Adriaan Willem Van Rooyen & Ors v The Respondents Listed in the Sechedule of Respondents [2026] EWHC 1286 (Ch)

“13.1. authorising the Joint Liquidators in that capacity to institute, maintain, continue, proceed to final determination of and obtain relief in proceedings in the Courts of England & Wales seeking orders: 13.1.1. Under or relating to the Specified SA Provisions as defined below; and 13.1.2 Under or relating to the Specified UK Provisions as defined below, in each case, to recover any money, property, Bitcoin or other cryptocurrency for the benefit of the winding-up of MTI; 13.2 making orders pursuant to the Specified SA Provisions and/or the Specified UK Provisions, to the extent that the English High Court considers it just and appropriate to do so, whether following an examination of fact or otherwise by the English High Court; 13.3 applying South African statutory insolvency law in the United Kingdom in relation to the winding up of MTI, in particular to the extent necessary to give effect to the assistance sought in the preceding paragraphs; …” “13.6. Making any other order that appears to the English High Court to be just, convenient and appropriate, including where the need for such order becomes apparent after the date of this Second Letter.”

“26. Dispositions without value (1) Every disposition of property not made for value may be set aside by the Court if such disposition was made by an insolvent— (a) more than two years before the sequestration of his estate, and it is proved that, immediately after the disposition was made, the liabilities of the insolvent exceeded his assets; (b) within two years of the sequestration of his estate, and the person claiming under or benefited by the disposition is unable to prove that, immediately after the disposition was made, the assets of the insolvent exceeded his liabilities: Provided that if it is proved that the liabilities of the insolvent at any time after the making of the disposition exceeded his assets by less than the value of the property disposed of, it may be set aside only to the extent of such excess. (2) A disposition of property not made for value, which was set aside under subsection (1) or which was uncompleted by the insolvent, shall not give rise to any claim in competition with the creditors of the insolvent’s estate: Provided that in the case of a disposition of property not made for value, which was uncompleted by the insolvent, and which— (a) was made by way of suretyship, guarantee or indemnity; and (b) has not been set aside under subsection (1), the beneficiary concerned may compete with the creditors of the insolvent’s estate for an amount not exceeding the amount by which the value of the insolvent’s assets exceeding his liabilities immediately before the making of that disposition.” “29. Voidable preferences (1) Every disposition of his property made by a debtor not more than six months before the sequestration of his estate or, if he is deceased and his estate is insolvent, before his death, which has had the effect of preferring one of his creditors above another, may be set aside by the Court if immediately after the making of such disposition the liabilities of the debtor exceeded the value of his assets, unless the person in whose favour the disposition was made proves that the disposition was made in the ordinary course of business and that it was not intended thereby to prefer one creditor above another.” “(3) Every disposition of property made under a power of attorney whether revocable or irrevocable, shall for the purposes of this section and of section 30 be deemed to be made at the time at which the transfer or delivery or mortgage of such property takes place. (4) For the purposes of this section any period during which the provisions of subsection (1) of section 11 of the Farmers’ Assistance Act, 1935 (Act 48 of 1935), applied in respect of any debtor as an applicant in terms of the said act, shall not be taken into consideration in the calculation of any period of six months. 30. Undue preference to creditors (1) If a debtor made a disposition of his property at a time when his liabilities exceeded his assets, with the intention of preferring one of his creditors above another, and his estate is thereafter sequestrated, the Court may set aside the disposition. (2) For the purposes of this section and of section 29 a surety for the debtor and a person in a position by law analogous to that of a surety shall be deemed to be a creditor of the debtor concerned.”

