Times Of Swaziland: ECSPONENT CASE:  ECSPONENT CASE:  DAVE, EDWIN CHALLENGE  RULING TO  REPAY E335M

ECSPONENT CASE:  ECSPONENT CASE:  DAVE, EDWIN CHALLENGE  RULING TO  REPAY E335M
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Kwanele Dlamini on 14/11/2024 15:06:00


MBABANE – Businessman Dave Van Niekerk and Edwin Soonius  say the default
judgment, in terms of which they were ordered to pay the Ecsponent investors’
E335 240 000, is a nullity.
They have since instituted proceedings in the High Court, where they are seeking
an order rescinding the default judgment that was issued in favour of the over 1
000 Ecsponent investors. A default judgment is issued when an opposing party
fails to take action in a civil matter. Van Niekerk, who is a global Fintech
entrepreneur, said there was no action for him and Soonius to defend. He
submitted in their application that the action that resulted in the issuance of
the default judgment was allegedly not validly instituted and the particulars of
claim were not validly amended to seek relief against him and Soonius.
Rescinded
The businessman argued that, on this basis alone, the default judgment ought not
to have been granted. He said it was a nullity and ought to be rescinded. “The
second applicant (Soonius) and I were not in wilful default of defending the
action. The second applicant and I have, to the knowledge of the respondents, a
valid and bona fide defence to the respondents’ alleged claim against us,”
submitted Van Niekerk. According to Van Niekerk, he and Soonius were cited as
the fourth and fifth respondents respectively in the proceedings and no relief
was sought against them. He submitted that instead, the relief, being a money
judgment in the sum of E335 240 000, was allegedly sought against the first
defendant – the Financial Services Regulatory Authority (FSRA).
The businessman told the court that on December 20, 2023, the respondents (ESW
Investment Group (ESWIG) (Pty) Ltd, formerly Ecsponent Swaziland (Pty) Ltd,
Ligagu Investment (Pty) Ltd and the investors) instituted proceedings against
him and Soonius and other respondents at the time, for leave to institute
proceedings by substitute service or edictal citation.
Summons
Service of the combined summons was to be effected on them by publication in
local newspapers and in the Gauteng Province. Van Niekerk said the first
applicant in the substituted service application is ESW Investment Group Limited
and not the first plaintiff, as cited in the combined summons. He argued that
one of the applicants in the substituted service application was allegedly not
the same as one of the parties cited in the combined summons. According to Van
Niekerk, ESWIG, in the earlier proceedings, was not granted leave to institute
the action and it was not instituted.
“On this basis alone, the default judgment is a nullity, certainly at least in
regard to the first respondent (ESWIG),” Van Niekerk submitted. The rescission
application is opposed by the respondents – ESWIG, Ligagu Investments and the
investors. Others who were ordered to pay back the money are Ecsponent Limited
South Africa, GetBucks (Pty) Limited South Africa and Anthony Hay.
Obtain
The money was invested by a number of individuals and other entities in ESWIG to
obtain higher returns. However, E335 240 000 of the invested E406 932 005.55 was
allegedly transferred to South Africa, and the investors want their money back.
The default judgment was issued by Judge Khontaphi Manzini at the Commercial
Court Division of the High Court.
In this matter, ESW Investment Group (Pty) Ltd was demanding the E335 240 000
from the Financial Services Regulatory Authority (FSRA), Ecsponent Limited South
Africa and GetBucks (Pty) Limited South Africa. The other defendants in the
matter, which are FSRA, former FSRA CEO Sandile Dlamini and Lindiwe Vilakati,
opposed the matter, hence no order against them was issued.
The default judgment came after ESWIG filed combined summons, where it was
demanding a sum of E335 240 000 from FSRA, Ecsponent Limited South Africa and
GetBucks (Pty) Limited South Africa, Van Niekerk, Soonius and Anthony Hay.
According to the combined summons, Dlamini (Sandile) allegedly knew about
measures to control ESWIG in order to ensure the fraudulent transfer of the
amount of E335 240 000 to South Africa. The transfer of the investment funds,
according to the combined summons, was allegedly done under the auspices of
Dlamini, who was at the time the CEO of FSRA, and its officials under his
control, and/or cooperated with him. The plaintiffs (ESWIG and Ligagu
Investments (Pty) Ltd) informed the court that the transfer of the investment
funds could, and should, have been prevented by FSRA under the auspices of
Dlamini and those under his authority in exercise of their duties and
responsibilities.
Fraudulent
“The sixth defendant (Dlamini), by virtue of his complicity in the fraudulent
scheme, failed to comply with his duties and responsibilities in terms of
Sections 4,5,6 and 8 of the FSRA Act by failing to foster through the regulation
and prudential supervision the safety and soundness of the investments; the
highest standards of conduct of business in relation to the investments; the
fairness, efficiency and orderliness of the Eswatini non-banking sector and the
protection of stakeholders,” reads part of ESWIG’s combined summons.
Dlamini, according to ESWIG, allegedly failed to enforce functions that were
necessary to suppress illegal, dishonourable and improper practices and
financial fraud in order to prevent the transfer of the investment funds to a
secure environment.