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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case no : 2025-028788
In the matter between:
CHRISTOPHER PETER VAN ZYL N.O. First Applicant
FAZLUL HUQ SULIMAN N.O. Second Applicant
MONICA GEZINA COWIN N.O. Third Applicant
SAFIYAH EBRAHIM COOK N.O. Fourth Applicant
(in their capacities as the duly appointed joint final
Liquidators of HGG FINANCIAL GROUP INC
(IN LIQUIDATION) (Registration No.: 2000/025655/21)
and
VERITAS CAPITAL AFRICA (PTY) LTD First Respondent
Registration number: 219/148052/07
Registered address: 2[...] N[...] Crescent, Bloubergstrand,
Cape Town
THE COMPANIES AND INTELLECTUAL PROPERTY
COMMISSION OF SOUTH AFRICA Second Respondent
NATIONAL MINISTER OF PUBLIC WORKS Third Respondent
NATIONAL MINISTER OF FINANCE Fourth Respondent
NATIONAL MINISTER OF TRADE AND INDUSTRY Fifth Respondent
THE REGISTRAR OF DEEDS, CAPE TOWN Sixth Respondent
SHARL PETER VAN RENSBURG Seventh Respondent
Coram: Justice J Cloete
Heard: 4 February 2025
Delivered: 13 February 2025
Summary: Whether the liquidators of a company in final liquidation (the
liquidated company), who rely on an alleged disposition in terms of s 26(1)(b)
of the Insolvency Act 24 of 1936 by the liquidated company to a subsequently
deregistered company (the payee) , are persons ‘with an interest’ as
contemplated in s 83(4) of the Companies Act 71 of 2008 – whether the
liquidated company has locus standi to seek a provisional winding -up order of
the payee in circumstances where the claim in terms of s 26(1)(b) of the
Insolvency Act has not yet been proven in a pending action
ORDER
The application for re-registration of the first respondent
1. It is declared that the dissolution of the first respondent, VERITAS
CAPITAL AFRICA (PTY) LTD , with registration number
2019/148052/07, (“Veritas SA”) which dissolution occurred upon Veritas
SA’s deregistration as a company on 20 January 2024 in terms of s ection
82(3) of the Companies Act 71 of 2008 (“2008 Act”), is void in terms of
section 83(4) of the 2008 Act.
2. The second respondent is directed to restore Veritas SA’s name to the
register of companies.
3. It is declared that the assets of Veritas SA, imme diately prior to its
dissolution on 20 January 2024, are no longer bona vacantia and are re -
vested in Veritas SA.
4. It is declared that the liabilities of Veritas SA, immediately prior to its
dissolution on 20 January 2024 remain vested in Veritas SA.
5. Veritas SA shall, upon its restoration to the register of companies, be liable
to pay the applicants’ costs on scale C (party and party) and including the
costs of senior counsel where so employed.
The application for provisional liquidation of the first respondent
6. The first respondent (Veritas SA) is placed under provisional liquidation.
7. A rule nisi is issued calling upon all interested parties to show cause, if any,
to this Honourable Court on 13 APRIL 2026 (in the Third Division), why
an order should not be granted in the following terms:
7.1. That the first respondent is placed in final liquidation; and
7.2. That the costs of this application are costs in the liquidation on an
attorney and client scale.
8. Service of this order shall be effected:
8.1. by the sheriff upon the first respondent at its registered address;
8.2. upon the South African Revenue Service;
8.3. upon the Master of the above Honourable Court;
8.4. by the sheriff upon the employees of the first respondent, if any;
8.5. by the sheriff upon every register ed trade union representing the
employees of the first respondent, if any;
8.6. by publication thereof in one edition each of the Cape Times and Die
Burger newspapers.
JUDGMENT
CLOETE J:
Introduction
[1] The applicants are the duly appointed joint final liquidators (the
liquidators) of HGG Financial Group Inc (in liquidation), hereinafter referred to
as ‘HGG’, which was placed in final liquidation by order of court on 14 April
2022. They seek, in their capacities as such, orders declaring the deregistration
of the first respondent (Veritas SA) by the second respondent (CIPC) on 20
January 2024 to be void , together with the usual consequential relief (the re -
registration relief ) and that Veritas SA be placed in liquidation.
