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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026-018019
(1) REPORTABLE: NO/YES
(2) OF INTEREST TO OTHER JUDGES: NO/YES
(3) REVISED: NO/YES
SIGNATURE
DATE 23 February 2026
In the matter between:
PROJECT SPARKLE SECURITY SPV (RF) Applicant
PROPRIETARY LIMITED
and
HAROLD TOOCH N.O. First Respondent
[Identity number: 5[...]]
LORRAINE TOOCH N.O. Second Respondent
[Identity number: 5[...]]
ALAN JULIAN MENACHEMSON N.O. Third Respondent
[Identity number: 5[...]]
DARIO ZUCCOLOTTO N.O. Fourth Respondent
[Identity number: 5[...]]
Cited in their capacities as the trustees for the time being of the
HAROLD TOOCH FAMILY TRUST, WITH TRUST REGISTRATION NUMBER IT265/91
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JUDGMENT
STAIS AJ:
This judgment is handed down electronically by circulating it to the parties’
representatives by email and by uploading on CaseLines.
[1] This is an urgent application for the provisional sequestration of the estate of
the Harold Tooch Family Trust (“Trust”).
Urgency
[2] The first and second respondents (“Mr Tooch” and “Mrs Tooch”) are husband
and wife, and have at all relevant times been duly appointed trustees of the
Trust. The third respondent (“Mr Menachemson”) resigned as trustee and was
substituted by the newly appointed trustee, Mr Dario Zuccolotto NO (“Mr
Zuccolotto”), who was joined as the fourth respondent pursuant to an
unopposed joinder application. The order below provides for the current
position. I shall, as a matter of convenience and where appropriate, refer to
the trustees at the relevant time as the “Trust”.
[3] Having considered the papers, I held the matter to be urgent. Mr Hoffmann
(who appeared for the Trust) accepted this without too much demur. My view
on urgency was primarily informed by the first respondent’s admission in the
founding affidavit that he had committed a fraud in relation to trust matters and
the common cause facts that the Trust had committed an act of insolvency by
selling immovable property and refus ed to furnish to the applicant an
undertaking that it would not continue to dissipate assets. I shall return to the
aspect of the fraud.
[4] Whilst criticism has been expressed regarding the oft -stated suggestion that
insolvency applications are by their very nature urgent [see Volvo Financial
Services Southern Africa ( Pty) Ltd v Adams Tkolose Trading CC 2023 JDR
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2806 paras 2 -8], this application involves an admitted fraud on the applicant
and the added prejudice to creditors caused by a dissipation of assets. To my
mind, urgency was justified. This disposed of the Trust’s first defence.
[5] I shall deal below with the only other defence – the applicant’s lack of locus
standi as creditor of the Trust. The Trust contends that there exists a bona fide
dispute regarding the first respondent’s (“Mr Tooch”) authority to execute, on
behalf of the Trust, the security documents that found the applicant’s claim.
Relevant Facts
[6] The Trust holds 100% of the issued shares in Prominent Sites (Pty) Ltd, which
in turn holds 100% of the issued shares in KT Wash Detergents (Pty) Ltd (in
business rescue) (“KT Wash”).
[7] The applicant claims to be a creditor of the Trust pursuant to loan funding
received by KT Wash in 2021 and 2025 from Tamela Mezzanine Debt Fund 1
Partnership (“Tamela”) in terms of agreements that were respectively
described as a Term Facilities Agreement and a PCF Agreement. The loans
are independently secured by a suit of security agreements inter alia
containing cross guarantees and indemnities provided by KT Wash and the
Trust in favour of Tamela and the applicant (“security agreements”).
[8] The Facilities Agreement and related security agreements were concluded on
10 September 2021, and the PCF and related security agreements were
concluded on 15 April 2025. On 10 September 2021, the Trust also concluded
a cession whereby it ceded to the applicant in securitatem debiti the net
proceeds from the sale of any ‘relevant property’ (“Cession”).
[9] The applicant was established as a special purpose vehicle for the purposes
of the security arrangements to realise the security in terms of the security
agreements for the sole benefit of Tamela and to guarantee the obligations of
KT Wash to Tamela.
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[10] All the agreements executed by the Trust were signed by Mr Tooch, who did
so ostensibly representing the Trust.
