Tag Archives: Ponzi

RVAF Update

22 Apr

Author: Paul Kruger

Publications: Moonstone

Date Published: 21 April 2015

Die Burger reported on Thursday, 16 April 2015, that investors who placed funds with the Relative Value Arbitrage Fund (RVAF) can expect to get some of their money back.

This information was contained in the latest progress report from the joint trustees of Herman Pretorius’s estate.

According to the article, receipts show that the RVAF group accumulated approximately R2.5 billion between 2004 and 2012 from investors and other sources. A summary of the group’s income and expenses by forensic auditors, appointed by the trustees, states that Pretorius used R753 million of the funds for payments unrelated to payments to investors.

Other unspecified payments amounted to R164 million.

At the time of Pretorius’s death, there was only about R2.1 million left in the RVAF bank account.

It is not clear just how much will become available for distribution to investors. The trustees indicated that they will be applying for the setting aside of judgements obtained to freeze certain of Pretorius’s assets to prevent it from being used. They have also successfully applied for the sequestration of Pretorius’s family trusts.

Broker Commissions

The article also states that R124.6 million was paid to financial advisers who convinced investors to place their funds in the RVAF. The trustees aim to approach these advisers on an individual basis to reclaim the fees paid to them by Pretorius. One such claim was already allowed by the courts, but there is currently an appeal against this finding.

The same broker also appealed against various determinations by the FAIS Ombud that he should repay investors the money they placed in the RVAF on his advice.

In total, 23 FAIS Ombud determinations were made in favour of complainants against a handful of advisers.

Investor Claims

A third article reminds investors who wish to lay complaints against advisers that they would have to do so soon, as they only have three years from the time they became aware of, or should reasonably have become aware of, the occurrence of the act or omission which gave rise to the complaint. Pretorius died in July 2012.

A Double Whammy

There are two sources of hope for investors. The final restitution after the trustees managed to wind up Pretorius’s estate, and/or the Ombud finding in their favour.

In view of a recent Appeal Board decision it appears unlikely that investors will be allowed to have the best of both worlds. They cannot reclaim their investment from the broker, and get a partial payment from the estate. It appears that, until such time as a final payment is made from the estate, the quantum of the loss cannot be ascertained with certainty.

The attempt to get advisers to pay back the “commission” they received is far more complex than what it seems.

In 2012, after the death of Pretorius, the FSB issued a media release on the RVAF in which it said:

” The ambit of the FAIS Act is focused on the rendering of financial services which typically involve three parties, namely a product supplier, an intermediary and a client. Unless a financial product is involved, the FAIS Act does not apply.”

And further on: “To the extent that investors were lured into any of his projects, such investors carried the risk and obligation to enquire into the merits before parting with their money, especially where above-average returns were being offered. The loss of so much money to so many investors is a sad state of affairs but one for which the regulator is not accountable.”

The outcome of the appeal case, referred to above, should provide clarity on this matter.

Justice for All?

Another consideration noted before in this forum, but as yet unresolved by the authorities, concerns the broker’s ability to reimburse clients.

With multiple claims resulting from both the trustees and the Ombud’s determinations, the chances are very good that the brokers involved may be forced to choose the insolvency option.

This could mean that clients will receive justice, but no compensation, while those who benefitted most will walk away scot free.

Such an outcome defeats the object of the exercise, and deserves serious attention.

Belvedere allegations: Money in SA unit trusts is safe

20 Apr

Author: Patrick Cairns

Publications: MoneyWeb

Date Published: 14 April 2015

CAPE TOWN – The allegations that local fund manager Cobus Kellerman could be involved in a $16 billion (R200 billion) Ponzi scheme through the Mauritian-domiciled Belvedere Management Limited has caused a lot of consternation in South Africa. Many investors have been worried that money they put into unit trusts managed by Kellerman could be at risk.

Kellerman established Clarus Capital in 2009. Until July last year, Clarus managed a number of funds administered by MET Collective Investments, including the Clarus MET Equity Value Fund and the Clarus Optimal Fund.

These funds, although they still carry the Clarus branding, are now managed by Contego Asset Management. Contego is still awaiting approval from the Financial Services Board (FSB) to change their names.

Contego took over management of these funds after signing a new investment management agreement with MET Collective Investments in 2014. Since July last year, therefore, Kellerman has not been involved in these funds in any capacity.

However, even when he was managing these funds, there was no opportunity for him to take money out of them. The South African unit trust market is highly regulated and there are always custodians that stand between the investors and the fund managers to prevent any kind of fraudulent activity.

“In the history of unit trusts in South Africa there has never been any evidence of a fraudulent act,” says JC Louw, the Asset Management CEO at Contego. “Kellerman could not have touched the money in these funds.”

Every unit trust has an appointed administrator and fund trustee. These are reflected on the fund fact sheets.

The administrator is responsible for verifying the assets held in the fund, while the trustee is a bank which holds those assets in trust. In effect, the fund manager doesn’t actually handle any money. They run the fund off a spreadsheet.

“We can’t withdraw money and the trustee bank will not pay out to a third party,” Louw says. “The custodian will only pay out to a FICA verified bank account supplied by the investor.”

It is also not possible for a unit trust to invest in any unlisted instruments, so a manager cannot divert funds into an obscure holding that they can then raid. The assets held by the fund must always be verifiable by the administrator.

“So there is no evidence whatsoever of money that has gone missing and no evidence of irregularities in South African funds whatsoever,” Louw says. “South African unit trusts are safe.”

The scale of the allegations

The allegations about Kellerman and his partners at Belvedere, Irishman David Cosgrove and Mauritian accountant Kenneth Maillard were first made in an article on OffshoreAlert. It claimed that Belvedere “appears to be one of the biggest criminal financial enterprises in history”.

It based this on Belvedere’s submission to the Mauritian Financial Services Commission that it has $16 billion (R200 billion) of assets under administration, management and advisory. OffshoreAlert suggested that all of this is at risk.

The amount of money in question is huge. It almost matches all of the assets under management in Allan Gray’s South African unit trusts, and is almost twice as much as that managed by Nedgroup Investments in its suite of unit trusts.

However, Moneyweb made enquiries at a number of large local financial advisers and none had heard of Belvedere before the rumours broke. Nor did they have any knowledge of RDL Management – the investment management and advisory arm of Belvedere of which Kellerman is the 50% owner.

This is in rather stark contrast to Herman Pretorius’s R3.1 billion RVAF Ponzi, which was widely known when he committed suicide.

This may be an indication that there is not a lot of South African money with Belvedere. It also raises questions about the allegations in general.

It takes a long time to accumulate an asset pool of that size, and Belvedere is reported to have over 120 funds. So far, however, the only claim that anybody has not been able to recover money from any of them are those from the deVere Group.

deVere is an independent financial advisory group, and seems to be the primary source of information supplied to OffshoreAlert. It claims that clients lost money in one of the fund’s administered by Belvedere: the Strategic Growth Fund.

However, no other investors appear to have come forward to claim that any money invested in any of Belvedere’s other vehicles is unrecoverable. That doesn’t mean there isn’t impropriety going on, but it does raise questions about what evidence really exists.

Kellerman was not available for comment at the time of publication.

Investment red flags

16 Apr

Author: Hanna Barry

Publications: MoneyWeb

Date Published: 14 April 2015

JOHANNESBURG – Unregulated investment schemes may be a dime a dozen in South Africa, but they’re pretty easy to spot so there’s really no excuse to get caught out.

Be wary when promised abnormally high and consistently positive returns that are guaranteed even when the market is down, cautions Marc Alves, senior case manager at the Financial Advisory and Intermediary Services (FAIS) Ombud.

“It’s very difficult to get a 10% return in the market through an established financial services provider, so if someone is offering you 2% a month or 30% per annum, be very cautious,” he says.

The JSE’s All Share Index (Alsi) returned 7.6% last year. The Top 40 Index, which holds South Africa’s largest blue chip companies, returned just 6%. Listed Property and the Financial 15 (which includes the largest banks and insurers) fared significantly better, returning around 19% and 23% respectively.

But even at the upper end, these numbers are significantly lower than the 300% annual returns promised by Zantech Trading or the 2%-a-day returns promised by Chris Walker’s Defencex. Both schemes were found guilty of contravening the Banks Act and ordered to repay investors.

“Empower yourself with sound financial planning and don’t make decisions based on pressure and emotions,” advises Alves, noting that those exploited are often people who have not provided sufficiently for their retirement or other financial needs.

“Ask about the risks and how easy it is to get your money out. A lot of these schemes are willing buyer, willing seller. It’s difficult to get your money out if there is no willing buyer,” he points out.

Make sure you understand how the investment works (could you explain it to someone else?) and where your money is going, Alves adds.

Know the laws

If a company is providing a financial service it must be registered under the FAIS Act and have a financial services provider (FSP) licence number, issued by the Financial Services Board (FSB). An unregistered FSP would be in contravention of the Act. You can check whether a company has an FSP licence on the FSB’s website by running a search on the company’s name (‘Search for FSP name’).

Herman Pretorius’s Relative Value Arbitrage Fund (RVAF) was not a registered fund with the FSB. Yet it is believed to have amassed R1.8 billion from 3 000 investors.

Fortunately, because it fell within the definition of a financial product, the FAIS Ombud was still able to pronounce on it despite it not being registered and has made numerous awards in favour of consumers. Last year alone, one financial advisor was ordered to repay more than R10.7 million to around 20 consumers who he had advised to invest in the RVAF.

However, a number of schemes set themselves up so as to fall outside the definition of a financial product. This leaves consumers with very little recourse since financial regulators can only enforce the laws they have jurisdiction over and only where these laws have in fact been broken. If a company is not registered with either the South African Reserve Bank (Sarb), FSB or National Credit Regulator (NCR), ask why.

The role of financial advisors

Financial advisors approached by clients for advice on these products must do the appropriate due diligence on the product, Alves says. “We’re not saying there’s not a place for alternative investments, but definitely advisors should do their homework and make sure that the products are sound and meet all the criteria,” says Alves.

“If you don’t understand the product yourself, if you haven’t done any due diligence and can’t answer the questions, don’t advise on it and certainly don’t earn fees,” cautions Gavin Came, a financial planner with Sasfin Wealth.

