Highveld Syndication BRP and Nova chair sued for R110m

Highveld Syndication BRP and Nova chair sued for R110m Hans Klopper and Connie Myburgh, along with others, receive summons related to alleged misconduct in delaying the liquidation of a company. By Ryk van Niekerk 19 Feb 2021  00:01 Klopper and Myburgh (pictured) have and continue to be closely involved in the rescue process of some of South Africa's biggest failed investment schemes. Image: Supplied Klopper and Myburgh (pictured) have and continue to be closely involved in the rescue process of some of South Africa's biggest failed investment schemes. Image: Supplied The liquidators of Harrison & White Investments (H&W) have sued the company’s directors, its business rescue practitioner (BRP) and its former legal advisors for R110 million for delaying the “inevitable” liquidation of the company by more than three-and-a-half years. The summons states that this delay allowed the former directors to loot the company by selling off virtually all the assets, leaving the creditors nearly empty-handed when the company was eventually liquidated in 2017. The BRP is a well-known restructuring specialist and head of BDO’s Business Restructuring Unit, Hans Klopper. Hans Klopper. Image: Supplied The former H&W legal advisors are corporate lawyer and current Nova Property Group chair Connie Myburgh, and Diaan Ellis, a director of Faber Goërtz Ellis Austen. Diaan Ellis. Image: Faber Goërtz Ellis Austen website Klopper and Myburgh were involved with the rescue efforts of the failed Highveld Syndication (HS) companies. They are also still involved with the rescue efforts of the failed Sharemax property syndication schemes. More than 30 000 people collectively invested nearly R10 billion in these schemes. The former directors of H&W are Gavin Zietsman and Michael Ralston. Zietsman is probably better known for being convicted of insider trading and fined R1 million in 2011. Read the full summons here. Responses Klopper, Myburgh and Ellis responded to Moneyweb’s questions and confirmed they would defend the summons and claim. They did not comment on the merits of the allegations made in the summons. However, Myburgh and Ellis stated that some of the allegations are defamatory and warned Moneyweb that republishing these allegations would also be defamatory. The full responses appear at the bottom of this article. Zietsman and Ralston could not be reached for comment. Read: The dark underbelly of the business rescue industry ‘Guilt without trial’ – Klopper History and damning Section 417 report H&W was a Benoni-based company that offered crane hire services to the construction industry. It ran into financial difficulty in 2011 and defaulted on loan repayments to FirstRand. It owed the bank nearly R150 million at the time, and the parties entered into a restructuring agreement to repay the outstanding debt. However, H&W failed to repay the amounts under the agreement, and FirstRand called up the loan in July 2013. The directors put the company into business rescue a few days later, and Klopper was appointed as the BRP. A business rescue process intends to allow a financially-distressed company some breathing room from creditors’ legal challenges to recover their debts and afford the BRP time to formulate and publish a rescue plan to return the company to financial viability. Business rescue is intended to be a short-term process – and if the BRP decides the company cannot be saved, it must be put into liquidation immediately. The summons and a Section 417 report (see below) allege that the company was insolvent at the time and should have been liquidated immediately. However, the business rescue process was prolonged and the company was only finally liquidated in February 2017 – more than three-and-a-half years later. This is despite FirstRand applying for the company’s provisional liquidation in February 2015, which the parties opposed. Claim of R110 million Cloete Murray and Kgashane Monyela, the joint liquidators of H&W, issued the summons in December last year. The summons claims the company owned assets valued at R116 million when it entered business rescue in July 2013, but only R6.1 million when the final liquidation order was granted in February 2017. This delay, they claim, resulted in over R110 million in losses, which the liquidators are now claiming from the individuals. Critical of Klopper, Myburgh and Ellis The summons alleges that the delay paved the way for the selloff of the assets to the creditors’ detriment. It is especially critical of Klopper’s conduct as BRP and says he failed to investigate H&W’s affairs properly and that not putting the company in liquidation was “grossly negligent”. Klopper, according to the summons, also failed to ensure that the business rescue process was not abused by Ralston, Zietsman, Myburgh and Ellis. The summons is equally critical of Myburgh and Ellis and states that they were in breach of their fiduciary duties to H&W and its shareholders and creditors. “Had Myburgh and Ellis not breached their obligations and acted properly, H&W would have been liquidated in June 2013.” “The conduct of placing H&W in business rescue, keeping it in business rescue, opposing the winding-up and leaving the affairs to Ralston and [Kevin] Kemp [a manager at H&W at the time] was intended to benefit Ralston, Kemp, Myburgh, Klopper and Ellis and the shareholders and some creditors of H&W. The conduct aforesaid was reckless and was intended to, or resulted in, prejudice to and was in fraud of the general body of creditors of H&W and in particular to FirstRand.” Section 417 report The summons follows a Section 417 report, penned by respected retired judge Eberhard Bertelsmann as the commissioner, in 2019. He was appointed in November 2017 by the Master of the Court to investigate whether H&W’s assets were indeed stripped or looted before