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Georgiou granted leave to appeal

Orthotouch’s company status at the CIPC changed to “In Business”.

Subsequent to the publication of this article on 16 November, Mr. Georgiou responded on 23 November. His response appears in the last paragraph.

 

The Supreme Court of Appeal (SCA) has granted property magnate Nic Georgiou leave to appeal against an earlier High Court decision that he must honour the buyback agreement he signed with an investor in the Highveld Syndication (HS) schemes.

Moneyweb has also learned that two people have resigned from the Orthotouch board – Hans Klopper, the business rescue practitioner (BRP) of the HS companies, and Connie Myburgh, a corporate lawyer and chairman of the Sharemax rescue vehicle Nova.

The SCA’s granting of leave to appeal followed the Pretoria High Court’s dismissal of Georgiou’s application for leave to appeal against an earlier judgment that found him liable to honour the investment agreement he signed with an HS investor.

However, Georgiou petitioned the SCA directly and was granted leave to appeal against this judgment.

The original judgment was decisive as it confirmed that the Section 155 Scheme of Arrangement did not affect the validity of the buyback agreements. This opened the door for thousands of other investors in these HS syndications to institute similar claims against Georgiou and entities related to him. According to Advocate Louis Bolt, who argued the case on behalf of the applicant, the collective claims could exceed R2 billion.

Read: Judgment could force Nic Georgiou to pay out R2bn

The case will now move to Bloemfontein where the appeal will be heard. A court date has not been announced, although it will most probably only be heard next year.

The SCA has not been a happy hunting ground for Georgiou in recent times. Earlier this year, his legal team withdrew his appeal while they were still arguing against two High Court judgments and he proceeded to tender punitive costs.

The appeals were against two scathing judgments, which found that Georgiou had acted unethically and abused the legal system when he secretly settled the claims of the six applicants who represented around 7 000 Highveld Syndication Action Group (HSAG) members in the applications to have the Section 155 Scheme of Arrangement set aside and for the certification of the class action. After Georgiou settled their claims, the six applicants withdrew their applications and changed lawyers without informing the HSAG’s lawyers. If allowed, these actions would have put an end to the HSAG applications.

In a statement released afterwards, Orthotouch claimed that its legal counsel wasn’t given an opportunity to argue its case in full and that the appeals were withdrawn to avoid references of impropriety that may have been made in a judgment.

Read: Orthotouch claims SCA did not allow for legal argument

Non-payment of interest

Earlier this year Zephan and Orthotouch, both companies owned by Georgiou, suspended interest payments to investors who support any of the legal challenges of Bolt and the HSAG.

This court case, as well as others instituted by Bolt and the HSAG, led to a unilateral decision by Zephan and Orthotouch to suspend the payment of interest to investors who support the legal challenges. They deem it unfair to the investors who support the Scheme of Arrangement that those who back the legal challenges continue to benefit from it

Read: Orthotouch continues to withhold interest payments from HS investors

Investors were sent a form to complete to indicate their support for these legal challenges. Interest payments to supporters and investors who haven’t completed the form have been suspended since August.

This seems to be in contravention of the Section 155 Scheme of Arrangement as it does not allow for any discretion in the payment of interest.

This contributed to the resignation of the receiver of the scheme, Derek Cohen.

Georgiou has recently sent another letter to investors to inform investors that if the legal challenges continue, it may scuttle the scheme of arrangement.

Says Georgiou, “if the small minority continues to fight me, they may be responsible for causing the financial failure of the agreed scheme and that will have a negative impact on the majority of investors with potential further legal implications.

“If we do not have the full support of all the investors, this could ultimately result in the setting aside of the scheme of arrangement and the business rescue practitioner having no option but to liquidate the Highveld Syndication 15-22 Companies.”

Read the full communication here.

The resignations of Hans Klopper and Connie Myburgh

Moneyweb can confirm the resignations of Klopper and Myburgh from the Orthotouch board. A WinDeed company report shows they resigned on October 30.

Klopper was originally appointed as the BRP of the HS companies and was appointed to the Orthotouch board on January 9, 2012, less than a month after the approval of the BRP in December 2011.

He confirmed his resignation in a letter penned by his attorney, Natalie Lubbe. She added that his resignation was for personal reasons that he does not want to discuss publicly.