[2] The application is opposed only by Veritas SA as well as the seventh
respondent, Mr Sharl van Rensburg (Mr van Rensburg) who at all material
times was the sole director and shareholder of Veritas SA, including at the date
of its d eregistration, and thus its dissolution , in accordance with s 82(3) of the
Companies Act1.
[3] The application was initially brought in two parts . In Part A, the
liquidators sought urgent relief, in the form of a rule nisi , calling upon the
abovenamed respondents or any interested parties to show cause on the return
date why the re- registration relief should not be granted. In Part B, and
similarly on an urgent basis , the liquidators sought an order placing Veritas SA
in provisional liquidation.
[4] On 20 March 2025, the liquidators, Veritas SA and Mr van Rensburg
were granted an order by agreement in somewhat peculiar terms (the March
2025 order). It provided that two separate rules nisi be issued. The first, which
had a specified return date, called upon the respondents and any other interested
1 Companies Act 71 of 2008.
parties to show cause on such date why the re -registration relief should not be
granted, and Veritas SA be placed in provisional liquidation. The second , with
no specifi ed return date, simultaneously called upon any interested parties to
show cause why Veritas SA should not be placed in final liquidation.
[5] However at the commencement of argument , counsel for the liquidators
(who was not involved in the drafting of the March 2025 order) confirmed it
had been agreed that on ly a provisional order of liquidation is sought at this
stage if the re-registration relief is granted. I agree that this is appropriate, given
how much time has elapsed since the March 2025 order due to the congested
court roll: see Afgi Operations2.
[6] The March 202 5 order contained a timetable for the filing of further
papers. Paragraph 6 reads in relevant part as follows :
‘ 6. It is recorded that : ...
6.3 the seventh respondent ’s (Mr van Rensburg’s ) answering affidavit/s shall deal with all
and any defences that could be raised by the first respondent (Veritas SA) as if it had already
been re-registered in order to ensure that all issues arising from the matter will, in as far as is
possible, be dealt with on the above return day.’
Brief overview of the re-registration relief sought
[7] It is common cause that on 27 July 2021, the CIPC commenced the
process of deregistration of Veritas SA due to its annual return non-compliance,
and that it was finally deregistered on 20 January 2024. In this context, ‘annual
return non-compliance’ means a failure to submit annual financial returns to the
CIPC, to preserve the integrity of the CIPC’s information base. In terms of s
82(3)(a) of the Companies Act, the CIPC may remove a company from the
2 Afgi Operations Ltd v Hambs Fleet (Pty) Ltd 2022 (1) SA 91 (SCA) para 19.
companies register if it has failed to file an annual return3 for two or more years
in succession.
[8] It is trite law that, upon deregistration, ownership of the property of the
company in question, in this case Veritas SA, passes to the State on the basis
that it is now bona vacantia4, although its liabilities are not extinguished by its
deregistration, and are merely rendered unenforceable while the deregistration
subsists5. A further consequence is that once a company is deregistered , it is
deprived of its legal existence and cannot institute or defend legal proceedings6.
[9] The liquidators say that the deregistration of Veritas SA presents an
obstacle to them in their efforts to bring an application for its compulsory
winding-up. They bring their re -registration application in terms of s 83(4) of
the Companies Act, which reads as follows :
‘At any time after a company has been dissolved -
(a) The liquidator of the company, or other person with an int erest in the company, may
apply to a court for an order declaring the dissolution to have been void, or any other
order that is just and equitable in the circumstances; and
(b) If the court declares the dissolution to have been void , any proceedings may be taken
against the company as might have been t aken if the company had not been
dissolved.’
[10] The liquidators contend that they are persons ‘with an interest’ in Veritas
SA. On the other hand, Veritas SA and Mr van Rensburg maintain that the
liquidators do not have such an interest, purely because HGG is not a creditor of
Veritas SA.