the liquidation. Bertelsmann also concluded that the business rescue process was fraudulently abused to delay an inevitable liquidation, which allowed for the selloff of the company’s assets. Bertelsmann also recommended that the master refer the conduct of Zietsman, Ralston and Myburgh to the National Director of Public Prosecutions for criminal investigation. Read the full Section 417 report here. Sharemax and Picvest Klopper and Myburgh are closely involved with the rescue schemes of two of South Africa’s biggest failed investment schemes: Sharemax and Picvest. Klopper was the BRP of the failed HS companies, which were placed in business rescue in September 2011. In terms of the original business rescue plan and a subsequent Section 155 Scheme of Arrangement, all properties syndicated as part of the HS schemes should have been transferred to a single company, Orthotouch, but this never happened. Virtually all of these properties were subsequently sold to third parties during the eight years it remained in business rescue, including the listed entity Accelerate. The business rescue process ended when Orthotouch itself was placed into business rescue in November 2019. Klopper and Myburgh were directors of Orthotouch. Read: Georgiou puts Orthotouch and Zephan into business rescue For the full story, read: The peculiar case of the Picvest billions (Part 1) (Background) The peculiar case of the Picvest billions (Part 2) (Background) The peculiar case of the Picvest billions (Part 3) (Overvaluation of properties) The peculiar case of the Picvest billions (Part 4) (Property transactions before HS companies being put into business rescue) The peculiar case of the Picvest billions (Part 5) (Disposal of properties contradicts the intent of the business rescue plan) The peculiar case of the Picvest billions (Part 6) (The sale of 31 ‘Orthotouch Properties’ to Accelerate) Klopper and Myburgh are also involved with Nova, the rescue vehicle of the failed Sharemax investment scheme. They are the two receivers and are responsible for implementing the scheme of arrangement to repay investors. Myburgh is also Nova’s executive chairman. However, Nova has been in financial distress for a few years and has sold several underlying property assets to finance its operating expenses. The company is also facing corporate governance challenges. It failed to publish its annual financial statements (AFSs) for three consecutive years within six months after the year-end, as the Companies Act prescribes. The 2020 AFS, which was due before the end of August 2020, has still not been published. Furthermore, Nova’s auditors qualified Nova’s 2018 and 2019 AFSs and expressed concerns regarding its ability to continue as a going concern. Read: Nova teetering on the verge of insolvency (Dec 2018) Nova plans to sell another five properties (May 14, 2019) Nova properties auctioned off (May 31, 2019) Nova: Insolvent or in a sound financial position? (Mar 2020) Full response from Klopper (via his legal counsel) Dear Sir Questions sent to Mr JF Klopper on 29 January 2021 1 We act for Mr Klopper in the claim brought by Harrison & White Investments (Pty) Ltd (in liquidation). 2 We refer to your email to our client on 29 January 2021, in which you addressed a number of questions to him in relation to this matter. 3 Our client will be addressing the allegations made in the claim against him, in the normal course of the litigation proceedings. 4 Our client will not be commenting further on this matter at this time. Yours faithfully WEBBER WENTZEL Full response from Connie Myburgh Mr van Niekerk. I refer to your email dated 29 January 2021. I will be defending the action through my lawyers. The matter is sub judice and you will appreciate that I cannot comment on or enter into a debate with you regarding the allegations raised in your email. The allegations raised by you regarding me are defamatory of me, and I caution you regarding publishing such defamatory matter, as such publication will be equally defamatory. You are requested to quote this response verbatim in any publication you may release. Yours faithfully. Connie Myburgh. Full response from Diaan Ellis Dear Mr van Niekerk 1 I am defending the action that you speak of, insofar as it pertains to me and am legally represented in that regard. 2 You will thus readily appreciate that it would not be appropriate to enter into a debate with you regarding the merits of the matter whilst the matter is the subject of litigation and I will not do so at this juncture, particularly in circumstances where my professional indemnity insurance policy precludes me from commenting on the matter. 3 I trust that you will agree with me that it would be unreasonable, in the circumstances, to expect me to respond in any other manner at this time. 4 As a postscript, I must just point out that the assertions made against me in the action are defamatory and any publication by Moneyweb of these allegations would similarly constitute an act of defamation on the part of Moneyweb, the author of the article and Moneyweb’s editor. Sincerely Diaan Ellis FABER GOERTZ ELLIS AUSTEN INC AUTHOR PROFILE Ryk van Niekerk Ryk is an award-winning financial journalist with over 20 years' experience. He is Moneyweb’s editor and hosts the Market Commentator podcast and RSG Geldsake, covering the markets, and financial and investment content, joined by CEOs, entrepreneurs, policymakers and others. Ryk is a renowned public speaker and facilitator, and a regular political and economic commentator on local media platforms. He has an MBL and M.Phil in Journalism – both achieved cum laude. ------------------------------------------------------------------------------- COMMENTS CIPC has no power over Sharemax rescue By Roy Cokayne Time of article published Sep 25, 2014 SHARE THIS ARTICLE: Roy Cokayne THE COURTS are the correct forum