An apparent administrative error created a “false perception of impropriety” related to the sales transactions of 31 properties by former property tycoon Nic Georgiou and the Highveld Syndication (HS) companies via Orthotouch to the Accelerate Property Fund in 2013.
The error relates to the transferring attorneys who apparently filed incorrect purchase amounts with the deeds office.
This is one of the key findings of the business rescue plans of Orthotouch and Zephan and subsequent communication between Moneyweb and Jacques du Toit, the business rescue practitioner (BRP) of the two companies.
Du Toit’s findings follow a Moneyweb investigation into the sale of 16 properties to Accelerate, which found Orthotouch suffered a loss of R782 million as a result of the transactions.
The business rescue plans state the “incorrect values being used by the transferring attorneys for the transfer to Orthotouch resulted in creating a false perception of Orthotouch purchasing properties at a high value, either from the HS Companies or from Zephan, and then selling the properties, at a significant/substantial discount, to Accelerate … This perception is inaccurate and completely false as the incorrect values created the false perception of impropriety.”
The plan also refers to previous Moneyweb reports and states: “It is clear that the allegations and journalistic investigations published did not reveal the factual information available to the public and can only be interpreted that the purported investigations were ‘desktop’ investigations without properly interrogating the various transactions and the actual facts.”
Attorneys did not file incorrect amounts
However, Moneyweb can confirm that the transfer attorneys did not file erroneous transaction amounts. Not only did the transferring attorneys, Connie Myburgh and Partners (CM&P), strongly deny filing incorrect purchase prices with the deeds office, the power of attorney documents submitted to the deeds office, signed by Georgiou himself or representatives of entities related to him, confirm the transaction amounts. (This is the case for deeds office filings of 13 of the 16 properties; Moneyweb could not source documents related to three transactions.)
Power of attorney (PoA): Nic Georgiou signed PoA related to the sale of 1 Charles Crescent by Zephan to Orthotouch for R216.4 million. (The correct amount, according to Du Toit, should have been the R107 million.)
PoA: Michael Georgiou signed PoA related to the sale of Leaping Frog to Orthotouch for R231.9 million. (The correct amount, according to Du Toit, should have been R140.3 million.)
This means the purchase prices filed with the deeds office appeared in the actual sales agreements, and the transferring attorneys were not at fault.
Sale of properties
The transactions date back to 2013 when several entities related to Georgiou and the HS companies sold 31 properties to Accelerate for R1.3 billion. Of particular interest were 16 properties that Georgiou entities sold in back-to-back transactions via Orthotouch to Accelerate.
According to amounts disclosed in the title deeds of the properties, Georgiou-related entities sold the properties to Orthotouch for R1.49 billion, which immediately and without taking transfer, sold them to Accelerate for R708 million, resulting in a loss of R782 million for Orthotouch.
Du Toit’s investigation found the incorrect purchase prices were filed with the deeds office related to the first leg of the transaction, the sale of properties between Georgiou entities and Orthotouch. The correct purchase prices were filed for the second leg of the transactions, the sale of properties by Orthotouch to Accelerate.
The PoA documents submitted to the deeds office, as part of the documentation of 13 of the 16 transactions, were signed by Georgiou on behalf of Zephan, and his son Michael on behalf of the other Georgiou-related entities.
This indicates the root of the apparent erroneous filing of purchase prices cannot be laid at the door of the transferring attorneys, as alleged by Du Toit.
Moneyweb sent questions to Georgiou, Hans Klopper, the business rescue practitioner of the HS companies, and Myburgh in his capacity as a former director of Orthotouch and co-owner of CM&P at the time.
Georgiou did not respond, and Klopper declined to respond via his attorney.
Myburgh denied that incorrect valuations were submitted to the deeds office.
“CM&P submitted the purchase prices according to the information contained in the relevant agreements provided to it by its client, in performing its duties as appointed conveyancing attorneys, as is normal practice. CM&P did not prepare the agreements, and were not called upon to check the veracity or not of purchase prices. CM&P acted purely on the instructions obtained from its client, in accordance with such instructions,” he said.
Moneyweb also corresponded with the actual transfer attorney, who also said the transfers were executed in terms of the signed sales agreements.
Myburgh was also a director of Orthotouch at the time, but in response to questions said he did not know whether the amounts listed in sales agreements corresponded with the prices filed with the deeds office.
