The R90-million was the outstanding balance of R97-million the SA Revenue Service (SARS) demanded from Nthwese Investment Holding Consortium in which Motaung, Herbert Theledi, Reitumetse Huntley and Job Sikhosana were the directors. In their particulars of claim, the liquidators, Herman Bester and Amanda Khanyisa Bikani, also accused Motaung and Co of “fraudulently” paying nearly R8-million into the coffers of Kaizer Holdings under the pretext that it was a “loan”.
Kaizer Holdings has the father (Kaizer Motaung) and son (Bobby) as the only active directors.
According to the liquidators, Nthwese’s shareholders included Itje-leswika, Rorisang Women Investment Holdings, Leruo Development Trust, BLI-HD Employees Trust, Moatshe Trust, Nthwese Trust, Mauba Trust, Grey Jade Trade and Invest 169, and Kaizer Holdings, co-owned by Motaung senior and his son, Bobby.
The liquidators said that Motaung and his partners established Nthwese Investment Holding Consortium several years ago with the purpose of acquiring shares in various entities.
They said Nthwese obtained shares but sold them on November 14 2007, and the capital gain on their sale was over R183-million.
After payment of diverse creditors and dividends to shareholders, over R3-million was retained as provision for taxation, according to the company’s financial statements. But this amount, according to the liquidators, was not paid to SARS.
On September 16 2010, said the liquidators, the company directors, and shareholders entered into “dividend agreement” in which they agreed to distribute over R78-million in dividends to the shareholders except to BLI-HDI Employees Trust.
The directors resolved that after paying the dividends, the company would, in their opinion, be able to pay its debt as they become due in the ordinary course of business.
They also said the consolidated company assets, fairly valued, would after payment of its shareholders be more than the consolidated liabilities of the company.
The liquidators said despite Nthwese stating in its annual financial statements that income tax to an amount of over R62-million was payable to SARS, no amount was ever paid to it.
They said SARS issued a R97.9-million claim against Nthwese on March 7 2016, and brought an application to liquidate the company on June 26 2017.
A provisional liquidation order was granted to SARS on November 16 2017, and was made final at the Durban High Court on May 4 2018.
They also said Nthwese directors said the company was financially distressed and launched an application for it to be placed under business rescue but it was dismissed.
The liquidators, who were appointed by the Master of the High Court in Durban on November 20 2018, said the aggregate of the approved claims lodged against Nthwese’ estate was over R109-million and only above R19.8 million had been recovered for distribution, leaving a shortfall of close to R90-million.
The liquidators said Motaung and Co were liable for the payment of the debt because they failed to exercise their fiduciary duties to take the necessary care when making a distribution of the dividends and were reckless in managing the company’s financial affairs.
“…The South African Revenue Services issued a claim against Nthwese on 7 March 2016 for an amount of R97 960 685.23.
“Despite stating in its annual financial statements that income tax to an amount of R62 426 599 was payable to the South African Revenue Services, no amount was ever paid …” read the papers.
Bester and Bikani also accused Motaung and Co of “fraudulently” paying about R8-million into the coffers of Kaizer Holdings.
This amount, according to liquidators was not paid to the receiver of revenue Motaung and Co failed to exercise fiduciary duties and were reckless and another R17-million to Itje-leswika under the pretext that it was a “loan”.
“Defendants in their capacities as directors of Nthwese failed in the exercising of the fidiciary duties through their failure and or neglect to take the necessary care when making a distribution [R78.5-million] as they had done on 16 September 2010,” charged Bester and Bikani.
“Defendants tried to hide this position from its creditors when fraudulently asserting that there was a loan to directors, valued at R24 852 713, in the 2011 financial statements, whilst they were fully aware on 16 September 2010 that same was not a loan but a dividend payment,” read the papers.
The Motaungs are not the only soccer bosses to have run into trouble with the taxman.
Orlando Pirates boss Irvin Khoza in 2002 settled his personal tax dispute with SARS, agreeing to pay an outstanding amount of about R7.2-million.
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