Whether the liquidators are persons ‘with an interest’
3 In terms of s 33 of the Companies Act .
4 See inter alia ZNK Investments CC v Luckytso Transport and Construction CC and Others [2017] ZASCA 20
para 8.
5 Luckytso Transport and Construction CC and Another v Absa Bank Ltd and Others [2015] ZAGPPHC 29 para
9; see also Barclays National Bank Ltd v Traub 1981 (4) SA 291 (W) at 295C-D.
9; see also Barclays National Bank Ltd v Traub 1981 (4) SA 291 (W) at 295C-D.
6 See inter alia R Miller v Nafcoc investment Holding Company Ltd [2010] 4 All SA 44 (SCA) para 11.
[11] It is not in dispute that at all material times, HGG conducted an unlawful
and fraudulent ‘Ponzi-type’ scheme, procuring funds from investors purportedly
to invest in financial products which attracted interes t at pre determined, and
mostly excessive, fixed rates. In truth however , HGG used investor funds to
repay other investors when those other investors wished to withdraw their funds
from the scheme.
[12] HGG held accounts with three banks , which I will refer to as the Absa
account, the Nedbank account and the Grindrod account. HGG was at liberty to
instruct the aforementioned banks to transfer available funds in these accounts
to intended payees. During the period July to October 2020, payments totalling
R20 490 000 (the payments) were made by HGG to Veritas SA from these
accounts.
[13] The liquidators say they are persons ‘with an interest’ because Veritas SA
benefited from the payments , although they were dispositions without value as
envisaged in s 26(1)(b) of the Insolvency Act7 which reads as follows :
‘(1) Every disposition of property not made for value may be set aside by a court if such
disposition was made by an insolvent – …
(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; …’
[14] Accordingly, the liquidators’ case is that they have a statutory claim
against Veritas SA arising from s 26(1)(b). It is this claim which is the vinculum
juris sufficient to establish that they are persons ‘with an interest ’ for purposes
of s 83(4) of the Companies Act. As was held in Cohen8:
‘The purpose of ss 26, 29, 30 and 31 of the Insolvency Act is to empower a trustee or
liquidator to institute proceedings against the parties (or beneficiaries of the dispositions)
7 Insolvency Act 24 of 1936 , read with s 340(1) of the Companies Act 61 of 1973 and item 9 of Schedule 5 of
the Companies Act 71 of 2008.
8 Cohen v Absa Bank Ltd (1280/2021) [2024] ZASCA 16 9 February 2024) para 24.
listed in those sections, for the setting aside of an “ improper disposition ”, and to obtain the
remedies therein provided for the benefit of the body of creditors…’
[15] The payments were made to Veritas SA within two years of HGG’s
liquidation. Veritas SA did not even attempt to prove that immediately after the
payments were made to it, the assets of HGG exceeded its liabilities , although
Veritas SA maintains that it was not necessary for it to do so.
[16] The liquidators allege that from their investigations thus far, at the time of
making the payments , it was anticipated by HGG that loan funding would be
advanced to it (HGG) by a mezzanine equity market company, Veritas Group
Ltd (Veritas Group) listed in Bermuda, in ‘co-operation’ with Veritas SA . In
order to secure this loan funding, HGG had to, and did, make the payments into
the First National Bank account of Veritas SA. However, the loan funding to
HGG did not materialise , and it subsequently transpired that this too was no
more than a scam to fraudulently obtain investor funds so that HGG could
continue with its scheme. In the face of the loan funding not being forthcoming,
the proverbial house of cards collapsed , and HGG’s controlling mind, Mr
Hendrik Gerryts, committed suicide on 4 March 2022.
[17] The liquidators thus maintain that Veritas SA remains liable to HGG in
the sum of R20 490 000 in terms of s 26(1)(b) of the Insolvency Act. They have
instituted an action against Veritas SA in this court in separate proceedings for
the recovery thereof, but, as previously indicated, cannot proceed with the
action unless the court orders that Veritas SA be re -registered. They have set
out the main allegations upon which they intend to rely in pursuit of that action,
again based on what their investigations have revealed thus far.