“30. In particular, it seems to me that to accord it weight would tend to undermine the modified universalism that is embodied in the statute and which calls for a single system of distribution to the greatest extent consistent with justice and UK public policy. Indeed, in almost all cross-border cases, that approach is almost necessarily going to involve seeking various types of order against individuals and companies with no or very little connection to the jurisdiction of the requesting court - such as, for example, banks holding company assets, or data-server providers in far-flung jurisdictions. I agree with Ms Cooke that, in a sense, this is a factor in favour of exercising the power under section 426, rather than one which undermines that conclusion. 31. But in any event, in the present case, the investment agreements that were entered into between the company and its investors were governed by South African law. Investors therefore entered into a South African law contract with a South African company, so the complaint that it would be wrong to apply South African law to the clawback claims, it seems to me, is one without foundation; it is not obviously unfair or exorbitant. Those individuals, as I say, did have a connection with South Africa. 32. Whilst it is true that the joint liquidators would be unable to obtain the remedies they seek in the claims under South African law in South Africa itself, because the respondents are outside the jurisdiction, that limitation is not - as I have noted - a limitation of South African insolvency law itself. That has been confirmed in these proceedings, in a report from Judge Eberhard Bertelsmann, who is a former judge of the Gauteng Division of the South African High Court. And that report - an expert report - was adduced with the permission of Dr Baister, sitting as a deputy judge in the present proceedings, at a time when it was thought that this application might be opposed. 33. Moreover, as I have mentioned, the English court has for many years given relief not available to the officeholders in the country of their appointment, whether because of some substantive difference in the law, such as in Dallhold, or for reasons of the court’s personal jurisdiction, as in Fourie v Le Roux, which was actually a case strikingly similar to that which is before me. 34. Finally, there are no reasons of public policy not to permit proceedings in this case to continue. Although the South African insolvency provisions are, in certain respects, more generous to officeholders, they are, as I have said, essentially designed to achieve the same ends of protecting the company’s estate and creditors. Again as I have said, Parliament has specifically granted the relevant countries and territories, including South Africa, the privilege of assistance under section 426, because it has determined that their insolvency laws and legal systems share the same fundamental values as ours. That assessment, it seems to me, should not be lightly displaced. 35. In conclusion, it seems to me right to respect and accede to the request made by the South African court under section 426 and to authorise the claims to be made. That is not, of course, to say that they will succeed, and that further safeguard is another reason not to refuse assistance. So I will make that order.”

“2. The Court hereby authorises the Applicants to exercise such of their powers and functions, either jointly or individually, as joint liquidators of the Company and without prejudice to the generality thereof that the Court do act in aid of and give the assistance specified in this Order. 3. Pursuant to the jurisdiction conferred by section 426(4)-(5) of the Insolvency Act 1986: a. The Applicants shall be permitted to bring, institute, continue, defend or discontinue any action, claim, application or other legal proceedings in England and Wales pursuant to sections 26, 29 and 30 of the Insolvency Act 24 of 1936 (SA) (“RSA Insolvency Act”) and sections 238 and 239 of the Insolvency Act 1986. b. Sections 26, 39 and 30 of the RSA Insolvency Act, as well as all provisions of that Act, the Companies Act 61 of 1973 (RSA) or of the general law of South Africa which are in each case ancillary to or necessary for the operation of the above-mentioned sections of the RSA Insolvency Act, shall apply in relation to all matters connected with the winding up of the Company. c. Without prejudice to the generality of the foregoing paragraphs, the Applicants shall be permitted to continue, prosecute, discontinue, defend or stay the Main Application on such terms as they shall think fit, and shall be permitted to seek such orders as they think fit in the Main Application.”

“We have now had an opportunity to take instructions from our client and in an attempt to save costs, we have been instructed make an offer to settle all your clients’ claims against our client in relation to all our client’s user ID’s as detailed below, in the sum of £65,000 (the Offer). The Offer is made subject to contract and is made in respect of the following user ID’s: 1. User ID 1365304 – Lightning Trader; 2. User ID 7447230 – BitBella; 3. User ID 2063814 – BitColly; 4. User ID 4226958 – RevoMark; 5. User ID 54592798 – GunterT; 6. User ID 31563959 – Suzieh; 7. User ID 13511019 – Valsel; and 8. User 1D 51686449 – val. The above-mentioned accounts are referred to as the Designated Accounts.” “In making the Offer, our client has taken into account the 1.5 bitcoin that our client has retained in the fund which is an asset available to your clients which we understand is valued at approximately £15,972.92. If the Offer is acceptable to your clients, we suggest that a short form settlement agreement is drawn up to confirm that the settlement amount of £65,000 is in full and final settlement of all your clients’ claims against our client in this matter.”

