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Indiening van voltooide registrasie-inligting word nie aanvaar nie en daar verskyn ‘n opwipboodskap oor ‘n kritieke stelselfout

Ons het dit aan ons bedienergashere gerapporteer en hoop dat die probleem binnekort reggestel sal word

– Die omstrede Trustee-aanstelling
– Wat die Trustee gedurende die afgelope twee jaar gedoen het met betrekking tot die belange van die Skuldbriewehouers
– Wat die Trustee gedurende daardie tydperk ervaar en bespeur het wat die belange van die Skuldbriefhouers kon beïnvloed het en wat dit kan wees

Dus het ons die volgende aan hom gestuur en ook hier sal ons sy antwoorde deel wat, hy adviseer, in die loop van die week wat voorlê sal wees:

1. Waarom het jy nie ons uitdaging ondersteun of ten minste gevra vir verduidelikende insette oor Myburgh en/of die maatskappy se geskiktheid om die Trustee-verkiesingsproses byeen te roep en te bestuur nie? Dit ten spyte van die feit dat jy “slegs” die kandidaat was en as ’n “newbie” moontlik gevoel het dat jy nie by magte was om dit te doen nie?

2. Tydens een van die verkiesingsvergaderings het Myburgh in die openbaar verklaar, in verband met ‘n onopgeloste hofuitspraak teen Deon Pienaar, dat die betrokke bedrag “ons geld” is, wat beteken fondse wat aan die Skuldbriewehouers behoort. Voortspruitend hieruit is jy die laaste twee en ‘n half jaar of wat met ons geld vergoed. As jy die siening dat jou funksie nie was om na die belange van die Skuldbriewehouers om te sien nie – soos blyk uit die inhoud en gebrek aan spesifiek definiërende inhoud – in die Trustakte opsy te skuif, wat het jy gedurende hierdie tyd gedoen om betaling met “ons geld” te verdien?

3. Ons stel voor dat jy die Trustakte as ‘n skyndokument moes erken het met die eerste lees daarvan? Het jy besluit om toepaslike stappe te neem om dit reg te stel en wat het daardie aksie behels? Indien nie, wat was jou redes om dit nie aan te spreek nie?

4. Hoekom het dit jou so lank geneem, sedert vroeg 2022, om terug te kom na NDCAG ná ons aanvanklike besprekings?

5. Vertel asseblief weer van u redes waarom u werklik ingestem het tot en afgeteken het, die 2022-bestuursvoorstel om die finale skuldbriefbetalingsdatum na Januarie 2022 te verleng

6. Wat was jou siening van die betwiste finale betaling sperdatum – die “tien jaar na implementering van die BRP” soos per die SoA’s en huldig jy steeds daardie menings. In watter mate het jy die punt met Myburgh en/of die Raad beredeneer of gedebatteer, wat was jou argumente, voordat jy ingestem het en wat was hul reaksie?

7. Gegewe ons siening dat Myburgh ‘n voornemende Trustee kies uit die groep verbonde persone wat gereeld interaksie gehad het met die groep persone wat die kabaal vorm wat die sluiting van die PSPC-maatskappye ontwerp het en hul bates vasgelê het, sou u meld dat dieselfde geld vir die aanstelling van die maatskappy se ouditeure?

8. As jy saamstem dat die huidige en moontlik al die vorige ouditeure “connected insiders” was, wat is jou siening as ‘n Geoktrooieerde
Rekenmeester, van hul prestasie, hul verslae wat in die Jaarstate ingesluit is en die geldigheid en integriteit van hul oudits?

9. As ‘n Trustee van ‘n geregistreerde Trust, sou jy ‘n plig hê om die belange van die Trust se begunstigdes te versorg en te beskerm en ‘n verpligting om enige wanpraktyke, onreëlmatighede of onwettigheid wat in die Trust se aktiwiteite bespeur word, aan te meld. Na jou mening, geld hierdie standaardverantwoordelikhede selfs in die geval van die ongeregistreerde Skuldbrieftrust en sal jy saamstem dat jy moet reageer en dienooreenkomstig voortgaan in die geval van opsporing van enige wanpraktyke, onreëlmatighede of onwettigheid wat, na jou mening, beide as Trustee en Geoktrooieerde Rekenmeester, ‘n negatiewe impak op die belange van die Skuldbriewehouers hê?

10. Jy moet seker ‘n idee hê van die maatskappy se vermoë op hierdie tydstip om die skuldbriewe of andersins terug te betaal. Wat is daardie situasie tans (in die afwesigheid, sedert die laaste Finansiële Jaarstate soos op 28 Februarie 2023 en byna 20 maande nou sonder enige betekenisvolle kommunikasie aan die Skuldbriefhouers intussen), en wat is die stand en status van die maatskappy en die vermoë om, of vordering tot, skuldbrief terugbetaling?

