Trustee Fee – High Court Application
- jp55467
- Sep 2
- 6 min read
This Memorandum aims to promote transparency regarding the remuneration (“Trustee Fee”)
payable to me in my capacity as Trustee of the Debenture Trust, and to address the Board of Directors
(“Board”) of the Nova Group of Companies’ (“Nova”) deliberate withholding of such payments.
Introduction
On the introduction section of the ‘Debenture Trust Communication Page’ I make the following
declaration:
‘This is a remunerated position, and I take the responsibility seriously. While much of the
work I have undertaken since my appointment has gone unnoticed, I remain committed to
fulfilling my duties with integrity and diligence.’
Full access to the Debenture Trust Deed is available on the introduction page under the
designated header “Trust Deed / Appointment” (Trust Deed).
Clause 16, paragraph 1 of the Debenture Trust Deed states as follows:
‘Before the effective date, in consideration for the services to be rendered by the trustee
to the company in terms of this deed, the company shall confirm in writing to the trustee
a monthly fee acceptable to the trustee in respect of his duties and responsibilities in terms
of this deed. Such fee will be reviewed and adjusted annually by the company and the
trustee taking into account Inflation and other factors influencing this fee.’
Trustee fee
Since my appointment as Trustee of the Debenture Trust on 18 January 2022, I was formally
advised that the monthly Trustee Fee would be R 50,000 excluding VAT, the same amount
received by my predecessor, Mr. Derek Cohen. Refer to Annexure A for a copy of the email from
Me. D. Haese, Chief Executive Officer of Nova, confirming this arrangement.
Since my appointment, I have chosen not to request any annual inflationary adjustment to the
Trustee Fee, as permitted by the Debenture Trust Deed. Accordingly, the monthly Trustee Fee
remains as follows:
- Trustee fee R 50.000
- VAT R 7,500
- Total R 57,500
Withholding of Trustee fee
I refer to my response letter (News Articles) addressed to the Board of Nova, in which I
commented on the Board’s false statements regarding, amongst others, the legal fees incurred
in connection with two High Court actions I instituted against Nova. The Board essentially claimed
that there was no justification for these legal expenses and that they were incurred solely at my
discretion – a claim that is factually false!
In early 2024, the Board, through various emails from Nova’s Chairman, Mr. Connie Myburgh,
formally resolved to cease payment of Trustee Fees, despite the clear obligation outlined in the
Debenture Trust Deed. Despite repeated requests for payment of both arrear and current fees,
the Board has consistently refused, citing my alleged 'disingenuous and obstructive' conduct as
justification for withholding payment.
I respectfully invited the Board to provide specific examples of the alleged 'disingenuous and
obstructive' conduct, evidence which, to date, remains outstanding. If the act of requesting
access to relevant supporting documentation, Management Accounts, and a complete copy of
the Debenture Register, as explicitly permitted under various clauses of the Debenture Trust
Deed, is deemed 'disingenuous and obstructive', then such a characterization is deeply
concerning.
Accordingly, and in order to compel the Board to comply with the fundamental provisions of the
Debenture Trust Deed, I was left with no alternative but to seek relief from the High Court for
payment of the outstanding Trustee Fees, rightfully due to me.
High Court Application
With the assistance of my attorney and Senior Counsel, a comprehensive application was
prepared for submission to the High Court (“Fee Application”). My Founding Affidavit and Notice of Motion were filed on 18 September 2024. A full copy of the application is attached to this
Memorandum:
- Notice of Motion – Annexure B;
- Founding Affidavit – Annexure C; and
- Supporting annexures – Annexure D.
It is worth noting that this application was unopposed by Nova. On 12 December 2024, the same
day I received a phone call from Mr. Connie Myburgh informing me that Nova’s legal team
intended to request an extension for an already-overdue Answering Affidavit in a separate High
Court matter, Nova ‘unexpectedly’ commenced payment of the Trustee Fees.
The Board has advised me that Nova’s policy is to settle creditor payments on or before the 7th
day following each month-end. However, this policy has proven to be unreliable and
inconsistent. As evidenced by the Statement of Account (attached as Annexure E), the Board
routinely disregards this so-called ‘policy’, making payments at its own discretion.
I remain of the view, despite the Board’s repeated denials, that Nova is experiencing significant
cash flow constraints with serious doubts as to its potential to continue business as a Going
Concern. This is clearly evidenced by the audited Annual Financial Statements (“AFS”) for the year
ended 29 February 2024, as well as those of prior years.
A court date for the Fee Application was set for 21 May 2025, on which the unopposed matter
was scheduled to be heard before the High Court. On 20 May 2025, Nova settled the outstanding
balance claimed in the application, a clear attempt to avoid public humiliation and scrutiny and
also preventing an adverse ruling. As a result, the substantial legal costs I incurred personally
were rendered in vain. This conduct by the Board reflects a troubling pattern of arrogance,
recklessness, and a total disregard for ethical governance.
In support of the above, it is my considered opinion that Nova is increasingly acting as a vexatious
litigant and is grossly abusing South Africa’s already strained legal system. I believe Nova is
exploiting legal processes, enabled by access to what appears to be ‘adequate’ financial
resources, resources that are being deployed in a reckless and irresponsible manner. This conduct
demonstrates a blatant disregard for the well-being and interests of the Debenture Holders.
Continuous non-payment of Trustee fee
For the record, as of March 2025, the Board has once again unilaterally decided to withhold all
further payments to me, despite the Debenture Trust Deed clearly stipulating that the Trustee
Fee is payable unconditionally.
The reason provided by the Board is as follows – ‘As so many times in the past, I advise that you
not being paid has nothing to do with being in a position to pay. It has to do with your behaviour.
We are in a position to pay, but choose not to pay.’
Nova is expected to uphold the core principles of the King IV Report on Corporate Governance
for South Africa (“King IV”). The Board’s above statement and conduct stand in direct
contradiction to these principles, particularly those relating to transparency, accountability, and
ethical leadership. This behaviour reflects a deliberate attempt to obstruct transparent
reporting on matters of material importance to the Debenture Holders and undermines the
integrity of Nova’s governance framework.
In support of the above statement, I addressed an email to Mr. Theo Brits, Chairman of the
Remuneration Committee (“RemCo”), requesting formal feedback regarding RemCo’s position on
the Board’s deliberate decision to withhold the payment of the Trustee Fee. In response, Mr.
Connie Myburgh advised Mr. Brits not to reply to my respectful request.
The email in question, dated 28 July 2025, forms part of the complete chain of correspondence
attached as Annexure F (refer below for further details regarding this email chain).
Conclusion
In conclusion, this Debenture Trust Communication Page has not been created in response to the
Board’s failure to pay my monthly Trustee Fee. Despite the deliberate withholding of these fees,
the significant time and effort I dedicate to fulfilling my duties as Trustee, and the resulting
adverse impact on my professional practice, I remain committed to tirelessly safeguarding the
interests of the Debenture Holders.
Attached as Annexure F is a complete record of the email correspondence I sent to the Board regarding
the monthly Trustee Fee, beginning from the time the Board initially ceased payments. This annexure
is provided for ease of reference and to support the statements made in this Memorandum.
Although some of the Board’s contact information is publicly available, I have redacted all direct
communication details in Annexures A and F. However, as the annexures to the Fee Application are
part of the public record, the information contained therein reflects the original, unredacted court
filings.
Kind regards
Jean-Pierre Tromp
In my capacity as Trustee of the Debenture Trust
Comments