“I do not know whether ‘the purchase amounts listed in the original sales agreements correspond with the prices filed with the deeds office’. This is a statement made by you. Bearing in mind the flawed nature of your ‘investigations’, one should regard this statement with caution,” he said.
“The sale agreements were conceptionalised [sic] and drafted by the professional team of Orthotouch, and were relied upon by the board. If the professional team made a mistake, it was a non-intentional, bona fide, administrative mistake, which mistake caused no harm, damage or losses, and had no impact on the transactions and their outcome, as stated by the BRP.”
Myburgh demanded that his full correspondence with Moneyweb be published verbatim. This is included at the end of this article.*
(It is also important to note that Moneyweb corresponded extensively with Georgiou, Klopper and Accelerate in 2019 regarding the losses Orthotouch suffered as result of the transactions, and they never raised the fact that incorrect transaction prices were filed with the deeds office.)
Du Toit did not consult with transferring attorney
Despite Du Toit’s assertions that the transfer attorney filled in the incorrect purchase prices, he did not question this with Myburgh, in either his capacity as Orthotouch director or as co-owner of the transferring firm, or the actual attorney who filed the transactions with the deeds office on behalf of CM&P.
In response to questions, Du Toit said “the values remain incorrect irrespective of the transfer attorney’s filings”. He added that the attorney who drafted the contract should explain this as it is incorrect.
Asked why Georgiou signed contracts that contained the incorrect purchase prices, Du Toit said: “I asked Nic and he answered that the documentation was presented to him and he signed it without checking the purchase prices as he expected the documentation to be correct.”
Du Toit said the erroneous filings were “not necessarily an irregularity and I believe that the wrong values used [were] a bona fide mistake with no damage to any party involved, as no money changed hands in regard to such transactions”. He added: “Orthotouch dealt with the properties at the correct values. No misappropriation by Orthotouch or Zephan according to my info.”
There is also an inconsistency related to the origin of the actual sales amounts filed with the deeds office. The business rescue plans state that the incorrect values submitted to the deeds office were the original overvalued HS syndication values published in the HS prospectuses. The correct values should have been the market valuations of the properties disclosed in the original HS business rescue plan and the Section 155 Scheme of Arrangement (SoA).
Moneyweb can confirm that the actual purchase prices submitted to the deeds office do not correspond with the original HS syndication values. The actual purchase prices of the 16 properties filed with the deeds office amount to R95 million more than the actual syndication values (see table below).
|Property name||Market value stated in HS BRP & Section 155 SoA||Original HS syndication value||Amount (per title deed) Georgiou entities & HS companies sold properties to Orthotouch||Amount Orthotouch sold to Accelerate without taking transfer||Loss to Orthotouch|
|1 Charles Crescent||R107 044 630||R206 342 421||R216 434 338||R110 808 516||-R105 625 822|
|10 Charles Crescent||R19 547 978||R36 680 366||R39 524 202||R20 844 885||-R18 679 317|
|9 Charles Crescent||R30 324 040||R68 856 123||R61 312 403||R17 099 946||-R44 212 457|
|Absa Brakpan||R16 758 791||R28 549 761||R26 327 838||R10 291 057||-R16 036 781|
|Corporate Park||R20 308 704||R45 342 479||R33 559 081||R9 227 480||-R24 331 601|
|Eastlynne||R34 971 264||R43 807 792||R54 939 390||R30 499 213||-R24 440 177|
|Flora Office Park||R82 874 725||R116 717 658||R130 195 091||R71 374 495||-R58 820 596|
|Glen Gables||R59 613 263||R200 722 759||R123 304 205||R32 556 543||-R90 747 662|
|Highveld Centurion||R63 781 147||R141 879 018||R131 925 066||R43 459 756||-R88 465 310|
|Highway Gardens||R31 612 125||R47 371 363||R52 237 398||R18 773 699||-R33 463 699|
|Leaping Frog||R140 330 188||R177 005 830||R231 888 362||R147 121 010||-R84 767 352|
|Meshcape Edenvale||R30 213 569||R45 469 800||R49 926 357||R32 554 905||-R17 371 452|
|Mill House||R28 198 960||R64 023 288||R58 326 791||R22 979 381||-R35 347 410|
|PriMovie Park||R75 283 500||R110 175 458||R152 216 272||R83 090 314||-R69 125 958|
|Tyger Manor||R55 178 176||R44 955 000||R114 130 662||R48 832 608||-R65 298 054|
|Wilropark||R8 802 344||R18 020 871||R14 545 417||R9 000 000||-R5 545 417|
|R804 843 404||R1 395 919 987||R1 490 792 873||R708 513 808||-R782 279 065|
Du Toit said in response to a question related to this apparent discrepancy: “I do not have all the prospectus valuations. The valuations which were used is closer to the [prospectus] valuations, but definitely not the values disclosed in the SoA. We would have to ask the person who drafted the contracts where the values came from.”
