By Pinky Khoabane
Johann Rupert bought a farm from owners (Brakspear) who say it was illegally liquidated. They claim they didn’t owe the money which Nedcor Group claimed they owed and for which they were liquidated. The Brakspears bought the farm through a complex and shady offshore structure intentionally designed to deceive. These complicated ownership structures are well known strategies used by organise crime syndicates and facilitate money laundering, fraud and exchange control violations . Nedcor lawyers couldn’t produce the written loan agreement between the parties except to say to a journalist who interviewed one of them some years back: “You do realise that loan agreements do not have to be in writing?”
THE decision by Parliament to launch an investigation into illicit financial flows is a victory for those who, like legal reform campaigner Justin Lewis, are calling for the transformation of the financial sector and an acknowledgement that there exists a collusive and corrupt relationship between SA courts and the financial sector and the former’s role in facilitating global organised crime syndicates.
A report issued by Parliament’s Standing Committee on Finance following public hearings into the financial sector in August confirms that it intends conducting an inquiry into illicit financial flows which see billions of rand leave the country illegally.
Speaking at the time of the hearings, Yunus Carrim, said this: “We are reaching the end of our tether in this matter. We want drastic action. We want to see some of the names in the public domain to appear in court. We are really fed up‚ to put it mildly.”
One of the names implicated in these complicated offshore schemes is South Africa’s multibillionaire Johann Rupert who is involved in one of the country’s most bizarre cases in which businessman Ian Brakspear had his family business liquidated in 2009 for a R7 million bank loan he says he never asked for or received.
Having lost faith in the independence of South Africa’s judiciary and perhaps more importantly, due to allegations of the corruption of SA’s courts in facilitating organised crime, the Brakspears sought justice in UK courts.
In court papers before the Royal Court of Jersey, 83-year old Dorothy Brakspear paints a sordid web of legal chicanery, corporate deceit, and a £500,000 fictitious loan, all of which culminated in fraudulent behaviour and the ultimate liquidation of the family business. Nedgroup Trust (Jersey) Limited is the defendant.
The saga all started with Ian’s intention to buy a beautiful 87ha wine estate in Franschoek, with the Ruperts as neighbours on the one side and Tokyo Sexwale on the other. The farm, which was liquidated “illegally” according to the family, was eventually bought by Rupert.
Where Did It All Start? Complex Ownership Structures Intended to Deceive – Money Laundering Schemes
Dorothy’s affidavit reads: “Ian intended to buy a portion of a wine farm (“the Farm”) in South Africa for the purposes of a property development using funds he had offshore. The structure to invest into development on a wine farm was to be (a) very simple one. However Justin Thomas of Jersey Trustee and Gregory Horton of IOM Bank, advised Ian to purchase an offshore company and to place his South African companies into this offshore company. He could then appoint a nominee shareholder through a declaration of trust (“DOT”) to hold the shares of the offshore company on his behalf.
“Jersey Trustee further advised that this could be done under a bespoke trust deed and which only needed to be signed by the appointed trustee acting as the nominee shareholder. Justin Thomas and Gregory Horton, advised Ian that with a trust vehicle Ian could play a whole range of tricks in terms of ownership, control and benefit and that a trust can perform it’s “tricks” better than other competing legal entities such as the simple offshore company structure that Ian originally wanted to use.
“Horton and Thomas informed Ian that when you appoint a Nominee to hold shares on your behalf, your benefits are protected without making your personal details public. Any decision by the trustee regarding any trust property would need Ian’s written consent, as the settlor, as would the transfer of shares, dividend payments etc”.
Ian teamed up with some partners to acquire and develop the property. They approached Nedbank Private Bank to see if they could raise a mortgage bond, and the subject turned to offshore structures and how everyone was doing it. Brakspear already had an offshore trust, the Brakspear Trust, registered in the Isle of Man.
A complex and shady offshore structure was devised to execute the project which the family says was “never agreed upon, requested by or explained to any of the Brakspear family and the names of the companies and the individuals named as directors were never revealed to anyone in the Brakspear family, revealed in any financial accounts written up by Nedbank or in any court papers in South Africa or Jersey”. Read the full affidavit here Affidavit for RCJ 2 and the Royal Court Of Jersey’s order of justice here 17-11-20 Amended OJ signed by Deputy Bailiff
The complexity of the ownership structure and the conflicts of interest between the various entities involved in the purchase of the farm are enough to give one a headache. Nonetheless, Ian bought the farm through one of the entities, West Dune Properties, which he owned through Money Box, which held 60% of the shares, and Cross Atlantic, which held 40% in West Dune.