“21. The Pienaar Application [JCM4/14] was issued on 27 January 2025. As the witness statement in support of the Application makes clear [JCM4/18], the Pienaar Application seeks identical relief to, and is based on the same facts as, the Re-Issued Main Application. 22. The Joint Liquidators accept that the usual course would ordinarily have been to apply to join Mr Pienaar to the Re-Issued Main Application. However, they concluded (without waiving privilege) that that course was inappropriate here. 23. This is because Mr Pienaar might have argued that joining him to the Re-Issued Main Application would deprive him of a (supposedly) arguable prescription (limitation) defence under the law of South Africa. 24. The Re-Issued Main Application was issued on 8 November 2024. However, there is an arguable limitation date falling on 11 November 2024 - the reasons for this are not presently material – albeit one that the Joint Liquidators will say is not applicable. If Mr Pienaar were joined to the Re-Issued Main Application, the date of the claim against him would be deemed to be 8 November 2024 by the operation of the ‘relation back’ rule in section 35 of the Limitation Act 1980. That section applies to foreign limitation periods by virtue of section 1(3) of the Foreign Limitation Periods Act 1984. The operation of the relation back rule might (it could be argued) deprive Mr Pienaar of a limitation defence.”

“We do not know yet precisely what Defence to the claim(s) these respondents will set out because their pleadings are not due for another few months. However, broadly speaking, these respondents have indicated that they might adopt several lines of defence: First, that South African law ought not to apply. As you know, this line of defence has now been overcome - or, at least, we expect the remainder of this argument to succeed on the JLs’ behalf at the CMC barring an unexpected turn in Court. Second, we anticipate that the respondents will seek to run a prescription /limitation argument and will probably try to have this point determined as a preliminary issue at a mini trial later this year. The initial advice that the JLs have shared with us from South African counsel regarding prescription — in particular, the opinions of Mr van Rooyen SC — suggest that the JLs should expect to succeed on this issue in England in due course (albeit with the usual caveat around litigation risk and unpredictability etc). Third, if South African law applies and the claims are not prescribed, we expect the respondents to plead substantive defences. For instance, the respondents might plead some form of change of position or set-off defence. It is not clear yet what those defences might be or what merit (if any) they might possess.”

“The Data Expert’s evidence will address the following issues: a. the condition of MTI’s data when recovered by the Joint Liquidators; b. whether it was reasonably possible to identify individual respondents to the claim from this data, without the aid of bespoke or specialised software; and c. the process of development and operation of software to analyse the said data to the end described above, and how quickly such software could reasonably have been developed to do so.”

“The Documents contain numerous factual and legal errors. The effect of these errors is to present to the Honourable High Court of South Africa a version of events in relation to the English Proceedings which is highly inaccurate. In the light of this, we have been asked by Schaborts to prepare this letter for you. We understand that you will share this letter with the Honourable High Court of South Africa and so this letter is prepared with a view to: (a) assisting the Master and the Honourable High Court of South Africa to understand the true position in England; and (b) correcting certain errors and mischaracterisations contained in The Documents.”

