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The peculiar case of the Picvest billions: Part 2

Very few of the conditions of the business rescue plan were ever implemented.

This article continues to explain the complicated history of the Highveld Syndication (HS) schemes since their inception. Part 1 is available here and looks at the early years and the events leading up to the HS companies being put into business rescue. It should be read in the context of Nic Georgiou’s concerns that this journalist is biased

Following the implementation of Hans Klopper’s business rescue plan (BRP) in December 2011, very few of the plan’s conditions were implemented.

The BRP vowed that all the HS properties would be transferred to Orthotouch at their deemed market value of R2.6 billion. In addition to this, Nic Georgiou and entities related to him would transfer additional properties valued at R1.5 billion to Orthotouch. The plan also declared that if the Orthotouch management sold properties to raise finance to improve other properties, such proceeds could only be utilised within Orthotouch.

This simply did not happen.

Moneyweb’s analysis of the title deeds shows that shortly before and after the approval of the BRP there was a rapid sell-off of properties which saw the overwhelming majority of former HS properties being sold directly, or via Orthotouch in back-to-back transactions, to third parties. (A back-to-back transaction is a transaction through which entity A sells a property to entity B, and entity B then sells it immediately to entity C without taking transfer.)

The most notable transactions were the sales of around 27 properties by Zephan to Accelerate via Orthotouch in 2013. Orthotouch never took ownership of the properties and according to Moneyweb’s calculations incurred losses of nearly R800 million related to the transactions. 

Currently, Orthotouch doesn’t own a single property. (Several articles to follow will analyse these transactions in much more detail.)

Section 155 Scheme of Arrangement

Three years after the adoption of the BRP, and after the sale of a significant number of properties, Orthotouch informed investors that its income was insufficient to continue paying investors in accordance with the BRP.

Investors were presented with a Section 155 Scheme of Arrangement (SOA) which was held as the only alternative to liquidation of Orthotouch and the HS Companies, and this scheme was approved and sanctioned by the High Court in November 2014.

Read the SOA here.

Zephan was the financial proposer and the underwriter of the scheme. Due to the fact that no properties were transferred to Orthotouch, Orthotouch became totally dependent on payments from Zephan to repay investors.

Investors of the HS Syndications attending the shareholder meeting to vote on the proposed Section 155 Scheme of Arrangement in November 2014. Picture: Supplied

The SOA proposed several options to investors, including reduced interest payments (2%), staggered capital repayments, and a listing. The listing never materialised.

Shortly before the adoption of the SOA investors aggressively voiced their discontent. It was almost open warfare between two distinct camps. In the one camp was Georgiou, Klopper and Orthotouch; and in the other, specific groupings of investors and brokers who challenged the validity of the SOA.

The Georgiou camp referred to the leaders of these groupings as “detractors” (a term that originally featured in the BRP) and accused these detractors of actively working against the rescue efforts with the goal of inducing the liquidation of the HS companies.

The detractors were never identified.

The Georgiou camp also alleged that their actions discouraged banks from providing funding to allow for the upgrading and maintenance of the properties, which in turn prevented the scheme from paying investors their dues.

Extensive litigation

Despite not being named, the detractors were most probably the group of investors and brokers who founded the Highveld Syndication Action Group (HSAG).

Jacques Theron, legal representative of the HSAG. Picture: Supplied

The HSAG, whose legal representative is Jacques Theron of Theron and Partners, claimed it garnered the support of nearly 7 000 paying investors and launched applications to have the SOA rescinded and for the certification of a class action. This was the start of numerous legal battles between Georgiou/Orthotouch and the HSAG.

The most notable were two cases where two High Courts found Georgiou tried to scuttle and sabotage the HSAG applications when he secretly approached the six individual applicants who acted on behalf of all the HSAG investors and settled their claims. In return for the settlement, the applicants stealthily withdrew the class action certification and rescission applications without informing the HSAG or Theron.

Georgiou appealed against these judgments, but withdrew his appeal after a short argument before the Supreme Court of Appeal. Georgiou also tendered punitive costs to the HSAG and claimed afterwards that his legal team was not allowed to present its legal argument.

Read:

Property magnate backs down, pays costs

Orthotouch claims SCA did not allow for legal argument 

Another legal process is being driven by Advocate Louis Bolt, who represents a number of individual HS 21 and 22 investors. He instituted legal claims based on the specific buyback agreements Georgiou agreed to when he signed the original HS contracts. 

Advocate Louis Bolt. Picture: Supplied

Bolt has been successful, with the Pretoria High Court finding that Georgiou must honour the agreements. This opened the door for all HS 21 and 22 investors to institute similar claims against Georgiou – claims that could amount to more than R2 billion.

Georgiou was recently granted leave to appeal the judgment in the Supreme Court of Appeal (SCA) and the case will be heard next year.

Bolt also won several default judgments through which Zephan was ordered to repay a number of investors. There is also a pending liquidation application of Zephan that will be heard in due course.

Non-payment of interest

Despite these legal challenges interest payments to investors were made in terms of the SOA. Georgiou claims a total of R1.3 billion has been paid to investors.

But in June this year, and shortly after Georgiou’s withdrawal of his SCA appeal, investors were informed that interest payments to those who support the legal challenges of Bolt and the HSAG had been suspended.

In several letters Georgiou justified this suspension and said the legal action could cause the scheme to collapse. He added that it was also unfair to investors who support the SOA if investors who support the legal challenges continue to receive interest payments.

However, it appears that the suspension of interest payments is in contravention of the SOA, as the SOA does not allow for any discretion for Orthotouch to selectively pay individual investors. This also led to the resignation of Derek Cohen, the receiver of the Orthotouch scheme.

