Optimum Coal business rescue court battle looms

Johannesburg – An urgent application will be heard on Tuesday in the North Gauteng High Court to have the business rescue practitioners for the Gupta-linked Optimum Coal Mine removed and replaced. 

According to an affidavit by Andile Qaku, the sole director of a company called Deriko Mining and Exploration, the two business practitioners who were appointed in February – Kurt Knoop and Johann Klopper – are nothing more than "Gupta puppets" who are doing their master's bidding. 

Knoop and Klopper have denied this in their answering affidavits. 

Deriko Mining and Exploration is asking the court to set aside the resolution which was adopted by Optimum Coal Mine to appoint Knoop and Klopper and that business practitioners Jacobus Van Rensburg and Jacolien Barnard be appointed instead. Alternatively they have asked the court to place Optimum in provisional or final liquidation. 

According to Qaku, the appointment of the business rescue practitioners was unlawful. He argues that a resolution to commence business rescue may not be adopted by the board of directors of the company if liquidation proceedings have been initiated against the company. 

Qaku said that two hours before the application for business rescue was filed, a resolution to liquidate the company was also filed. This, he said, means there was a liquidation application pending.

Qaku said another liquidation application was also filed in Mpumalanga two weeks before the business rescue application. This means two liquidation applications had been filed before February 19, he said, and the appointment of the business rescue practitioners was therefore unlawful. 

'Institutional fraud and theft'

Qaku then also questioned the independence of the business practitioners.

He detailed why the Guptas could not be trusted, quoting from the Public Protector's State of Capture report showing the alleged corruption and theft by Optimum, as well as the Annex Distribution vs Bank of Baroda case, where the bank made 45 suspicious transaction reports to the Financial Intelligence Centre amounting to more than R4.25bn. 

Optimum Coal Mine "was a fundamental instrument of the institutional fraud and theft of the Gupta family", Qaku said. 

He said there was less than an arms-length distance between the business rescue practitioners appointed and the business.

One of the reasons he gave for this premise was that eight Gupta-linked businesses were all simultaneously put under business rescue. 

The Guptas, he pointed out, use their numerous business interests for the interrelated flow of money and they operate as one core group of entities. He said the companies have various loan accounts between them. This meant that in representing all eight companies, Knoop and Klopper "carry the hat of both debtor and creditor in the same companies", Qaku said.  

Suspicions over shared address

He alleged that the two practitioners had "already shown their colours by paying creditors who bring liquidation proceedings which are not in accordance with the act and to the expense of other creditors". 

He gave the example of the payment of two creditors who had put in liquidation claims and who had been paid out when no other creditor had been paid in months. Ritchie Crane Hire had a claim for R4m and Edsha for R10.4m. 

Qaku said the business practitioners had been placed there to protect the company from the claims against it, while doing the Gupta's bidding. 

He cited the address of Knoop as a second example of the business rescuers' closeness to Optimum and the Guptas. Knoop's business address is the same as that of Optimum Coal attorney Smith Sewgoolam, who has an office in Pietermaritzburg. 

Qaku also states that the Organisation Undoing Tax Abuse (Outa) has found that another Gupta company, Sahara Computers, was associated with a business called PC Zone CC. In 2013 PC Zone CC was placed under business rescue. The attorney acting for them was Sewgoolam and the business rescue practitioner appointed was Klopper. 

Qaku said the fact that Knoop and Klopper share offices with Optimum's attorney, that they share a historical business relationship and that they are the appointed rescue practitioner of related entities means there is too strong a possibility that they are not independent. 

'Shelf company formed solely for litigation'

He also asks what bank accounts the business practitioners will be using since the Bank of Baroda will be leaving the country.

In an answering affidavit Knoop said he could not respond to all the allegations because of a lack of time to do so. He said the court should not grant the applicant urgency. 

Knoop questioned what claim Deriko Mining and Exploration had on Optimum to put forward an application. He said the company said it had purchased an alleged claim Bakone Technical Services and Supplies CC has against Optimum. He said the applicant lacked locus standi to put forward the application before the court. 

Knoop said Deriko Mining was a shelf company only registered in January and which appeared to have been formed solely for this litigation. He asked the company to disclose its shareholders as well as who was funding the litigation. 

Knoop said someone believed that they could buy the business if new business practitioners were appointed. 

He denied the liquidation applications were filed before the business rescue applications and said they were not aware of them.

More creditors to join application

In response to the allegation that he was a puppet of the Guptas, Knoop said the applicant "relied on speculation, conjecture and inference to allege that the rescue practitioners were appointed to do the Guptas' bidding". He said these allegations were defamatory, that Optimum was under a constant spotlight in the press and under these circumstances it was unlikely they would act as the Guptas' puppets. 

He said the allegations that they shared offices with Optimum's attorney and had past dealings with the Guptas were unsubstantiated and did not show they were not independent. 

In response Qaku said Deriko Mining had a contract with Bakone for a labour broking service and that being under the public spotlight meant nothing. Optimum was previously under business rescue and it was sold to "a group of thieves", he said. 

The attorney for Deriko Mining, Ruann Kruger, told News24 that they had been told that four or five creditors would be joining their application in court on Tuesday and they all had the same objective: to make sure the business rescuers appointed were independent. 

The business rescue practitioner who Deriko Mining was suggesting be appointed by the court, Barnard, had also received confirmation from Nedbank on Monday that the bank would open an administrative account for the business rescue.

This, Kruger said, was important as the current practitioners had not yet told the court who they were banking with. 

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