“Product providers have over time caused more damage than intermediaries, although advisors have borne the vast majority of the regulator’s wrath,” he maintains. “When investments don’t pan out, the intermediary carries the can for an ill-designed product at best and a ponzi scheme at worst,” Came says.

Due Diligence and the Financial Adviser

13 Apr

Author: Paul Kruger

Publications: Moonstone

Date Published: 9 April 2015

Section 2 of the General Code of Conduct requires that ‘a provider must at all times render financial services honestly, fairly, with due skill, care and diligence, and in the interests of the clients and the integrity of the financial services industry.’

To the best of my knowledge, this does not require that a FSP must conduct a due diligence to the same extent required when mergers and takeovers are concerned. This is a formal process involving lawyers and accountants, and goes far beyond what can or should be expected from a financial adviser.

In a recent determination, the FAIS Ombud again referred to this thorny issue involving an investment in the Relative Value Arbitrage Fund (RVAF) run by the late Herman Pretorius.

In the formulation of the complaint, the determination reads:

Complainant contends that he was not informed by respondent that what he was investing in what was actually a pyramid scheme as opposed to a legitimate investment. Had he so known, he would never have invested and accordingly holds respondent accountable for his losses.

From the information supplied by the respondent, it appears that she was equally unaware that the scheme was, in its last years, run as a Ponzi scheme. In fact, this only materialised after the death of Pretorius.

In the determination under discussion, the following information is supplied by the respondent:

[12] Specifically questioned as to the due diligence she conducted, respondent advised that having been introduced to Abante Capital she visited the premises where Herman Pretorius explained the strategies and how the risk was managed. Having been introduced to the trading team, respondent then proceeded to ascertain whether Abante Capital was registered with the FSB. In addition thereto respondent confirmed with Momentum and Old Mutual and spoke to their fund managers about Abante Capital and their use of the fund in their portfolios.

[13] Respondent goes on to state that, having a reasonable knowledge of Hedge Funds, respondent concluded that the strategy is sound and when mostly top 40 JSE companies are invested into, this should be a sound fund. According to respondent, Mr Pretorius explained that the way that this fund operated the risks are relatively low.

[14] Respondent contends that she was satisfied that persons investing in the fund were fully appreciative and aware of the risks involved, both in that they attended presentations by Herman Pretorius but also in that respondent further explained the process and operation of the fund as she understood it. In this regard a written explanation of Board Notice 5711 was provided and explained to each client.

[15] As to the basis upon which respondent deemed RVAF to be a suitable basis for her clients, respondent advised as follows:

15.1. Many clients need a higher return on their investment to ensure that they reached their investment goals, and as an adviser it was her duty to ensure that all products and all investment avenues are explored on behalf of clients;

15.2. Given the various market crises, hedge funds could both act as a defensive strategy and outperform traditional investments in a downturn;

15.3. Researching the different hedge funds available in the country, respondent’s research showed that Abante Capital was one of three hedge funds in South Africa;

15.4 In 2008 Abante Capital won a hedge fund award. With regards thereto respondent provided a Symmetry multi manager document showing the market neutral category winner as ‘Abante Statistical Arbitrage.’

[16] The portfolio was explained to clients as a hedge fund which invested in shares on the JSE. It was explained that as in any investment involving shares the risk is of a high nature, however historically the loss in downside markets is lessened when hedge trading strategies are used.

[17] In this regard respondent states that hedge funds may actually be a lower risk than traditional investments as the target is to protect capital, increase defensive strategies, and obtain absolute returns under all market conditions as explained by Herman Pretorius.

Concerning the client’s knowledge of investments, the determination states:

With regards to the investment in RVAF, complainant was given to understand that the underlying investment was comprised of shares on the Johannesburg Stock Exchange. To this end and having personally dabbled a bit in shares he understood that there were risks involved in the investment, chief amongst which was that the share market could go up or down;

The respondent’s version of the client’s profile states:

‘Mr VD Walt has a degree, a residential and commercial property portfolio, runs his own consulting practice and trades a share portfolio. He is investment savvy and understands how shares can be traded long and short for a profit in a bear market’.

Was the advisor negligent?

A recent Appeal Board ruling on this case contains the following interesting view:

What then constitutes negligence? The lack of skill or knowledge is not per se negligent. It is however, negligent to engage voluntarily in any potentially dangerous activity unless one has the skill and knowledge usually associated with the proper discharge of the duties connected with such an activity. Hence, in interpreting the meaning of “care and skill”, our authorities have held that a mandatory should always employ reasonable care and skill in exercising his or her mandate.

What is reasonable in the circumstances is measured against the “general level of skill and diligence possessed and exercised at the same time by members of the branch of profession to which the mandatary belongs. If a mandatary negligently falls to execute his mandate or he is negligent in exercising his mandate, he failed to act with “care and skill”. To act negligently means to act in a way that falls short of the standard of the reasonable person”. Hence the defendant is negligent if the reasonable person would have acted differently if the unlawful causing of damage was reasonably foreseeable and preventable.

It is difficult to see how the actions by the respondent, as outlined above, can be deemed to have been lacking in “… due skill, care and diligence…”, or negligent.



Belvedere Management: Massive Criminal Enterprise or Defamed Fund Manager?Posted on April 11, 2015 by

11 Apr

Author:  

Publications: naked capitalism

Date Published :11 April 2015

…….. Looking a little further afield in the Belvedere fund universe, we find some other nuggets.

First, Belvedere runs some onshore funds in South Africa, but a presumably rather sweaty independent audit, initiated very soon after Marchant’s article came out, says they’re fine.

Second, Belvedere man Cobus Kellerman had some wonderful investment timing when his Ankh Analytic sold out its indirect holdings in Basileus Capital on the very day its principal, Julian Williams, was shot and killed  by his former business partner Hermann Pretorius, who then shot himself.  Pretorius’ RVAF Trust then turned out to be a Ponzi. Basileus Capital got into difficulties too:

The empire of slain businessman Julian Williams appears poised for collapse, following the announcement that his Basileus Capital group has initiated “business rescue proceedings”.

Business rescue is an alternative to liquidation provided for under the updated Companies Act.

Also at risk are investors in the JSE-listed BK One, a capital-raising vehicle for Basileus.

There is a trail of related party trans­actions, comprising intercompany investments, loans and write-offs, which raise questions about how much of the cash Basileus was able to raise from investors actually made its way into the project “pipeline” of which it boasted.

Belvedere crops up in the BK One story again, benefitting handsomely from a relatively terrible BK One deal for shares in Avalloy:

The February report discloses that R52-million was used to buy shares in Avalloy from SA Superalloys and from a mysterious Mauritian investment fund called Four Elements. A further R11.6-million was spent in taking over a loan to Avalloy that Four Elements had extended. Part of the loan had been converted into shareholding, meaning BK One had bought an effective 10.5% shareholding in Avalloy at a cost of R65-million. In contrast, the Industrial Development Corporation got its 10% in effect for free – a bonus for providing a R35-million loan.

Even more curious is that an associate of Four Elements was the major subscriber to shares in BK One, accounting for nearly half of the R200-million raised. The second-biggest shareholder in BK One, with 17%, is another Mauritian entity, Two Seasons, which shares the same management team as Four Elements: Ken Maillard and David Cosgrove of Belvedere Management, Mauritius. A message left on Belvedere’s automated answering service went unanswered.

Third, Belvedere funds made (purportedly modest) investments in the very dreadful Harlequin Property scheme, famous in the UK, a  resort development company that sucked up £400Mn of investor funds and ran out of cash with hardly any of the promised development complete.

Fourth, David Cosgrove of Belvedere has some previous form:

The now exposed Belvedere Ponzi kingpin David Cosgrove is no stranger to the South African financial authorities. Just over a decade back, he single handedly collapsed JSE-listed financial services company mCubed after the Reserve Bank and SARS discovered he was helping clients to illegally ship money offshore.

Described by those who know him as a high-pressure salesman who considers laws and regulations the same way SA taxi drivers view traffic lights, Cosgrove used the institutional offshore allowance as a vehicle to prey on rich South Africans nervous about the country’s future.

When the scheme was discovered, the authorities levelled a R140m fine on mCubed, which in effect killed the business, a piece of which was later picked up by the equally corrupted Fidentia. As a result, Cosgrove is about as popular at the Financial Services Board and in SA financial circles generally, as Netanyahu would be at an ISIS gathering………..

Vrae oor beleggings: Herman Pretorius se spook loop weer

25 Mar

Author: Marelize Barnard

Publications: Die Burger

Date Published : 25 Maart 2015

NOG ‘N PONZI-SKEMA?

Kaapse sakeman praat vandag

Die Ponzi-bedrieër Herman Pretorius se spook loop weer in beleggingskringe.

En dié keer word daar weer ’n miljoenêr-beleggingsbestuurder van die ryk Kaapstadse voorstad Welgemoed genoem.

Die naam van Cobus Kellermann (39), ’n batebestuurder wat sakebande gehad het met Julian Williams wat in 2012 deur Preto­rius doodgeskiet is, word nou in nuusberigte genoem in verband met vrae wat ontstaan het oor beleggings van honderde miljoene rande.

Kellerman – met sakebelange so wyd as Somerset-Wes, Durban­ville, Mauritius en Switserland tot die eiland Guernsey in die Engelse Kanaal – woon twee strate van wyle Pretorius se ontwerpershuis wat verlede jaar vir R12,8 miljoen opgeveil is.

In 2012, toe ​Pretorius eers vir Williams, sy oudsakevennoot, en daarna homself in die middestad van Kaapstad doodgeskiet het, het dit bekend geword dat Kellerman se twee beleggingsfondse wat in Mauritius geregistreer was groot bedrae belê het in ’n maatskappy wat weer groot belê het in Basileus Capital, waarvan Williams die uitvoerende hoof was.

Dinsdag is in Sake berig Kellermann word verbind met ’n internasionale beleggingsgroep, Belvedere Management, wat uit Mauritius bedryf word en wie se kapi-taalgroeisyfers glo onder verden-king is.

Die Burger het Dinsdag Kellermann se huis in Welgemoed besoek om sy kommentaar te kry. ’n Man wat die interkom by ’n veiligheidshek geantwoord het, wou nie kommentaar lewer nie.

Hoewel in berigte verwys word na Kellermann se voorliefde vir vinnige motors, soos ’n rooi Ferrari, was daar geen sportmotors in die oprit nie, maar wel ’n Toyota Prado en ’n Isuzu-bakkie.