Current situation

The Moneyweb investigation shows that Orthotouch doesn’t currently own any properties and has no independent source of income.

Furthermore, Zephan owns only 10 properties.

The title deeds of these properties show that they were acquired for around R300 million, which hardly seems adequate to deliver the returns to repay investors in terms of the SOA. In the affidavit in defence of the liquidation application, Georgiou confirms that he owns nine unencumbered properties valued at around R266 million.

Orthotouch is therefore an empty shell and totally dependent on Zephan to provide the funds to pay interest and capital to investors in terms of the SOA.

The research reveals that there is not much left of the 79 properties the 18 700 investors ‘bought’ for R4.6 billion cash more than a decade ago.

Moneyweb sent a draft version of this article to Georgiou prior to publication. He did not respond.

More to follow.

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There has also been to the best of my knowledge never any monthly reports filed to stakeholders in terms of Section 132(3) of the Companies Act;(3) If a company’s business rescue proceedings have not ended within three months after the start of those proceedings, or such longer time as the court, on application by the practitioner, may allow, the practitioner must—
(a) prepare a report on the progress of the business rescue proceedings, and update it at the end of each subsequent month until the end of those proceedings; and
(b) deliver the report and each update in the prescribed manner to each affected person, and to the—
(i) court, if the proceedings have been the subject of a court order; or
(ii) Commission, in any other case.
Stakeholders should also ask for the financial statements and the proper disclosure of all fees earned by the BRP.

Hans never executed his duties as BRP and was Nic Georgio’s puppet who lined Hans pockets and Hans never utilized the expert advice which was available but only acted on instruction of his “boss” Nic Georgio By appointing Hans as director of Ortotouch Nic Georgio made sure Hans was on his payroll

If Ortotouch is funded by Zephan who has no funds then who will fund Ortotouch???? Most probably Accelerate CEO Michael Georgio by means of a loan therefore speeding up Ortotouch indebtness knowing disaster is on its way with NO sustainability. IS THAT FAIR TO INVESTORS????

@Mr Prakke thank you for stating the legal requirements!!
The ordinary person who relies on investment advice, doesn’t always receive proper council and it’s comforting to know that there are people like Ryk and yourself who still uphold the truth and law!

Thanks Ryk for another superbly researched and written article. My parents are in their 80’s and this debacle has been dragged out for much longer than it should have. To crown it all, monthly interest is being withheld and people like my Parents who have dared to stand up and fight for what is rightfully theirs are now being “targeted” and punished by the same people who have done them an injustice!!! How more twisted can events become? The withheld monthly interest is supposed to be held in a trust account of sorts. The details of where exactly have become very sketchy. The twists and turns in this saga since 2011 read like a novel-or movie and its been a scary roller coaster ride downhill for too long. People have died and are dying because they lack the funds. What a terrible way to live out their supposed “golden years”. I hope there is going to be a solution soon and that those responsible will finally be held accountable.
Thanks again Ryk, I look forward to reading your next Chapter.

Ryk, well done, neatly packaged and 100% correct. Orthotouch should be investigated by SARS, CIPC and Reserve Bank. For all intents and purposes was Orthotouch used as a ‘vehicle’ to vest all the HS properties back in the name of the Georgou Group under Accelerated.

Great articles. I hope the ring leaders in this fraudulent arrangement face the music and go to jail. Never trust a smooth talking suit, 9 time out of 10 they are trying to steal your money.

Orthotouch refuse to answer e mails about 4 months in arrears of interest payments rolling into 5 months next week. All one gets either by a phone call or e mail is “Fill in the Form”. No transparency at all why would we even fill in a form when we know there are no properties to pay us — just a method of us signing our rights away.

Ryk you are a STAR!!! I am so much in agreement with everything in this article. I am also an investor and did not even know about the meeting that was held (picture with all the protection ha-ha)about my investment.
Typical of ORTHOTOUCH to not advise us the investors. Then Nic Georgiou with his company Orthotouch have not been paying my interest for the past 4 months. They don’t even answer me. They do answer some investors but only to force them to sign their rights away and those whom did sign only got their September interest on 12 November. Those investors are still outstanding on their October interest. Shameless Nic Georgio/Orthotouch. Living the life on our money!!

Agreed – we found out about the meeting by accident by which time it was too late. One wonders how many people where there and the true percentage of votes. What is with all the body guards on the stage ….. says something does it not. Who verified the votes !!!

@greenways, LOL the image with the bodyguards has always tickled me pink!!
± 8 Bodyguard’s (including the 2 behind the table) to keep control of “elderly” pensioners?!!!
But obviously if the majority of people voted in favour of the SoA155, then there would not have been discord and the bodyguards would not have been necessary?
Apparently, many voting papers were torn up in front of Derek Cohen and Orthotouch representatives at the meeting. This is in direct contrast to Orthotouc’s claim that the majority of investors voted in favour of SoA155. Orthotouch has never published proof of this,”majority” either.
PS My family and I only received the 108 page document in the post, about 6 weeks after the meeting and voting had already taken place!

Once again a huge thank you Ryk —- your facts are incredible and look forward to more — pity you could not hand this over as evidence to the Hawks. The Jutice system should be realing with shock!!!!!!

For almost 7 years there have many un answered questions. Albeit slow, the only way to get the answers is through our legal system. I support and salute the HSAG and Theron & Partners! I do believe those unanswered questions will come to light eventually.
THE BIGGEST QUESTION: What happened to all the money???
Why drag lititagion out for years, if there is an honest answer to all of these unanswered questions??
What I also find most peculiar, is that Georgiou does not take the opportunity to respond to Ryk’s invitations, be it on RSG Radio or Moneyweb. That in it’s self speaks volumes…

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