Dr Albertus Marais, a director of the tax consulting group AJM, analysed the limited information in the public domain and said the transactions, objectively considered, could have two tax effects.
“The first is that it could create an income tax loss in Orthotouch to write off against future or existing profits, while, secondly, creating a capital profit in Zephan which is either taxed at lesser rates, or which may be utilised against existing losses in that company. If the transactions were incorrectly registered in the [deeds office] though, and the companies filed their income tax returns on that incorrect basis, penalties may be levied in excess of the tax advantage that was achieved from the transactions on the incorrectly declared basis, unless these were truly inadvertent.”
Marais further explained that, in terms of the Income Tax Act, taxpayers are presumed to have entered into transactions for exactly this purpose, unless the contrary can be proven. “If Sars [the South African Revenue Service], therefore, were to consider the transactions, the relevant companies should be able to illustrate that commercial non-tax reasons motivated these transactions, including the terms and values at which they were concluded.”
Du Toit acknowledged in the business rescue plans that he needs to rectify the purchase amounts by engaging with Sars, “as it will have a huge tax obligation on Zephan and a huge tax loss on Orthotouch”.
Moneyweb sent copies of the business rescue plans and other documentation to several business rescue specialists for comment.
Henco Kruger, an experienced business rescue practitioner and a director of turnaround specialist Sturns, said the concerns related to the property transactions remain unanswered due to shortcomings in the investigation into the affairs of the company. “The so-called ‘false perception of impropriety’ should have been the pivotal point of the investigation into the affairs of the companies.”
He said the perceptions relate to the property values disclosed in the various prospectuses, compared with what is happening in the real world of the HS companies, Orthotouch and Zephan. “The real contention with the investigation is that the creditors expected the practitioner to properly interrogate and investigate items such as the values of the properties. The investigation did not reveal how investors’ funds were appropriated.
“There is no evidence of a comprehensive investigation with regards to the properties. The rescue plans only include spreadsheets with the property details and movements.”
Kruger said a “host of allegations were made in various forums and court cases which were not investigated”.
“Instead, the creditors were invited to come forward with so-called evidence. Creditors are removed from the business information and [rely] on the practitioner to act independently. It would have been most prudent for the practitioner to have interviewed the steering committee of the class action grouping and the creditor’s committee to get their input. The practitioner also did not state on which financial information his investigation was based, as the last audited financials for Zephan were published in 2009 and for Orthotouch in 2015.”
Kruger also referred to Section 141 of the Companies Act, which stipulates that: “A practitioner has a professional responsibility, confirmed by his/her appointment as an officer of the court, to investigate the affairs of the company independently. A practitioner is required to immediately disclose in a report if there is a reasonable suspicion of corrupt or fraudulent activity and report the matter to an appropriate authority for further investigation and appropriate action.”
* Correspondence from Connie Myburgh, former Orthotouch director and co-owner of Connie Myburgh & Partners:
Moneyweb’s questions are listed above the answers.
Mr van Niekerk,
I refer to your email dated 1 May 2020, and the questions put to me therein.
In replying to your email, I insist that this response email be quoted, verbatim, in the article you intend publishing and in any other article, which you may wish to publish, in which the subject matter of your above email is dealt with.
You are requested to confirm to me that you will do so.
At the outset, I wish to state that your questions follow your highly flawed “investigations” into the affairs of Orthotouch.
The nature of your “investigations” was severely criticised by the Business Rescue Practitioner of Orthotouch (“the BRP”), in paragraph 5.10.3 of his Business Rescue Plan in regard to Orthotouch, where he states that you did “desktop” investigations, “without properly interrogating” the (1) “various transactions” and (2) “the actual facts” (my emphases on words used by the BRP).
Your modus operandi of investigating, by way of flawed desktop investigations, the affairs of Orthotouch, and thereafter reporting in a flawed manner on such affairs, has therefore been publicly labelled, by the BRP, as a responsible officer of the High Court, as dubious, and you do not come into any debate regarding the affairs of Orthotouch with clean hands.
