How Nedbank is claimed to have lied in court
Ian Brakspear, a Durban-based futures trader, was a longstanding Nedbank client. He was a beneficiary of the JAM Brakspear Trust (JAMBOT), set up by his late father in the Isle of Man to support his widow and their children, and the de facto settlor of a second offshore trust, the Westley Trust, registered in Jersey. (We say de facto settlor, because Nedbank and its attorneys have – under oath, on different occasions – claimed various different candidates for the role.)
Ian Brakspear was also the sole director of West Dunes Properties 5, a South African company ultimately owned by a Panama-registered company, Westley Holdings, which in turn was supposedly controlled by his Jersey trustees who operated (so he was led to believe) on his instructions.
He was, ultimately, Nedbank’s client who instructed Nedbank to proceed in setting up the elaborate [“bespoke” they called it] offshore structure that their “expert” staff recommended – and paid them substantial fees for the service.
Its purpose was to finance the purchase by West Dunes of a Franschhoek fruit and wine farm that happened to be adjacent to L’Ormarins, the famous Rupert-Rothschild estate, and that was to be developed as an upmarket country hotel and residential estate and then be re-sold at a handsome profit.
After some difficult years, it was eventually sold in August 2007 for a handsome R37 million, but as explained in an earlier Noseweek story, things then went horribly wrong – the disaster in no small measure caused by the careless incompetence of Nedbank’s Jersey staff (who made profuse apologies). The buyer cancelled and in 2008 - the year of the world-wide crash in the property market - the farm was ultimately resold by auction for just for R18 million – to the original buyer.
Ian Brakspear immediately made clear to the Nedbank trustees that they faced a damages claim for the R19 million difference.
Shortly thereafter, Nedbank, in the name of its Jersey trustee company and represented by ENS, “Africa’s largest law firm”, 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.
Ian Brakspear opposed the liquidation application, declaring under oath that there was no such loan; the R7m referred to was in fact a non-repayable distribution to him as a beneficiary by the Isle of Man Brakspear Trust, and was recorded as such in that trust’s accounts.
For reasons that reflect badly on the state of justice in South Africa – the subject of another chapter in the saga – he lost the case, and the company went into liquidation.
Ian Brakspear and the two beneficiaries of the Westley (Jersey) Trust, his mother Dorothy and sister Alison (both resident in Northumberland, England), have contended for the past decade that the claim on which the liquidation of the South African company was based was fictitious, that Westley Trust did not make the alleged R7m payment to RMB (holder of a mortgage bond over West Dunes’ farm), that there was no loan owed by the company to the Jersey trust and, finally that the South African company was not insolvent at the time it was placed into liquidation.
In fact, they allege, the liquidation was fraudulently contrived by Nedbank and its attorneys ENS as a means of:
1. disabling him and his company from suing Nedbank for the many millions in damages caused by their previous unprofessional conduct, and:
2. 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.
In terms of South African law, the liquidator of an insolvent company may cancel a sale of the company’s assets concluded prior to liquidation, if he is of the view that he can sell the asset for a higher price, to the benefit of creditors. On first appearances, creditors stood to gain an extra R7m as a result of the cancelled farm sale. In reality there was no advantage: lawyers’ fees occasioned by the liquidation and the liquidator’s own fees easily exceeded that amount.
In a subsequent judgment dealing with the matter in the High Court in Durban on 20 October 2014, Judge N F Kgomo produced a summary of a convoluted string of alleged legal and contractual relationships (as alleged by Nedbank and its lawyers, that is), some genuine, some now demonstrably faked, between the two offshore trusts, their (separate) trustees and (separate) offshore bankers – but all of them ultimately controlled by Nedbank.
Nowhere were the obvious conflicts of interest noted.
The judge, inspired by the submissions of Nedbank’s senior counsel, Gavin Woodland SC, arrived at the conclusion that the R7m (then equal to £500,000) paid to Rand Merchant bank by the Fairbairn Private Bank, Isle of Man, in payment of a bond debt owed by West Dunes, was a loan to the Westley Trust, Jersey, which in turn had lent the money to West Dunes.
