The company called for a proper calculation of Dale’s assets through the forced sale of his belongings
THE NORTHERN Cape High Court has dismissed an application to provisionally sequestrate the estate of Dale Hohne, upon the request of his father, Barry Hohne, describing the application as being “a classic case of collusion”.
The intervening creditor, Superstone Mining (Pty) Ltd, opposed the liquidation as it believed that it would be to their detriment, as Dale owed them an amount of R7.9 million.
Dale’s uncles, Jahn and Peter Hohne, are directors of Superstone Mining.
During February 2009 and January 2010 Dale was employed by Superstone Mining as a recovery manager, where, he reported to his father (Barry) as his manager.
In 2010 Dale was accused of stealing “high value” diamonds to the amount of R6 million, whereupon he was dismissed from Superstone Mining.
His income at the time was in the region of R45 000 per month.
After resigning almost a year later, he was appointed as the plant manager of Superkolong Holdings for almost 30 months and then as a managing director at Mogale Resources on a contract basis. Mogale (Pty) Ltd closed in September 2016 due to financial reasons.
In January 2012 Superstone Mining unsuccessfully instituted a protracted legal claim against Dale, while incurring “high legal costs”.
Barry claimed that he funded Dale’s legal costs that amounted to almost R1.6 million.
On February 1, 2017 Superstone Mining attorneys demanded payment from Dale’s attorney for insurance money, after one of their motor vehicles had been written off.
In turn, Barry sent a letter of demand to Dale on February 4, 2017, claiming for the repayment of the R1.6 million loan, to which he replied that he was not in a financial position to repay or make an offer on the amount claimed.
He indicated that the money was loaned on condition that it would be reimbursed upon finalisation of the trial.
Barry pointed out that his son’s estate of R2.3 million would be “hopelessly insolvent” given the claims against his son, whereby Superstone Mining was claiming R7 million and his claim for legal fees amounted to R1.6 million.
He believed that it would be in the best interests of creditors if Dale’s estate was sequestrated.
He dismissed any suggestion of there being any collusion between his son and himself.
In terms of an oral agreement, a bank account would be opened where Barry would deposit monthly payments towards Dale’s bond repayments, insurance and other debit orders.
Dale would also be remunerated on a monthly basis for services rendered.
Superstone maintained that the sequestration held no benefits to any creditors, whereby Barry’s “deafening silence” regarding a demand for the repayment of the alleged loan pointed to the fact that he never expected any repayment.
“Rather it was a donation and or gratuitous payment and Barry cannot be regarded as a creditor of Dale.”
The company called for a proper calculation of Dale’s assets through the forced sale of his belongings.
It believed that Mogale Resources was used as a vehicle to channel Dale’s legal fees since Barry had provided a loan to his son, while there was no proof of repayment for the alleged loan made from the company.
Dale was consequently served with the application for the provisional sequestration of his estate.
In her judgment, acting Judge Livhuwani Vuma pointed out that Barry failed to disclose the financial statements of Mogale Resources to show that a loan account had indeed been created.
“The speed with which and the circumstances under which the sequestration application was issued … gives me traction to the collusion allegations made by Superstone Mining. Barry only learnt of Dale’s inability to repay the loan and the judgment debt only when he consulted with his attorney and his son. The advantage to creditors was not calculated, which is standard practice.”
She stated that there was no proper evaluation or comparison of the market value or forced sale value of Dale’s assets, including his house in Monument Heights, his vehicles, Krugerrand gold coin and a boat.
“In light of the above I am satisfied that the legal fees paid by Barry in respect of Dale’s legal costs were nothing more than a father donating to his son. There is nothing indicating that there was ever an intention or agreement between the two that Dale would have to repay the loan.”
Vuma described the “letter of demand”, as well as Dale’s explanation that he was unable to repay the loan, as being “opportunistic” in light of the R6 million that was being claimed from him by Superstone Mining.
“As to why Barry waited for a period of five years before issue a demand has not been explained. As correctly submitted by Superstone Mining, the sequestration notice was issued simply for purposes of frustrating the intervening creditor’s endeavour to enforce his legal right to recover the damages through execution based on the judgment it had obtained against the respondent.”