‘Death threat’ in V&A sale

Main play­ers in R9.7bn deal at one another’s throats

Weekend Argus (Saturday Edition) - - FRONT PAGE - FA­TIMA SCHROEDER

SE­RI­OUS al­le­ga­tions of ag­gres­sion, hos­til­ity, and even a death threat, have marred the multi­bil­lion-rand sale of the V&A Water­front.

The de­tails have emerged in le­gal doc­u­ments that are part of a pend­ing court bat­tle, which sees two of the main play­ers in the R9.7 bil­lion deal at one another’s throats over a mul­ti­mil­lion-rand so-called “fa­cil­i­ta­tion fee”.

On one side is Mau­rice Shawzin, one of the men who formed the now dis­solved part­ner­ship that bro­kered the deal. In his cor­ner is liq­uida­tor An­dré van Heer­den, ap­pointed to re­cover Shawzin’s fee.

On the other side is Growth­point Prop­er­ties, which bought the Water­front two years ago in what is con­sid­ered the most ex­pen­sive prop­erty deal in South Africa’s his­tory. At the time, Shawzin was in part­ner­ship with prop­erty mogul Neill Bern­stein.

Van Heer­den has now in­sti­tuted an ac­tion against Growth­point for the re­cov­ery of the fee. This comes two years af­ter the deal was struck. At that time, Shawzin claimed he was still owed the fee – which led to the dis­so­lu­tion of his part­ner­ship with Bern­stein, af­ter the High Court ruled in his favour in a dis­pute with Bern­stein’s com­pany, Dev­land Hold­ings.

In terms of the court or­der, Van Heer­den was ap­pointed to pur­sue the fa­cil­i­ta­tion fee.

Now, how­ever, Van Heer­den claims his ef­forts to pre­pare for the le­gal ac­tion to re­cover the fee are be­ing ham­pered by that soured re­la­tion­ship be­tween Shawzin and Bern­stein. Van Heer­den also ac­cuses Bern­stein of col­lud­ing with Growth­point to sti­fle his pre-trial prepa­ra­tions.

This week, about two months be­fore the main ac­tion is sched­uled to go to court, he asked the Western Cape High Court to in­ter­vene ur­gently. He claims that Growth­point has re­fused to com­ply with sub­poe­nas to pro­duce ev­i­dence he needs for the main ac­tion.

Among the ev­i­dence Van Heer­den says he needs are let­ters, di­ary en­tries and meet­ing notes of Growth­point’s chair­man, Fran­cois Marais, chief ex­ec­u­tive Nor­bert Sasse, and ex­ec­u­tive di­rec­tor Esti­enne de Klerk.

In ad­di­tion, he wants the records of the in­ter­nal com­mu­ni­ca­tions be­tween Sasse and De Klerk.

Sasse and De Klerk have not op­posed the ap­pli­ca­tion, but Marais has de­scribed it as an abuse of process.

Mean­while, Van Heer­den’s af­fi­davit painted a pic­ture of the ugly ten­sion be­tween the two for­mer part­ners, Bern­stein and Shawzin.

He claimed their re­la­tion­ship had be­come so hos­tile that, about two months ago, Bern­stein threat­ened to kill Shawzin if he jeop­ar­dised his re­la­tion­ship with Growth­point – an al­le­ga­tion Bern­stein has ve­he­mently de­nied.

The in­ci­dent, ac­cord­ing to Van Heer­den, oc­curred at the se­cu­rity desk of the plush Ma­rina Res­i­den­tial Apart­ments at the Water­front, where Shawzin lives.

He al­leged Bern­stein threat­ened Shawzin over the in­ter­com phone when he was pre­vented from en­ter­ing the com­plex. “He was loud and abu­sive to him, and stated that if he

did any­thing which de­stroyed his re­la­tion­ship with Growth­point, he would kill Shawzin,” Van Heer­den said.

