Markus Jooste’s ‘lover’ Berdine Odendaal loses bid to appeal blocking of suspected ill-gotten gains

7 Feb 2024

An application by alleged Steinhoff heist beneficiary Berdine Odendaal to appeal a July 2023 Western Cape High Court ruling cutting her off from funds frozen by the South African Reserve Bank, has been denied.

Odendaal, a polo-playing slay queen who was romantically linked to Steinhoff kingpin Markus Jooste, received R60.5-million paid into her bank accounts between 2011 and 2015 from Mayfair Speculators, Jooste’s horse racing company.

The application for appeal of an earlier ruling was heard on 1 February and judgment was delivered by Judge Derek Wille on Wednesday, 7 February in the same court.

Read more in Daily Maverick: Markus Jooste’s ‘lover’ Berdine Odendaal lives off Steinhoff riches, Reserve Bank suspects

The application was solely focused on an amount of R158,000 retained by the Reserve Bank (SARB) following the July 2023 order by the Western Cape High Court. The amount remained ringfenced as blocked funds under the Bank’s control.

“The sum of R158,000.00 is made up of one tranche of R150,000.00 allegedly due to the respondent (SARB) in terms of the agreement struck with the respondent,” noted Wille.

The remaining R8,000 was “the only remaining tranche in these blocked funds under the control of the respondent, representing the last portion of these ringfenced funds. This, then, is what this application for leave to appeal was about”.

Odendaal had argued that because she asked for a specific performance of a term in the agreement with the SARB and different from the original contract, she had not intended to breach her obligations as set out in the document.

However, noted Wille, “this was her case from inception. After that, surprisingly, during the argument advanced, the applicant contended that no obligations rested on her in terms of the agreement with the respondent concerning the allocation of these blocked funds.”

This, said Wille, was “a belated and dramatic shift from the initial argument advanced by the applicant (Odendaal)”.

Suspect funds

After the collapse of Steinhoff in 2017, the SARB determined that the source of Odendaal’s wealth appeared to have originated from the company’s international operations.

In May 2022, the SARB ordered FirstRand Bank to freeze five accounts linked to Steinhoff International Holdings (Pty) Limited, Steinhoff Investment Holdings Limited and Steinhoff Africa Holdings (Pty) Limited on suspected exchange control violations.

The previous month, April, the SARB’s financial surveillance department (FinSurv) had attached Odendaal’s assets, totalling about R25-million, including a house in Pretoria, properties in Val de Vie, Paarl, a stand at the Mabalingwe Nature Reserve in Limpopo and two cars.

Read more in Daily Maverick: Court throttles money supply to Markus Jooste’s alleged mistress

After the initial freezing of Odendaal’s accounts, the SARB consented to “the registration of transfer of some of those specific immovable properties on the condition that the proceeds remained subject to a blocking order and held in trust by a stakeholder”.

In addition, the bank issued blocking orders on four of Odendaal’s “discrete” banking accounts. Odendaal had not challenged the validity of these blocking orders.

Odendaal, said Wille on Wednesday, “had a wholesale obligation to abide by all the material terms of the agreement with the respondent (SARB)”.

The “very trust” between the parties was not promoted by the litigation chartered by Odendaal and her legal team.

The SARB would have been “hard pressed to stop the monthly payments to the applicant in the face of a declaratory remedy”.

“Instead, like Oliver Twist, the applicant elected to make the demand for ‘more’ money through litigation. This, in the context where the applicant is not subjected to poverty.”

Odendaal had already received more than R1.7-million from her blocked account, the judge had noted.

The taps are closed

Wille handed down the original judgment in July 2023 on Odendaal’s first bid to have her legal costs paid for over and above the R150,000 monthly income she received.

The judge had previously ruled that Odendaal had been in breach of contract when she approached the court in February 2022 seeking an order that the SARB pay her legal fees over and above her hefty monthly income.

Wille originally dismissed Odendaal’s attempt to have further funds unblocked from frozen accounts, stating that her application to the court had insisted on terms “inconsistent with the correct interpretation of the agreement” with the SARB in 2021.

By launching the application and demanding payment of legal expenses in addition to the R150,000 monthly payments, Odendaal “unequivocally indicated that she did not consider herself bound by the valid agreement”, the judge said.

The bank was, therefore, legally entitled to halt monthly payouts of R150,000 to Odendaal. In future, the SARB would only consider the release of any funds to her “for reasonable expenses” after the presentation of “sufficient proof that the alleged expense had been incurred, and that it is an expense that justifies the release of funds”.

This week Wille said that by opting not to proceed with a declarator, which aimed to resolve disputes with regard to a specific contract and a path open to her, she proceeded rather through litigation,

Odendaal had, therefore, not complied with the material and lawful obligations of the original agreement.

When Odendaal’s lawyers later badgered the SARB to provide her with “access [to all] the [money] in her [blocked] bank accounts in order to cover her fixed monthly expenses and living costs, as well as her legal costs”, the bank asked for a breakdown of income, fixed monthly expenses, reasonable living expenses and legal costs.

“Significantly, R80,000.00 [of the R150,000] of this amount was related to the upkeep of the applicant’s horses,” the bank noted in court papers.

What the SARB had agreed to was that Odendaal’s “reasonable” legal fees would be paid from the funds available in her blocked bank accounts “upon receipt by us of tax invoices as deemed necessary”.

It also stated that it felt her current income “is sufficient to cover her essential monthly expenses”.

A payment of R89,067.50 had been released to Odendaal after a request but this amount did not relate to her legal fees, said the SARB.

“More requests followed for the payment of insurance costs and the repayment of R100,000.00 regarding specific occupational interest that was inadvertently deposited into the applicant’s blocked Nedbank account,” court papers revealed.

The Reserve Bank had agreed to release additional amounts of R276,365.49 “on a highly exceptional and once-off basis” to allow Odendaal to defray expenses concerning her insurance and repay to her occupational interest that a lessee had paid into her blocked Nedbank account “in error”.

Despite this agreement, Odendaal continued to request the release of more funds.

The central bank had asked Odendaal to provide an updated list of her monthly income and balance sheet and she was “invited to attach this list of her monthly income and her balance sheet to her replying affidavit”.

No such response or documentation had been attached to Odendaal’s replying affidavit “and the recent financial position of the applicant is absent from the papers that were presented before me at the hearing of the matter”, the judge said.

The core dispute was whether the Reserve Bank had validly cancelled the agreement between itself and Odendaal, and if it had not, whether Odendaal enjoyed “a contractual or another legal right to payment of monies to cover her reasonable legal fees”.

The Bank had proposed a package of “reasonable legal fees” and “no contribution towards monthly expenses”, which was rejected by Odendaal. What she wanted was the unblocking of her Nedbank account to cover her legal and other costs.

“Objectively assessed,” Wille said, Odendaal had repudiated the agreement, even though she “may not subjectively have intended to repudiate the agreement”.

The judge remained “unpersuaded that a court of appeal could arrive at a different conclusion based on a dispassionate evaluation of the facts and our jurisprudence”.

He believed there was no reasonable prospect that an appeal court would find that repudiation did not occur when a contracting party unequivocally intended not to comply with material contractual obligations, without lawful excuse. DM

Categories:

Tags:

DM is much better if you are signed in...

South Africa

Suspect funds

The taps are closed