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

In the matter between:

In the application of
THE TRUSTEES FOR THE TIME BEING 

and

FIDENTIA HOLDINGS (PTY) LTD					

and
BRAMBER ALTERNATIVE (PTY) LTD			

and
FIDENTIA ASSET MANAGEMENT (PTY) LTD

EXECUTIVE OFFICER OF THE FINANCIAL

JUDGMENT DELIVERED ON 11 OCTOBER 2010

YEKISO, J
[1] On 1 April 2010 the Anthem Beleggings Trust ("the Trust") launched three separate applications out of this Court under case numbers 6655/2010, 6656/2010 and 6657/2010 for the winding up of Fidentia Holdings (Pty) Ltd ("Fidentia Holdings"), Bramber Alternative (Pty) Ltd ("Bramber"), and Fidentia Asset Management (Pty) Ltd ("FAM"), each one of the aforementioned companies being cited as the first respondent in the aforementioned applications. Dines Chandra Manilal Gihwala and George Pappadakis ("the Curators"), in their capacities as Curators of Fidentia Holdings, Bramber and FAM have each been cited as the second and the third respondent respectively, whilst the Executive Officer of the Financial Services Board ("FSB") has been cited as the fourth respondent in each such application.

[3] On 1 February 2007, somewhat three years before the institution of the winding up proceedings, Fidentia Holdings, Bramber and FAM were placed under provisional order of Curatorship (per Louw J). The provisional order of curatorship was confirmed on 27 March 2007 (per Fourie J).

SEPARATION OF ISSUES

ARGUMENT IN THE SEPARATION APPLICATIONS

[10] Section 346 of the Companies Act, 61 of 1973 provides for the category of persons who may bring about an application for the winding up of a company. These categories are listed as the company itself; one or more of its creditors (including contingent or prospective creditors); one or more of its members or jointly by any or all of the persons referred to in paragraphs (a), (b) and (c) of subsection (1) to section 346 of the Companies Act.

[11] The applicant's claim is set out in paragraphs 39 to 43 of the founding affidavit in each application. In paragraph 39 of the founding affidavit, Van Blerk states that the Trust conducts the business of an Investment Trust and that it invested substantial sums of money with the Fidentia Group (without specifying any specific company or companies within the Fidentia Group of companies it invested these substantial sums of monies) including FAM during the period 2002 and/or 2003 until about 2006. In paragraph 40 the deponent to the founding affidavit states that FAM is indebted to the Trust in an amount in excess of R27,929,772-08 which is claimed to be long overdue and payable. In neither of paragraphs 39 to 43 is there any specific reference to an entity within the Fidentia Group of companies other than FAM which is alleged to be indebted to the Trust.

[12] In paragraph 10 of the founding affidavit Van Blerk states that the assets and liabilities of all three companies have been pooled and/or intermingled to the extent that it is difficult to differentiate between them. The deponent goes on further to state that this migration of resources between these companies included funds invested by the Trust and assets purchased from funds invested by the Trust. Evidence seems to suggest that the Trust invested funds on behalf of several investors with FAM at the time when FAM was a registered financial services provider in terms of the provisions of the Financial Advisory and Intermediary Services Act, 37 of 2002.

(a)	is incorporated under the provisions of the Companies Act, 1973 (Act 6 of 1973);
(b)	has as its principal object to act as nominee for, or representative of, any person in the holding of any property in trust for such person or persons;
(c)	is precluded by its memorandum of association from incurring any liabilities other than those to the persons on whose behalf it holds assets, to the extent of their respective rights to, and interest in, such assets; and
(d)	has entered into an irrevocable written agreement with a financial institution which controls the company, and in terms of which such financial institution has undertaken to pay all the expenses of, and incidental to, its formation, operations and liquidation;"

[17] There is no evidence on record to suggest that Bramber or Fidentia Holdings were nominees of FAM in its capacity as the registered financial services provider or, for that matter, that Bramber and Fidentia Holdings complied with all those requirements that would qualify them to be a nominee company. Consequently, whatever funds were advanced by FAM to Bramber and Fidentia Holdings did not enjoy the protection afforded to investors such as the Trust, more so, that whatever equity or fixed property may have been acquired out of such investor funds, was not acquired in the name of the investors concerned, including the Trust but, were acquired, instead, in the names of Bramber and Fidentia Holdings.

AUTHORITY OF VAN BLERK

THE INTERVENTION APPLICATION

[27]      In the result, the following order is made:

[27.3.] The Antheru Beleggings Trust is ordered to pay the respondents' costs (Applicants in the separation applications) in the applications for separation of issues in the matters of Fidentia Holdings (Pty) Ltd, case no:
6655/2010 and Bramber Alternative (Pty) Ltd, case no: 6656/2010 on a party and party scale, duly taxed or as agreed.
[27.4.] In the case of the Fourth Respondent, the costs order referred to in paragraph [27.3] of this Order shall include costs consequent upon employment of two counsel.
[27.5.] The applications of Martin James Van Schalkwyk to intervene as a creditor in both the matters of Fidentia Holdings (Pty) Ltd, case no: 6655/2010 and Bramber Alternative (Pty) Ltd, case no: 6656/2010, are dismissed with costs on a party and party scale, duly taxed or as agreed, and, in the case of the Fourth Respondent in both such matters, such costs to include costs consequent upon employment of two counsel