Met ’n tweede besoek aan die woning het ’n vrou, wat uit ’n wit VW Touareg geklim het, die veiligheidshekke haastig toegesluit. Sy het net voor sy die huis se deure toegemaak het, op ’n verslaggewer van Die Burger, Jason Felix, geskree: “Gaan weg, asseblief. Ons het geen kommentaar oor alles nie. Gaan net weg.”

Kellermann het intussen aan Johan Theron, prokureur van die regsfirma Werksmans, opdrag gegee om hom en sy sakevennoot, David Cosgrove, by te staan nadat “ongegronde en skadelike aanmerkings” deur ’n oorsese publikasie gemaak is “en nou ook deur plaaslike media herhaal word”.

Theron het gesê Kellermann en Cosgrove is bereid om vandag persoonlik vrae te beantwoord oor die aantygings, asook presies wat Kellermann se verbintenis met onder meer Basileus, Wil­liams en Pretorius was.

Tighter regulation for hedge funds

14 Mar

Author: Bruce Cameron

Publications: iOL

Date Published: 14 March 2015

Hedge funds, which manage assets of more than R57 billion, mainly from retirement funds, will have to register as collective investment schemes by the end of March next year in terms of new regulations by National Treasury and the Financial Services Board (FSB).

This will result in far more protection for investors in hedge funds, which are currently unregulated. Until now, hedge fund managers have only had to register with the FSB as financial services providers.

The absence of regulation allowed things such as the massive Relative Value Arbitrage Fund scam, in which about 3 000 people invested about R2 billion in an unregulated fund posing as a hedge fund. The fund collapsed in 2013, when the person who ran it, Herman Pretorius, shot himself after killing his business associate, Julian Williams, after the FSB started a much-delayed investigation.

The regulations, which will be implemented from April 1, 2016, will require all new hedge funds to register in terms of the Collective Investment Schemes Control Act (Cisca), while existing hedge funds will have 12 months to register.

The regulations create two broad categories of hedge fund, each with different levels of regulation:

* Qualified investor hedge funds, which are limited to institutions, such as retirement funds, and very wealthy individuals who have large sums to invest. These funds are less rigidly regulated. Investors must be able to demonstrate to the fund managers that they have sufficient expertise to understand the workings and risks of hedge funds.

* Retail hedge funds, which are open to ordinary investors, although the minimum investment amounts are usually fairly high. They are more strictly regulated than qualified investor funds, and the risks they are allowed to take are more limited.

The new hedge fund regulations follow changes to regulation 28 of the Pension Funds Act four years ago that allowed retirement funds to invest significant amounts in hedge funds.

The regulations also come at a time when investors internationally are expressing greater caution about hedge funds, because of complexity, fraud, costs and poor performance. For example, in 2014, one of the world’s biggest retirement funds, the California Public Employees’ Retirement System, announced plans to start cashing in the US$4 billion it had invested with hedge funds, saying they were “too expensive and complex”.

The aims of the regulations are to:

* Provide investors in hedge funds with better protection;

* Assist in monitoring and managing systemic risk to the financial services industry;

* Promote the integrity of the hedge fund industry;

* Enhance transparency in the hedge fund industry, which traditionally has been ultra secretive; and

* Promote the development of financial markets.

The regulations state that hedge funds will be taxed on the same conduit basis as all other collective investment schemes, such as unit trust funds.

The conduit principle means that investors pay tax only when they receive returns. So any interest or dividend payments are taxed in the hands of the investor when they accrue; and income tax (if the investment is sold in less than three years) or capital gains tax apply to any gains or losses on the sale of an investment.

The regulations, in effect, accord hedge funds a special status in terms of Cisca. Unit trusts funds, which are also governed by the Act, cannot use the investment strategies and financial instruments that often form the backbone of hedge funds (see “What are hedge funds?”, below). For example, unit trust funds are not allowed to borrow to invest, nor can they use most derivatives.

But the regulations will not open the door to a “wild west”. There are strict controls, particularly in the case of retail hedge funds, on investment strategies, gearing and financial instruments.

The South African hedge fund industry grew its assets under management by R10.5 billion during 2014, ending the year with assets under management of R57 billion.

These assets are invested in 113 hedge funds, which are managed by 55 hedge fund managers (fund of hedge fund managers excluded).

‘WELCOME DEVELOPMENT’

The declaration of hedge funds as collective investment schemes by National Treasury and the Financial Services Board (FSB) is a welcome and long-awaited development, says Leon Campher, chief executive of the Association for Savings & Investment SA (Asisa).

Campher says Asisa partnered with National Treasury and the FSB for several years to regulate hedge funds, which had been pushing for clarity on product regulation.

“Generally, regulation assists with the growth and management of an industry, as it provides much- needed clarity to industry participants and investors alike. Consumers, whether they are institutional or retail, also find comfort in the fact that an independent body – the FSB – is overseeing the industry operations and structures that manage their investments,” Campher says.

He says that South African financial regulators accepted in 2007 that hedge funds needed some form of regulatory supervision. Initially, this was thought to be appropriate at only manager level, since hedge fund managers are held to higher experience standards, greater capital adequacy requirements and stricter qualifications than their “long only” peers. However, since the global financial crisis of 2008, South African and global regulators have been reviewing the situation.

REGULATIONS FOR QUALIFIED AND RETAIL FUNDS

Under the new regulations, general conditions apply to both retail and qualified investor hedge funds. For example, they are restricted in the main to using securities and derivatives that are listed on registered securities exchanges. There are also limitations on the percentage of a fund that may be invested in any one security. These limitations apply to all collective investment schemes, to reduce risk of a major loss if there was a total failure of a single underlying investment.

The specific conditions that apply to qualified investor funds include:

* They are restricted to “qualified investors”. This is someone who can invest a minimum of R1 million per hedge fund and who has demonstrable knowledge and experience in financial and business matters that enable the investor to assess the merits and risks of a hedge fund investment; or who has appointed a financial services provider who has demonstrable knowledge and experience to advise the investor about the merits and risks of a hedge fund. A qualified investor can be an individual or an entity, such as a retirement fund.

* There are limitations on investment strategies that expose an investor to a loss in excess of the value of its investment or contractual commitment to a fund.

* The fund manager must set a “value-at-risk”, which is a measure of the maximum expected loss of a portfolio over a specified period.

* Have sufficient liquidity (cash and easy-to-sell assets) that enable the manager to pay out investors within three months of an instruction to sell.

The specific requirements for retail hedge funds include:

* The fund must have sufficient liquidity to enable its manager to pay out investors within three months of an instruction to sell. A unit trust fund must pay out an investor within 48 hours, but, because of the contractual nature of derivatives, there are constraints on when the underlying investments of a hedge fund can be cashed in.

* The fund manager is limited to borrowing up to 10 percent of the value of a portfolio for liquidity purposes.

* The manager may borrow against the fund’s assets only for investment purposes, when borrowing funds for taking short positions or engaging in derivative transactions with counterparties (see “What is a hedge fund?”, below).

* Gearing (borrowing to invest) is restricted to a maximum of 20 percent of the total net asset value of the portfolio.

* Managers must report to the Financial Services Board monthly, within 14 days of the end of the month, all long and short positions in the portfolio, reflecting the market value and the effective exposure and value of each of the underlying investments.

* The fund may not invest in property, the portfolio of a fund for qualified investors or a private equity fund.

* If the portfolio includes derivatives, the manager must ensure that the fund’s exposure to derivatives does not exceed the net asset value of the portfolio.

WHAT IS A HEDGE FUND?

Hedge funds are similar to unit trust funds in that investors’ money is pooled to buy assets. The main difference is that hedge funds have more flexibility in the financial instruments and investment strategies they can use, and they can borrow money against their assets, to multiply returns (but they can also multiply losses).

Hedge funds should not be confused with hedging, which is an investment strategy to reduce potential losses.

Most hedge funds are more risky than unit trust funds. On average, they are far more expensive than unit trust funds, which reduces the returns.

Hedge funds use many different strategies to earn returns, from trading in stressed debt to finding small gaps in the prices of securities. Most of these strategies are not permitted in terms of the new regulations.

Most hedge funds, particularly more traditional ones, use what are called long-short strategies to provide superior returns, whether investment markets are rising or falling. These involve buying some securities long and selling others short.

Buying long means buying a security (bond or share) to hold on to it in the hope that it will increase in value.

Selling short is a bit more complex. The manager borrows (rents) shares from another investor and sells the shares in the expectation that the share price will drop. When the price drops, the manager buys back the shares at a cheaper price to give back to the original owner, making a profit on the difference between the selling and buying prices (less the rental).

There are many risks associated with hedge funds, which the regulations aim to reduce but do not eliminate. These include:

* Liquidity risk. It is often difficult to sell a fund’s underlying investments because of contractual or market conditions. In extreme market conditions, liquidity problems can cause a fund to collapse.

* Pricing risk. It can be very difficult to value the assets in a fund at a particular time.

* Counterparty risk. Hedge funds tend to deal with other parties when purchasing derivatives, borrowing securities and gearing (borrowing). There is a risk that a counterparty may fail to meet its commitments, which will have a knock-on effect on the fund.

* Short squeeze risk. This is the risk that the securities required for a shorting contract will not be available when required.

* Financial squeeze. This is the risk that a manager will be unable to borrow, or to borrow at an acceptable rate, frustrating the strategy followed by the manager.

* Timing risk. This is the risk that the manager simply gets it wrong.

Investors need to wise up to Ponzi schemes

18 Aug

Author: DAWIE DE VILLIERS

Publications: Citizens Alert ZA

Date Published : 17 August 2014

Investors need to wise up to Ponzi schemes – Sharemax and directors schemed to defraud public, says Fais ombud

With many South Africans – and retirees, in particular – struggling to make ends meet, they become easy pickings for fraudsters operating get-rich-quick investment scams, also known as Ponzi schemes.

In their search for high returns on investments, South Africans seem to repeatedly entrust their hard-earned savings to operations which, at best, have short-term track records and, at worst, knowingly sell promises that they are unable to deliver on.

Investors buy into these promises without fully understanding how these operators achieve their alleged returns.

Over the past five years, the following schemes – which have had traumatic consequences for unsuspecting investors – come to mind: Fidentia, Leaderguard, Sharemax, King Group, and the Herman Pretorius saga.

