After mauling widow, whinging lawyer seeks to muzzle her.
In a letter addressed to the Royal Court of Jersey on 1 June 2018, Nedgroup Trust’s Jersey advocate complains that “it is not understood” why Dorothy Brakspear needs the “protection” she purportedly gains by copying the press in on all her submissions to the court.
The banking group and its lawyers would clearly rather Noseweek’s readers did not know about the flood of extremely embarrassing, potentially incriminating details in the case that are being exposed – about how incompetently and dishonestly they handled their client’s offshore trust’s financial affairs. So threatened are they – see “How Nedbank lied, and lied, and lied” (nose223) – that they want the Jersey court to convict the 84-year-old widow for contempt of court.
The reason she needs the protection afforded by publication in the press, says Brakspear in her response to the latest affidavits filed by Nedgroup Trust and their South African attorney, Leonard Katz, of Edward Nathan Sonnenbergs (ENS) is simple: “Because people within the greater Nedbank Group and their agents lie so effortlessly – and to date with absolutely no consequences for them.”
Noseweek published an extract (nose223) from the extraordinary list compiled by Mrs Brakspear of lies and misrepresentations contained in documents and sworn affidavits generated by Nedbank’s Jersey trustee company, their agents and their SA lawyers. These became clear when she compared the false claims made in various affidavits they submitted to the courts over the years, with the Jersey bank’s actual accounts and documentary records regarding the Jersey-registered Westley Trust, of which Brakspear and her daughter Alison are beneficiaries.
The latter records had been withheld from the Brakspears for many years and were only opened to them earlier this year on order of the Jersey court.
The Westley Trust and its Nedgroup trustees have been at the centre of financially ruinous court proceedings both in South Africa and in Jersey that have effectively cost all the members of the Brakspear family their fortunes and ten years of their lives.
In his written response to the affidavit in which Brakspear related a devastating list of untrue statements made under oath by various Nedgroup trustees and their agents, counsel for Nedgroup Trust (Jersey) Ltd, advocate Mark Taylor, concedes: “It is acknowledged that the documentation and explanation of certain matters by the Jersey Trustee and its agents [e.g. attorney Leonard Katz and Board of Executors (BoE) director Nico Botha, since retired] has not always been a counsel of perfection.
“However, the source of any apparent inconsistency is error, a slightly loose use of language, or ex-post-facto confusion – not dishonesty.
“But,” he goes on to say, “the actual implementation of transactions and the nature of the structure were understood at the time” – presumably by all these “ex-post-facto confused” individuals. Which, it transpires, is itself not a “counsel of perfection”, but the latest “slightly loose use of language” by a Nedgroup agent.
There has been confusion about the “actual implementation of transactions” and the nature of the offshore “structure” since day one: Fourteen years after the event, they still cannot prove with certainty who the settlor is/was of the Westley Trust, the Jersey trust they registered in 2004. They do, however, insist that it was not Ian Brakspear, Dorothy’s son who is resident in South Africa, although he is the only member of the family they were corresponding with at the time, and the one they billed (hugely) for the service.
They have from time to time named different candidates, but most recently Nedgroup Trust Jersey director and head of fiduciary services, Christopher Roscouet has stated under oath that Ian Brakspear’s sister Alison was the settlor. She, in turn has stated under oath that she was not even aware of the existence of the trust until long after its establishment, was never consulted and never agreed to or intended to establish a trust. They can produce no document to contradict her. (In most jurisdictions, without a settlor having the declared intent of establishing a trust, there can be no valid trust.)
Advocate Taylor continues: “The gist of the Brakspears’ case is that the Jersey Trustee [Nedgroup Trust, Jersey] somehow dishonestly procured the liquidation of Westdunes 5 [the South African company that owned a Franschhoek farm] through fraudulent misrepresentations. There is no proper basis for such an allegation.
“At its simplest, it is clear that the sums applied towards the acquisition of the farm by Westdunes 5 were paid by or on behalf of the Jersey Trustee within the operation of the structure as set out in paragraphs 13 and 21 and those sums had to be repaid to the bank which was the source of the funds.”
Which takes us to how the story began in 2003, when Ian Brakspear was presented with an investment opportunity in the form of a Franschhoek wine farm adjacent to the more famous farm belonging the Rupert and Rothschild families. He approached his bankers, Nedbank, for a loan to cover the required deposit, and a mortgage loan to cover the balance. In the course of the discussion he mentioned that he might get a guarantee for the loan from the offshore trust created by his late father – the JAM Brakspear Overseas Trust, registered on the Isle of Man – of which he was a beneficiary.
