Niven Pillay, his family trust and its sole asset, a close corporation called Ergold Properties 8, have more than R350-million in assets, but those are out of bounds due to a restraint order.

They are among various Regiments entities whose assets were attached under the Prevention of Organised Crime Act (Poca) three years ago and will likely remain so pending the outcome of a recently instituted criminal case against Pillay and others.

This is unless their inclusion can be successfully challenged — as Pillay is trying to do in an application to the Supreme Court of Appeal.

The embattled Johannesburg businessman, who is caught up in the Gupta wave of State Capture, says he faces jail time if convicted in an unrelated decade-old criminal case and would have to resort to Legal Aid if he cannot pay lawyers to defend him.

He is not looking for money to buy a new car or furniture:

“No extension of my lifestyle is sought, I simply request funds to maintain my family in, roughly, the lifestyle we have always lived.”

‘Blacklisting risk’

For now, Pillay, his family trust and Ergold seek a declaratory order that curator Eugene Nel is obliged to pay certain expenses without them first producing a court order. Pillay says he is at risk of being blacklisted due to a growing pile of unpaid bills.

Nel last month hurriedly settled several late accounts, including levies due at residential properties in Hyde Park, Houghton and an apartment at Sandton’s Michelangelo Towers. Lawyers representing Pillay, the Trust and Ergold in this freshly launched high court application are doing so on a contingency basis, at least for now.  However, another attorney has just issued summons for unpaid debt totalling more than R3-million.

Daily Maverick previously reported on a separate high court application brought by various Regiments companies for more than R20-million to cover legal fees to cover their fights against the City of Johannesburg, the SA Receiver of Revenue, Capitec Bank Holdings and Lebashe Investment Group as well as the National Prosecuting Authority (NPA).

While that case is set to be heard by the high court in Johannesburg on Wednesday, 16 November 2022, Pillay has now launched the additional application so he can pay living expenses of roughly R400,000 a month.

In papers filed in late October 2022, the wealthy Johannesburg businessman paints a dire picture of his current financial situation.

This is primarily due to the restraint. It placed assets belonging to Pillay, Regiments co-owner, Nyhonhya, and their former partner, Eric Wood, their respective family trusts and their various companies under the control of curator bonis, Nel.

Read more in Daily Maverick: “Gupta-era bonanza aftermath: Inside the NPA’s R1.1bn State Capture salvo against Regiments Capital”

So, although sitting on assets worth in excess of R350-million in Ergold, the cc owned by the Pillay Family Trust, these are off limits pending a Supreme Court of Appeal bid over whether the two entities hold realisable properties under Poca. Pillay says he has no other assets available from which to pay living expenses.

“My family and I have since the liquidation of Regiments been dependent on distributions from the Trust to meet our financial obligations.” 

‘Wife’s generosity’

However, these have stopped, and the curator now requires a court order to release further monies. Pillay says has been able to survive due to the generosity of his wife who agreed to pay for his living expenses from her personal savings. But while she has also paid for all their household expenses and select creditors, this situation was not sustainable.

“I am advised that neither the Court order, nor Poca, oblige me to rely on the goodwill and generosity of my family members to meet my financial obligations and to fund the applicants’ legal defence.”

While one of his lawyers had agreed to wait until May 2022 for Capitec dividends to flow to Ergold, the restraint (at the time suspended pending appeal proceedings) was reinstated before the payout date, thereby blocking access to those funds too.

Pillay wants the court to direct Nel to release such realisable property within his control to meet their reasonable legal, including the costs of two counsel, expert witnesses and any disbursements incurred in connection with proceedings related to the restraint, any appeals and related criminal proceedings. He is among a group of 18 accused in one of State Capture’s biggest criminal prosecutions. Also featuring global consulting firm, Mckinsey & Co, the case returns to court on 30 November when the State is expected to produce a final indictment. 

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Pillay says it took nearly three years for him to be arrested — a criminal conviction is a requirement for the restraint order in question — and the case is “exceedingly” unlikely to be finalised within two years. He is currently out on bail and has not been asked to plead. 

‘I am advised that neither Poca nor the curatorship order oblige me to borrow money to fund the applicants’ legal and living expenses.’

It is also unlikely that any financial institution would lend them money given their current circumstances. In addition, he needs funds for eight court cases that he and or his family trust and Ergold are specifically involved in. This includes a criminal prosecution on charges of racketeering, fraud and money laundering relating to a decade-old case involving former Gauteng Health MEC Brian Hlongwa.

Insofar as his family’s living expenses are concerned, Pillay provided the court with a list that includes the monthly rental for the home he lives in, gym fees, medical aid and transport costs as well as roughly R2-million in annual tuition fees for his two children studying in the US plus provision for miscellaneous expenses totalling R100,000 a month.

Various creditors have threatened to take further steps unless accounts are settled.

“I am therefore in a precarious and dire financial position at this stage as a result of having been deprived of my assets. I do not have further property to meet these expenses, or to pay future legal or living expenses.”

The application is unopposed and provisionally scheduled for January 2023. DM