Saambou bonds crusader to be sequestrated

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Published Jun 7, 2015

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Cape Town - Emerald van Zyl, who challenged FNB Bank in court over interest obligations it demanded from clients who took mortgage bonds with the now-defunct Saambou bank, is to be sequestrated.

FNB had taken over Saambou’s mortgage book. The High Court ruled against Van Zyl and slapped him with R3 million in legal costs.

A trustee will now try to recover as much as he can from Van Zyl’s estate in order to satisfy his debt against the bank as well as millions owed to other creditors.

FNB took over the Saambou National Building Society home loan book after the bank collapsed and was placed under curatorship in 2002.

It later emerged that there had been errors in the way Saambou had calculated its interest rates, and FNB paid out an adjustment amount of R154m.

Van Zyl, however, maintained that the errors went further and that the interest rates charged to Saambou clients had fluctuated unfairly. He set in motion a test case, which ran in the North Gauteng High Court.

But the action was dismissed in May 2013 and Van Zyl’s later attempts to appeal the judgment were unsuccessful.

Costs were awarded against him but when the bank wanted to execute on the award, the sheriff’s return indicated that Van Zyl had no meaningful assets, except for some household furniture and equipment which his life partner laid claim to in any event.

FNB approached the Western Cape High Court for Van Zyl’s sequestration, telling the court that he lived in a dwelling in Welgemoed which was owned by a trust bearing his name and which had a municipal valuation of R1.261m in 2009.

A provisional sequestration order was granted in March on the argument that there were reasonable grounds for concluding that a trustee might discover assets for the benefit of creditors

FNB returned to court to have the order made final, but Van Zyl opposed the application.

The question before the court was whether or not the bank satisfied the court that assets may be unearthed for the benefit of creditors if there was an investigation and inquiry.

The bank argued that there was a striking discrepancy between Van Zyl’s lifestyle, livelihood and the manner in which he conducted the Saambou litigation and his claimed financial situation.

In a judgment handed down last week, Judge Lee Bozalek said the litigation Van Zyl pursued was indicative of someone with means.

“The anomalous position is revealed of someone with considerable debts, who at times has laid claim to a substantial income and who can conduct litigation at a lavish scale but yet states he has absolutely no assets of any significance, either movable or immovable, notwithstanding that he lives in a house, the value of which must now be at least R2m, situated in a sought-after area,” Judge Bozalek said.

He said the bank successfully established that there was reason to believe that it would be to the advantage of the creditors if Van Zyl’s estate was sequestrated.

A final order was granted.

Weekend Argus

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