West Dune bought the farm on 5 July 2009 for R20,9 million. Money Box loaned its share premium of R3,9 million to West Dune in order for West Dune to use as a deposit on the purchase of the Farm combined with another R3,9 million loan from Cross Atlantic for a total of R7, 8 million. The balance of the purchase price of R13, 1 million was provided by First Rand Bank Limited (FRB). The trust secured a guarantee of £500,000 (then worth about R7 million) which made it possible for FRB to advance a mortgage loan for the wine estate.
The debt was secured by way of a mortgage over the Farm. Ian signed a personal surety for West Dune’s liabilities to FRB dated in the knowledge that he together with his two South African partners, were the owners of the farm.
In a litany of bungles by the Jersey Trustee, which included among others, failure to meet the terms and conditions of FRB, and deception by their partners, the Brakspears found themselves in deep financial trouble. Ian discovered later that the partners had paid R4 million more for the farm than they let on, and pocketed the difference.
However, the worst was still to come. In August 2007, West Dunes received an offer to purchase the farm for R37.75 million and the managing director of Jersey Trustee erroneously sent an email to the purchaser in which he revealed sensitive commercial information about his client. The purchaser withdrew the offer ten (10) days later.
The farm was still bleeding financially and West Dune was falling behind on its mortgage repayments. In July, the bank called up the guarantee. “On or around 30 July 2008, the Jersey Bank called on the Brakspear Guarantee and Indemnity and £446,649.29 was paid from Brakspear trust to the Jersey Bank,” the Dorothy’s affidavit reads.
The bank put the farm on auction and the same person who had made an offer to purchase it at R37.75m bought it for R18 million.
Jersey Trustee’s negligence cost West Dune R19,75 million and Ian informed the Trustee of his intention to sue.
Enter Johann Rupert
But just before the transfer of the farm to it’s R18m purchaser, an improved offer on the farm was made by one of Rupert’s many companies, Applemint, to purchase the company West Dunes for R500,000 and pay West Dune’s creditors up to a value of ZAR 25,000,000. Rupert’s family-owned Remgro owns 3.9% of FirstRand directly, and has an indirect stake through ownership of RMBH https://remgro.com/wpcontent/uploads/2016/02/Remgro_Exchangeable_Investor_Pres_v20160202.pdf
Ian notified the Jersey trustee of the terms of the improved offer and that he was going to accept it and requested the Jersey trustee as the nominee owner to sign off on the offer to purchase.
The Brakspears then received a letter from the Fairbairn Group stating that “the Fairbairn Group and its shareholders would agree to the offer of ZAR 25,000,000 (£1,78 million), provided that (a) they received at least ZAR 1,000,000 (approx. £71,000) from the transaction and (b) that First and Third defendant: “…unequivocally waive and abandon any claims which they allege they are entitled to against any of my clients. This waiver and abandonment must also extend to the shareholders of FTC (Fairbairn Trust Company) and FTL (Fairbairn Trust Limited). In addition, both Mr Ian Brakspear and Mrs Dorothy Brakspear must confirm that they will not receive any further financial benefits from the two trusts referred to above.
The letter further stated that the author was “…in receipt of instructions to issue a letter of demand from to West Dune Properties on behalf of Fairbairn Private Bank to claim full repayment of the residue of the proceeds of the current sale in order to reimburse Fairbairn Private Bank a portion of the monies drawn down on the guarantee which it issued in favour of Rand Merchant Bank for the liabilities of West Dune Properties in the sum of GBP500, 000, and which was drawn down in July 2007.”
West Dune responded denying the debt of £500,000 was owed to Fairbairn Private Bank and that both Dorothy and Ian would not waive and abandon any claims against the various legal entities. They further confirmed that West Dunes intended to sue Jersey Trustees for damages and losses for the breach of trust in releasing confidential information and causing the cancelation of the ZAR37,75 million sale.
Their response would unleash a protracted legal case in South African courts which Dorothy, in her affidavit, describes as legal chicanery, misrepresentation of facts and corporate deception.
The Jersey Trust, instructed one Nico Theo Botha, through a sworn affidavit to have West Dune liquidated. Botha claimed that Westley Trust had advanced the money in June 2008 to West Dunes at the “latter’s special insistence and request” and that the loan was was due and payable in December 2008 and was now in default.
The Brakspear family claim Botha made several false misrepresentations in court as a way of persuading the court that West Dune owed Jersey Trust £500,000 (R7million at the time) which it couldn’t pay.
There money in question was the guarantee which the bank had called up. It flowed from the Brakspear Trust via Fairbairn Private Bank to RMB (Rand Merchant Bank). The money belonged to the Brakspears in the first place. The records show it was reflected as a distribution from the trust to Brakspear. When West Dunes was liquidated in 2008, this distribution suddenly became a loan that was owed to the bank.
There is also no evidence of a written loan agreement between the parties. “You do realise that loan agreements do not have to be in writing,” Leornard Katz representing Nedbank reportedly said during a media interview.