Johannesburg - Regiments Fund Managers, its fraud, corruption, and money laundering accused directors, Litha Nyhonyha and Niven Pillay, have set their sights on the liquidators of another of their companies.
Nyhonyha and Pillay accuse Regiments Capital’s co-provisional liquidators Willem Venter and Kagiso Dinaka of concealing a material fact of an earlier order handed down, which is relevant to their legal battle to access millions of rands held in their company which is under liquidation.
The Gupta-linked businessmen and their company, Regiments Fund Managers, sought a costs order de bonis propriis against the liquidators in their personal capacity, for them to be interdicted from charging any fees and that they be ordered to repay such fees, as they may have already charged.
An order of costs de bonis propriis is made against attorneys where a court is satisfied that there has been negligence to a serious degree which warrants an order of costs being made as a mark of the court's displeasure.
On Monday, South Gauteng High Court Judge Bashier Vally found that Venter and Dinaka obtained an order on an urgent basis before Judge Norman Davis in September 2021 to extend their powers and replaced certain prayers in the order they obtained before Judge Mmonoa Teffo on October 5 the previous year and that this also resulted in inconsistencies between the two orders.
Regiments Fund Managers Nyhonyha and Pillay told the court that the application by Venter and Dinaka was an ex post facto (retrospective) attempt to cure the order that Judge Teffo granted earlier.
According to Judge Vally, these two orders (September 2021 and October 2020) go to the heart of the liquidators’ authority to litigate.
Additionally, Judge Vally said the September 2021 order was obtained in the face of his January 2021 ruling ordering the winding-up of Regiments Capital to be set aside and for the SA Revenue Service (Sars) to issue its assessments of the tax liabilities of the company (Regiments).
“On the question of the application for an order of costs de bonis propriis against the liquidators in their personal capacity, the allegations are of a serious nature,” the judge said.
Judge Vally also found that Regiments Fund Managers Nyhonyha and Pillay stated that even at the leave to appeal stage, the liquidators continued to conceal the September 2021 order granted.
”No litigant may knowingly mislead the court on a matter which is material to an issue before the court and which they are aware of.
In my view, this alleged misleading of a court raises a serious issue since it is a central issue on the powers of the liquidators. This issue should be fully ventilated before a court,” reads the ruling.
Judge Vally dismissed Sars and the liquidators’ bid to challenge his judgment setting aside Regiments’ winding-up.
He granted Regiments Fund Managers, Nyhonyha and Pillay permission to proceed with the relief to have liquidators pay the costs de bonis propriis in their personal capacity.
In his ruling, Judge Vally said Sars, Venter and Dinaka must file their answering affidavits, if any, within one month of Monday’s order and Regiments Fund Managers and its directors to reply within ten days.
The costs of the costs de bonis propriis application were reserved, and the parties were ordered to seek direction from Deputy Judge President Roland Sutherland for the setting down of the hearing regarding the matter.
Regiments, Nyhonyha and Pillay, owe their creditors almost R392 million, including both directors and related entities, while Sars intends to claim R279.3m from the company.
Sars maintains that Regiments will not be able to meet all its debts from the proceeds of its unbundling, while Nyhonyha and Pillay’s company insists that it has liquid assets at least valued at about R405m.
Nyhonyha and Pillay believe Regiments’ various assets held through its subsidiary companies can be liquidated to meet all its liabilities.
The two businessmen are currently out on R50 000 bail after being arrested with erstwhile Transnet and Eskom chief executive and chief financial officers, Brian Molefe and Anoj Singh, respectively, over dodgy transaction advisory contracts preceding the procurement of 1 064 electric and diesel locomotives for over R54 billion by the state-owned freight, rail and logistics company.
Nyhonyha, Pillay, Molefe and Singh joined other former Transnet executives and businessmen Siyabonga Gama, Garry Pita, Phetolo Ramosebudi, Eric Wood, Daniel Roy and Kuben Moodley, who previously appeared in court to face similar charges.
Prosecutors have issued warrants of arrest for other Gupta associates, Salim Essa and Ashok Narayan, who they believe are out of the country.
The group is expected back at the Palm Ridge Specialised Crimes Court on October 14.