Myburgh, who was appointed to the Orthotouch board on the same day as Klopper, did not respond to questions asking for reasons for his resignation.

Annual Return Deregistration Process 

The WinDeed company search also shows that Orthotouch is in arrears with the submission of annual returns to the Companies and Intellectual Property Commission (CIPC), as prescribed by the Companies Act. The deed shows the company status as ‘Annual Return Deregistration Process’ and not ‘In Business’, as would be the case if the company had submitted the prescribed documentation.

According to the CIPC website, failure to submit returns “will result in the commission assuming that the company … is not doing business or is not intending on doing business in the near future. Non-compliance with annual returns may lead to deregistration, which has the effect that the juristic personality is withdrawn, and the company or close corporation ceases to exist”.

Georgiou response

On 23 November Georgiou emailed a copy of a CIPC company report of Orthotouch showing that the company status has been changed to “In Business”. 

Georgiou said, “the issue, did not relate to a failure to file the required documentation, as you (the reporter) claim, but rather a failure on the part of CIPC to allocate payment of the annual fee due.”

He added: “I do not believe that addressing the e-mail and publishing an article shortly thereafter, without affording a party sufficient time to deal therewith or, at least being warned about when an article will be published is fair or unbiased.

“I guess something negative needed to be said by you, to detract from the news of the successful petition.

“I trust you will correct the misstated facts and inform the public accordingly.”

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COMMENTS   6

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WOW!! Jumping ship!! Still waiting for interest from JULY – OCTOBER 2018 REFUSE to sign their form. People that did SIGN their form are still waiting for SEPTEMBER & OCTOBER 2018 Interest. What’s happening Mr. Nic Georgiou/ ORTHOTOUCH?

Another question …..why does no one from Orthotouch answer any emails. Have continually asked where four months of arrears of interest are and details of a Trust Account into which it should be paid in. No Reply!!!!!!

We’ve also ‘received’ that form and refused to sign it. Those who had signed haven’t received ANY interest payments – no surprise there. Georgiou once again ‘playing’ the Courts at the expense of pensioners. As to Hans Klopper – he’s never, ever acted in the interest of the investors and he has jumped ship as he’s well aware thereof that the Class Action Certificate is about to be issued which will open the doors for a full blown investigation to ALL parties concerned and especially to the ‘so called’ ‘business rescuer’. Zephan about to be liquidated and Orthotouch was only used as ‘vehicle’ to transfer all the HS properties into the name of Accelerated. Please feel free to confirm the latter statement and google SA Commercial Property Transfers going back as far as 2011.

It would appear that the Bible reference 1Tim 6:10 “the love of money is the root of all evil” is totally applicable to the respondents in this case. When one considers that NG has unilaterally engineered an open ended unsecured R4.6B at a 2% interest, which is currently unpaid, it is no wonder that he is reluctant to open himself up to a full forensic audit! Interestingly we have done a cursory search on the properties involved in our syndication No 16 and of the 10 initial properties purchased 80% of these now reside in the Accelerate property portfolio, and we are sure that a full audit will reveal much more. Whilst we as a couple are now four months in arrears in interest payments one must never forget that NG and Orthotouch are in contempt of every single aspect of the SoA 155, which was initially very dubiously introduced through the “backdoor” of the courts. Rest assured he and his family name in the business world and banking quarters is severely tarnished. It is comforting to know that they rank as one of the wealthiest families in South Africa as this will give the courts access to immense wealth to seize in repaying the 18,300 investors whose lives he has devastated todate.

Strange how the victim is persecuted in a case such as this disallowing freedom of speech —- with threats of being sued for speaking the truth.

So Mr Klopper/Myburgh Eventually the penny dropped You knew this scheme was unsustainable from the beginning but if the money is good you gave it your best shot.Shame on you gambling with old people’s money!! Paper trails and flow of money will reveal everything with a fullblast investigation which is what the BRP Klopper should have done from the start BEFORE he decided there is a way out On what facts was his opinion based that the PLAN would work??? It was his job to first get the ingredients right before mastering the plan. The prime properties that was supposed to be transferred to Ortotouch went to Accelerate a Reit property fund listed on the JSE and capped by none other than Nic Georgio son Michael Georgio with his revving red Ferrari What a co-incidence or rather very smart footwork Georgio empire The clock is ticking for the Titanic

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