Is it a case of corruption or a systemic issue of unaccountability at the Master’s Office? This question is critically important because the havoc in the insolvency industry is a direct consequence of the lack of fiduciary vigilance on the part of the Master’s office that has defaulted into a platform for crooked liquidators to make money by whatever means they deem fit.
On 23 January 2022, Luyolo Mkentane, wrote a story that was published by Business Day under the title: “Backlog at the Master’s Office cut significantly,” and whose full content can be found on this link: https://www.businesslive.co.za/bd/national/2022-01-23-backlog-at-masters-offices-cut-significantly-department-says/.
Mr. Stephan Mahlangu, who works for the Department of Justice asserted boldly that the country’s 15 Master’s Offices had reduced significantly, the backlog with progress having been made in stabilizing the IT systems to deal with the caseload, which purportedly increased dramatically during the various stages of lockdown in 2021.
Mr. Mupasiri, the Director of the Public Policy division of the Justice Under Rule of Law (JUROL), who are working closely to ensure that creatures of a statute like the Master’s Office, deliver on the constitutional promise of the efficient, accountable, intended when they crafted laws like the Insolvency Act, said:
“In terms of s381(1) of the Companies Act 61 of 1973 that provides as follows: Control of Master over liquidators.-(1) The Master shall take cognizance of the conduct of liquidators and shall if he has reason to believe that a liquidator is not faithfully performing his duties and duly observing all the requirements imposed on him by any law or otherwise with respect to the performance of his duties, or if any complaint is made to him by any creditor, member or contributory in regard thereto, enquire into the matter and take such action thereanent as he may think expedient,” the control of the liquidators, who are also creatures of law was vested in the Master and not creditors whose interests by nature are varied and often conflicted.
What I have seen in relation to the Investigative Journalism exercise that our partner, IniAfrica.com online publication has done, the following shocking facts have emerged:
On 12 April 2022, a letter was addressed to the head of the Master’s Office at the Johannesburg Office, Mr. Pule, and copied to his Deputy in charge of Insolvency matters at the same office, but they both refused, neglected, and failed to acknowledge receipt of this email let alone respond to the issues raised therein.
> ——– Original Message ——–
> Subject: JUDICIAL CAPTURE INVESTIGATIONS – IDC
> Date: 2022-04-12 09:20
> From: email@example.com
> To: Lpule@justice.gov.za, Rmaphaha@justice.gov.za
Good morning Mr. Pule,
1. We are pursuing a story regarding allegations that your office was complicit in enabling the Industrial Development Corporation of South Africa (IDC) to use the Insolvency processes to defeat the ends of justice.
2. This is in relation to a matter under your reference number G134/2013.
3. There are questions that directly arise from the untested version that Mr. Theo Van Den Heever hijacked the administration of the estate at the instigation of the IDC.
4. I have looked at the bank statements of the insolvent estate that show a payment of R982,122 on 28 October 2011 with the reference as CREDIT TRANSFER 9245 CASHFOCUS IDC.
5. On 29 October 2011, an amount of R800,000 was paid from this account under your control with the reference as ELECTRONIC BANKING PAYMENT TO ADVOCATE EF DIPPENAAR LEF ADVANCE. Kindly provide an explanation of the nexus between the beneficiary of this payment from the bank of the insolvent estate.
6. On 29 October 2011, an amount of R100,000 was paid from the same account with the reference shown as ELECTRONIC BANKING PAYMENT TO THABILE FUHRMANN TRUST ACCOUNT.
7. The court records that we have been able to access, confirm that the insolvent estate of Salister was used for laundering money for the payment of legal fees to finance the litigation costs incurred in prosecuting IDC’s dispute in relation to another insolvent estate in which Mr. Van Den Heever’s firm, D & T Trust, was appointed as Liquidator resulting in D & T administering the affairs of Salister (a debtor to Aldolex Investments Pty Limited) and Aldolex.
8. The facts that we have confirmed that Maredi and Monyela were appointed by your office as the Joint Liquidators of Salister but outsourced the administration of the estate to D & T Trust.
I trust that the above background provides you with some background to this matter that is directly linked to Makume J’s judgment in the matter under Case Number 13276/14 which forms the subject matter of our investigations.