In engaging in desktop investigations, without properly interrogating the various transactions and the actual facts, you do not behave as a responsible journalist ought to behave.
It is interesting that you have never sought to exonerate yourself from this most serious allegation by the BRP and that, notwithstanding not having done so, you still proceed to craft inflammatory and defamatory emails to me and Mr Hans Klopper, posing questions, that are based on your alleged “facts” that were not properly researched and are incorrect.
Based on your flawed “desktop” investigations, you also proceeded to write numerous incorrect and highly defamatory articles, including referring repeatedly to “incorrect valuations”, “incorrect purchase prices”, “losses” and all manner of impropriety on the part of various individuals, including me, stemming from your flawed investigations.
The BRP, as duly appointed official in terms of the Companies Act, duty bound to investigate the affairs of Orthotouch, accurately and fully investigated such affairs, with reference to the books and records of Orthotouch, to which books and records you do not have access, and specifically the “various transactions” and “the actual facts”, referred to by him in his criticism of you, and showed, in his BR Plan, the flawedness of your investigations and consequent incorrect reportage referred to above.
It is to be noted that the BRP embarked upon his own investigations, following an invitation made by him to you, specifically, to provide him with documentary proof of impropriety and misappropriation of funds.
It is telling that you did not respond to such invitation, although it seems that, according to you, you have an abundance of damning “information” and “evidence” of impropriety and misappropriation of funds.
If you have this damning “information” and “evidence”, why not share it?
It is to be noted that you attended the first meeting of creditors of Orthotouch, in Business Rescue, and was present when the invitation was put to all parties present.
The BRP later, in communicating with you, repeated his invitation.
Paragraphs 5.1, 5.2 and 5.3 of the Orthotouch Business Rescue Plan contain information regarding the above invitation, non response and independent investigation by the BRP.
The results of the BRP’s investigation were that he “could not find any proof of misappropriation in regard to the property transactions.”
The aforesaid statement is made in paragraph 5.11 of the Orthotouch Business Rescue Plan.
Now you are attempting to place yet another “spin” on matters, as you have difficulty dealing with and explaining away to your readers, the flawed nature of your investigations and consequent incorrect and defamatory reportage, now focusing on alleged mistakes made by the transferring attorneys, the fees of the attorneys, alleged incorrect purchase prices and your perceived wrongs flowing therefrom.
Against the above background, I respond to your questions.
Many of the answers to your questions have already been given to you by the BRP and the relevant “conveyancing attorney”, Ms Carol Coetzee, both of whom you have questioned in detail regarding the conveyancing process, the alleged mistakes made by the transferring attorneys in regard to the use of “incorrect purchase prices” in the transfer process, and the conveyancing fees, in regard to all of which you received comprehensive responses.
I attach a series of emails between you and the BRP, showing the above.
Most telling, are the emails from the BRP, dated 21 and 22 April 2020, which clearly indicate, read together with the Orthotouch Business Rescue Plan, which you were fully au fait with, that the use of incorrect purchase prices was a non intentional, bona fide, administrative mistake (the word “administrative” being used by you in your email of 22 April 2020, forming part of the series of emails referred to above), that nothing untoward occurred in regard to the conveyancing fees and that the conveyancing fees were paid in accordance with a negotiated agreed quantum, at a huge discount to prescribed fees, that no harm was done and no damage was suffered, and that there was no impact on the transactions and their outcome, resulting from the use of incorrect purchase prices issue and the payment of conveyancing fees.
Interesting that you now ask the same questions of me.
I understand that you asked the same questions of Mr Hans Klopper.
This beggars belief, as you have the answers, but perhaps you are hoping that someone will give you different answers, so that you can write yet another scathing article.
Before I deal with the questions, I deal with certain of the statements made by you in the paragraph preceding the questions.
The BR Plan does not state that the transfer attorneys “were at fault”.
These are your words, designed to create atmosphere and to damage to the attorneys and me, as the attorneys were Connie Myburgh and Partners.
The BR Plan merely states that the “purchase prices …. was incorrectly reflected by the Transferring Attorneys”, which is consistent with the response to question 1 below.
Connie Myburgh and Partners was a law firm of which I was a 50% shareholder, the other shareholder being Ms Carol Coetzee.