to review the conduct of the business rescue practitioner appointed to run Sharemax Investments, according to the Companies and Intellectual Property Commission (CIPC). Astrid Ludin, the CIPC commissioner, said this week that the provisions of the law did not impose an obligation on the commission to monitor business rescue practitioners. Ludin’s comments follow claims by the SA Revenue Service (Sars) that Sharemax’s business rescue practitioner, Liebenberg van der Merwe, had been appointed on December 7, 2011, but to date had not published a business rescue plan for the company. The Companies Act requires a business rescue plan to be published within 25 business days after the date on which the business rescue practitioner was appointed. Any extension had to be approved in court or the holders of a majority of the creditors’ voting interest. Sars has applied for the setting aside and termination of Sharemax’s business rescue and its liquidation because of the company’s alleged inability to pay R15.7 million in outstanding taxes. Ludin said business rescue practitioners were officers of the court and the CIPC currently licensed practitioners for each rescue process. The CIPC was also responsible for receiving the initial business rescue notice, status updates and the termination notices. “The purpose is to provide creditors and members of the public [with] information about the status of the enterprise. The status report provides us with an indication of whether the process is ongoing,” she said. Ludin stressed that progress had to be reported to the shareholders and creditors by the practitioner and the CIPC was not in a position to monitor compliance because it did not have the power to do so. “The CIPC only has powers to revoke conditional licences issued to business rescue practitioners. We did not issue a conditional licence in this case and, therefore, cannot revoke the licence,” she said. “We have no other powers related to business rescue. The court is the correct forum to review matters of compliance. Attempts to obtain comment from Van der Merwe about Sharemax were unsuccessful. However, Elle-Sarah Rossato, a Sars official, said that in an affidavit in support of Sars’s application, Van der Merwe claimed in October last year that a business rescue plan for Sharemax could not be finalised until quantification of Sars’s claim was finalised and finality was achieved on the complaints adjudicated by the ombud for financial services providers. This referred to the determination by the ombud between Gerbrecht Siegrist and Sharemax group companies, including Sharemax Investments, in terms of which all of these companies were held jointly and severally liable for the payment of R580 000 to Siegrist. Rossato said using the quantification of Sars’s claim to delay matters was “disingenuous and incorrect” because the correctness of the tax debt was confirmed at a meeting in September last year. Van der Merwe’s assertion that the business rescue plan could not be finalised until finality was achieved on the Siegrist determination was “equally disingenuous”, because the decision was handed down on January 29 last year. Rossato said it appeared the reason for placing Sharemax Investments into business rescue was to obtain a moratorium against payments of debts, as afforded by the Companies Act. “The inescapable inference is that creditors of the first respondent [Sharemax] were misled with a promise that R40 million would be coming their way, while the controllers of the first respondent [Sharemax] had already decided to abuse the Companies Act’s business rescue provisions.” About 33 000 investors invested about R4.5 billion in Sharemax’s various schemes. Sharemax was placed under statutory management by the registrar of banks in 2010 when it defaulted on monthly payments to investors “Justice delayed is justice denied” Edited to add: Article from IOL. Madmax 9 months ago Sharemax chronicles continue: ‘Old people die, the fat cats laugh’ Phillip De Wet 2 Dec 2016 Empty promises: Glynnis Morris has not seen any return from her investment. Empty promises: Glynnis Morris has not seen any return from her investment. Every few months 70-year-old Glynnis Morris receives a letter from Frontier Asset Management. In broad strokes the letter tells her how well everything is going with Frontier’s sibling company, Nova Property, into which her entire R300 000 pension was forcibly invested. She no longer reads the letters. She goes straight back to figuring out how to get by on her R1 500-a-month government old-age grant. “It’s always the same letter, only the dates change,” she says. She has not seen a single cent from her investment for many years now, Morris says, no hint of the R3 125 monthly income — plus maybe some capital growth if the property market did well — she thought she was buying when she invested in the ill-fated Sharemax property syndication scheme in 2009. Instead she has seen many promises from the directors of Nova, which stepped in as the rescuers when Sharemax collapsed and took over Sharemax’s assets. In return for delivering that service to Morris and others, the directors of Nova each paid themselves an average of R4.9‑million in the past financial year. Morris has it better than most. She lives in a granny flat attached to the home of one of her daughters, and her two other daughters help her out with food “when I run out, which is often”. When the Mail & Guardian this week traced two other former Sharemax and now Nova investors, we found that one had died in March and the other had recently slipped into a coma. “This is what happens all the time,” said a relative of the latter. “These old people had their money taken. Now they don’t eat properly, then they get ill and they die, while the fat cats are laughing all the way.” The Nova directors — Dominique Haese, Rudi Badenhorst, Dirk