The question that we need your assistance on are as follows:
a. Is an insolvent estate permitted in terms of the applicable laws to borrow funds to pay for litigation costs.
b. We have invoked PAIA to obtain records confirming the version that was presented to the Courts on behalf of the insolvent estate by Messrs. Van Den Heever, Maredi, and Monyela that the litigation in relation to the dispute between Africa Resources Limited (ARL) and IDC over funds that were unlawfully withheld by the IDC was lawful and was funded by a loan provided to the estate by IDC and was repaid in preference to other creditors from the estate funds. It would be beneficial if you could urgently provide the correct record as it is alleged that Salister’s business was destroyed using insolvency as a weapon.
c. It appears that there is no dispute that Salister by refunding IDC the R982,122 that it had advanced paid for the IDC instigated litigation to the prejudice of the body of creditors and shareholders of the company. Were you aware that your office to the extent that you are familiar with the above facts, was complicit in enabling this fraud?
I would be grateful if you could respond to the above, by no later than 13 PM today to allow us to finalize the story that we are working on.
Should you require any clarification, please do not hesitate to contact us.
After failing to obtain any response from the Joburg office, the editor of IniAfrica.com followed up with an email directed at the Chief Master in the hope that he was going to cause the responsible persons to this matter seriously that was based on concrete facts that one of the liquidators working in cahoots with certain liquidators and attorneys had in truth and fact orchestrated a fraudulent scheme to hijack the control of a company and instigated the demise of the company using the insolvency act as the weapon of choice.
The content of the said email is produced below:
> —–Original Message—–
> From: firstname.lastname@example.org <email@example.com>
> Sent: Tuesday, 12 April 2022 14:53
> To: Mafojane Martin <MMafojane@justice.gov.za>
> Subject: Fwd: JUDICIAL CAPTURE INVESTIGATIONS – IDC
Dear Adv Martin M Mafojane,
Please find below an email that I addressed to your colleagues this morning believing that they would have the courtesy of acknowledging the email and the importance of the contents against a backdrop of a divided society.
There are far too many people who are part of the Justice Under Rule of Law (JUROL) who have many stories to tell on allegations of your office playing the role of undermining the rule of law.
The facts set out below were concealed before a court of law.
We are pursuing this matter as one of many case studies to test if the alleged incestuous relationship between certain judges, liquidators, officials in the justice delivery system, creditors including development finance institutions and banks, and many others are part of a generally corrupt system is founded on solid facts. We are ready to publish the article exposing the possible complicity of your Johannesburg office in protecting corrupt liquidators who engage in self-help schemes because it is alleged that the lack of openness is part of a corrupt value chain.
In this matter, two black liquidators were appointed by the Master but 100% of the administration work was performed by Mr. Theo Van Hen Heever.
One of the liquidators used to work in your office.
The key issue I need your response on is whether an insolvent estate can borrow funds without the knowledge and involvement of the Master for the sole purpose of financing a clandestine litigation effort whose consequence was the destruction of a company.
Should you require any further information, please do not hesitate to contact us.
The Chief Master, Mr. Martin Mafojane, responded cynically as follows:
On 2022-04-12 at 18:41, Mafojane Martin wrote:
Dear Mr. Mahlangu
Kindly follow the trail email and the attachment thereto. I refer the media inquiry to PEC because in line with the department’s prescripts because such media inquiry is handled by PEC.
I copied the requestor to note the referral of the inquiry to you and that he engages with your office further. I also just noted that Mr. Pule has also referred the inquiry to you.
So, Mr. P Smith -please note your inquiries are to be channeled through our PEC [Public Education and Communication] unit of DOJCD.
The issue was intentionally and wilfully diverted to Mr. Mahlangu on the basis of the Chief Master’s capricious, arbitrary and unilateral determination that the inquiry should be channeled to the Public Education and Communication Unit of the DOJCD notwithstanding the fact that the inquiry was focused on facts and events that fell within the personal knowledge and involvement of officials that fall under the Chief Master’s oversight.