[11] KT Wash failed to make payments due in terms of the Term Facilities
Agreement and commenced voluntary business rescue proceedings in March
2025. This constituted an event of default and Tamela duly demanded
payment from KT Wash. The applicant in turn duly made demand on the
Trust, which failed to pay the sum of R205,430,906.73 then due in terms of
the Term Facilities Agreement.
[12] Despite demand from Tamela, KT Walsh also failed to make payments due in
terms of the PCF Agreement. The applicant in turn duly made demand on the
Trust, which failed to pay the sum of R97,070,748.00 then due in terms of the
PCF Agreement.
[13] It is not in dispute that: (a) the Trust committed an act of insolvency as
contemplated in s 8(c) of the Insolvency Act, 1936 (“Act”) by making and
attempting to make dispositions of immovable property which had (and will
have) the effect of prejudicing its creditors or preferring one creditor above
another; (b) a default judgment was granted against the Trust in October 2025
for payment of approximately R7½ million to Investec Bank Ltd (“Investec”);
(c) the Trust is factually and commercially insolvent; and (d) sequestration of
the trust will be to the advantage of creditors. The amounts of the two claims
that found the Trust’s debt to the applicant are also not disputed.
[14] The dispute as to the applicant’s standing as creditor turns on the authenticity
of two resolutions which purport to have authorised Mr Tooch to sign the 2021
and 2025 security documents on behalf of the Trust. It is the respondents’
case that the resolutions are invalid and that the security agreements are
therefore void. The first resolution is dated 7 September 2021 (“2021
resolution”) and the second is dated 14 and 15 April 2025 (“2025 resolution”).
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[15] It bears mentioning that the Trust Deed allows that a resolution signed by all
trustees shall be valid and effective as if passed at a meeting of trustees duly
called and constituted.
The 2021 resolution
[16] The 2021 resolution is a formally typed -up document. It records several
resolutions that are stated to have been passed in accordance with the
provisions of the Trust Deed and informs that the trustees wish to authorise
and approve the Trust’s entry into, and implementation of, the transactions
contemplated therein. The transactions include the Cession, Term Facility
Agreement and security agreements. The 2021 resolution, which further
authorises any trustee to negotiate and execute the relevant documents and
authorises any one of the authorised signatories to sign the necessary
documents, purports to be signed by Mr and Mrs Tooch and Mr
Menachemson.
[17] The Trust’s defence to the applicant’s claim arising from the Term Facilities
Agreement and related security agreements, is premised on the allegation that
only Mr Tooch signed the 2021 resolution. It is alleged by Mr Tooch that
Mrs Tooch and Mr Menachemson did not sign the 2021 resolution, but that it
was he (Mr Tooch) who signed above the signature lines reserved for their
respective signatures. The 2021 resolution records what purports to be their
respective signatures in manuscript. Despite the respondents’ (and
Mr Hoffman’s) protestations at Mr Tooch’s conduct being labelled a fraud
(because he lacked ‘criminal’ intent), that is what it is. T he undisputed facts
are entirely consistent with the existence of a misrepresentation made by Mr
Tooch that the resolution was duly signed by all the trustees, knowing that the
representation was false and intending that the counterparties would act on
the representation.
[18] I was invited by Mr Hoffman to compare Mrs Tooch’s signatures on various
documents in the papers, in an attempt to persuade me that the signature on
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the 2021 resolution is quite clearly not her signature. However, assuming for
purposes of the present argument the veracity of Mr and Mrs Tooch’s
evidence that it is not her signature, I should then perform the same exercise
in respect of Mr Menachemson’s signature. I am unable to infer that his
signature on the 2021 resolution does not compare favourably with the
signature on his resignation letter. I say this merely to illustrate the difficulties
with att empting the suggested exercise . I agree with Mr Daniels SC (who
appeared with Mr Vetter, for the applicant) that I should refrain from doing so.
But the evidence of Mr and Mrs Tooch is factually uncontested on this issue,
and I accept, for the purposes of this application, that she did not sign the
2021 resolution.