* The contentious Trustee appointment * What the Trustee has been doing during the last two years as regards the interests of the Debenture Holders * What the Trustee has experienced and detected during that period which might have affected the interests of the Debenture Holders and what such might be

So, we have sent the following to him and here too, we will share his responses which, he has advised, will be forthcoming in the course of the week ahead

1. Why did you not support our challenge or at least ask for clarifying inputs, about Myburgh’s and/or the company’s eligibility to convene and manage the Trustee election process? This despite the fact that you were “only” the candidate and as a “newbie” possibly feeling that you were not in a position to do so? 2. During one of the election meetings, Myburgh stated publicly, in connection with an unsettled court judgement against Deon Pienaar, that the amount in question was “our money” meaning funds that belong to the Debenture Holders. Arising from this, you have, for the last two and a half years or so, been remunerated with our money. Putting aside the view that your function was not to look after the interests of the Debenture Holders – as evidenced by the content and lack of specifically defining content – in the Trust Deed, what did you do during this time to earn payment with our money? 3. We suggest that you must have recognized the Trust Deed as a sham document upon first reading it? Did you determine to take appropriate action to rectify this and what did that action comprise? If not, what were your reasons for not addressing it? 4. Why has it taken you so long, since early 2022, to come back to NDCAG after our initial discussions? 5. Please advise again your reasons for actually agreeing to and signing off, the 2022 Executive proposal to extend the final Debenture payment date beyond January 2022 6. What was your view of the disputed final payment deadline – the “ten years after implementation of the BRP” as per the SoA’s and do you still hold those views. To what extent did you argue or debate the point with Myburgh and/or the Board, what were your arguments, before agreeing and what was their response? 7. Given our view that Myburgh hand-picks the Trustee out of the group of connected persons who have had frequent interaction with the group of persons who form the cabal which engineered the shut-down of the PSPC companies and captured their assets, would you state that the same applies to the appointment of the company’s auditors? 8. If you agree that the current and possibly all of the previous auditors have been connected insiders what are your views as a Chartered Accountant, of their performance, their annual reports that are included in the AFS and the validity and integrity of their audits? 9. As a Trustee of a registered Trust, you would have a duty to care for and protect the interests of the Trust’s beneficiaries and an obligation to report any malpractice, irregularity or illegality detected in the Trust’s activities. In your opinion do these standard responsibilities apply even in the case of the unregistered Debenture Trust and would you agree that you should be reacting and proceeding accordingly in the event of detection of any malpractice, irregularity or illegality that, in your opinion, both as Trustee and Chartered Accountant, have a negative impact on the interests of the Debenture Holders? 10. You should have some idea of the company’s capability to repay the Debentures or otherwise. What is that situation right now in the absence, since the last Annual Financial statements as at 28 February 2023 and nearly 20 months now without any meaningful communication to the Debenture Holders in the interim, that would indicate the state and standing of the company and ability to or progress towards, debenture repayment?

The BRP is the responsibility of Nova Property who acquired the Sharemax property assets in order to manage and grow them so as to enable debenture repayment

Fourteen years later and we are still waiting for repayment and this waiting has been the name of the game for most of that time

Right now, we await:

* The 2024 Annual Financial Statements which should have been published by 31 August (we side with the CIPC in the interpretation of the Companies Act content as regards the deadline for AFS publication). This delay occurs every year and it leaves questions about the viability of Nova and the chances of debenture repayment each time * We await communication from Nova as to the status and state of the commercial properties and the residential developments. We all know, of course, that the Nova methodology is to communicate as little as possible – and then often, only when forced to do so. Nova inform the Debenture Holders of the status of the properties and developments only once per year via their “Communiqué Nova Group Update” documents that they publish simultaneously with the AFS. A quick review of the 2023 Communiqué in the Nova web site (www.novaproopertygroup.co.za <www.novaproopertygroup.co.za> ) will show how inadequate these are and do nothing to create any form of confidence in the company

Of course, we also await repayment of the remaining debentures listed at 2.24 billion in the ‘23 AFS. There has been no repayment since 2013 when Nova started selling off properties in the portfolio with the aim of creating working capital to keep the company afloat. There was no consultation with the Debenture Holders and certainly, no permission was sought of or given by any body. As an early outcome of their investigation into Nova, CIPC put a stop to property sales in order to preserve what real estate assets remained on the books

And, we also await action from the Debenture Trustee, JP Tromp

Tromp was elected as the new Trustee at a series of meetings late in 2021 and early 2022