“It was this claim of £500,000 which the Westley Trust, represented by Nedgroup Trust, asserted as the petitioning creditor in the West Dunes winding-up [liquidation] application in December 2007,” said the judge. “I could not come across any evidence to suggest that this claim was promoted by Nedgroup Trust or its legal representatives otherwise than in good faith. [ENS attorney Leonard] Katz stated in his evidence that he had relied upon the advice of an experienced senior counsel and insolvency specialist, advocate Brendan Manca SC when he formulated the claim which forms the basis of the founding affidavit [in the liquidation application].”
"Mendacious" and "vindictive"
Judge Kgomo dismissed Ian Brakspear’s evidence as “mendacious” and “vindictive”.
In the meantime, Ian, his 83-year-old widowed mother, Dorothy Brakspear, and his sister, Alison Bowler, the latter two both resident in England, have instituted action against Nedbank in the Royal Court of Jersey seeking to unravel the massive and continuing frauds they allege.
After two years the case ground to a halt when they ran out of money to fund their case, but in 2015 they resumed the case, this time in person, unassisted by lawyers.
In a “skeleton” argument drawn up and submitted to the Jersey court by Nedbank’s Jersey lawyer, Advocate Taylor on 11 December 2015 to prevent the Brakspears resuming their case, he claimed there were “signed letters” by Brakspear and her daughter Alison that constituted a “settlement agreement” that had concluded the case between them and Nedbank. Both women, however denied ever having written such letters or having made such an agreement, and insisted Taylor produce the letters and agreement he had told the court under oath existed.
Had the Brakspears signed such a settlement agreement it would have put an end to their case – without Nedbank’s having to answer any of the serious charges brought against them.
But Taylor, despite repeated requests since then, has never been able to produce such letters. In his most recent submissions to the court the Nedbank advocate makes no reference to any such agreement, as he had so emphatically alleged earlier. He has yet to offer any apology or explanation. His main defence strategy has simply shifted to alleging that the recast charges set out in the Brakspears’ amended Order of Justice [effectively their summons stating their particulars of claim] have either prescribed (lapsed by passage of time) or have already been adjudicated upon by a South African court. If he succeeds with either argument, it will obviate Nedbank’s having to produce its own records and evidence in its defence – likely to be extremely embarrassing, judging by the bits and pieces that have already emerged.
The Bankers Book
A foretaste of what might be to come for Nedbank were this strategy to fail: Brakspear and her fellow trust beneficiaries then launched an application in terms of Jersey’s Bankers’ Book Evidence law, summoning Nedbank to court to explain why it should not be ordered to produce its own bank records relating to their trusts for the beneficiaries’ inspection. And for them to make copies of those documents and records they need for their case.
For each court hearing the aged Mrs Brakspear has taken a cheap flight to Jersey and appeared in court to present their case in person. Last month (March) they made a significant breakthrough when the Jersey court ordered Nedbank Private Wealth, 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 outcome emerges from an affidavit subsequently filed in the Royal Court of Jersey by Dorothy Brakspear in the next round of the court battle there: Nedbank’s last-ditch attempt to have the Brakspears’ case “struck out” on the unlikely grounds that it is “frivolous and vexatious” or, alternatively on the grounds that is it “res judicata” – a legal Latin term for “it has already been adjudicated upon by another (South African) court”.
An extract from Mrs Brakspear’s latest affidavit – the text that follows is a verbatim quote – summarises the current state of play:
"This affidavit is firstly to file the newly obtained evidence from the Order of Court dated 8 March 2018 under the Bankers’ Books Evidence (Jersey) Law 1986 and which was supplied to us on 29 March 2018 by Nedbank Private Wealth Limited Jersey Branch [and confirmed in an affidavit made by Stephen Fox, treasury director of Nedbank Private Wealth Ltd.]
Secondly it is in response to Mr Christopher Roscouet’s two affidavits dated 15 December 2015 and 19 February 2018. [Roscouet is MD of Nedgroup Trust, Jersey]
Thirdly there is a brief response to attorney Katz’s affidavit. [Leonard Katz is head of liquidations at attorneys Edward Nathan Sonnenbergs (ENS), South Africa’s largest corporate law firm. He headed up Nedbank’s legal team in the South African liquidation case.]
The Jersey bank has not provided any copy of the [alleged] Guarantee and Indemnity between the Guernsey Trustee and the Jersey bank which was given by Mr Leonard Katz to the Master of the Court in South Africa on 20 August 2010 and which at that date some 6 years after the fact was unsigned by the Jersey bank and undated.
