By Bodwa Mbingo | 2024-11-02

In a new twist in the ESW Investment (ESWIG) case, where they still seek to recover about E340 million that disappeared from their investments, the over 1 000 investors claim obtained emails prove that two South African businessmen were involved in the siphoning of their money. 

In a fresh founding affidavit deposed in court this week by ESWIG Investors Chairman Billie Gilbert Dlamini, the investors allege that a series of emails between him and his various associates prove that South African businessman Dave van Niekerk, who was ‘a very powerful person’, had significant influence and control over cash-flow management at Get Bucks South Africa where their collected investments were transferred to.

They further alleged that this was under his auspices and that of his associate, Edwin Soonius, another South African businessman. These are part of the allegations whose veracity is still to be proven in court.

fraudulent
The investors argue that the main action proceedings follow an investigation that uncovered that the two businessmen, acting in concert, orchestrated a fraudulent scheme, on or about 2013, and manipulated Emaswati, who were placed in the forefront, to appear as the managers of what was then Escalator Capital (PTY) Ltd and later changed to Ecsponent Limited, now ESW Investment Group Limited under their supervision.

The investors state that the two, having allegedly failed to defend the action proceedings instituted against them despite their awareness of same, for their alleged fraudulent and criminal conduct and wherein they embezzled EE335 240 000, wilfully and negligently failed to defend the said action proceedings.

They further claim that the two are sought after by the Royal Eswatini Police Service (REPS) to answer to the said financial crimes that they allegedly committed in the country between 2014 and 2018, as they allegedly acted in collaboration with Sandile Dlamini, the former chief executive officer (CEO) of Financial Services Regulatory Authority (FSRA)    

“In the said fraudulent scheme, the company was incorporated in the Kingdom of Eswatini and was used as an instrument and vehicle to rent premises in which to operate and was further used to issue out a series of prospectus (prepared and printed in the Republic of South Africa by the 1st  and 2nd  respondents and their associates with the intention to commit fraud and all this was done at Fintech Campus, where the 1st and 2nd Respondent Controlled ECSPONENT SOUTH AFRICA, the mother company to the 1 Applicant, which contained a number of misrepresentations to lure investors and further did not comply with the companies act,” reads the affidavit in part.

The investors further claim that the company was further used as an instrument by the two to enter into unlawful loan agreements that were used as instruments to cover up the unlawful siphoning of the invested sums into South Africa and more to deceive the unaware Emaswati directors, and which further created the impression that the monies were invested whereas, this was never the case.

The allege that Ecsponent’s bank accounts were controlled by the two in South Africa, through their associates and wherein the investors’ investments were transferred to accounts controlled by van Niekerk immediately they were deposited by the investors.
 

targeted
“The loan agreements that were used to cover up the unlawful siphoning of the amounts, would then be signed after the transfer of the said amounts and these were signed either by the 1st and or 2nd Respondents or their associates. In collecting the sums from the investors, the investors, were targeted and approached by agents of the 1st and 2nd Respondent through the use of the company (at the time), who had the assistance of lists, which contained information of names of retiring civil servants, that were due to receive their pensions at the end of their tenure.

It is clear that the lists were sourced from a source within the Civil Service Commission, and this enabled the promoters of Ecsponent Limited, at the time to specifically target and lure pensionaries (the investors) amongst others to make investments to their detriment and under the instruction and direction of the 1st and 2nd respondents,” adds the affidavit in part.
Dlamini adds:

“I state as shall be shown through evidence, hereunder, that the 1st respondent, in the said fraudulent scheme, was, the main orchestrator and a ‘shadow director’ of the company and was the ultimate controller of the whole fraud operation, and through the use of corporate entities under his control and as instruments to defraud Emaswati, and was the ultimate beneficiary of the said monies that were through unlawful means collected from unsuspecting Swati citizens.”

He further alleged that van Niekerk, as a "shadow director" controlled the affairs of Ecsponent Limited, inclusive of monitoring, the monies that were deposited by innocent Emaswati, Investors and would give instructions on the flow of the invested funds and appointment of senior management in the company.
 

defraud
“I state, however that the 1st respondent, avoided to appear in the forefront and on the documentation of the company documents, which was part of the main frame of the entire fraud scheme and mainly because he had the direct intention to defraud and launder money to the Republic of South Africa.

“I state that the fraud scheme, was invented by the 1st respondent in such a way that he would lurk in the shadows and give instructions and directives to his employees and associates, on how the monies collected by the Investors, would be used,” further alleges Dlamini.

In a series of emails, Dlamini further alleged that van Niekerk was captured exercising control over the affairs of 1st applicant, and where on August 14, 2018 the 1st Respondent transmitted an email to the 2nd Respondent as follows, "Let’s be clear - I want to approve your replacement".

Dlamini alleges that this email was sent to Soonius, who at the time was the country director of the 1st applicant and it made it clear that van Niekerk had the power to approve senior management at Ecsponent.

He further alleges that on August 14, 2018, van Niekerk sent another email to Terence Gregory in which he expressed his concern about his replacement and suggested a meeting with him as they needed to grow the market share there.

He claims that this email, followed an email from Terence Gregory, who was at the time the chief executive officer of ecsponent South Africa which was as follows: "Thanks Dave, I am meeting with the chairman and head of FSRA tomorrow one of the agenda items is the replacement and CEO so we can move forward with vendor business in Swazi.

Will let you know what happens."
Dlamini alleges that the said replacement was for a senior position at FSRA, that van Niekerk appeared to have clearly had the power to approve replacements at FSRA and which further indicated that he had significant influence in the running of the regulator’s affairs.

“The Head/Chief Executive Officer of the Financial Services Regulatory Authority was at the time Sandile Dlamini and the Board Chairman at the time was Sthephen Simelane. On the 22nd June 2018, van Niekerk gave an instruction through an email to Byron Hennessy (one of his associates) and stated that, ‘Byron you are not paying that. What’s the notice period on the capitus money?’

influence
“On the same email Byron Hennesy replied and stated as follows; "Capitus have now also requested that we repay the R10 mil (E10 million) they gave us last week. (I do not have funding for),” further alleges Dlamini.
Dlamini also alleges that these emails between van Niekerk and Byron Hennessy painted a clear picture that he had and or has significant influence and control over cash-flow management at Get Bucks South Africa, where the collected Investors monies were transferred to under his auspices.

“On the 25th April 2018, Terence Gregory sent an email to the 1st respondent as follows; ‘FSB are back on our trail, but I am dealing with it. Let me know when you can discuss.

Haven't informed the board or George so please keep it to yourself for now’. In the above email the 1st respondent is informed of new regulatory queries whilst the board is specifically excluded from the above notification.
The emails show that the 1st Respondent was a very powerful person within Ecsponent Limited,” further alleges Dlamini.

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