There is a golden thread running through this list: each one promised a return far superior to that of the financial market, at a very low risk. In hindsight, such promises were too good to be true. But why do we continue to move from one such scandal to the next?

Spotting a Ponzi or pyramid scheme is relatively easy. Here is a checklist to arm yourself against fraudsters:

1. Insist on proof that the investment vehicle is registered with the Financial Services Board (FSB).

If it isn’t, and your money gets lost, you have no avenues of recourse open.

2. Compare the interest rates on offer with the global and local investment landscape (for example, interest rates and economic growth rates).

If the national interest rates are at 5 or 6 percent, and someone is offering you a guaranteed return of 30 percent, it is likely to be a fraudulent scheme. Having realistic expectations of investment returns is the cornerstone of any sensible investment strategy.

3. Be wary of consistent returns.

By their very nature, financial markets are fluid instruments fluctuating daily.

If a scheme offers consistent, guaranteed returns and it is not underwritten by an insurer or bank, it is most likely not invested in secure financial instruments and should, therefore, be closely scrutinised.

4. Look carefully at the track record of the institution and individual offering the investment opportunity.

And this means not just taking their word for it. Contact the FSB, contact the editor of the personal finance section of the newspaper, and ask reputable brokers for their opinion. In an economic downturn, your best bets are very well-established investment houses with solid track records and healthy cash reserves.

Don’t be fooled by professional-looking documentation or reporting.

5. Practise steps 1 to 4 above, no matter who you hear about the scheme through.

Unfortunately, many unsuspecting investors are introduced to Ponzi schemes through intermediaries, such as friends and family, and this provides them with a comfort factor. This does not mean they are safe. It is possible that those family and friends will equally become victims.

6. Don’t be comforted if the scheme has paid out regularly to those family or friends.

This is a classic characteristic of a Ponzi scheme. In order to appear legitimate, they pay out, as promised, for a period of time to allow word-of-mouth to market the scheme on their behalf. Then, when there are enough investors, they pull the plug and make off with the money.

7. Trust your instincts. Common sense and gut feel can be great defences against falling for Ponzi schemes.

Ask yourself why you have been given an opportunity to make fabulous returns on your investment. Why have you been so lucky to get this unbelievable opportunity to multiply your wealth? What’s so special about you?

8. Be extremely wary of “opportunities” to invest your money in franchises or investments that require you to bring in subsequent investors to increase your profit or recoup your initial investment.

No legitimate investment house employs this strategy – in short, it is a very big clue that something dodgy is brewing.

Whatever your reason for investing, it is vital to have a goal, a timeline and reasonable expectations.

By investing in regulated investment products – such as unit trusts or mutual funds – you are investing in products that have an enormous amount of governance.

Before investing, you must be sure that you are trusting your funds to a person, people or an institution that has shown that it can consistently deliver returns over an extended period of time.

Long-standing institutions with proven track records are often the wisest choice.

Please contact an accredited financial adviser to discuss these collective investment schemes.

* De Villiers is chief executive officer, Sanlam Structured Solutions.

Background

Named after Charles Ponzi, an Italian immigrant to the US who convinced New Yorkers to invest in coupons yielding fabulous returns in the aftermath of World War I, most Ponzi schemes have the following modus operandi: investors are wooed by fantastic returns, with the older investors in the scheme getting paid from the proceeds of the newer investors. But the scheme only lasts as long as it attracts new investors.

South Africans in search of high returns have also been caught out. Names that spring to mind include Barry Tannenbaum – who fleeced billions from wealthy individuals in 2009 – Masterbond, Ovation, Fidentia and, most recently, Herman Pretorius.

Ponzi king’s estate bringing in millions – but not enough

22 Jul

Sunday Times
20 July 2014
Nashira Davids

http://www.timeslive.co.za/sundaytimes/

About R20-million could be added next month to the kitty being accumulated to compensate 3000 investors who lost a total of R2.2-billion in Herman Pretorius’s Ponzi scheme.
The Cape Town mansion he shared with his wife, Susan, will be auctioned on August 15. With decor reportedly worth R13-million, it is expected to sell about the same as his Hermanus beach villa, which brought in R17.8-million last year.
zpretorius, from the tiny Western Cape village of Piketberg, rose to become a high-flying businessman with a fleet of luxury cars, at least two mansions and millions in his bank account.
But the good life came to a sudden end when he shot dead his business partner, Julian Williams, reportedly after an argument over money, and then turned the gun on himself.
Since then, the full extent of his scam has come to light and the trustees of the fund he ran have been trying to find his assets.
It is not an easy job, because books and other records were not properly kept and no financial statements were compiled, making it difficult to reconstruct business transactions.
What the trustees did uncover was a life of opulence paid for with money invested in his Relative Value Arbitrage Fund Trust.
Much like her husband’s investors, Susan “lost everything”, her lawyer, Etienne Naude, said.
Susan, who is the registered owner of the Welgemoed house, was sequestrated in October last year.
Naude said his client “is saddened about having to lose that house as well”.
According to the auctioneers ClareMart, the cost of the land and the construction of the home totalled about R20-million.
“There have been countless queries from potential buyers,” said a spokesman for the group.
The house has a marble entrance hall, marble counter tops and wraparound marble patio.
It has its own theatre, gymnasium and sauna, and boasts an excellent view and landscaped gardens.
Pretorius’s estate was sequestrated in the High Court in Cape Town last year.
Judge Owen Rodgers found that Pretorius had “attractedlarge sums from gullible members of the public (many of them from country towns in the Western Cape) by promising above average returns of 14% to 25% per annum – the time-honoured method originally made famous in the 1920s by Mr Charles Ponzi”.
Rodgers noted that Pretorius had no income apart from that derived from his investment scheme and that his wife had not worked since 1991.
But they had 10 properties, reportedly worth R116.9-million, and six cars, including an Aston Martin DBS and a Range Rover.
Rodgers remarked that Pretorius’s wife had said that she and her adult sons “know very little about the investment business and cannot be held accountable if it should transpire that Mr Pretorius acted unlawfully”. Other properties sold include: A luxury three-bedroom apartment in Claremont that fetched R3.3-million; A luxury beach villa in Hermanus – featuried on the cover of House and Leisure magazine in 2012 – scooped up for R17.85-million; Vacant land in Hermanus, auctioned for R 863 840; and “A-Grade” office space at the TygerWaterfront with 51 parking bays, sold for R14.9-million.
They also owned a property in Oranjezicht, vacant land in Wesfleur and a holiday home in Malgas were also on the list of sales.
Piet Serdyn, 73, of Moorreesburg, said he lost all his retirement savings when he invested with Pretorius shortly before his suicide.
He has little hope of getting any of his money back.
All we, as investors, can do is sit and wait. There is nothing we can do about it.

Investor obtains order for R500 000 refund in RVAF scam

1 Jul

Author: Roy Cokayne          

Publications: iOL

Date Published: 1 Jul 2014

Investor obtains order for R500 000 refund in RVAF scam

Noluntu Bam, the ombud for financial advisory and intermediary services (Fais), yesterday ordered Impact Financial Consultants in Bellville and/or financial adviser Michal Johannes Calitz to repay dentist Dr Craig Stewart Inch the R500 000 he invested in the RVAF.

Bam said the RVAF was nothing short of a scam and initial reports by the joint trustees indicated that most, if not all, investors’ funds had been lost.

She said there were many areas where Calitz was remiss and in direct contravention of the Fais Act. At its simplest, if Calitz had merely requested a set of properly audited financials, the scam would have been revealed, she added.

Bam said this would have been part of basic due diligence. Not only was this elementary step omitted but deficiencies were similarly evident in the lack of any form of proper due diligence study into the fund, its underlying investments or their structure.

Inch said he had trusted Calitz because he was correctly registered as a certified financial planner, a member of the Financial Planning Institute and his company Impact Financial Consultants was correctly licensed with the Financial Services Board (FSB).

He was dismayed that Calitz had not made certain that the investment platform he would be investing his money into was legal, correctly registered and had performed all the necessary due diligences. He had also not checked that RVAF’s fund manager was FSB-licensed, there would be third party verification of returns and valid financial statements and the fund would be correctly audited.

“Calitz acted unethically by investing my money in this ‘hedge fund’. I would never have invested a cent had I known this information.”

Bam said that apart from the issue around the risk profile, the circumstances surrounding the investment were essentially not in dispute, leaving what were essentially allegations about the failure to comply with the Fais Act, including questions of due diligence, appropriateness of advice, licensing and disclosure related to licensing, whether Calitz acted in the interests of his client and the integrity of the financial services industry.

She added that there was no evidence that a need analysis was conducted on Inch and the decision to place the majority of Inch’s savings into such a high risk investment without any diversification defied logic.

Bam said the substantial sums in commissions received by Calitz could simply not be justified when considering the poor quality of advice offered to Inch. She said these commissions were only revealed in a report to creditors in June last year by the trustees of the insolvent estate of the RVAF and a letter dated August 15 last year in which attorneys acting for Calitz conceded that he had received a so-called profit share of R8.44 million.

“Yet on the objective evidence, Calitz could never have conducted even the most basic of due diligences on the RVAF. Calitz placed the funds in a scheme which did not have so much as a financial services provider number, nominee account or even audited financials.

“Schemes such as the RVAF cannot exist without professionals such as Calitz turning a blind eye to legislative requirements,” she said.

FAIS Ombud Rules on RVAF Investment

1 Jul

Author: Paul Kruger

Publications: Moonstone

Date Published: 1 Jul 2014

The reasons for the sad ending to the Relative Value Arbitrage Fund, for both investors and advisors, are evident from this, the first determination by the Ombud on the Herman Pretorius saga.

A client, who invested R500 000 in 2010, complained to the Ombud after losing all his savings when the mastermind behind the fund reportedly committed suicide.

The Ombud quotes the following “important points” from the complaint:

‘I had trust in the respondent as he was correctly registered as a certified financial planner. He was a member of the FPI. His company was FSB licensed. I would never have invested my money in any investment platform by not doing it through a registered financial services provider/certified financial planner. The fact that he is a registered financial services provider makes it certain in my mind that whatever investment platform he would be investing my money in would be:

  • legal
  • correctly registered
  • have all the necessary due diligence performed by himself
  • the fund manager (of RVAF) would be FSB licensed
  • there would be third-party verification of returns
  • there would be valid financial statements
  • the fund would be correctly audited

This, I understand, is not the case at all. I am dismayed that none of the above 7 points were fulfilled and I declare that the respondents acted unethically by investing my money in this “hedge fund”. I would never have invested a cent of my money into this fund had I known this information’ (own emphasis).