“18.1 The value of the claims being pursued in the English Proceedings is 493.484 BTC, which is equivalent (at the date of this letter) to approximately £34m (ie ZAR 770m). The amount that might be gained from the pursuit of the English Proceedings is therefore very significant. The pursuit of these sums is not something from which the JLs can resile without proper justification. The pursuit of such claims necessarily incurs legal costs. 18.2 The procedural directions provided by the English Court are in standard form. They are not overly onerous, nor are they in any way exorbitant. In addition, and while the costs of the English Proceedings will (like any litigation) be substantial, the JLs (and your representatives in England) are taking all necessary steps to reduce the scope of the litigation and the associated costs as far as possible. It is not correct for Mr Thyne to assert (paragraph 6.6 of the Thyne Affidavit) that the JLs have "significantly escalated the scale and complexity of the UK proceedings". The opposite is true: we and counsel have been seeking on your behalf to reduce the scale of the English Proceedings as far as possible, especially in respect of disclosure. In any event, the costs to be incurred are relatively small in comparison to the total amounts being pursued by the JLs by way of recovery for the insolvent estate of MTI. On the other hand, if the interdict sought were to be granted, that may involve the estate having to bear the costs (or some of the costs) of the other parties’ to the English Proceedings. 18.3 Even if the Honourable High Court of South Africa was minded to grant the interdict sought, that would not cause the cessation of the English Proceedings. As to this: 18.3.1 The English Proceedings do not advance claims under South African statutory insolvency law alone – to the contrary, the JLs have pleaded claims in the English Proceedings under both South African statutory insolvency law, as well as under the UK Insolvency Act 1986 (the UK Insolvency Act). See the Points of Claim filed in the English Proceedings, paragraphs 74 to 83. The claims under the UK Insolvency Act are advanced under section 238 of the Act (transactions at an undervalue) and section 239 (preferences). 18.3.2 It is for the Honourable High Court of South Africa to decide whether to restrain the JLs from prosecuting one of or both of the South African law claims and UK Insolvency Act claims in presently asserted in the English Proceedings. However, if the English claims continued in the English courts despite the South African claims being restrained, the English Court would still have to decide and rule on a set of factual issues. That is because: (a) The claims under the UK Insolvency Act are based on the same transactions in respect of MTI that give rise to the South African claims: see Points of Claim filed in the English Proceedings, paragraphs 75 to 78; (b) The English Courts would not apply the South African law of prescription to the UK Insolvency Act claims, but would instead apply the UK Limitation Act 1980. See further below; (c) Additionally, the English Court will not be bound by any finding of law on prescription made by the South African courts. The English court decides questions of foreign law based on the expert evidence placed before it. Therefore, when deciding an issue of foreign law it is open to the English Court to “diverge from even the highest authority… if on the evidence [it] can be satisfied that an authority, however eminent, does not represent the law”: see Deutsche Bank AG London v Comune di Busto Arsizio. As such, were the South African courts to find in the 'Van Stittert' [sic] action that the South African claims against Mr van Stittert [sic] had prescribed, the English Court would be free to depart from such findings if it were justified on the expert evidence of foreign law and evidence of fact before it; and (d) Even if the Honourable High Court of South Africa restrained the JLs from continuing the English Proceedings, that ruling would have no effect on the Respondents in the English Proceedings (who are different to those persons instructing Mr Thyne). Those Respondents could insist on the continuation of the English Proceedings, as they may not tolerate an extended delay. Failure to pursue the English Proceedings in those circumstances could lead to the JLs being debarred from continuing the English Proceedings; the effect of which would be that the JLs would likely be ordered to pay all of the Respondents' legal costs in England, which would diminish the insolvent estate of MTI unjustifiably.”