[19] But it does not follow that Mrs Tooch was not aware of, and did not agree with,
the purpose of the 2021 resolution. The answer to that question is a matter of
fact to be determined from the probabilities. Mr Hoffman, referring to Kalil v
Decotex (Pty) Ltd & Anor 1988 (1) SA 943 (AD) at 981D -J, argued that the
issue should be referred for the hearing of viva voce evidence. However, on
my analysis of the facts, the probabilities on this issue are not evenly balanced
but speak rather to her knowledge of, and agreement with, the 2021
resolution. On 13 May 2021 she co -signed a trustees’ resolution that
authorised Mr Tooch to have the Trust provide “ one or more guarantee/s ” to
secure funding for KT Wash from Investec. This was mere months before the
further loans were acquired from the applicants (and also from ABSA Bank
Ltd). She has been a trustee and a beneficiary since inception of the Trust,
and she acted in both capacities when she signed a resolution on 22 January
2022 that amended the Trust Deed to provide specifically for a chartered
accountant to be appointed in Mr Menachemson’s stead in the event he
resigned as trustee. She was clearly kept abreast of Trust matters because in
resigned as trustee. She was clearly kept abreast of Trust matters because in
October 2025 she filed an affidavit in support of the Trust’s application to
rescind the default judgment that Investec had obtained against the Trust the
previous month based on the 2021 guarantee that she had co-authorised. The
founding affidavit in the rescission application referred to the urgent and
complex business rescue proceedings of KT Wash and multiple related
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litigations. In company parlance, KT Wash is a full sub -subsidiary of the Trust,
which was in serious financial difficulties for many years. It is, to my mind,
improbable that she was at not aware of these facts that ultimately culminated
in the PCF Agreement and the 2025 resolution, matters to which I shall return
below. The Trust Deed requires of the trustees to maintain proper records and
books of account, and an annual balance sheet of assets and liabilities. As a
trustee she holds a fiduciary position to be performed with utmost good faith. I
am not persuaded that she was at the time oblivious to the 2021 resolution,
and the Term Facility Agreement and related security agreements. The
aforementioned circumstances provide context to why Mr Tooch would, at the
time of signing the resolution, have “ verily believed ” that Mrs Tooch “ would
have no problem signing the resolution if I presented it to her ”. He could not
express such confidence, under oath, unless he knew that she was, at the
time, aware that the resolution was required to release the loan funding and
that he had her implied authority to act on behalf of the Trust [ Nieuwoudt &
Anor NNO v Vrystaat Mielies (Pty) Ltd 2004 (3) SA 486 (SCA) at para 23].
[20] However, even if I am wrong in rejecting Mrs Tooch’s version on the
probabilities, that is not the end of the 2021 resolution. It is a trite principle that
trust law allows for a trust deed to provide for majority or quorate decision -
making. It has now been reaffirmed that a trust deed can provide for
something other than joint action by trustees and it can do so through a
majority clause. [ Shepstone & Wylie Attorneys v de Wit & Others NNO 2026
(1) SA 349 (CC)]. The Trust in casu is a majority-decision trust: if at any time
there are more than two trustees, a quorum for meetings shall be two trustees,
and a decision of the majority of such trustees shall be deemed to be the
decision of them all [Shepstone & Wylie supra at paragraphs 57-59].
decision of them all [Shepstone & Wylie supra at paragraphs 57-59].
[21] This brings Mr Menachemson’s status to the fore. Mrs Tooch confirms Mr
Tooch’s allegation that she did not know that he had signed the 2021
resolution and would not have allowed him to conclude the Term Facility
Agreement and related security agreements has she been aware thereof. But
Mr Tooch does not repeat this narrative in respect of Mr Menachemson. It is
8
not alleged that Mr Menachemson was unaware of the 2021 resolution (and
that he would not have agreed to the execution thereof). Despite being cited
as third respondent, Mr Menachemson did not file an affidavit in these
proceedings. These lacunae are fatal to the respondents’ version. I cannot
discern from the papers whether the signature on the 2021 resolution is that of
Mr Menachemson or was replicated by Mr Tooch and I am not prepared to
accept only Mr Tooch’s word on the issue. My reluctance stems not only from
his admitted fraudulent conduct, but also from the manner in which he
appears to have acted out of self -interest (and to the prejudice of creditors) in
the Investec action and in this matter (inter alia warranting that he was duly
authorised to execute the loan and related security agreements on behalf of
the Trust, and marketing and s elling trust assets during negotiations that
preceded this application) . Despite various letters and meetings between the
parties’ attorneys since mid-2025 in the run-up to this application, the defence
that the trustees did not authorise the Cession was raised for the first time in a
letter from the Trust’s attorneys on 26 January 2026. Mr Tooch has now
admitted to falsifying trust resolutions and has fraudulently misrepresented the
authority of his co -trustees. The contention that this is not a justified
conclusion from the admitted facts, rings hollow.