Ms Coetzee took 100% shareholding control some years ago, and changed the name of this law firm to Carol Coetzee and Associates.
At the time of the transfers of properties you refer to, Ms Coetzee attended to the conveyancing issues on behalf of Connie Myburgh and Partners.
Question 1: Do you agree with the BRP that Connie Myburgh and Partners submitted the incorrect purchase prices to the deeds office?
Connie Myburgh and Partners did not “submit the incorrect purchase prices” to the Deeds Office.
Again your words, designed to create atmosphere and to damage the attorneys and me, as the attorneys were Connie Myburgh and Partners.
Connie Myburgh and Partners submitted the purchase prices according to the information contained in the relevant agreements provided to it by its client, in performing its duties as appointed conveyancing attorneys, as is normal practice.
Connie Myburgh and Partners did not prepare the agreements, and were not called upon to check the veracity or not of purchase prices.
Connie Myburgh and Partners acted purely on the instructions obtained from its client, in accordance with such instructions.
Question 2: If so, why did Connie Myburgh and Partners submit the incorrect purchase prices to the deeds office?
This question is answered under question 1 above.
Question 3: Will Connie Myburgh and Partners refund the fees for these transfers to Orthotouch?
(Connie Myburgh and Partners does not exist anymore.)
If anything is to be repaid, such repayment will have to be done by Carol Coetzee and Associates, but there is no basis to suggest that any fees ought to be prepaid.
It would be interesting to know on what basis you suggest the fees ought to be repaid, on arm’s length transactions, where fees are charged to the sellers of properties in the normal course.
Perhaps you can explain this, normal for you, wild and unsubstantiated statement, made to create the innuendo that something untoward was done by Connie Myburgh and Partners, warranting the repayment of fees, thereby causing harm to me, Connie Myburgh.
The use of the incorrect purchase prices by the transferring attorneys was, according to the BRP, a non intentional, bona fide, administrative mistake, no harm or damage was done, and there was no impact on the transactions and their outcome, as a result of this non intentional, bona fide, administrative mistake.
See the emails between you and the BRP dated 21 and 22 April 2020 attached hereto.
If your concern is the quantum of the fees, you ought to have no such concern, as the fees were agreed between Connie Myburgh and Partners and Orthotouch at a huge discount to prescribed tariff, of between 40% to 60% below tariff, and were paid over a period of many months.
See the email from Carol Coetzee forming part of the series of emails attached hereto.
It is interesting that, once again, you probe into and question payments made to or due to me, as you have maliciously reported on, on numerous occasions.
One should ponder on the reason.
Is it that you feel inferior, or hard done by, when you have regard to your, presumably rather meagre salary, as a journalist, in comparison to what I earn or potentially earn, as a senior legal practitioner of many years’ experience, or is there something of substance to your persistent lament in this regard.
Connie Myburgh and Partners were paid the fair amounts, as legal practitioners, agreed to by their client, and were paid for services rendered.
Question 4: The purchase amounts listed in the original sales agreements correspond with the prices filed with the deeds office. Did you as a former director of Orthotouch review and approve the sales agreements?
I do not know whether “the purchase amounts listed in the original sales agreements correspond with the prices filed with the Deeds Office”.
This is a statement made by you.
Bearing in mind the flawed nature of your “investigations”, one should regard this statement with caution.
The sale agreements were conceptionalised and drafted by the professional team of Orthotouch, and were relied upon by the board.
If the professional team made a mistake, it was a non intentional, bona fide, administrative mistake, which mistake caused no harm, damage or losses, and had no impact on the transactions and their outcome, as stated by the BRP.
Question 5: Did you correspond with the BRP regarding the incorrect filing of the purchase prices to the deeds office before the publication of the business rescue plan?
No, I did not.
As is normal with your reportage, the same few disgruntled individuals, singing from your hymn sheet, normally post defamatory comments and hate speech on Moneyweb’s platform, regarding individuals named in your reportage, shortly after your reportage.
Moneyweb is cautioned to remove such comments from its platform, immediately after same appears, in accordance with Moneyweb’s own, self imposed, obligation to do so, as contained in Moneyweb’s self regulatory provisions, as conceded to exist by Moneyweb, in a response by Moneyweb to Complaint number 7792 lodged by me against you and Moneyweb with the Press Ombudsman.
Should Moneyweb not remove such comments, yet another Complaint will be lodged with the Press Ombudsman.