“20.1 Prescription (and the date on which time should start running) under South African law is an issue in dispute in the English Proceedings. It is entirely wrong to suggest that the English Court has been misled about this: the issue is front and centre within the English Proceedings. The JLs have set out their position; the Respondents in England adopt a different position. The English Court will be asked to determine the matter and each side will advance expert evidence in support of its case (in accordance with the aforementioned directions given by the English Court). That is the proper approach under English law. In contrast, the position adopted in The Documents is that the assertions of Messrs Lee and Thyne ought to be adopted as correct without any proper scrutiny or consideration of the JLs' position. That cannot be correct and would not be accepted by the English Court. 20.2 As you know, the JLs' position in England is that claims did not become prescribed until at the earliest May 2025, as the earliest date on which the JLs had sufficient knowledge with which to pursue the relevant claims was June 2022. This has been the JLs' consistent primary position in the English Proceedings and that remains the case. The JLs have also advanced an alternative (secondary) argument in England, which is that the claims did not become prescribed until 11 November 2024, being the final appointment of the JLs in South Africa. There is nothing unusual or inconsistent about adopting a primary and (alternative) secondary position in English proceedings and there can be no credible suggestion that the English Court is being misled by this. We understand that the alternative dates argument (i.e. 11 November 2024) is also a point which has been advanced in the South African proceedings and to which Hunter and Lee refer in The Documents. Again, there is nothing inconsistent or misleading about the JLs' approach in this respect. 20.3 In addition and in any event, under the Limitation Act 1980 in England, the claims under the UK Insolvency Act would not have been time-barred (in South African terms, prescribed) when the English Proceedings were issued and are not even time-barred today, because the limitation period applicable to a section 238 or 239 claim is at least 6 years if the claim is analogous to the recovery of money, and is as long as 12 years if the claim is not one to recover money: see Re Priory Garage Walthamstow Ltd. 21. The assertion in The Documents is that the JLs should not be allowed to bring the South African statutory insolvency claims in the English Proceedings because it is said (inter alia) the South African proceedings have prescribed and the JLs are alleged to have taken a contrary position on prescription in South Africa to that taken in the UK. 22. However, even assuming Messrs Thyne and Lee are correct about this (and your position is that they are not correct), it is not certain that this would result in a dismissal of the South African claims being asserted in the English Proceedings. That is because the JLs have pleaded in the English Proceedings that the prescription periods in the Prescription Act 68 of 1969 do not, as a matter of English private international law rules, apply to the South African claims: see the JLs’ Reply, [19.3.1]. 23. The basis for this argument is that the South African claims can only be asserted in the UK by virtue of section 426(5) of the UK Insolvency Act (which allows the foreign statutory insolvency law of former countries in the British empire to be applied by the UK courts in certain circumstances). The JLs will argue at trial that the effect of section 426(5) is only to apply the foreign insolvency law but not any foreign provisions relating to prescription not contained in that law. This is because section 426 allows the English Court to apply the general body of English law, the insolvency law of England & Wales, and the insolvency law of the foreign country, but not the general body of the foreign law: Hughes v Hannover Ruckver- sicherungs AG. 24. We consider that this argument, while novel, has a reasonable prospect of success in England. The implication of the argument, if successful, is that the South African claims will not be defeated in any event by any applicable prescription period under the law of South Africa. 25. Furthermore, if (contrary to the above position) the South African law of prescription does apply, then the JLs will argue that the relevant prescription period ceases to run on the date the relevant claims in the English Proceedings were commenced (i.e. filed with the English Court, which took place on 8 November 2024) and not when they were served: see the JLs' Reply, [19.3.6]. In such case, even if the relevant prescription period commenced on 11 November 2021 (which Hunter and Lee acknowledge has been pleaded in South Africa, and which has also been pleaded in the alternative in England), the claims being asserted in the English Proceedings would not be prescribed.”