The Ombud then proceeds to dissect the evidence in terms of the legal obligations of the advisor, including the following:

  • The duty to identify the client’s needs
  • Disclosures in terms of section 4 and 5 of the Code
  • Information on the product supplier
  • The Code of Conduct for Discretionary Financial Services Providers
  • Risk and hedge fund strategies disclosure as required by the discretionary code and
  • Authorisation to conduct business as a financial services provider

Having dealt at great length with all of the above, the Ombud concludes:

“There are so many areas where the respondent was clearly remiss and in direct contravention of the FAIS Act that it is difficult to recap without repeating all that has already been discussed. At its simplest, had the respondent just requested a set of properly audited financials, the scam would have been revealed. This would have been part of basic due diligence. Yet not only was this (sic) most elementary of steps clearly omitted, but similarly, deficiencies are evident in the complete lack of any form of proper due diligence into the investment vehicle, underlying investments or their structure.”

She quotes from the ground-breaking Durr vs ABSA Bank Ltd and Another 1997 (3) SA 448 (SCA), case which states:

“The important issue is that even if the adviser himself does not have the personal competence to make the enquiries, I believe it is incumbent upon him to harness whatever resources are available to him or if necessary to ask for professional, legal or accounting opinion before committing his client’s funds to such an investment”.

Concerning the respondent’s obligations as a member of a professional body, she states:

“The Code of Ethics requires that the 2nd respondent undertake to act in a manner that displays exemplary professional conduct and maintain the abilities, skills and knowledge necessary to provide professional services competently. In short, the 2nd respondent was certified to a standard above and beyond that of the average financial adviser and must be held to this standard.”

A thorough reading of this determination is highly recommended to all investment advisors. In particular, the views of the Ombud on due diligence will clarify an aspect which is still very murky for many of us.

In Thursday’s Moonstone Monitor we will discuss the Ombud’s view on why the FSB failed to identify problems with the RAVF during on-site visits, which is also discussed in this determination.

Please click here to download the full determination.

 

Continue reading this article

Makelaar vir diens betaal, hoor hof

7 May

Author:  JANA BREYTENBACH

Publications: Die Burger

Date Published : 07 Mei 2014

KAAPSTAD. – Al het wyle Herman Pretorius ’n onwettige beleggingskema bedryf, beteken dit nie dat “ ’n makelaar wat nou weier om sy fooie terug te betaal daarvan bewus was nie”.

Só is gister aangevoer deur adv. Alasdair Sholto-DouglasSC wat die makelaar Michal Calitz van Bellville in die Wes-Kaapse hooggeregshof verteenwoordig.

Calitz staan ’n aansoek teen wat deur die kurators van Pretorius se gesekwestreerde Rela­tive Value Arbitrage Fund (RVAF)-trust en sy Seca-trust ingedien is.

Die kurators voer aan dat Calitz R6,54 miljoen aan die RVAF-trust en byna R380 000 aan die Seca-trust moet terugbetaal.

Verder word geëis dat Impact Finansiële Konsultante (’n beslote korporasie waarin Calitz ’n 80%-aandeel het) ook sowat R2,1 miljoen aan die twee trusts terugbetaal.

Beleggers het op advies van Calitz meer as R86 miljoen in Pretorius se skema belê.

Adv. Jannie van der Merwe, vir die kurators, het aangevoer dat die betaling aan Calitz onwettig was.

Hy het ook aangevoer dat Pretorius, sy vrou, Susan-Ann, en Eduard Brand die trustees van die Seca-trust was, en dat Pretorius en Brand die enigste trustees van die RVAF-trust was. Pretorius het, sonder om sy mede-trustees insae te gee, oor betalings besluit.

volgens Van der Merwe was dit onwettig.

Boonop was die betalings deel van ’n “onwettige beleggingskema, of Ponzi-skema”, het Van der Merwe gesê.

Sholto-Douglas het namens Calitz aangevoer dat hy ’n diens gelewer het en daarvoor betaal is.

“Dit is geld wat Calitz verdien het en waarop hy belasting betaal het.”

Volgens Sholto-Douglas grond die kurators hul aansoek op hoorsê-getuienis wat nie in dié aansoek ingedien is nie. “Die kurators steun op getuienis wat in die sekwestrasie-aansoek teen Susan-Ann Pretorius ingedien is, en dat dit hoorsê-getuienis in die aansoek teen Calitz is.”

Van der Merwe het gesê ’n regter het die getuienis in die sekwestrasie-aansoek van Susan-Ann Pretorius aanvaar en dat die aansoek dus daarop kan steun.

Indien Calitz nie die geld kan terugbetaal nie, sal daar moontlik ’n aansoek om sekwestrasie teen hom by die hof ingedien kan word, het Van der Merwe gesê.

Regter Monde Samela het uitspraak voorbehou.

Lees Artikel in Die Burger

Britse hof oor Pretorius se geld genader

16 Mar

Author: Marelize Barnard

Publications:  Die Burger

Date Publiched: 16 Maart 2014

KAAPSTAD. – Likwidateurs wat wyle Herman Pretorius se R2,2 miljard-bedrogspul ondersoek, gaan in die Britse howe aansoek doen om toegang tot sy bankbesonderhede daar te kry.

Dié stap is nodig om uit te vind waarheen onder meer R177 miljoen verdwyn het wat Pretorius vermoedelik in die buiteland versteek het.

Dié bedrag geld is in ’n Switserse bankrekening gedeponeer, maar wat Pretorius daarmee gemaak het, bly ’n raaisel.

Die eerste stap vir die likwidateurs is om ’n hofbevel te verkry wat toegang sal verseker tot ’n bankrekening wat Pretorius by die Britse HSBC-bank gehad het.

Volgens die jongste verslag wat die likwidateurs van Pretorius se gesekwestreerde besigheidsentiteite aan beleggers uitgestuur het, het HSBC tot nou toe geweier om die inligting bekend te maak sonder ’n hofbevel.

Met die hofbevel kan die trustees vasstel hoeveel geld in Pretorius se verskeie oorsese bankrekenings is, maar selfs belangriker nog sal die ondersoek kan voortgaan na watter rekening Pretorius geld verskuif het.

Intussen is ’n regsverteenwoordiger ook in Switserland aangestel om inligting te bekom oor Pretorius se bankrekeninge by Anker-bank in Zürich.

Pretorius het ’n maatskappy genaamd MAT Worldwide Beperk op 4 Januarie 2001 in die Britse Maagde-eilande geregis­treer en dit tot September 2009 – aldus die likwidateurs wat sy sake ondersoek – waarskynlik as ’n “front” gebruik as dié oorsese besigheid waarin hy plaaslike beleggers se geld bestuur het.

Maar ten spyte daarvan dat miljoene ponde deur die jare in MAT Worldwide se rekeninge inbetaal is, is daar blykbaar slegs £450 000 (R7,9 miljoen) van die R177 miljoen in die een bankrekening oor. Dit is luidens die likwidateurs se verslag.

) In ’n prokureursbrief deur Duvenage en De Villiers, van Wellington, wat einde 2012 aan HSBC gestuur is, word genoem dat “lede van Pretorius se familie, werknemers of persone wat lojaal aan hom was”, die dag ná Pretorius se afsterwe twee briewetasse uit sy kantore verwyder het. HSBC Bank is daarop bedag gemaak dat die briewetasse moontlik toegangskodes tot Pretorius se buitelandse bankrekeninge gehad het en dat banktransaksies wat ná sy dood op 26 Julie 2012 gedoen is, waarskynlik onwettig is.

Lees Artikel in Die Burger

Herman Pretorius’s widow loses sequestration battle

24 Jan

Author: Julius Cobbett

Publications: MoneyWeb

Date Published: 24 January 2014

Leave to appeal sequestration order is denied.

JOHANNESBURG – The widow of Ponzi mastermind Herman Pretorius has lost another battle in the bid to stop her own sequestration. Last week Susan Pretorius applied for leave to appeal a final sequestration order granted against her estate. The order was handed down by acting Judge Wilhelm van Staden last year.

On Thursday January 23 Van Staden dismissed Susan Pretorius’s application for leave to appeal. Van Staden concluded that an appeal had no reasonable prospect of success.

The application to sequestrate Susan Pretorius’s estate was brought by the trustees of the RVAF and Seca trusts, entities that received money from Pretorius’s investors.

Herman Pretorius’s scheme collapsed in July last year. Faced with investor withdrawals he couldn’t meet, Pretorius shot his former business partner Julian Williams before turning the gun on himself. The investment scheme received an estimated R2.2bn from about 3000 investors.

Last week Susan Pretorius denied that she was insolvent. She claimed the court had erred in holding that she was not the beneficiary of a life insurance policy worth R8m. However, Van Staden said that Pretorius had an opportunity to present further evidence on or before the return day.

Van Staden ordered that the costs of the application for leave to appeal, including the costs of two counsel, be costs in Susan Pretorius’s sequestration.

The curators of Herman Pretorius’s RVAF are still struggling to trace investor money, including funds that were moved to UK and Switzerland.

Continue Reading MoneyWeb

Makelaars in skema ondersoek

27 Nov

Author: Marelize Barnard

Publications:  Die Burger

Date Publiched: 29 November 2013

KAAPSTAD. – Finansiële raadgewers wat “minstens R100 miljoen” kommissie gemaak het uit beleggers in Herman Pretorius se piramideskema, word ondersoek.Die Finansiële Beplanningsinstituut (FPI) het heelparty klagtes ontvang en doen dissiplinêre ondersoeke na dié makelaars, wat by die instituut geregistreer is.Adv. Jacqui Grovè, hoof van regsdienste van die FPI, het gister gesê die ondersoek gaan voort.

“Ons het al redelik inligting bekom, maar aangesien die tipe oortredings as baie ernstig beskou word, wil ons seker maak ons maak behoorlik werk van die klagtes en ondersoeke,” het Grovè gesê.

Ingevolge die FPI se dissiplinêre regulasies sal die uitslag van verhore oor die makelaars gepubliseer word.

Die FPI kan egter geen inligting bekend maak alvorens die proses afgehandel is nie.

