
GEORGE MICHAEL MAAS N.O.
and CASE NO.: 006981/24
FIRST EXCIPIENT / DEFENDANT
SECOND EXCIPIENT / DEFENDANT
LAMBERTUS VON WIELLIGH BESTER N.O. FIRST RESPONDENT/ PLAINTIFF
JOHNY BASSON N.O.
OCTOX (PTY) LTD (in liquidation)
CHRISTIAAN FINDLAY BESTER N.O.
LALIA ESSOP N.O.
IMAGINA (PTY) LTD (In liquidation)
Van der Schyff J SECOND RESPONDENT/ PLAINTIFF
THIRD RESPONDENT/ PLAINTIFF
FOURTH RESPONDENT/ PLAINTIFF
FIFTH RESPONDENT/ PLAINTIFF
SIXTH RESPONDENT/ PLAINTIFF
JUDGMENT
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Introduction
(1] The excipients are the first and second defendants in the action instituted under the
above-mentioned case number. They are the trustees of the BHF Trust ("the Trust")
and are cited in their capacity as trustees. They except to the plaintiff's particulars of
claim as lacking averments that are necessary to sustain a cause of action. The
plaintiffs are cited as the respondents in the exception . The parties are referred to
herein as the excipients and the plaintiffs.
[2] To sustain a cause of action, a plaintiff's particulars of claim must .contain the
necessary facta probanda, which would be necessary for the plaintiff to prove if
traversed, in order to support the plaintiff's right to judgment.1
[3] In casu, the plaintiff's cause of action is rooted in section 26 of the Insolvency Act
24 of 1936. Section 26(1) provides as follows:
(1) Every disposition of property not made for value may be set aside
by the court if such disposition was made by an insolvent-
(a) more than two years before the sequestration of his estate,
and it is proved that, immediately after the disposition was
made, the liabilities of the insolvent exceeded his assets;
(b) within two years of the sequestration of his estate, and the
person claiming under or benefited by the disposition is
unable to prove that, immediately after the disposition was
made, the assets of the insolvent exceeded his liabilities:
Provided that if it is proved that the liabilities of the insolvent at any
time after the making of the disposition exceeded his assets by less
than the value of the property disposed of, it may be set aside only to
the extent of such excess.
[4] If regard is had to the above, the required averments to sustain a cause of action
are the following:
i. A disposition of property was made
ii. not for value
iii. by the insolvent
iv. more than two years before the sequestration of the insolvent's estate
•, .. .,. . . ·,
1 McKenzie v Farmers' Co-Operatiove Meat lndu'!itrie$ Ltd 1922 AD 16 a·t 23.
'i. '. ,. '·· '
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v. immediately after the disposition was made, the insolvent's liabilities
exceeded his assets
Or
i. A disposition of property was made
ii. not for value
111. within two years of the sequestration of the estate;
iv. the person claiming under or benefitted by the disposition
v. is unable to prove that immediately after the disposition was made, the
assets of the insolvent exceeded the insolvent's liabilities
The particulars of claim
[5] The plaintiffs can broadly be divided into two groups, to wit, the Octox-plaintiff ,
comprising Octox (Pty) Ltd (in liquidation) and its liquidators , and the lmagina
plaintiff, comprising lmagina (Pty) Ltd (in l_iquidation) and its liquidators.
[6] Both groups are joined and cited as plaintiffs in the alternative. The plaintiffs set out
how the Octox and lmagina Investment schemes were set up and carried on as an
unlawful and fraudulent Ponzi type of investment scheme. They claim, among
others, that (i) the lmagina investment scheme, among others, utilised the bank
account(s) of Octox as a deposit account, and that (ii) a total amount of R 12 140
640.25 was paid from Octox's bank account to the trust represented by the first and
second defendants , the excipients in this exception pursuant to the unlawful
scheme.
[7] The plaintiffs, in addition, claim that:
1. The payments received by the Trust constitute dispositions by Octox,
alternatively by lmagina, of its property as contemplated in s 2 of the
Insolvency Act;
ii. These dispositions were made not for value
iii. At a time when immediately after each disposition was made, the liabilities of
Octox exceeded its assets by more than the sum of each disposition ;
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iv. lmagina's liabilities exceeded its assets by more than the sum of each
disposition.
v. The total amount of R 9 942 640.25 was received by the Trust within two
years before Octox's provisional liquidation , alternatively within two years of
lmagina's provisional liquidation;
vi. The amount of R2 198 000.00 was received by the Trust more than two years
before Octox's provisional liquidation , alternatively more than two years of
lmagina's provisiona l liquidation.
[8] In the premises, the plaintiffs claim that (i) the first and second plaintiff (the Octox
plaintiff), alternatively, the fourth and fifth plaintiffs (the lmagina-pla intiff) are entitled
to an order setting aside the dispositions in terms of section 26 read with section 32
of the Insolvency Act, and that (ii) the first and second plaintiff (the Octox-pla intiff),
alternatively, the fourth and fifth plaintiffs (the lmagina-plaintiff) are entitled to
recover the sum of R12 140 640,25, and to an order directing the defendant Trust to
pay them the sum of R12 140 640,25.