[18] In the answering affidavit of Veritas SA and Mr van Rensburg, the latter
provided a long , and at times convoluted , explanation as to how it came about
provided a long , and at times convoluted , explanation as to how it came about
that Veritas SA received the payments , but he did not deny that they were
received from HGG. The upshot appears to be that, according to Mr van
Rensburg, Veritas SA only received the payments as a special purpose vehicle
(SPV) intermediary, or conduit , for and on behalf of Veritas Group and /or its
subsidiary, Veritas Botswana (Pty) Ltd (“Veritas Botswana”). The sole purpose
of this was to enable Veritas Botswana (and thus not Veritas SA) to utilise the
Veritas SA banking payment platform with Mercantile Bank/Rand Merchant
Bank to make payments to third parties, in terms of the intended loan funding
arrangement between Veritas Group and HGG.
[19] Mr van Rensburg also alleges that as from 23 November 2020, he did not
‘participate’ in the affairs of Veritas Group , and was no longer privy to the
negotiations between Veritas Group and HGG. His involvement, and more
specifically that of Veritas SA , was limited to the role of SPV conduit for
Veritas Botswana.
[20] He claims that :
‘27. In summary, the payments were made to Veritas SA as an intermediary which merely
acted as a conduit for onward transmission of the payments to third parties and in terms of
written agreements between Veritas Botswana and … the clients of HGG to which I have
referred above.
28. The payments were not made for the benefit of Veritas SA, and Veritas SA did not
benefit from these payments.
29. The payments were made to Veritas SA, as nominated SPV, who, in turn, paid the money
to third parties as expenses associated with the contractual obligations between Veritas
Botswana and the … entities.’
[21] The ‘entities’ to which Mr van Rensburg refers were the clients of HGG
who were apparently ultimately to receive the loan funding from Veritas Group.
The ‘contractual obligations’ are said to be those in terms of four separate
shareholder funding agreements (SFA’s) , allegedly concluded during the same
period in which the payments were made by HGG to Veritas SA , ie, July 2020
to October 2020. The SFA’s were entered into between Veritas Botswana and
four clients of HGG, namely Bretagna (Pty) Ltd, HDK Invest (Pty) Ltd, Urban
Land Riverside (Pty) Ltd and Stellenvest (Pty) Ltd , all South African
companies.
[22] What is important for present purposes is Mr van Rensburg’s denial that
Veritas SA ever benefited from the payments under this elaborate scheme .
Despite his protestations to this effect, it is clear, on his own version, that
Veritas SA was not entitled to u tilise the payments received from HGG. Put
differently, payments made by Veritas SA to any third party in alleged
fulfilment of contractual obligations between Veritas Botswana and the four
separate entities under the SFA’s had to be made from monies received by
Veritas SA from Veritas Botswana, and not the payments Veritas SA received
from HGG. And it is common cause that Veritas Botswana never made any
payment to Veritas SA for this pu rpose, and that convertible promissory notes
allegedly issued by Veritas Botswana were issued at a time when V eritas
Botswana had no funds to support those notes.
[23] On the objective documentary evidence produced by the liquidators in
reply, it is clear that Veritas SA used the payments received from HGG. The
following amounts were paid or transferred by Ver itas SA from its First
National bank account: July 2020 : R2 476 400.15; August 2020 :
R1 183 181.19; September 2020: R8 594 657.76; October 2020: R2 744 329.15;
November 2020 : R3 532 379.81; December 2020 : R3 310 351; January 2021:
R3 382 340.50; February 2021 : R3 258 014.62; and March 2021 :
R3 128 499.41.
[24] Included in these were payments to Mr van Rensburg himself , which
according to him were commissions to which Veritas SA was entitled for
‘administering payments’ to third parties, i n the total sum of R347 206.85.