Grovè het gesê die FPI het heelparty klagtes ontvang, maar het die meerderheid van die klaers na die ombudsman verwys, aangesien die FPI se jurisdiksie om klagtes te ondersoek, beperk is tot FPI-lede.

Luidens die jongste verslag van die kuratore van Pretorius se Relative Value Arbitrage Fund (RVAF) is minstens R100 miljoen as kommissie aan makelaars betaal.

Die kurators, Rynette Pieters en Bessie Bester, het in hul verslag gesê verskeie mense is reeds gedagvaar vir ondervraging.

Die kurators volg inligting oor die mense en instansies op waarheen beleggers se geld “gevloei” het en elke transaksie word ondersoek in ’n poging om geld vir die beleggers te herwin.

Een van die kurators se eerste doelwitte is om geld wat in oorsese rekeninge is, na Suid-Afrika terug te bring. Bankstate word ook nagegaan om die geld wat uit dié oorsese rekeninge uitbetaal is, na te spoor.

Pieters het gesê sover die kurators weet, “word al die geld by finansiële instellings in Engeland bewaar”.

Daar word ook ’n prokureur in Switserland aangestel wat sal probeer om die state van bankrekenings in dié land te bekom.

Die kurators het in Oktober by die Wes-Kaapse hooggeregshof aansoek gedoen om die sperdatum vir ’n eerste likwidasierekening uit te stel. Dié rekening moes op 30 Oktober gelewer word.

Pretorius het nie behoorlik boekgehou van die RVAF en ander beleggingsrekeninge se transaksies nie. Dit blyk dat Pretorius bloot die een beleggingsentiteit gesluit en dan ’n volgende begin het.

Hy het geld van die een na die ander oorgeplaas en dan voortgegaan om nuwe beleggers te lok.

Lees Artikel in Die Burger

Pretorius ponzi probe bubbles on

4 Nov

Author: Julius Cobbett

Publications: The Citizen

Date Publiched: 4 November 2013

Brokers who sold the investment products of the late Herman Pretorius were paid commission of “at least” R100m, the most recent letter from the curators of his failed investment scheme, the Relative Value Arbitrage Fund (RVAF), says.

It has been more than a year since Pretorius shot first his former business partner and then himself. The incident confirmed what some had already suspected: Pretorius had been running a massive Ponzi scheme. It has been estimated that the scheme took nearly R2.2bn from 3 000 investors.

The Financial Services Board (FSB) and the Financial Planning Institute (FPI) have launched investigations into brokers who peddled the scheme. But there has been no disciplinary action announced as yet.

Likewise the financial advice ombudsman Noluntu Bam has yet to issue a determination connected with a Herman Pretorius investment.

Earlier this year the RVAF identified Michal Calitz as one of the more prominent brokers. Calitz, who was a close friend of Herman Pretorius, received more than R15m from the scheme. Calitz is still a representative of Impact Financial Consultants CC, which is an FSB-authorised financial service provider and is listed as an FPI member.

The FPI says it is finalising charges against members in relation to the RVAF, but it will pronounce on the matter only once a December disciplinary hearing has been held.

The FPI’s Disciplinary Regulations require publication of the outcomes of disciplinary hearings, but after finalisation only, it says.

The FSB says its own investigation into the Pretorius matter is not finalised; the “FAIS supervision department is still in a process of engaging with the identified financial services providers and other interested parties”.

The RVAF’s curators are trying to trace investor money that was moved by Pretorius to the UK and Switzerland.

Continue reading this article

Staat het skelm skemas in sy visier

27 Sep

Author: Alet Rademeyer

Publications:  Die Burger

Date Publiched: 27 September 2013

PRETORIA. – “Moenie koebaai sê vir jou geld nie.”

Met dié nasionale veldtog wil die Suid-Afrikaanse Reserwebank 11 miljoen Suid-Afrikaners bereik en bewus maak van onwettige piramide- of ponzi-skemas.

Hlengani Mathebula, hoof van groepstrategie en kommunikasie by die Reserwebank, het gister hier op ’n nuuskonferensie gesê duisende Suid-Afrikaners word slagoffers van onwettige skemas wat hul geld vat en vinnige rykdom belowe.

Mense moet baie versigtiger wees en hul huiswerk behoorlik doen voordat hulle geld in enige skema belê…….

• Die publiek kan verdagte skemas by 0800 313 626 aanmeld en ook hier uitvind of instellings geregistreer is.

Lees Artikel in Die Burger

Ponzi scheme alert: How to know when it really is too good to be true

27 Sep

Author: Dawie de Villiers, CEO, Sanlam Employee Benefits

Publications:  Sanlam

Date Publiched: 27 September 2013

The extended economic downturn and interest rates hovering around the 5 or 6% mark make investment returns all too elusive right now. With many South Africans, in particular retirees, struggling to make ends meet, it is fertile ground for fraudulent investment schemes – known popularly as Ponzi schemes – to flourish.

The SA Reserve Bank recently launched a national campaign to increase awareness of pyramid or Ponzi schemes. The campaign encourages people to be careful when looking at potential investment opportunities.

South Africans seem to repeatedly entrust their hard-earned savings to operations which, at best, have short-term track records and, at worst, knowingly sell promises that they are unable to deliver on. Investors buy into these promises without fully understanding how these operators achieve their alleged returns.

Over the past six years the following schemes – which have had traumatic consequences for unsuspecting investors – come to mind: Fidentia, Leaderguard, Sharemax, King Group, the Herman Pretorius saga, and Defencex. There is a golden thread running through this list; each one promised a return far superior to that of the financial market, at a very low risk. In hindsight, such promises were too good to be true. But why do we continue to move from one such scandal to the next?

Spotting a Ponzi or pyramid scheme is actually relatively easy – here is a checklist ………

Continue reading

Unit trust manager received R15m from Herman Pretorius

20 Jun

Author: Julius Cobbett

Publications: MoneyWeb

Date Published: 20 June 2013

Financial advisers connected to RVAF Ponzi testify in insolvency inquiry.

JOHANNESBURG – An insolvency inquiry has revealed that one-time unit trust manager Michal Calitz received more than R15m from Herman Pretorius.

Calitz was one of Pretorius’s closest friends. A rare public photo of Pretorius shows him posing with his two sons and Calitz on the golf course. Calitz and Pretorius went to the same Bible study group, which met every second Friday.

Calitz referred many investors to Herman Pretorius’s Relative Value Arbitrage Fund (RVAF), which has since been exposed as a Ponzi scheme. It has been estimated ………

Continue reading this article

Financial Services Board: we act within our mandate

16 Jun

Author: Dube Tshidi

Publications:Business Day

Date Published:  16 June 2013

THE Financial Services Board accepts that criticism comes with the territory and is to be welcomed. What is of concern is the manner in which this criticism has been levelled against the board in the aftermath of what has been referred to as the “startlingly inappropriate and lenient” sentencing of J Arthur Brown……………

Last year, the case of the late Herman Pretorius cast the spotlight on sophisticated pyramid schemes, with the suggestion that the board should have known what was going on and prevented the loss of investors’ monies. The fact is that although the bulk of financial investment activities in the country fall within the board’s jurisdiction, there are notable exceptions.

In schemes like the one operated by Pretorius, which operated outside of and in secret from the regulator, the board is not mandated to act. The regulator’s role is to continue to educate the public around the dangers of investing in companies ……..

* Dube Tshidi is executive officer of the FSB.

Continue reading this article

Ponzi Schemes – Who To Sue

5 Jun

Author: Unknown

Publications: Symington & de Kok Attorneys

Date Published:

  • Firstly, don’t count on getting anything back from the scheme itself. Your claim is normally against a company in liquidation, and whilst you should certainly investigate the advisability of pursuing your claim, it will be a concurrent claim and likely worthless.
  • Better news is that recent determinations by the FAIS Ombud have paved the way for claims against a range of other individuals and entities involved in producing, promoting and selling such products, whether the products are found to be fraudulent or just “inappropriate”. Financial advisers, their employers, brokers, “FSPs” (Financial Services Providers) – together with directors, compliance officers and “key individuals” of the actual product providers – have all been held liable for investors’ losses, with clear indications that the net may be cast even wider in appropriate cases.

Continue reading this article

Herman Pretorius’s holiday villa fetches R16.5m

15 Apr

Author: Julius Cobbett

Publications: MoneyWeb

Date Published: 15 April 2013

Auctioned: luxury, architect-designed property, paid for by Ponzi victims.

JOHANNESBURG – The Hermanus holiday home built by the late Herman Pretorius has sold on auction for R16.5m. Pretorius was the mastermind behind the Relative Value Arbitrage Fund (RVAF), an unregulated Ponzi scheme that solicited an estimated R2.2bn from investors.

On July 26 last year Pretorius shot his former business partner before turning the gun on himself. Pretorius’s personal estate and various entities associated with him have been placed under sequestration or liquidation. One of these entities is Hentiq 1803, a private company which was the registered owner of the Hermanus beach home.

Hentiq’s liquidators, Sandra Daneel and Christian Bester, appointed ClareMart Auction Group to sell the property. The auction took place last week Friday. On Monday it issued a media release announcing the sale.

ClareMart CEO Jonathan Smiedt said: “We had an unexpected turn out of over two hundred members of the public attending the auction as well as media journalists from various publications, one of whom described the event as having a pleasant and festive atmosphere. The bidding on  the home was exceptionally fierce ………

Continue reading this article

Bedrieglike beleggings vang jou só

12 Apr

Author: Hanlie Stadler

Publications:  Die Burger

Date Publiched: 12 April 2013

Dis ’n frase wat almal ken: As dit te goed klink om waar te wees, ís dit. En tog verloor duisende mense jaarliks miljarde rande in twyfelagtige en bedrieglike“beleggings”. Hoe keer jy dat jy ’n slagoffer raak?

VERSKILLENDE SOORTE BEDROG Geen swendelaar gaan jou ooit nooi om in sy Ponzi- of piramideskema of ander soort skelmspul te belê nie. Hulle gaan jou intrek met indrukwekkende syfers en woorde wat klink of dit wettige beleggingsinstrumente is.
In die geval van ’n Ponzi-én ’n piramideskema word jou geld egter nooit regtig in ’n werklike onderneming, eiendom of ander beleggingsinstrument belê nie. Die geld wat jy belê, word gebruik om die belegger voor jou se beloofde opbrengs te betaal. Net só word jou “opbrengs”betaal uit die geld wat die volgende belegger belê.