[9] It is evident from the particulars of claim that the lmagina-plain tiff s claim is in the
alternative to the Octox-plaintiffs claim.
[1 O] A seemingly contentious averment contained in the particulars of claim that is stated
herein solely because it relates to one of the grounds of exception is the averment
that:
'The Trust was an investor or service provider, or simply a beneficiary
who received funds from the unlawful scheme conducted by lmagina.
As a result of the unlawful scheme, any possible agreement
concluded between lmagina and the Trust in terms whereof funds
were paid by the unlawful scheme to the defendant was void ab initio.'
Grounds of exception
[11] The first ground of exception raised is that the plaintiffs are 'seemingly ' relying on a
contract without annexing the contract to the particulars of claim.
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[12] There is no merit in this ground of exception. The averment is, at most, superfluous.
If regard is had to the averment quoted in paragraph [1 O] above, it cannot be
deduced that the plaintiffs rely on an agreement concluded between the parties. If
the particulars of claims are read in its totality, the cause of action is undoubtedly
vested in section 26 of the Insolvency Act.
[13] The second exception is that the plaintiffs failed to aver whether the Trust made any
investments in the unlawful scheme and only referred to payments received by the
Trust. The excipients submit that by failing to plead that the Trust made any
investment(s) in the unlawful scheme, the plaintiffs failed to establish a cause of
action.
[14] There is no merit in this ground of exception if one considers that the exception is
that the particulars of claim do not sustain a cause of action. Section 26 of the
Insolvency Act requires that the impugned disposition was made for no value, and
that averment is made. In any event, in paragraph 25 of the particulars of claim it is
averred that '[t]he Trust was an investor, or service provider, or simply a beneficiary
who received funds from the unlawful scheme conducted by lmagina'. (My
emphasis.)
[15] The excipients explain that the plaintiffs plead in the particulars of claim that lmagina
solicited investment from members of the public, which deposits were made into
Octox's bank account. It is also pleaded that the amount was paid to the Trust from
Octox's bank account. It is, however, not pleaded that funds were received by the
Trust from lmagina, and no allegation is made that suggests why lmagina has a
claim against the Trust. In the premise, the excipients aver that the lmagina-plaintiff
failed to establish a cause of action against the Trust.
[16] If regard is had to the particulars of claim in its entirety, the plaintiff's case is that the
Ponzi type of investment scheme was carried on by one Massyn, who utilised and
involved Octox and lmagina in an elaborate but fraudulent and unlawful scheme. In
the event that the plaintiffs can provide the necessary evidence at trial to sustain
these averments, they will make out a case. As a result, there is no merit in this
ground of exception.
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[17] The excipients except thereto that the particulars of claim do not evince alternative
causes of actions, but alternative plaintiffs, premised on the same cause of action.
They aver that the plaintiffs are adopting an 'either-or' stance, evincing that it is itself
not sure which of the plaintiffs are entitled to relief against the Trust. The excipients
claim that the plaintiffs are obliged to 'identify a [p]laintiff that they allege is entitled
to claim from the Trust, and by failing to establish that any of the [p]laintiffs have
such a claim, thereby tendering the [p]laintiffs' claim(s) devoid of any cause of
action.'
[18] I disagree. I agree with the view promoted in Erasmus Superior Court Practice2 and
the case law referred to, where the author explains:
'The fact that the rule allows more than one plaintiff to sue a
defendant in the alternative shows that a situation where the identity
of the person who is entitled to the proceeds of the claim was
uncertain was contemplated . The subrule, therefore, contemplates a
joinder of a plaintiff who has a claim which is conditional on the failure
of the claim of a co-plaintiff. ' [Footnotes excluded]
Conclusion
[19] The excipients have not been able to show that the pleading is excipiable in every
interpretation that can reasonably be attached to it. The particulars of claim as its
stands provide for the leading of evidence, which evidence, if led can disclose a
cause of action. 3
[20] In the result the exception stands to be dismissed with costs. If regard is had to the
complexity of the matter, it is justified that costs be granted on scale B.
ORDER
In the result, the following order is granted:
1. The exception is dismissed with costs on scale B.
2 Van Loggerenberg, D.E. Superior Court Practice [2022] Volume 2 D1-128.
3 See Mckelvey v Cohen N.O. 1980 (4) SA 525 (Z) 526 (D).
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E van der Schyff
Judge of the High Court
Delivered : This judgment is handed down electronically by uploading it to the electronic file of
this matter on Caselines .
For the excipients :
Instructed by:
For the respondents:
Instructed by:
Date of the hearing:
Date of judgment:
7 Adv. B.C. Bester
Jaco Coetzee Attorneys
Adv. M. Jacobs
Mostert & Bosman Attorneys
5 March 2025
10 March 2025