NDCAG remains convinced that this election was rigged. The meetings were chaired by Connie Mybyurgh (Nova Chairman) and it appeared right from the start that the total number of proxy votes ostensibly given by Debenture Holders to Nova and empowering Nova to vote on their behalf seemed way out of line. Myburgh declined to share any information on the proxy votes received by the company ahead of the meetings

Further, NDCAG challenged Myburgh’s right to convene the election meetings due to the fact that the period for setting up such meetings as laid down in the Debenture Trust Deed had expired and as a result, the replacement election arrangements had by default, passed into the hands of the Debenture Holders

Myburgh pre-empted our challenge through manipulation of the recording of the previous Trustee’s resignation. In reaction to media posts and other speculation he insisted that the company had not accepted the previous Trustee’s resignation until a much later date which meant that the capability/responsibility to convene the election process was still that of the company (and, dates and time frames can be provided after further research)

This was pure manipulation on Myburgh’s part and the only reason that he eventually called for election of the new Trustee was to get CIPC off his back – over the non-payment of the debentures by January 2022. He needed to have a Trustee in place in order to railroad a Debenture repayment extension through and which required a Trustee’s approval

Putting that challenge to the meeting, NDCAG also proposed that Deon Pienaar (long time activist in the sphere of the alleged illegalities and irregularities of the shut-down of the Property Syndication Promotion Companies – including Sharemax) would be a more appropriate Trustee and one who would definitely put the interests of the Debenture Holders before any other. Our objection to Tromp was that, for our part and by extension, that of the Debenture Holders, he was an unknown quantity

Why did Myburgh pick him for the Trustee role in the first place? It may well have been because he was an “insider” in the whole alleged plot (which it is expected, will be confirmed in the CIPC reports) to engineer the shut-down of the PSPC companies and open the door to capture the participant company assets

Why did Myburgh choose him for the Trustee role in the first place? This was possible because he was known to Myburgh, with whom Myburgh was already intimately related, business-wise, and an “insider” in the whole alleged plot (expected to be confirmed in the CIPC reports) to close the PSPC companies and open the door to capture the PSPC company’s assets

Our challenge and proposal were both rejected by Myburgh and Tromp was duly elected. His first action was to approve Nova’s proposed extension of the debenture repayment due date – which is now an open-ended period. He subsequently informed us that the reason for this action was that, with Nova unable to repay at that time, an extension would mean that the obligation to repay would remain and that an extension would allow time for better operations success and consequent improved possibility of repayment – which he deemed, at the time, to be in the best interests of the Debenture Holders

Overarching all of this is the fact that the Debenture Trust Deed is a sham. It is absolutely evident form a reading of same that the Trust Deed was put in place to cater for the needs of Nova and not for the needs and protection of the Debenture Holders. It’s also clear that the Trustee is in place only to rubber-stamp whatever Myburgh needs to do relevant to the Debentures and the Debenture Holders

Further, the Trust Deed has never been registered. Why not? How was the Trust Deed approved as part of the BRP and Section 311 (Companies Act) documentation? Was this deliberate? Why did Court officials (apparently) not pick this up? Does failure to have registered the Trust Deed make it null and void if not illegal?

During the election meetings Tromp was given the opportunity to address the audience and he made very clear statements about understanding the needs of the Debenture Holders and undertook to look after their interests. Prior to this, he must have had the opportunity to study the Trust Deed and determine its true nature and its shortcomings viz a viz the interests of the Debenture Holders. Further, as a registered Chartered Accountant, we’re sure that he will have requested access to all of the records of the Trust only to discover again, surely, that in reality, it has no standing

Following this NDCAG initiated a discussion with him and tabled our issues regarding the absence of debenture repayment and the shortcomings of the whole Trust Deed and its provisions or lack of same

Out of that meeting we received an undertaking from Tromp to address the issues and give us feedback. Despite a number of reminders and requests for a further meeting – we’re still waiting today

There has been new contact with Tromp and a meeting has been agreed upon. This will be tomorrow 17th October and we will report on what he has to tell us thereafter

At this late stage of the CIPC investigation into Nova and the shut-down of Sharemax and the imminent release of the Interim Report which will be followed by a Final Report of findings and required actions, can we look forward to the end of the waiting?

The time is drawing nearer when the investigation outcomes will be made public, when fingers will be pointed, when persons and entities will be called to account and whereafter, just maybe, prosecutions will be initiated

We are of the opinion that transgressors must be prosecuted, that statutory and oversight bodies which have contributed to the woes of the Sharemax Investors must be called to account and, most important, that the investors must received restitution and fair compensation after all the years of deprivation and waiting with finalisation and resolution in the very near future