WAT IS DIE ROL VAN ’N FINANSIËLE TUSSENGANGER?
Voordat jy jou geld belê, vra die raad van ’n sogenaamde finansiële tussenganger – hy kan die titel finansiële raadgewer, gesertifiseerde finansiële beplanner (CFP) of makelaar hê. “Ervare raadgewers het al ál die skemas gesien en weet hoe hulle werk,” sê Came.

Uiteraard is daar enkele vrot appels in die bedryf vir finansiële tussengangers. Só was tussengangers by Herman Pretorius se bedrogspul betrokke. Die Fais-ombudsman het pas tussengangers wat beleggers se geld in Sharemax (’n eiendomsindikasie wat in duie gestort het) belê het, skuldig bevind aan ’n verskeidenheid oortredings.

Maar, sê Lubowski, baie min bedrieglike skemas laat hul produkte deur finansiële tussengangers verkoop óf hulle beperk hulle net tot enkele sulke tussengangers, wat dan ook gewoonlik ’n baie nou verhouding het met die“ghoeroe” van die beleggingskema.

Lubowski sê die rol van ’n finansiële beplanner strek baie verder as net die verkoop van versekerings- of beleggingsprodukte. “Hy moet jou éérs help om realisties en voldoende te beplan en dan te kyk na ’n portefeulje produkte. Enige beplanner wat net aan jou produkte wil verkoop voordat ’n behoorlike proses deurloop is, moet vir jou ’n rooi vlag wees.”

Lees Artikel in Die Burger

Warning signs of Ponzi schemes: Part 2

22 Mar

Author: Malcolm Rees

Publications: MoneyWeb

Date Published: 22 March 2013

Lessons from Defencex: avoid schemes affiliated with religion, huge returns and friends’ advice.

JOHANNESBURG – The apparent collapse of the 2%-a-day scheme, Defencex, has left a very large, mostly poor, investor base out in the cold.

The Defencex bank account, held in the name of Net Income Solutions, contained R320m at the time it was frozen.

Although it remains unclear how much in total has been collected through the scheme, the sheer size of the account suggests a very large operation which has managed to attract thousands of members .

……… Ponzi schemes are often disguised as legitimate investment operations such as with the massive Bernard Madoff scheme in America or the tragic Herman Pretorius case locally. In an effort to help potential investors identify when they might be falling victim to such schemes Moneyweb asked experts to describe some of the typical red-flags that would be suggestive of a prohibited business practice.

……… Many of the more sophisticated Ponzi schemes are not as bold as to offer returns at levels in excess of 30% per annum. Instead such scheme, as with the Herman Pretorius case, may offer investors high but not extreme levels of profit. These sophisticated operations blend genuine investment or activities with a Ponzi type structure and can stay in operation for extended periods of time, says de Villiers.

 

Continue reading this article

FPI probes advisers’ role in Ponzi scheme

24 Feb

Author: Laura du Preez

Publications: iOL

Date Published: 24 February 2013

The Financial Planning Institute (FPI), the body for professional financial planners, is investigating whether any of its members breached the organisation’s code of ethics in advising their clients to invest in the Relative Value Arbitrage Fund (RVAF).

RVAF was found to be a massive Ponzi scheme owing some 3 000 investors R3.1 billion and was placed in liquidation after its founder, Herman Pretorius, shot his business partner, Julian Williams, and then himself in July last year.

Prem Govender, chairperson of the FPI, says the FPI encourages you to use a professional financial planner who belongs to the FPI. The organisation therefore …..

Continue reading this article

Investors need to wise up to Ponzi schemes

24 Jan

Author: DAWIE DE VILLIERS

Publications: iOL

Date Published: 24 January 2013

With many South Africans – and retirees, in particular – struggling to make ends meet, they become easy pickings for fraudsters operating get-rich-quick investment scams, also known as Ponzi schemes.

In their search for high returns on investments, South Africans seem to repeatedly entrust their hard-earned savings to operations which, at best, have short-term track records and, at worst, knowingly sell promises that they are unable to deliver on.

Investors buy into these promises without fully understanding how these operators achieve their alleged returns.

Over the past five years, the following schemes – which have had traumatic consequences for unsuspecting investors – come to mind: Fidentia, Leaderguard, Sharemax, King Group, and the Herman Pretorius saga.

Continue reading this article

Call for new measures to stop scams

13 Jan

Author: Bruce Cameron

Publications: iOL

Date Published: 13 January 2013

The Association for Savings & Investment SA (Asisa) wants all investment products sold in South Africa to be brought under either an expanded Collective Investment Schemes Control Act (Cisca) or the Long Term Insurance Act.

Adopting either approach is the only way that individuals and companies that have malevolent intentions can be forced out of the shadows, Asisa chief executive Leon Campher says.

Asisa’s recommendation follows ……….

Continue reading this article

How to spot a ponzi scheme

10 Dec

Author: Dawie De Villiers

Publications:  Sake24

Date Publiched: 10 December 2012

Cape Town – With the global economic slowdown and interest rates at around 5% to 6% investment returns are looking bleak.

With many South Africans, particularly retired persons struggling financially, fraudulent investment schemes, or “Ponzi” schemes have become more widespread, says Dawie de Villiers of Sanlam.

Investors often buy into such schemes without full understanding how such schemes and their operators achieve the promised returns.

These schemes often assure investors of a return far greater to that of the financial market, at low risk.

In the past few years, Sharemax, Fidentia, Leaderguard and those of Herman Pretorius are some of the schemes many unsuspecting investors have been caught out by.

There are however ways for investors to prevent falling ….

Continue reading this article

FSB passes the buck on Ponzi scams

25 Nov

Author: Bruce Cameron

Publications: iOL

Date Published: 25 November 2012

The Financial Services Board (FSB) claims it is not the watchdog responsible for protecting you from scam Ponzi and pyramid investment schemes – and it also claims it is mainly the greedy rich who fall prey to scamsters.

The claims were made this week when the FSB was put on the carpet by the parliamentary finance committee against a background of ongoing scams and imploding so-called investment  schemes in which billions of rands have been lost by investors, many of whom are pensioners.

The losses have been in everything from property syndications to unlisted ……….

Continue reading this article

Jurisdiction of the FSB

22 Nov

Author:

Publications:  MOONSTONE

Date Publiched: 22 November 2012

Was it coincidence?

I was working on this article on Tuesday, and on Wednesday saw an article in Sake24 entitled: Finansiële waghond ‘aan die slaap’. According to this report, the members of parliament felt that there was a lack of oversight on the part of the FSB as far as pyramid and Ponzi schemes are concerned.

Very often, the hands of the Regulator are tied, because the products that cause the problem do not fall under its jurisdiction. The most notable recent example was the Herman Pretorius saga.

In a media release on 10 August, in response to other, similar allegations in the media, the FSB reacted as follows:

During May 2011 it was brought ……………

Continue reading this article

October 2012 Ponzi Scheme Roundup

31 Oct

Author: Kathy Bazoian Phelps

Publications: The Ponzi Scheme Blog

Date Published: 31 October 2012

South Africa
Investigations are underway regarding allegations that Sharemax Investments committed fraud and operated a Ponzi scheme involving about 40,000 people and R4.5 billion. It is alleged that The Villa, a partially completed retail development near Pretoria, was promoted to investors but that The Villa had no income other than investors’ money.
Herman Pretorius, who took his own life earlier this year, had run a large Ponzi scheme through the Relative Value Arbitrage Fund (RVAF). Curators for RVAF estimate the scheme received R2.2bn from about 3,000 investors. The curator has recently revealed that an Anton Piller order was granted by the High Court against Pretorius’ wife and her two sons to “protect and obtain information relating to the whereabouts of missing funds belonging to creditors/investors. The family is opposing the order

 

Read full article

Winners and losers in indemnity case

21 Oct

Author: Bruce Cameron

Publications: iOL

Date Published: 21 October 2012

Some good news. Santam, as a provider of professional indemnity (PI) insurance to financial advisers, will no longer be financing advisers who wish to force consumers to take their complaints to the High Court, blocking access to the low-cost, accelerated process provided by the Financial Advisory and Intermediary Services (FAIS) Ombud.

…….. The situation reached a level of absurdity recently when the FSB, in effect, claimed that it could not be blamed for not taking action earlier against the Relative Value Arbitrage Fund – a Ponzi scheme masquerading as a hedge fund in which investors may lose R1.8 billion – because the fund, managed by the late Herman Pretorius, did not fall under the FSB ………

Continue reading this article

Elke dag word ’n dom boer gebore

19 Oct

Author: David Meades

Publications:  Sake24

Date Publiched: 19 October 2012

Vraatsug of gulsigheid is twee susters wat al tot die ondergang van derduisendes gelei het.

Hulle is soos die Walkure in die Noorse mitologie altoos op die uitkyk na nuwe slagoffers wie se bloed uitgesuig kan word.

En die treurigste aspek hiervan is dat mense nooit sal leer nie. Vra my. Ek het dit oor ’n loopbaan van langer as 40 jaar in die sakejoernalistiek en later regstreeks in die beleggingswese dit ’n paar keer uit ’n binnebaan ervaar.

Die jongste een wat soos ’n riller voor my oë hier in die Kaap afgespeel het, was die Herman Pretorius-sage wat op ’n dag abrup tot ’n einde gekom het toe Pretorius na bewering sy hoofluitenant en daarna homself doodgeskiet het.

Hierdie skelmstreek, ook ’n vorm van die sogenaamde Ponzi-skema, het nogal ………

Continue reading this article

Your pension choice a worry for govt

2 Sep

Author: Bruce Cameron

Publications: iOL

Date Published: 2 September 2012

Questions about FSB’s scam control

The Financial Services Board (FSB) could soon find itself being grilled by Parliament for not being more effective in curtailing scams that recur with alarming regularity, with losses of billions of rands of the savings of consumers, including retirement fund members and pensioners, who fall prey to the schemes.

And National Treasury concedes that the FSB is not doing enough to protect you.

The latest scam to hit the headlines was the high-drama collapse of a Ponzi scheme masquerading as a hedge fund, the Relative Value Arbitrage Fund (RVAF).

The scamster, Herman Pretorius, shot his business associate, Julian Williams, during an altercation, before turning the gun on himself following a belated FSB raid more than a year after the scam was first reported to it.

