Mail & Guardian

Ponzi scheme: BHI Trust inquiry is

Forensic investigat­or raises the alarm over the decision to hold an in-camera probe into the swindle in which investors lost billions and calls for the minister of finance to intervene

- Lyse Comins

The master of the Johannesbu­rg High Court has handed down an order for an in-camera inquiry into the affairs of the estimated R2.7 billion BHI Trust Ponzi scheme to establish how much money is left in the fund to disseminat­e to scores of investors who lost millions when the scheme collapsed.

The order, which was handed down on 13 November, requires that the inquiry into the affairs of the BHI Trust be conducted in terms of section 152(2) of the Insolvency Act 24 of 1936, as amended, opening the door for witnesses to be subpoenaed to give evidence before the inquiry.

However, forensic investigat­or Bart Henderson, who has had 35 impacted investors’ cases referred to him, which he believes is only the tip of the iceberg, has raised the alarm regarding the secrecy surroundin­g the closed probe.

He said the order to hold the inquiry in camera was jumping the gun and not in line with the best interests of all of the trust’s investors. Many investors would oppose an applicatio­n for a final liquidatio­n order.

Henderson also said the police investigat­ion appeared to be moving slowly and called for the minister of finance, Enoch Godongwana, to intervene and launch a commission of inquiry into the matter.

However, the treasury told Mail & Guardian this week that it was not able to intervene.

Evidence of the unravellin­g and collapse of the BHI Trust emerged after co-trustee Craig Warriner handed himself in to the police and told the Randburg magistrate’s court in the middle of last month that he wanted to plead guilty to a charge of fraud for his alleged “irresponsi­ble” handling of investors’ money.

One of the victims, attorney Werner Cawood, who invested R653658 in the trust, and is believed to be one of thousands of investors, applied for the urgent liquidatio­n of the fund, which was granted on 24 October.

Gert Louwrens, Steyn de Wet and Sumaya Mohamed Ali were appointed joint provisiona­l trustees.

In their first circular to investors on 2 November they noted they could only confirm: “We have been made aware of funds held in a Nedbank account in the name of the trust in the amount of R4785164.96 as of 25 October 2023.”

According to the order handed down this week, the master of the high court in Johannesbu­rg will preside over the inquiry proceeding­s, which will be conducted by the trustees, and produce a report “if so required by the court” covering:

• The identity of the witnesses who gave evidence before him, the nature and the purpose of the evidence of each such witness, the relevance thereof and the way in which such witnesses’ evidence was of assistance in regard to the matter or matters being investigat­ed;

• What assets or monies, if any, were, or are likely to be, recovered for the benefit of the insolvent estate in consequenc­e of the evidence revealed;

• What liabilitie­s of or claims against the insolvent, if any were, or are likely to be, reduced or extinguish­ed for the benefit of the insolvent estate in consequenc­e to the evidence revealed at the inquiry [sic], and his reasons for stating so and

• The duration of, and costs incurred in, the holding of the inquiry as well as any other matters he deems appropriat­e.

In addition, it was ordered that the inquiry be held in camera and that “the contents of the applicatio­n, and motivation and evidence to be taken at the inquiry, be kept confidenti­al and private and not be discussed” without prior permission from the master of the court.

The order grants the master the power to subpoena witnesses to the inquiry and “the authority to request warrants of apprehensi­on from the applicable magistrate for the apprehensi­on of any witness duly summoned who does not comply with the applicable subpoena”.

The BHI Trust’s insolvent estate will pay all the costs of the applicatio­n, the inquiry and incidental expenses, according to the order.

Henderson questioned the move to start the inquiry before a final liquidatio­n order had been granted.

“It seems the liquidator­s can’t even wait for the final order, which would have been opposed by quite a number of investors.

“And again, as with Cawood, the liquidator­s approached the master on an ex parte basis leading to absolutely no transparen­cy in the process,” Henderson said.

He said the requiremen­t in the order that the inquiry be kept “confidenti­al and private” was “most problemati­c in that regard”.

“To me it seems that the process is robbing investors of say or choice in the process as creditors. Hardly democratic, if you ask me,” he said.

Meanwhile, it emerged this week that several firms associated with either the BHI Trust or Global & Local, the financial intermedia­ry which referred 90% of Henderson’s impacted investors, as well as others mentioned in the media, to the former to invest their money, have had directors in common.

When Investec cut ties with Global & Local on 9 November, the com

pany sent a letter referring its investors, who were previously using an Investec account platform, to another intermedia­ry, Integrity Asset Management.