[22] Mr Tooch alleges that he signed the 2021 resolution “ on behalf of ”
Mr Menachemson and that the latter was not a trustee at the time. It is
therefore not necessary to consider whether Mr Nochemson authorised Mr
Tooch to sign the 2021 resolution on his behalf (Mr Tooch says as much), but
it does beg the further question whether Mr Menachemson was a trustee at
the time?
[23] The Trust Deed permits a trustee to resign without a court order, to be
appointed upon written acceptance of the appointment and is deemed to be
appointed upon written acceptance of the appointment and is deemed to be
vested with and bound by the powers of a trustee. However, s 6(1) of the
Trust Property Control Act,1988 (“TPC Act”) provides that a person appointed
as trustee in terms of a trust instrument shall act in that capacity only if
authorized thereto in writing by the Master; s 20(3) provides that if a trustee so
9
authorized resigns, he shall without delay return his written authority to the
Master; and s 21 provides, irrespective whether or not the trust instrument
provides for the trustee's resignation, that the trustee may resign by notice in
writing to the Master and to the ascertained beneficiaries who have legal
capacity.
[24] It is alleged that Mr Menachemson resigned as trustee on 1 March 2021 and
that the Trust resolved on the same date to appoint Mr Zuccolotto in his stead.
Mr Menachemson’s letter of resignation and a Trust resolution noting his
resignation, and appointing Mr Zuccolotto, were provided in support of these
allegations. The resignation letter, which is addressed to the Trust (and not to
the Master and the Trust beneficiaries), bears two stamps. The first is that of a
commissioner of oaths, who signed on 18 November 2021, and which
appears side-by-side with a second stamp confirming that it is “ Certified a true
copy of the original ”. The purpose of the certification is not explained. The
Master’s letter appointing Mr Zuccolotto is stamped 24 January 2022. There
are further unexplained (but undisputed) facts that reveal that Mr
Menachemson continued to act as trustee after 1 March 2021, and even after
24 January 2021. On 13 May 2021, Mr Menachemson signed the Trust
resolution that authorised the Investec loan . Even if that was also a fraudulent
replication of Mr Menachemson’s signature by Mr Tooch, one may ask why
the latter would include the former as a trustee, instead of Mr Zuccolotto.
[25] The facts of this matter underscore the importance of holding a trustee to the
appointed position until formally removed from office, and the issuance of new
letters of authority, by the Master [ Soekoe NO v Le Roux [2007] ZAFSHC 135
(29 November 2007); Die Orffer Landgoed (Pty) Ltd v Orffer NO & Others
(17494/2024) [2025] ZAWCHC 4]. The Master appointed Mr Zuccolotto on
24 January 2022 and that is when Mr Menachemson ceased to be a trustee.
24 January 2022 and that is when Mr Menachemson ceased to be a trustee.
[26] I find that the 2021 resolution was duly signed by Messrs Tooch and
Menachemson as majority trustees at the time. It was therefore valid, and it
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authorised Mr Tooch to conclude the Term Facility Agreement and related
security agreements (including the Cession) on behalf of the Trust.
The 2025 resolution
[27] Similar to the 2021 resolution, the 2025 resolution is a formally typed -up
document which records several resolutions that are stated to have been
passed in accordance with the provisions of the Trust Deed and informs that
the trustees wish to authorise and approve the Trust’s entry into, and
implementation of, the transactions contemplated therein. The se transactions
include the PCF Agreement and related security agreement . The 202 5
resolution, which further authorises any trustee to negotiate and execute the
relevant documents and authorises any one of the authorised signatories to
sign the necessary documents, purports to be signed by Mr and Mrs Tooch
and Mr Zuccolotto.
[28] Both Mr and Mrs Tooch deny signing this resolution, although Mr Tooch’s
denial is tenuous because he says that he is not able to recall signing the
2025 resolution.
[29] For reasons already stated I am not prepared to accept the veracity of
Mr Tooch’s version. On this particular issue, he does not attempt to explain
why the Trust’s appointed attorneys would insert electronic signatures on the
2025 resolution without the trustees’ mandate, an aspect I deal with further
below. I have also dealt with the fact, in accordance with establish legal
principles, that Mr Zuccolotto was an appointed co -trustee with Mr and Mrs
Tooch at the time the 2025 resolution was executed. Whilst Mr Zuccolotto
deposed to an affidavit that is s aid to confirm and corroborate the contents of
Mr Tooch’s answering affidavit insofar as it relates to Mr Zuccolotto, it is of no
real assistance for the respondents’ defence. That is because Mr Tooch does
not touch upon the issue of Mr Zuccolotto’s signature on the resolution.