In a sep­a­rate af­fi­davit, se­cu­rity guard Quin­ton Sa­muels said Bern­stein ar­rived at the com­plex and at­tempted to gain ac­cess to Shawzin’s apart­ment, claim­ing he was Shawzin’s son.

While he said Bern­stein was ag­gres­sive, he did not specif­i­cally say Bern­stein threat­ened Shawzin.

When con­tacted by Weekend Ar­gus for his re­sponse to the al­le­ga­tions, Bern­stein said he wanted to place on record his “ut­ter de­nial” that he had made any threats to Shawzin.

“My at­tempt to visit his apart­ment at ( the Water­front) was in an at­tempt to col­lect a valu­able paint­ing that has been in Mr Shawzin’s apart­ment since June 2011, when I last saw ( him),” he said.

Van Heer­den al­leged fur­ther that a tran­script of a por­tion of a pre- ar­bi­tra­tion meet­ing in De­cem­ber 2011, in which Bern­stein asked that Shawzin be ex­cused, sug­gested that Growth­point in­duced Bern­stein to en­sure that Shawzin with­draw or aban­don the claim in the main ac­tion.

Van Heer­den sub­mit­ted that there was no le­gal ba­sis for Growth­point’s re­fusal to com­ply with the sub­poe­nas.

He asked the court to grant him an or­der com­pelling Growth­point to pro­duce the ev­i­dence he re­quired.

The main ac­tion is set down for Fe­bru­ary.

In an op­pos­ing af­fi­davit, how­ever, Growth­point’s Marais de­scribed the sub­poe­nas as over-broad.

He de­nied they were aimed at procur­ing ev­i­dence rel­e­vant to the ac­tion.

They were rather an abuse of process, Marais said, and had been is­sued to ha­rass them and “make our lives un­pleas­ant with the aim of se­cur­ing a com­mer­cial set­tle­ment in the ac­tion”.

Marais also de­nied he col­luded with Bern­stein, or that Growth­point in­tended to sti­fle Shawzin’s claim.

Ac­cord­ing to Marais, at the De­cem­ber 2011 pre-ar­bi­tra­tion meet­ing, Bern­stein had pro­posed a set­tle­ment and, once he had made his rep­re­sen­ta­tions, Growth­point gave him an op­por­tu­nity to dis­cuss it with Shawzin in or­der to get Shawzin’s “buy-in”.

Marais also said he had no knowl­edge of the al­le­ga­tions re­lat­ing to the death threat.

He added that there was no con­nec­tion be­tween “Bern­stein’s ap­par­ent hos­til­ity” and any of Growth­point’s con­duct.

When the case went to court on Thurs­day, Brian Pin­cus SC, for Van Heer­den, sub­mit­ted that com­pli­ance with the sub­poe­nas was cru­cial.

He added that Marais’s al­le­ga­tion that the ap­pli­ca­tion was an abuse of process was aimed at jus­ti­fy­ing non-com­pli­ance with the sub­poena.

Marais has, how­ever, de­nied be­ing in pos­ses­sion of the doc­u­ments in ques­tion.

He also could not pro­duce his di­ary en­tries be­cause his diaries con­tained con­fi­den­tial in­for­ma­tion on mat­ters un­re­lated to the Growth­point is­sue, he said.

Judge Den­nis Davis, how­ever, said Marais en­tered into set­tle­ment ne­go­ti­a­tions on be­half of Growth­point, and that he found it “ex­tra­or­di­nary” that he did not have any doc­u­ments in his pos­ses­sion dur­ing those ne­go­ti­a­tions.

Judg­ment will be given on Mon­day.

DE­CEM­BER 21 2013

PIC­TURES: TA­NIA COET­ZEE/MIKE BEHR/REX

PRINCELY VISIT: With his cap, dark glasses and gin­ger beard, Bri­tain’s Prince Harry man­ages to avoid de­tec­tion by the crowds as he shops in the V&A Water­front with his two body­guards this week. Here he sips on a drink from The Bub­ble Tea Com­pany.

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