NEDBANK has until the end of business today to respond to the scathing “second” affidavit by Dorothy Brakspear and the Bankers’ Book Evidence in the matter between the two parties currently being held in a Jersey court.
The trial spans over a decade and two continents and stems from claims by Brakspears that a farm bought by billionaire businessman Johann Rupert was sold to him in a fraudulent liquidation process by Nedbank and its lawyers Edward Nathan Sonnenbergs (ENS) and sought to:
- disable the Brakspears and their company from suing Nedbank for R19m in damages caused by their previous unprofessional conduct wherein they disclosed information to a buyer who had put an offer to purchase the farm for R37m, causing the said buyer to cancel. The farm was sold a year later on auction for R18m by the same farmer. However as that deal was about to be concluded Nebank took the Brakspears to court for a “fictitious R7m loan” which they said the Brakspears owed and then entered Rupert with an offer to buy the farm.
- providing a “legal” reason to cancel the already concluded R18m sale of the company’s farm to a Johannesburg buyer and then to facilitate its re-sale to a company owned by Johann Rupert, now for R25m
The second affidavit and the Bankers Book Evidence disappeared from the court file last month prompting 83-year old Dorothy Brakspear to send an email to the court, demanding an explanation about the whereabouts of the second affidavit and the Bankers Book of Evidence. Part of the email reads: “Firstly, in the package delivered to the Royal Court on 6 April 2018 was the skeleton argument, second affidavit and the Bankers Book Evidence, and yet only theskeleton argument it seems was in the Court file.
So I would like to know what happened to my original second affidavit and the exhibits that were delivered to the Court by courier on 6 April 2018 and how could they not be in the Court file with all the other originals I sent previously and which included my first affidavit and the Order of Justice?
Secondly, Nedgroup Trust via Bedell Cristin filed an answering supplementary affidavit to my second affidavit on the 17 April 2018 confirming that they received thesecond affidavit in good time and were able to file an answer.” http://uncensoredopinion.co.za/brakspear-documents-disappear-from-court-file-brakspear-vs-nedbank/
The court then ordered Nedbank to respond to Brakspear’s second affidavit by today.
Excerpts From The Second Affidavit
Bankers Book Evidence (Jersey) Law and the false representation to the South African Court in 2008, 2009 in the contrived liquidation (OJ Para 79 to 82) and again in 2014
- As particularized and quoted in Para 64 of the Order of Justice, the following was stated under oath in South Africa by Nico Botha on 19 December 2008
“In and during 2004 JAMBOT advanced the sum of £400,000 to the Westley Trust. “
- The Bankers Book evidence in Exhibit “SPF” shows no transaction for £400,000 and is irrefutable evidence of false representation made knowingly and deliberately by the Jersey trustee and its agent.
- As particularized and quoted in Para 63 of the Order of Justice the following material statement of fact was stated under oath in South Africa by Nico Botha on 19 December 2008
“In and during June 2008 the Westley Trust lent and advanced the sum of £500,000 to West Dune at the latter’s special insistence and request. This amount was due and payable by West Dune but West Dune was unable to repay it. The claim of Westley Trust is unsecured. The current value of the claim of the Westley Trust is in excess of R7, 000,000.”
- The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no transaction advancing £500,000 to Westley trust and is irrefutable evidence of false representation made knowingly and deliberately by the Jersey trustee and its agent to the South African Court
- As particularized and quoted in Para 65 of the Order of Justice the following was stated under oath in South Africa by Nico Botha on 11 March 2009 “Accordingly the creditor [the Jersey Trustee] borrowed the sum of £500,000 from FPB [the Jersey Bank] which it then advanced to the company [West Dunes]. I refer in this regard to NB3 and in particular to the balance sheet at page 3 thereof which refers to “Creditors and accruals” in the sum of £500,000. Note 5 to the financial statements (which appears at page 5 of annexure NB30 reflects the creditor to be FPB in the sum of £500,000.”
- The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no transaction by the Jersey Bank or any other bank advancing £500,000 to Westley Trust and no transfer of £500,000 to West Dunes in South Africa
11.Again irrefutable evidence of false representations made knowingly and deliberately by the Jersey trustee and its agent to the South African Court
12.As particularized and quoted in Para 65 of the Order of Justice the following was stated under oath in South Africa by one the Jersey Trustee legal team in South Africa, Justine Hoppe on 11 March 2009
“Although the sum of £500,000 was paid directly by Fairbairn Private Bank to First Rand Bank, this payment was pursuant to an agreement between Westley Trust and the Fairbairn Private Bank in terms whereof the Fairbairn Private Bank advanced the sum of £500,000 to the Westley Trust”
13.The Bankers Book evidence of the Westley Trust accounts in Exhibit “SPF” shows no “agreement” between the Jersey and Westley trust and no evidence of the Jersey Bank advancing £500,000 to Westley trust and is irrefutable evidence of false representations made knowingly and deliberately by the Jersey trustee and its agent to the South African Court.
14.In reliance on these false representations quoted above and on the evidence given by the Jersey Trustee agent Mr. Botha and their lawyer Mr. Leonard Katz, the South African judgment in 2014 (Jersey Trustee bundle page 381), at paragraph 84 states:
“After Fairbairn Private Bank [Jersey Bank] paid the R7 000 000 (£500 000) to RMB, it called on its guarantee and the Brakspear Family Trust of which the applicant as well as his mother and sister among others were beneficiaries was the next entity to pay in terms of the applicable guarantees or security”.