Some of these were made to Mr van Rensburg even after his alleged withdrawal
from involvement in the ‘loan funding’ deal on 23 November 2020.
[25] Moreover, an exchange of WhatsApp messages retrieved by the
liquidators from the late Mr Gerryts ’ cell phone demonstrates that, as late as
February 2021, Mr van Rensburg was still very much involved in the affairs of
HGG, when he discussed ‘Plan B’ with Mr Gerryts in order to try to secure the
funds which still had to be paid by Veritas Botswana on behalf of Veritas
Group.
[26] There is accordingly enough evidence pointing towards HGG having
made the payments to Veritas SA without value, and Veritas SA having
benefited therefrom. It is not necessary for me to go further than this in order to
find, as I do, that the liquidators are persons ‘with an interest’ for purposes of s
83(4) of the Companies Act . As such , they are entitled to the re-registration
relief which they seek.
Whether the liquidators have locus standi to apply for the liquidation of
Veritas SA
[27] This leads to the next issue. It is the contention of Veritas SA and Mr van
Rensburg that, because the liquidators must still prove their s 26(1)(b) claim
against Veritas SA in the pending action, the liquidators lack the requisite locus
standi. They rely on Exotic Fruit Company9, in which it was held as follows :
‘[9] The critical question to determine is whether the disposition relied on by the liquidators
is in fact a “debt” which would entitle them to bring the application for the sequestration of
the respondent … I am of the view that the liquidators must approach the court in separate
proceedings under sections 29 and/or 30 of the Insolvency Act and ask for a declaration that
the disposition falls under either of these sections , and for it to be recoverable under section
32(3). Only once the dispos ition has been so set aside, and the court ordered for it to be
recoverable, would a debt come into existence on which the liquidators may rely.’
recoverable, would a debt come into existence on which the liquidators may rely.’
9 Exotic Fruit Company (Pty) Ltd v Zakharov and Another (14143/2020) [2021] ZAWCHC (30 March 2021).
[28] In reaching this conclusion , the court in Exotic Fruit Company relied on
Duet and Magnum Financial Services 10 and Off-Beat Holiday Club 11. In my
view, Exotic Fruit Company and Duet and Magnum Financial Services are
distinguishable, since they dealt with what is required in the context of a
sequestration, and not a liquidation. So too is Off-Beat Holiday Club where the
court was required to determine whether a shareholder’s ‘right of action’ in
terms of s 266 of the old Companies Act 12 gave rise to a correlative ‘debt’ as
contemplated in the Prescription Act13.
[29] Section 9(1) of the Insolvency Act makes it clear that it is only ‘a
creditor (or his agent) ’ who may petition the court for the sequestration of a
debtor’s estate. On the other hand, s 346(1)(b) of the old Companies Act, which
remains in force by virtue of item 9 of Schedule 5 of the Companies Act,
provides that an application to court for the winding -up of a company may be
made ‘by one or more of its creditors (including contingent or prospective
creditors)’.
[30] In Gillis-Mason14 the court, after considering English authorities, held as
follows :
‘It seems to me, in the light of these authorities, that a contingent or prospective creditor may
be defined as one who by reason of some existing vinculum juris has a claim against a
company which may ripen into an enforceable debt on the happening of some future event or
some future date.’
[31] I am not aware of any subsequent decision overturning Gillis-Mason and
nor did counsel point me to any. Accordingly, applied to the present case , the
liquidators’ vinculum juris arises from a statutory provision, namely s 26(1) (b)
10 Duet and Magnum Financial Services CC ( in Liquidation) v Koster 2010 (4) SA 499 (SCA) paras 10 and 13.
11 Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2016 (6) SA 181
(SCA) para 45.
12 Companies Act 61 of 1973.
13 Prescription Act 68 of 1969.
(SCA) para 45.
12 Companies Act 61 of 1973.
13 Prescription Act 68 of 1969.
14 Gillis-Mason Construction Co (Pty) Ltd v Overvaal Crushers (Pty) Ltd 1971 (1) SA 524 (T) 528C-D.
of the Insolvency Act . There is a pending action against Veritas SA based on
this statutory provision. If the liquidators are successful in the action, their claim
will ripen into an enforceable debt. HGG is thus a contingent or prospective
creditor, and the liquidators accordingly have the necessary locus standi to
apply for the liquidation of Veritas SA.