This raises a serious legal issue about the legality of that agreement especially as it is an inter-company agreement and thus should have been done as an arm’s-length transaction. [The fact that the copy produced by Katz was not signed by the bank, and the bank does not have such a document suggests no such contract was ever concluded. – Ed.]
The bank statements of Westley Trust confirm £10 being settled on the trust on 12 May 2004, yet the bank agreement between the Jersey trustee and the Jersey bank was signed on 7 May 2004, which is 5 days before the Westley Trust was fully [legally] constituted.
The following was stated under oath in South Africa by Nico Botha [a Nedgroup director] on 19 December 2008:
‘In and during 2004 JAMBOT advanced the sum of £400,000 to the Westley Trust.’
The Bankers’ Books Evidence shows no transaction for £400,000 and is irrefutable evidence of false representation made knowingly and deliberately by the Jersey trustee and its agent [in the South African liquidation case].
The following material statement of fact was stated under oath in South Africa by Nico Botha [head of BOE, another Nedgroup subsidiary] on 19 December 2008:
‘In and during June 2008 the Westley Trust lent and advanced the sum of £500,000 to West Dunes at the latter’s special insistence and request. This amount was due and payable by West Dunes but West Dunes 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’ Books Evidence of the Westley Trust accounts 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.
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, now Nedbank Private Wealth] which it then advanced to the company [West Dunes]. I refer in this regard 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 (annexed in the court record) reflects the creditor to be FPB in the sum of £500,000.’
The Bankers’ Books Evidence of the Westley Trust accounts 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 – irrefutable evidence of false representations made knowingly and deliberately by the Jersey trustee and its agent to the South African Court.
The following was stated under oath in South Africa by one of the Jersey trustee legal team in South Africa, Justine Hoppe [a member of the Insolvency department of attorneys Edward Nathan Sonnenberg (ENS)] 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.’
The Bankers’ Books Evidence of the Westley Trust accounts 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.
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 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’.
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.’
The Bankers’ Books Evidence shows no evidence that the Jersey bank paid ‘[R] 7,000,000’ nor do the Bankers’ Books show that this amount ‘was debited’ 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’.
There is no evidence that the Brakspear Trust ‘was the next entity to pay’ in this chain of events as stated in the judgment
It must be noted that in the South African Court, the judgment found that because Ian [Brakspear] had consistently denied all the transactions mentioned in the Order of Justice, Ian was called ‘untruthful’ and an ‘unreliable witness’ by the Judge and Mr Katz called Ian ‘delusional’.
The Bankers’ Books Evidence now proves that Ian was not ‘untruthful’ or an ‘unreliable witness’ but that the Jersey trustee and its appointed agent and lawyers were the deceitful parties throughout.
The deceit and misleading representations did not only occur in South Africa but also in the Royal Court of Jersey. In Jersey, case number 2012/403, an application was launched by the Guernsey Trustee [of the Isle of Man trust] against the Jersey trustee [both Nedbank owned trustee companies].
In its statement of case, the Guernsey Trustee company states that the Jersey bank paid £500,000 to FirstRand Bank in South Africa pursuant to a letter of guarantee.
No such payment is reflected in the Bankers’ Books 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.
[The Jersey trustee did not oppose the application, simply remaining silent.]
The Guernsey Trustee goes on to state that the Plaintiff [Guernsey Trustees] paid the Jersey bank £500,000.
No such payment is reflected in the Bankers’ Books Evidence, again proving false representations by the Guernsey Trustee and the complicity of the Jersey trustee by remaining silent to the falsehood.
Critical to note at this point that in the Bankers’ Books 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 [claim to] the assets of the Brakspear Trust [in the Isle of Man, as distinct from the Westley Trust in Jersey], nor any right to possession without proper notice or judicial intervention of which there are none in the Bankers’ Books Evidence.
It also follows logically, that a non-existent right of action or a non-existent debt can never in law be transferred by 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.
The bank statements of Westley Trust do not correspond at all to the entries in the unsigned and uncertified financial statements of Westley Trust.
I want to end this section with the quote from a judgment by Lord Denning in 1956:
‘No court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything’.”
I was liquidated over fictitious R7m loan, says Durban businessman
Brakspear trial showcases a broken judicial system