- The Limpopo High Court in Polokwane has dismissed an application for the sequestration of a trust belonging to suspended lawyer Tumi Mokwena.
- Judge President Ephraim Makgoba found that the liquidators did not prove that there was an unlawful transfer of assets.
- The liquidators have indicated their intention to petition the Supreme Court of Appeal to take the matter further.
The Limpopo High Court in Polokwane has dismissed an application for the sequestration of suspended lawyer Tumi Mokwena's Dikwenanyana Trust.
Shirley Motimele and Adriaan Willem Van Rooyen, the joint liquidators in the insolvent estate of Mokwena's law firm, Tumi Mokwena Incorporated (TMI), lodged an application for the sequestration of the trust on the basis that it was allegedly used as a vehicle to hide assets.
The firm was placed under final liquidation in 2019 after it was found that it could no longer pay creditors.
In court papers filed in the application for the sequestration of the trust, the liquidators stated: "What truly transpired was that TMI was abused as a vehicle through which the respondent (Mokwena) misappropriated TMI funds and apparently defrauded innocent third parties and members of the public, amounting to millions of rands."
The liquidators argued that TMI funds were irregularly transferred to the trust and that the trust's property was tainted, thereby rendering it invalid and liable to sequestration.
Dismissing the application, Judge President Ephraim Makgoba said: "At the end of the day, the issue for determination is that the applicants, as liquidators of TMI, have to establish the necessary locus standi to apply for the sequestration of the trust as a creditor.
"They need to prove that TMI is a creditor [that] has a liquidated and undisputed claim for not less than one hundred rands."
In addition, Makgoba was not satisfied that the forensic audit conducted by a company the liquidators had hired was the final proof of illegal money transfers.
"The money flow, as alleged by the applicants (liquidators), does not take their case any further in establishing the trust's indebtedness to TMI. The onus rests on the applicants to prove that [the] aforesaid money flow transaction from one banking account to the other was done sine causa (without legal cause) and unlawfully.
"It happens always in the course of attorneys' practice that money is transferred from [the] trust banking account to the business banking account and vice versa," Makgoba said.
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He also dismissed the liquidators' application for leave to appeal the judgment.
However, the liquidators have indicated their intention to petition the Supreme Court of Appeal in Bloemfontein for direct access.