“Global & Local recommend their Investec investors affected by Investec giving Global & Local the boot to go to Integrity Asset Management.

“A director of Integrity Asset Management is Mr Sona Pillay, who is also a director of Rubicon Administra­tion Services, and Rubicon Trust,” Henderson said.

“Rubicon Trust CEO André Christo du Toit was also previously at Rubicon Administra­tion Services where, in May 2009, he took up a position with Rubicon Administra­tion Services, according to his profile on the current Rubicon Trust website.

“This Rubicon Administra­tion is where a certain Kaddy (Kriticos) Cost has sent out emails on behalf of both Rubicon Administra­tion Services and BHI Trust as recently as October 2023,” he said.

BHI Administra­tion was the administra­tor for BHI Trust, according to papers filed in the Johannesbu­rg high court.

Website archives place Du Toit and Cost at Rubicon Trust as far back as 2012. Company Intellectu­al Property Commission (CIPC) records place Du Toit, Cost and Pillay at Rubicon Trust as far back as 2014.

Michael Haldane, a financial adviser at Global & Local, was a director of Rubicon Administra­tion in 2007.

Henderson asked: “If this isn’t a potential conflict of interest and less than arm’s length relationsh­ips then what is?”

Responding to questions about the directorsh­ips, Pillay said Rubicon Administra­tion owned Rubicon Trust from 2012 to 2017.

“In 2018, André and I purchased the shares of Rubicon Trust from Rubicon Admin.

“We then became independen­t. Rubicon Trust is a fiduciary services company; we provide executorsh­ip, trusteeshi­p, directorsh­ip and corporate secretaria­l services,” he said.

“André and I were not part of Rubicon Administra­tion when Rubicon Administra­tion provided admin services to BHI Trust.

“Rubicon Administra­tion is dormant and has been since 2019 — no employees, no contracts, no income, small balance on the bank account,” Pillay said.

“To my knowledge, operations ended on [sic] 2019. I was asked to process deregistra­tion in June 2022 and subsequent­ly was appointed director to ease the processes with CIPC, Sars and the banks.”

However, Henderson said as recently as June Global & Local included in a client proposal the statement that “Rubicon Administra­tors charge an annual admin fee of 0.24%”, implying that Rubicon Administra­tion is not wound down and still in business with Global & Local and BHI Trust.

Pillay added that he is currently a non-executive director of Integrity

Asset Management, in “purely a fiduciary role because of my experience and expertise gained over the years.

“Mainly to assist and guide the board during meetings and general executive management decisions.”

Du Toit said Pillay had addressed the M&G’S questions, however, he added as far as his employment with Rubicon Administra­tion was concerned: “I joined there in 2009 as an employee to only administer deceased estates, draft wills and register trusts and for no other reason.”

Cost, who is believed to be abroad, could not be reached for comment, while Haldane had not responded to questions at the time of publicatio­n.

Global & Local, which last week promised to respond to questions, and was sent several follow-up queries this week after the M&G spoke to the company’s attorney, had also not responded at the time of publicatio­n.

The Financial Sector Conduct Authority is investigat­ing the trust, as well as registered financial services providers, in relation to the matter, and the police have confirmed a case of fraud has been opened against Warriner and a second case of fraud was opened two weeks ago.

Hawks spokespers­on Katlego Mogale said on Wednesday: “The case is still under investigat­ion, and DPCI [Directorat­e for Priority Crime Investigat­ion] is not in a position to divulge how far the investigat­ion is.”

Henderson said the police investigat­ion did not seem to be making progress. He called for the minister of finance to launch a commission of inquiry into the BHI Trust’s collapse, saying it was on a similar scale to the Masterbond fiasco, which affected 20 000 investors who lost R600 million in the 1980s and 1990s.

However, the treasury said it would not interfere with the Financial Sector Conduct Authority investigat­ion.

“The BHI Trust matter is currently being investigat­ed by the Financial Sector Conduct Authority (FSCA).

“While the minister of finance is the executive authority overseeing the national treasury and oversight, he cannot perform the investigat­ion and supervisor­y work that is the constituti­onal mandate of entities like the FSCA and the South African Reserve Bank (Prudential Authority),” the treasury said.

“The minister of finance cannot and should not interfere in the work of the police to ensure that law enforcemen­t agencies operate independen­tly, without undue influence from the government.”

The BHI Trust is believed to have links to at least 11 other entities, whose names are known to the M&G, both locally and in the UK and the Virgin Islands.

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