(ex parte) Jacques Andre Fisher and Reunert Ndivhuho Kharivhe

At a glance

Parties

Ex parte application by Reunert Ndivhuho Kharivhe (1st Applicant) and Jacques Andre Fisher (2nd Applicant), provisional joint trustees of the estate of Cornelius Johannes Steynberg

Case no.

Supreme Court of Seychelles, XP 172/2021, [2022] SCSC

Court

Supreme Court of Seychelles (Burhan J)

Underlying award(s)

No arbitral award. The application concerned two orders of the High Court of South Africa, Limpopo Division, Polokwane: 20 July 2021 (Case No. 2368/2021) and 13 August 2021 (Case No. 5725/2021)

Sector

Cross-border insolvency; cryptocurrency

Outcome

Application for recognition and enforcement of the South African orders dismissed (28 January 2022).

The dispute

The applicants are the provisional joint trustees of the estate of Cornelius Johannes Steynberg. The High Court of South Africa placed that estate under sequestration. The applicants' affidavit described Mr Steynberg as the sole director and controlling mind of Mirror Trading International (Pty) Ltd. The applicants asked the Supreme Court of Seychelles, ex parte, to recognise and enforce two South African orders: (1) a winding-up order of 20 July 2021, and (2) an order of 13 August 2021, made under Article 15(2)(b) of the UNCITRAL Model Law on Cross-Border Insolvency, seeking Seychelles' assistance in recognising the trustees' appointment. Their aim was to recover cryptocurrency that their investigators believed BitMEX held in Mr Steynberg's name, and then to compel BitMEX and other crypto exchanges in Seychelles to disclose and suspend his accounts. They relied on the Ablyazov procedure and the Privatbanken conditions for registering foreign judgments. No respondent was named.

Key holdings

1. The first order (winding-up) may meet the Privatbanken conditions. The South African court had jurisdiction over Mr Steynberg, a South African resident. Counsel for both parties were heard. Nothing showed the order was contrary to public policy or obtained by fraud. But the order does not appoint trustees. ¶ 12
2. The second order was made ex parte. It therefore cannot satisfy the Privatbanken condition that the rights of the defence were respected. The Ablyazov procedure allows ex parte applications in the Seychelles courts. It does not allow foreign ex parte orders to be registered. In Ablyazov, by contrast, the foreign orders followed an adversarial hearing. ¶¶ 14–15, 23
3. The applicants gave no supporting information for their claim that BitMEX is partly registered in Seychelles and holds the assets. Mr Steynberg was not even named as a respondent. ¶ 15
4. Part VIII (Cross-Border Insolvency) of the Insolvency Act 2013 incorporates the UNCITRAL Model Law but is not yet in force. It comes into operation only when the Minister gives notice in the Gazette, after being satisfied that there is reciprocity. Registering cross-border insolvency orders now could interfere with that ministerial power. The Court therefore has no statutory power to register such orders. ¶¶ 9, 17–21
5. Even if the first order met the Privatbanken conditions, the trustees' appointment and powers could not be enforced in Seychelles without registration of the second order. The application was dismissed. The Court noted that other avenues for assistance in Seychelles remain open (Government of Seychelles v Huobi Global Limited). ¶¶ 22–24

Procedural history

1. 17 May 2021Order of Judge President Makgoba in Case No. 3322/2021. It was enclosed with the application but not put forward for registration.
2. 20 July 2021Judge Muller of the High Court of South Africa, Limpopo Division, orders that Mr Steynberg's estate be wound up (Case No. 2368/2021).
3. 13 August 2021Judge President Makgoba, in an ex parte order (Case No. 5725/2021), seeks the assistance of the Seychelles Supreme Court in recognising the provisional joint trustees.
4. 13 January 2022Hearing before Burhan J in the Supreme Court of Seychelles.
5. 28 January 2022Judgment dismissing the application for recognition and enforcement.

Tribunal, counsel and experts

Decided by

• M Burhan Judge, Supreme Court of Seychelles

For the claimant

Bernard Georges

Run a conflict check on these names →

Keywords

• recognition of foreign judgments
• cross-border insolvency
• UNCITRAL Model Law on Cross-Border Insolvency
• Insolvency Act 2013 Part VIII
• Privatbanken conditions
• Ablyazov procedure
• ex parte orders
• sequestration
• provisional trustees
• Mirror Trading International
• BitMEX
• cryptocurrency
• Seychelles
• South Africa
• New York Convention
• asset tracing

Summary generated with AI from the published documents — refer to the award for the authoritative text.