15.And at paragraph 85 it states
“it is this amount, which was £7 000 000 [sic] in South Africa rands, that was debited where it was on the books at Fairbairn Private Bank [Jersey Bank] to replace the same amount that Fairbairn Private Bank [Jersey Bank] had paid to RMB”.
16.The Banker Book evidence at Exhibit “SPF” shows no evidence that the Jersey bank paid “[R] 7,000,000” nor do the Bankers Books show that this amount “was debited” and on the books of the Jersey Bank.
- And there is no evidence or formal letter in the Bankers Books that “after” the Jersey Bank had paid the “[R] 7,000,000” that it then called on its “guarantee”.
18.There is no evidence that the Brakspear Trust “was the next entity to pay” in this chain of events as stated in the Judgment
19.It must be noted that in the South African Court, the judgment found that because Ian had consistently denied all the transactions mentioned in Para 64, 65 and 66 in the Order of Justice, Ian was called “untruthful” and “unreliable witness” by the Judge and Mr Katz called Ian “delusional”
- The Bankers Book Evidence now proves that Ian was not “untruthful” or an “unreliable witness” but that the Jersey trustee and it’s appointed agent and lawyers was the deceitful parties throughout.
Royal Court Of Jersey Case No 2012/403 (OJ Para 101 to 118) 21.The deceit and misleading representations did not only occur in South
Africa but also in the Royal Court of Jersey.
- An Order of Justice under case 2012/403 was filed by the Guernsey Trustee in the Royal Court of Jersey on 14 September 2012 (Exhibit 58 in my affidavit)
23.At Point 4 of the Guernsey Trustee Order of Justice it describes in detail the particulars of the Jersey Bank.
24.At Point 10 of the Guernsey Trustee Order of Justice it states that the Jersey bank paid £500,000 to FirstRand Bank in South Africa pursuant to a Letter of Guarantee
25.No such payment is reflected in the Bankers Book Exhibit “SPF” and there is no receipt from the recipient FirstRand Bank in South Africa, proving conclusively a false representation made to the Jersey Court by the Guernsey trustee and the silence by the Jersey trustee
26.At Point 12 of the Guernsey Trustee Order of Justice it states that the Plaintiff [Guernsey trustees] paid the Jersey bank £500,000
27.No such payment is reflected in the Bankers Book Evidence, again proving false representations by the Guernsey Trustee and the complicity of the Jersey trustee by remaining silent to the falsehood.
- Very critical to note at this point that in the Bankers Book Evidence there are no agreements between the Jersey Bank and the Guernsey Trust, therefore no security to the Jersey Bank.
- It follows that the Jersey Bank had neither an absolute or a special property in the assets of the Brakspear trust, nor any right to possession without proper notice or judicial intervention of which there are none in the Bankers Book Evidence.
30.It also follows logically, that a non-existent right of action or a non- existent debt can never in law be transferred as the subject of a cession, subrogation, substitution or whatever legalese the Jersey Trustee uses to explain away its fraudulent conduct.
- The Guernsey Trustee Order of Justice filed in the Royal Court of Jersey was a material false representation of the facts and the silence by the Jersey trustee, when it had a duty to speak up proves the fraud conspiracy.
Financial statement fraud (OJ Para 83 to 100)
32.The new evidence from the Bankers Book Order of Court also proves conclusively the financial statement fraud at Para 83 – 100 in the Order of Justice. The bank statements of Westley trust do not correspond at all to the entries in the unsigned and uncertified financial statements of Westley Trust.
BACKGROUND OF CASE IN BRIEF
In brief, as the case has been published on this platform extensively, in 2007 a buyer made an offer to buy the Brakspear farm for R37m. However, Nedbank’s “experts”, who were handling the offshore trusts of the Brakspears and their financial matters, sent the purchaser sensitive information about the farm which prompted the purchaser to cancel the offer. A year later the farm was sold on auction at R18m to the original buyer. The Brakspears were unhappy and immediately informed Nedbank of their intention to sue for the R19m difference.
Just before that transaction was processed, Rupert, through his company Applemint emerged and offered to buy the farm at R25m.
Shortly thereafter, Nedbank, in the name of its Jersey trustee company and represented by ENS, brought a surprise high court application two days before Christmas for the liquidation of West Dunes, alleging the company was insolvent and owed the Jersey trust R7m in repayment of a loan
The Brakspears have disputed this loan saying the R7m referred to was in fact a non-repayable distribution to Ian Brakspear as a beneficiary by the Isle of Man Brakspear Trust, and was recorded as such in that trust’s accounts.
The matter was heard in the Durban High Court where they lost. Unhappy with what transpired in that court, they took the matter to the Royal Court Of Jersey where it is currently being heard. A major breakthrough for the Brakspears was their ability to use the Bankers’ Book Evidence law which forced Nedbank to open its books of account for inspection to prove or disprove the payments and cash flows that have in the past been claimed under oath by various Nedgroup officials.
The evidence there shows no trail of the R7m loan nor the agreements which various representatives of Nedbank in South Africa said existed.
The second affidavit among many other revelations exposes the various versions given, under oath, by Nedbank’s representatives during the trial in South Africa.