At the mention of an offshore trust, the bank official’s eyes lit up and next he knew, Ian Brakspear had a home visit from Nedbank’s top offshore salesman, Greg Horton. Instead of a straightforward loan arrangement with his local bank, Horton enthusiastically suggested an elaborate offshore structure that the bank would create for him which would have all sorts of long-term advantages – wink-wink, nudge-nudge – especially if his farm investment was going to be as profitable as he expected it to be. All absolutely legal and with no comebacks, Horton insisted.
Despite Horton’s assurances, most informed and properly sceptical people know that offshore trusts are often jsut frauds designed by smart lawyers and bankers that are too secretive and complex for ordinary tax authorities and law-enforcement agencies to crack. Until the recent spate of spectacular data leaks, they have been the best means available to the very wealthy to avoid their liabilities to the taxman, their creditors and their ex-spouses.
Horton’s plan: first off, the trustees of the existing Isle of Man trust were to be fired – to be replaced by a Nedgroup trustee company conveniently based on that island. Next a separate Jersey trust was to be established, the Westley Trust, also to be administered by Nedgroup trustee company – this one based on Jersey. The Westley Trust would form a company in the British Virgin Islands, to be called Westley Holdings Ltd. (Noseweek found the file amongst the leaked “Panama Papers”. There we discovered that another Nedbank company owns all its shares and appoints all its directors.)
The Jersey trust would then borrow the money Ian required for the deposit to secure the farm, from its associated Jersey bank, today called Nedgroup Private Wealth, and on-lend this money to the new British Virgin Islands holding company. The holding company would, in turn (said to be on the advice of PricewaterhouseCoopers) use the money to purchase all the shares of a South African company called Moneybox, this being the most tax-efficient way to import offshore money without upsetting the exchange control authorities. Finally, Moneybox would invest its newly acquired share capital in the shares of a farm-owning company called Westdunes 5.
Ian Brakspear was by now in a hurry, fearing that his investment opportunity would pass him by. He approved the structure and paid the required fees. On 5 May 2004 the Westley Trust was established and all the required companies were registered.â€©Note that, in accordance with this “structure”, by the time the money reaches South Africa it is not a loan, but rather an investment in shares, twice removed. There is no way that money can be reclaimed from the farm company as a loan, in a liquidation or otherwise.
Despite this being clear in law, senior ENS liquidations attorney Leonard Katz would attend a specially convened creditors meeting in the 2008 liquidation of Westdunes 5, as legal representative of the Jersey trustees of Westley Trust, and “prove” a claim for the amount he baldly alleged had been lent to the farm company by his clients.
He was also the legal advisor of the liquidators who were persuaded not to dispute the claim, so reducing the amount available for distribution to other, legitimate creditors. A fraud by any other name would smell as rotten.
Now re-read advocate Taylor’s “simple” summary of the situation above, then ask yourself: who is to take these offshore trust “structures” seriously, if the well-paid, expert bankers and lawyers who create them turn around and suggest that, come the crunch, they can be brushed over as irrelevant legal fictions?
Also on 5 May, when a more honourable employee of the Nedgroup trustee company in Guernsey, which by then administered the original Brakspear Trust, heard of this elaborate structure to achieve a simple end, he felt impelled to write to Ian Brakspear’s financial advisor, Braam Fouche: “Whilst we still have doubts over the rationale of the structure, I am not sure that we should be participating in its setting up.”
And further on: “What I am about to say is completely ‘off the record’ and must remain as such. I am concerned at [Nedgroup Private Wealth’s] actions so far … I am also concerned that [their] motivation at the end of the day may be their fees and not the best interests of our common beneficiaries. I hope I am wrong. I am also concerned that Ian [Brakspear] may be blind to this fact and is motivated by his deadline rather than ensuring that the structure that is put in place now is correct. I would hate to find out somewhere down the line that we have put the beneficiaries at risk by our own actions.”
The entire letter – a remarkable prophesy of what was to come – is posted here.
To be continued.
Standing up to rogue bankers and their lawyer Leonard Katz
From an affidavit by Dorothy
Brakspear, filed at the Jersey court in April, in response to an earlier affidavit by ENS director Leonard Katz: “I want to start my reply with a passage from the State of the Nation Address by the new President of South Africa, Mr Cyril Ramaphosa in 2018:
‘We are determined to build a society defined by decency and integrity that does not tolerate the plunder of public resources, nor the theft by corporate criminals of the hard-earned savings of ordinary people.’
“I am determined to take a stand against ‘rogue corporate persons’, from the Jersey Trustees [to] their appointed attorney in South Africa, namely Mr Leonard Katz, who have plundered Brakspear family money, and who are now desperately trying to cover up this fraudulent plunder of our family assets.
“The very reason we originally put our assets into a ‘trust’ was to protect Brakspear family assets from rogues like the former president of Zimbabwe, Mr Robert Mugabe.
“It seems that we have now met bigger rogues; one or more persons, from the Jersey Trustee and their South African lawyer Mr Leonard Katz.”
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