Koekemoer and Connie Myburgh — deny they are anything other than businesspeople who work hard to manage the assets in which Sharemax participants had invested. But the difference between their rewards and those of the original investors is stark. This week, specialist financial website Moneyweb calculated that the four Nova directors’ combined R15.1‑million cash salaries in the past financial year were more than double the average earned by executives at most property management companies. Those cash salaries, Moneyweb said, represented 17% of Nova’s total cash receipts for the financial year. The four directors have near total control over how the company spends its money. After a legal battle stretching over several years to obtain the technically public register of Nova shareholders, Moneyweb last week revealed that the directors own 87.1% of the company, and have even greater voting rights thanks to a structure that reduces debenture holders to recipients of money and information as and when the four directors see fit. The directors value their shareholding, which in effect they received for free, at more than R1‑billion. Nova chief executive Haese played a pivotal role at Sharemax before it collapsed, and fellow director Koekemoer was also a director of Sharemax for several years. It is clear that directors pay themselves first from the company’s proceeds before any payments to the debenture holders they are responsible for, Moneyweb said. As a result, averaged over the past two financial years, Nova directors paid themselves out R3.6‑million each a year. The 31 000 debenture holders whose money they manage were paid an average of just less than R400 each. Average payments to debenture holders are a poor metric, because often the Nova directors do not see fit to provide. In the last communication Morris received, Nova was self-congratulatory about a 2013 decision “to reduce and/or cease projected monthly return payments” to debenture holders in favour of using the cash to refurbish shopping centres. Morris did not get any real say in the decision to pay her no interest, just as she was never really consulted when Sharemax morphed into Nova, or even on how her pension would be invested in the first place. In fact, she did not understand the mechanism of the investment. But then, nor did her investment adviser. Morris thought she was putting her money into The Villa, a large shopping centre to be built east of Pretoria. That sort of bricks-and-mortar investment suited her risk appetite — extremely low — as it did many pensioners, which seems to be the main reason Sharemax drew so many of their ilk. What her savings were actually buying, later perusal of a prospectus would reveal, was “an unsecured subordinated interest rate acknowledgment of debt linked to a share”. In the rush to get her money invested, that went over Morris’s head. Her investment adviser had been “hounding” her about when she would receive her pension lump sum, she recalls. The very morning it landed in her bank account he accompanied her to the bank, explained to the teller what she wanted, took the resulting cheque from the teller and had Morris sign some forms. Interrogation of the mechanism of the investment was limited. “I said to him: ‘Are you absolutely positive that I’m not being conned here?’ and he said: ‘No,’” she recounts of the 20-minute transaction. Investment advisers were notoriously keen on Sharemax, which paid very large upfront commissions: like the current Nova directors, advisers got paid regardless of whether the risk their clients were taking paid off. And some, like Morris’s adviser, had no understanding of that risk, the office of the ombud for financial services providers, known as the FAIS ombud, has consistently ruled. “It is apparent from [Morris’s advisor’s] version that he had no idea just what the investment was about and, as such, could not appreciate that the complainant was lending money to an entity, which entity would in turn lend the funds to a developer, leaving investors with no form of security whatsoever,” ombud Noluntu Bam ruled in Morris’s case this August. There was also the small detail that the shopping centre Morris was supposedly investing in had not yet been built and could therefore not generate rental income to pay her 12.5% interest — the promised payments could only come from the investments of other people. Although Sharemax has never been found by a court to have been one, that is the common structure of all Ponzi schemes. The FAIS ombud ordered Morris’s adviser to repay her investment in full, under rules that make advisers liable for losses incurred because of their negligence. For a short while it looked as if she would get back her savings. Then she was notified that her adviser had appealed against the ruling. That leaves only the chance that the four well-paid directors of Nova will see fit to direct some money her way. But she is not overly optimistic, and she is not alone. “The investors who complain to this office have received no credible information as to the steps that are being taken to repay their investment,” Bam wrote in May about another Sharemax-related complaint. “Most investors see incomplete and ghost buildings all around, with no suggestion that they will ever recover their money.” But in a June letter the Nova board told Morris that the various hurdles to cashing in on her partially built shopping centre were “constantly being addressed by the board” — just as it has been telling her since at least 2014. Nova did not answer detailed questions. Earlier this week, chief executive Haese told Moneyweb she would no longer provide information because it “will be twisted and used out of context for the purpose of further negative reporting”. Subscribe to the M&G These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever. The Mail & News report …..2016