Whether a provisional order of liquidation should be granted
[32] The requirements for the granting of a provisional winding-up order
(apart from the statutory formalities) are well known: (a) the applicant bears the
onus of establishing that it is a creditor, which includes a contingent or
prospective creditor; and (b) if the indebtedness is disputed, the respondent
bears the onus of establishing the existence of a bona fide dispute on reasonable
grounds. It is only if the respondent does so on a balance of probabilities that
the court will refuse the provisional winding-up order.15
[33] The liquidators have established that HGG is a contingent or prospective
creditor of Veritas SA . Insofar as the onus resting on Veritas SA is concerned,
as stated in Kalil16 :
‘The onus on the respondent is not to show that it is not indebted to the applicant: it is merely
to show that the indebtedness is disputed on bona fide and reasonable grounds.’
[34] Veritas SA was thus required to place sufficient evidence before the court
to demonstrate, in the event of it being found that HGG is a contingent or
prospective creditor, that the indebtedness relied upon is disputed on bona fide
and reasonable grounds. Veritas SA instead adopted the po sition that it was not
required to discharge the onus of proving , as required by s 26(1) (b), that
immediately after HGG made the payments to it, HGG’s assets exceeded its
liabilities. This was misguided , since it is a crucial element to fend off a s
15 See for example Kyle and Others v Maritz and Pieterse Inc [2002] 3 All SA 223 (T) paras 8, 9 and 13.
16 Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 980C-D.
26(1)(b) claim. Veritas SA thus fall s on its own sword. Lastly, it is not in
dispute that the liquidators have complied with all of the required formalities.
[35] The following order is made:
The application for re-registration of the first respondent
1. It is declared that the dissolution of the first respondent, VERITAS
CAPITAL AFRICA (PTY) LTD , with registration number
2019/148052/07, (“Veritas SA”) which dissolution occurred upon Veritas
SA’s deregistration as a company on 20 January 2024 in terms of section
82(3) of the Companies Act 71 of 2008 (“2008 Act”), is void in terms of
section 83(4) of the 2008 Act.
2. The second respondent is directed to restore Veritas SA’s name to the
register of companies.
3. It is declared that the assets of Veritas SA, immediately prior to its
dissolution on 20 January 2024, are no longer bona vacantia and are re -
vested in Veritas SA.
4. It is declared that the liabilities of Veritas SA, immediately prior to its
dissolution on 20 January 2024 remain vested in Veritas SA.
5. Veritas SA shall, upon its restoration to the register of companies, be liable
to pay the applicants’ costs on scale C (party and party) and including the
costs of senior counsel where so employed.
The application for provisional liquidation of the first respondent
6. The first respondent (Veritas SA) is placed under provisional liquidation.
7. A rule nisi is issued calling upon all interested parties to show cause, if
any, to this Honourable Court on 13 APRIL 2026 (in the Third Division),
why an order should not be granted in the following terms:
7.1. That the first respondent is placed in final liquidation; and
7.2. That the costs of this application are costs in the liquidation on an
attorney and client scale.
8. Service of this order shall be effected:
8.1. by the sheriff upon the first respondent at its registered address;
8.2. upon the South African Revenue Service;
8.3. upon the Master of the above Honourable Court;
8.4. by the sheriff upon the employees of the first respondent, if any;
8.5. by the sheriff upon every registered trade union representing the
employees of the first respondent, if any;
8.6. by publication thereof in one edition each of the Cape Times and Die
Burger newspapers.
_____________________________
J I CLOETE
Judge of the High Court
Appearances
For applicants: Adv Louis M Olivier SC
Instructed by: BBS Attorneys Inc
For 1st & 7th respondents: Adv Tiaan Du Preez
Instructed by: Van der Spuy & Partners