The roughly 3 000 investors in RVAF, most of whom are from the Western Cape, invested about R2 billion in the scheme. Once again, many are pensioners, who now face destitution because their money went into a high-return, extremely high-risk, unregulated “investment”.

Personal Finance asked the FSB to investigate the scheme in May last year, and the FSB merely accepted replies given to it as fact, allowing what amounted to a gigantic Ponzi scheme to continue operating under its nose. (A Ponzi scheme uses the capital of the most recent investors to pay out high returns to earlier investors, who, in turn, spread the word about the “fantastic” returns.)

After the bubble burst, the FSB attempted to justify its laxness by making a claim to the effect that Pretorius was virtually exempt from FSB action because the product he was flogging was not subject to regulatory oversight.

Cope MP Nick Koornhof raised the issue at parliament’s finance committee meeting this week, asking how the FSB will be transformed in line with government’s twin-peak policy where all market conduct of financial institutions will be placed under the control of the FSB.

“How long must we wait for it? There have been so many tragedies since Fidentia. How long must we wait for real action, for the FSB to have all the teeth it needs?” he asked.

Koornhof told Personal Finance that he will raise the issue again next week with the committee and ask for a special meeting to call the FSB to account.

His concerns were echoed by Ismail Momoniat, deputy director-general of the National Treasury, who told the committee he believed the FSB has sufficient legislative teeth. The problem, he said, is how the teeth are used.

He candidly admitted that the FSB should have picked up on some of the attacks on retirement funds and other scams.

However, Momoniat says, ways have to be found of dealing with campaigns to vilify the FSB and others by parties such as Arthur Brown, who faces criminal charges relating to the implosion of Fidentia, and Simon Nash, who is facing criminal charges arising from the alleged illegal removal of pension fund surpluses in the 1990s.

Continue reading this article

Gobbledygook makes it easier to pick your pocket

26 Aug

Author: Bruce Cameron

Publications: iOL

Date Published: 26 August 2012

Taking refuge in opaqueness helps the malevolent to succeed in major scams, such as the R1.8-billion apparent Ponzi scheme called the Relative Value Arbitrage Fund (RVAF).

Just as the FSB must up its game in dealing with the excesses of the regulated financial ser-vices industry, so it has to improve its performance dramatically in clamping down on the cheats, such as Herman Pretorius, who controlled RVAF and, from what I have heard, used a silver tongue and much confusing language to bamboozle investors.

Continue reading this article

FSB investigates brokers for punting ‘Ponzi’ fund

16 Aug

Author: Unknown

Publications: justmoney.co.za

Date Publiched: 16 August 2012

The Financial Services Board (FSB) has confirmed today that it is investigating financial advisors and brokers that promoted the Relative Value Arbitrage Fund (RVAF) managed by Herman Pretorius and is appealing for people with more information to come forward. A spokesperson said: “I can confirm that we are receiving information from various investors regarding the financial advisers and brokers that recommended the late Mr Pretorius’ investment ………………

Continue reading this article

FSB Press Release – 10 August 2012

10 Aug

HERMAN PRETORIUS: CLARITY ON THE FINANCIAL SERVICES BOARD’S INVESTIGATION

In the wake of the shooting by Mr Herman Pretorius (“Pretorius”) in Cape Town, with indications of massive losses to investors that invested in his schemes, the Financial Services Board (“FSB”) would like to offer some perspectives on the regulator’s actions and investigations which it could legally have done and did do with respect to the business activities of the late Pretorius.

There have been varying concerns expressed and questions raised from the media and the industry, all of which the FSB understands to be ultimately focused on the likely losses to be suffered by investors arising from the activities of Pretorius and culminating in his death. To the extent that the questions have been raised and the concerns have been expressed in the interests of investors, the socio-economic effects of the losses to investors and the public interest, the FSB takes to heart all the concerns that have been expressed and the questions that have been raised. Accordingly, the FSB finds it necessary to actively engage on this issue to, among other things, explain how, in certain circumstances, investment relationships exclude the regulator’s power. It is emphasized that the FSB’s engagement and extent of disclosure in this regard is, as set out above, motivated by the need to do so in the public interest as envisaged in the provisions of Section 22 (1)(b) (iv) of the Financial Services Board Act of 1990 (“the FSB Act”).

As a starting point, the manner in which members of the public may invest their savings may or may not, depending on the nature and structure of a particular investment vehicle, be subject to FSB regulation. For instance, the following types of investment vehicles would

NOT be subject to FSB regulation:

  • A partnership where individuals invest their monies in a partnership and utilise the capital to produce positive returns.
  • An investment club where persons with a commonality of interest pool their monies to make an investment.
  • A company formed for investment purposes in which investors obtain equity.
  • A trust in which beneficiaries’ monies would be pooled, but which would fall outside the ambit of the Collective Investment Schemes Control Act, due to the nature of the underlying investments or because it is a private arrangement between persons involved in a private business arrangement.

Certain investments may also not involve a “financial product” as contemplated by the Financial Advisory and Intermediary Services Act (FAIS Act). Becoming a member of an investment club or a beneficiary of a trust is not an acquisition of a financial product by the investor, even though the monies invested may be used by the investment vehicle to acquire a financial product, for example a share or derivate instrument (the latter being typically the types of products in which hedge funds invest).

Secondly, apart from having to scrutinise the type of investment vehicles which may be utilised to attract investors, it is also necessary to consider the manner in which investors are attracted. The ambit of the FAIS Act is focused on the rendering of financial services which typically involve three parties, namely a product supplier, an intermediary and a client. Unless a financial product is involved, the FAIS Act does not apply. Whilst product suppliers may be required to be authorised under the FAIS Act when giving advice relating to their products, the selling of such products by a product supplier directly to the public may not amount to an intermediary service, such as a company doing a private placement of equity.

It is against the above background that the activities of Mr Pretorius and the capacity of the regulator to intervene as well as the level of intervention from the regulator should be considered.

During May 2011 it was brought to the attention of the FSB that Pretorius was “selling shares in unlisted companies” and “promoting these ventures” by making representations to the community.

As the selling of unlisted shares may constitute a financial service as contemplated by the FAIS Act, the FSB followed up on the information which it subsequently received in order to establish whether or not Pretorius was acting in contravention of the FAIS Act, given also the fact that he was not licensed in terms of the FAIS Act.

Based on the information supplied in response at the time the FSB was satisfied that:

  • The private equity or venture capital projects embarked upon or supported by Mr Pretorius did not constitute an activity which was subject to FSB regulation.
  • Pretorius’s activities did not require a FAIS licence at the time.
  • The manner in which Pretorius indicated that capital would be raised from investors and the investment vehicle used for the raising of such capital also did not point towards any activity which was subject to FSB regulation or otherwise unlawful, because:
    • Pretorius was acting as the principal (product supplier) and not as an intermediary when interacting with potential investors.
    • The investment vehicle as envisaged at the time, was a company. The FSB does not regulate the offering of shares in a company to the public. When such shares are offered, the company acts as a product supplier and must comply with the Companies Act.
  • The explanations provided to the FSB concerning the nature of the trusts as investment vehicles were such that it could not be established with certainty that their activities were subject to FSB regulation. Some of the ventures were designed for individuals who could properly be considered to be involved in a private domestic affair.

Following further complaints received by the FSB in May/June 2012 against Mr Pretorius it was decided that a formal inspection should be conducted on his affairs of Pretorius and the various investment vehicles utilised in order to establish whether or not the activities of the investment vehicles were subject to FSB regulation. The inspection was underway at the time when Pretorius allegedly committed suicide.

Questions have been raised about the speed at which the FSB reacted to these allegations and complaints, with some suggesting that the regulator should have acted sooner. There are media reports indicating that concerns were raised with the FSB more than 8 years ago regarding Pretorius’ involvement in hedge funds. In this regard, the FSB wishes to clarify that at that time that these concerns were raised the regulator could not establish any evidence of Pretorius’ activities in hedge funds or any irregularities with regard to the issues that were raised at the time. Further, the FSB wishes to categorically state that, as detailed above, appropriate action was taken from the time that the allegations first surfaced, and that the investigation into this matter is on-going.

Concerns have also been raised about how the FSB “allowed what amounts to a gigantic Ponzi scheme to continue under its nose.” Once again, it must be remembered that schemes that are operated outside of and actively in secret from the regulator cannot be said to be operating under the regulator’s nose. Accordingly, to the extent that there was a Ponzi scheme in Pretorius’ activities, such a scheme would have been operated in strict secrecy from the FSB.

The FSB is of the view that if there was any non-compliance by Pretorius, it was well-designed not to be subject to regulatory scrutiny. To the extent that investors were lured into any of his projects, such investors carried the risk and obligation to enquire into the merits before parting with their money, especially where above-average returns were being offered. The loss of so much money to so many investors is a sad state of affairs but one for which the regulator is not accountable.

It has in the meantime come to the FSB’s attention that the RVAF Trust was placed under provisional sequestration on 2 August 2012 by the Western Cape High Court. The Regulator supports this action and encourages investors to take the necessary legal action to attempt to recover their monies, especially to the extent that the investments were made via schemes falling outside of the regulatory net. As the investigation into this matter unfolds the FSB will, in so far as matters fall under its jurisdiction and mandate, urgently take appropriate action.

-ENDS-

Release: Immediate

Enquiries: Ms Tembisa Marele

FSB: Communications Specialist

Email address: Tembisa.Marele@fsb.co.zaq

Telephone: 012 428 8025

083 754 2052

Pretoria 10 August 2012

Murder-Suicide at Center of Potential $245 Million South African Ponzi Scheme

8 Aug

Author:  Jordan Maglich,

Publications: Forbes

Date Published: 08 August 2012

A South African fund manager is dead, along with a former business partner, in an apparent murder-suicide after questions mounted over the legitimacy of his hedge fund and South African financial regulators opened an investigation. After a visit by South Africa’s Financial Services Board (“FSB”) regarding his Relative Value Arbitrage Fund (“RVAF”), Herman Pretorious allegedly then shot and killed Julian Williams at Williams’ private equity firm, Basileus Capital, in Cape Town, South Africa.  Many ominous details about RVAF have since emerged, with authorities suspecting that Pretorious may have operated a massive Ponzi scheme with investor losses approaching up to $250 million.

Continue reading this article