Terugbetalings aan beleggers in piramideskemas – Is dit in die gewone loop van besigheid ingevolge artikel 29 van die Insolvensiewet?

In the current business environment insolvency is a very common event. With insolvency often come acts that, in insolvency law, are regarded as unacceptable and which are categorised as impeachable transactions. In question are those actions of a debtor which lead to a decrease or reduction of his estate and which insolvency law regards as improper, unlawful, unfair or unreasonable. Pyramid schemes have expanded increasingly over the last few years. A number of the most recent issues relating to sections 26, 29 or 30 of the Insolvency Act were decided on the basis of dispositions involving a pyramid scheme. People invest in such a scheme and the first investors are usually luckier than the later ones. The attraction of such a scheme is that the investor can earn substantial interest in a short period. Inevitably, this is not the case with later investors. Soon the “investment company” is bankrupt and their “investments” are lost. One question in such a situation is whether the monies already paid to the former “investors” can be recovered for the benefit of all the creditors of the bankrupt “investment company”. The focus of the article therefore is section 29(1) of the Insolvency Act and, in particular, the exception in section 29. It is discussed with reference to recent authority, after which the effect of section 33(1) of the Insolvency Act on impeachable transactions is explained as a possible solution in these situations. It is submitted that all repayments to investors of the capital amounts they invested, should not qualify as dispositions “in the ordinary course of business” to ensure that all “investors” are treated equally by categorising all as concurrent creditors to receive a proportional dividend. However, the position of the courts is that the investor may indeed retain the repayment of the capital amount as long as he relied on the condictio ob turpem vel iniustam causam when he demanded repayment. Furthermore, it is submitted that section 33(1) does not apply in the specific situation.