It is worth highlighting that the editor of IniAfrica.com promptly wrote to Mr. Mahlangu as follows:
From: firstname.lastname@example.org <email@example.com>
Sent: Wednesday, 13 April 2022 09:08
To: Mafojane Martin <MMafojane@justice.gov.za>
Cc: Mahlangu Stephans <StMahlangu@justice.gov.za>; Pule Leonard
<LPule@justice.gov.za>; Maphaha Reuben <RMaphaha@justice.gov.za>
Subject: Re: FW: JUDICIAL CAPTURE INVESTIGATIONS – IDC
I acknowledge with thanks your response. Unfortunately, Mr. Pule did not advise me of the referral. I will engage Mr. Stephans with this urgent matter. I trust that by working together we can restore public trust and confidence in the entire justice administration system.
The editor did point out that it was strange that Mr. Pule had referred the matter to Mr. Mahlangu without notifying the requester or even acknowledging receipt of the inquiry.
It is the understanding from the JUROL IJ team that to date both Pule and Maphaha have not bothered to respond suggesting the utter contempt of the project to ensure that this important office in the administration of justice is accountable.
The complaints that we have received so far in relation to the role of the Master’s public office in undermining the rule of law are supported by the cavalier attitude of the Chief Master supported by his juniors.
When we received the report from the editor of IniAfrica.com publication, it became self-evident that the referral to Mahlangu of the inquiry was part of a calculated move by the Chief Master to escape any culpability for the unprofessional attitude of his office and the contemptuous approach any quest for the truth in the affairs of his office.
It is JUROL IJ’s team’s understanding that the last communication received from Mr. Mahlangu on this important investigation was as follows:
[0:02 pm, 01/05/2022] mdmawere1: ——– Original Message ——–
Subject: RE: FW: JUDICIAL CAPTURE INVESTIGATIONS – IDC
Date: 2022-04-13 11:44
From: Mahlangu Stephans <StMahlangu@justice.gov.za>
To: “firstname.lastname@example.org” <email@example.com>
Can you please provide me with your full details?
It is our understanding that the details requested were provided but to date, no substantive feedback has been received from Mr. Mahlangu.”
The editor of Iniafrica.com had this to say: “We have followed up the matter with the liquidator in question who orchestrated the scheme using an estate that was was appointed by the Master to administer in the name of AR Projects Services Pty Limited (ARPS).
It is true and a fact that the government of Zimbabwe (GOZ) used public power to forcibly divest and deprive a number of companies that fell under the Africa Resources Limited (ARL) group.
An Administrator was appointed pursuant to a repugnant decree whose effect was to permit the extrajudicial appointment of this creature of the statute to assume the control and management of the Zimbabwean companies.
Relying on the authority, power, capacity, right, and the relationship between the GOZ and the targeted companies, a number of litigations were prosecuted in South Africa using the prestigious firm, ENSAfrica, as the agent of the GOZ to seek and obtain judgments in SA.
The existence and operation of the Cross Border Insolvency Act of 2000 prohibit any foreign representative of a liquidated company from using the SA courts to vindicate any claim yet in this case, Mr. Van Den Heever’s authority to act on the affairs of 3 SA insolvent estates was based on the unlawful recognition and enforcement of the rights that are specifically not provided for in the Act that regulates the appointment of a foreign representative that was appointed pursuant to non-judicial foreign proceedings.
The question that we sought answers from the Master is whether his office had jurisdiction to enforce the rights of a foreign state that were acquired through administrative fiat.
The SA constitution, SADC Treaty and Protocol, and international law prohibit the enforcement and recognition of foreign penal, confiscatory laws that offend public policy.
It is worth highlighting that in a landmark case that I launched against President Mnangagwa, who in terms of paragraph 72 of his affidavit in opposition to my application admitted that he was briefed on the facts and circumstances of the invasion of the SA judicial jurisdiction and the reality of the SA judges and officers of court willingly and wilfully enforcing Zimbabwe’s barbaric laws in SA with impunity and active support by the Master of the High Court.
It is disturbing that Messrs. Pule and Maphaha were informed of the direct and causal link between the Reconstruction Act. a law of Zimbabwe, and the appointment of crooked liquidators like Van Den Heever who colluded with the SA lawyers instructed by a private law firm, DMH Attorneys, the same law firm that President Mnangagwa uses not only as his personal lawyer but his legal advisors in his official capacity notwithstanding the legal limitations imposed by the Constitution from him being involved in the choice of private law firms to advise him on constitutional and legal matters.”