Having read Mr Tooch’s affidavit and having seen that both Mr and Mrs Tooch
11
disown their electronic signatures on the 2025 resolution, Mr Zuccolotto’s
silence on the issue of his own signature is deafening.
[30] The respondents raised the defence of the trustees’ alleged unauthorised
conduct for the first time in the Trust attorneys’ letter of 26 January 2026. But
it was raised only in relation to the Cession that was concluded pursuant to
the 2021 resolution. Nothing was said about the 2025 resolution. The
applicant, being unaware this belated dispute, did understandably not deal
with it in the founding affidavit. It was first raised in the answering affidavit of
Mr Tooch, who denied that he and Mrs Tooch digitally signed the 2025
resolution. I pause to mention that the denial is evidently based on a pre -
existing knowledge that the signatures were in fact digital.
[31] In reply, the applicant responded by presenting evidence of correspondence in
relation to the finalisation of the PCF Agreement and related security
agreements at the time. The evidence is that the Trust attorneys confirmed
that two of the trustees (a reference to Mr and Mrs Tooch) had signed the
2025 resolution electronically on 14 April 2025 and that they were following up
with the third “ independent” trustee (a reference to Mr Zuccolotto), who they
subsequently advised had signed on 15 April 2025. A “ duly authorised
resolution” together with an electronic signature authentication certificate was
received by the applicant’s attorneys. The certificate records the electronic
signatures of each trustee (together with e-mail addresses and dates on which
the signatures were appended to the 2025 resolution ). Mrs Tooch filed a
rejoinder affidavit “ to address certain new (and indeed false) allegations
made” in the applicant’s replying affidavit. Conspicuous by its absence, is any
attempt by Mrs Tooch to challenge or address the evidence regarding the
electronic signatures. Mr Hoffman’s attempts to do so by illative argument do
not detract from the undisputed evidence on this issue.
not detract from the undisputed evidence on this issue.
[32] I find that the trustees signed the 2025 resolution and that Mr Tooch was duly
authorised to sign the PCF Agreement and related agreements on behalf of
the Trust.
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[33] In the result, and the applicant is a creditor of the Trust and has locus standi to
bring this application.
[34] The following order is issued:
1. The matter is urgent.
2. Mr Dario Zuccolotto N.O., in his capacity as a trustee for the time being
of the Harold Tooch Family Trust (IT265/91) (“the Trust”), is joined as the
fourth respondent in this application.
3. The estate of the Trust is placed under provisional sequestration in the
hands of the Master.
4. A rule nisi is issued, calling upon all persons concerned to appear and to
show cause, if any, on 11 May 2026 as to why:
4.1. the Trust should not be finally sequestrated; and
4.2. the costs of this application should not be costs in the
sequestration of the Trust.
5. Service of this order must be effected as follows:
5.1. by the sheriff on the first respondent at 44, […] Avenue,
Vorsterkroon, Nigel ( domicilium citandi et executandi ) and Unit
2, 1[...] S[...] Avenue, Atholl, Johannesburg (residential address);
5.2. by the sheriff on the second respondent at 44, […] Avenue,
Vorsterkroon, Nigel ( domicilium citandi et executandi ) and Unit
[…], 1[...] S[...] Avenue, Atholl, Johannesburg ( residential
address);
5.3. by the sheriff on the fourth respondent at 44, […] Avenue,
Vorsterkroon, Nigel (domicilium citandi et executandi);
5.4. by the sheriff on any employees of the Trust that may be located
at 44, […] Avenue, Vorsterkroon, Nigel ( domicilium citandi et
13
executandi) and Unit […], 1[...] S[...] Avenue, Atholl,
Johannesburg (residential address);
5.5. by the sheriff on any registered trade union representing the
employees of the Trust;
5.6. by the sheriff or via email upon the South African Revenue
Service.
6. The costs of this application are costs in the sequestration of the Trust’s
estate.
_________________________
P STAIS
Acting Judge of the High Court
Johannesburg
APPEARANCES:
Applicant: AJ Daniels SC, with CT Vetter
Instructed by: Bowman Gilfillan Inc
Respondents: JT Hoffman
Instructed by: Witz Inc
Date of hearing: 12 February 2026
Date of judgment: 23 February 2026