“Costs 27.5 At paragraphs 14.7 of the Thyne Affidavit and 4.5.2 of the Thyne Letter, the assertion is made that the insolvent estate of MTI has been diminished as a consequence of Judge Barber ordering that the JLs pay the Respondents' costs of the strike out application (being the typical order following the outcome). As you know, that is not correct. 27.6 You will recall that, in the unusual circumstances, this firm and English counsel instructed by you agreed to provide legal work to the JLs without charge and to do so for an amount equivalent to the amount of the adverse costs ordered by Judge Barber. Consequently, and without waiver of any privileged communications regarding those costs, the insolvent estate of MTI suffered no diminution as a consequence of the costs order of Judge Barber. Effect 27.7 Throughout The Documents, the authors seek to assert or imply that the order of Judge Barber dated 8 November 2024 – which ordered that the Main Application be struck out on technical procedural grounds, leading to it being replaced with an identical application in the form of the Further Main Application – has prejudiced the position of the JLs and the insolvent estate of MTI. This is not correct. 27.8 As set out above, the JLs' position as set out in the English Proceedings is that prescription of the claims could not have occurred before the end of May 2025. On the case accepted in The Documents, service of the Further Main Application was effected in England by no later than December 2024 – i.e. before the relevant prescription date. Consequently, based on the JLs' case on prescription in England, there has been no prejudice suffered by the JLs in England as a consequence of the order of Judge Barber.”

“11. In the circumstances, I do not repeat the contents of the Farrer Letter in this affidavit. However, I confirm that I believe the contents of the Farrer Letter to be true, and I incorporate the relevant portions of the same into this affidavit and repeat them. I therefore request that the Honourable Court reads the Farrer Letter in conjunction with this affidavit and vice versa. That said, to the extent there is any inconsistency between the Farrer Letter and this affidavit, this affidavit should take precedence. 12. The focus of this affidavit is to set out and explain the ongoing and upcoming procedural timeline in the English Proceedings. I understand that this explanation will assist the South African court when considering the Application. Where I consider it appropriate, I explain in greater detail certain of the procedural obligations by which the Joint Liquidators are bound in England and which they must take into account as they conduct the relevant procedural stages in the English Proceedings. I am not a South African qualified lawyer and I have very limited knowledge of South African law and procedure. However, from my discussions with Schaborts, I understand that the required approach to the conduct of constituent stages of litigation can differ between the jurisdictions of England and Wales versus South Africa. I therefore consider it helpful to explain the obligations on the Joint Liquidators in England to demonstrate that they are proceeding in as reasonable and proportionate a manner as possible, whilst abiding by their obligations.”

“C. Costs Order 10. As explained in the Farrer Letter, on 8 November 2024, Judge Barber ordered the Joint Liquidators to pay the costs of certain of the Respondents in the English Proceedings following the hearing on 8 November 2024. Those costs were summarily assessed in the amount of £32,000+VAT. As stated at paragraphs 27.5 and 27.6 of the Farrer Letter, and without waiver of any privileged communications, my firm and English counsel agreed to write-off certain costs (i.e. provide legal work without charge) to the Joint Liquidators to ensure that the insolvent estate of MTI would not be diminished as a consequence of the adverse costs order of Judge Barber. Those costs which have been written off exceeded the £32,000+VAT of costs orders which the Joint Liquidators were ordered to pay (and did pay) to the relevant Respondents following the 8 November 2024 hearing. 11. In addition, two other Respondents in the English Proceedings — Messrs Borrell and Da Silva — are also seeking to recover adverse costs against the Joint Liquidators which they assert flow from the 8 November 2024 hearing. Without waiving privilege in the communications, discussions are ongoing regarding the quantum of any such costs. If required, I can address this point further in a subsequent affidavit after those discussions have been concluded.” “E. Other costs 13. What paragraphs 27.7 and 27.8 of the Farrer Letter do not mean — and I do not consider that they could be fairly construed as meaning — is that the order of Judge Barber had no negative effect at all on the position of the Joint Liquidators and the insolvent estate of MTI. As is the case in any contested litigation, the court may make procedural or substantive rulings against a party (in this case the Joint Liquidators) which require corresponding actions to be taken. That has been the case with regards to the order of Judge Barber. As is made clear in the Farrer Letter, the legal position of the Joint Liquidators and the insolvent estate of MTI suffered no prejudice as a consequence of the order of Judge Barber; and the same is true regarding the adverse costs liability. 14. However, while there has been no prejudice to the Joint Liquidators' legal position 1, the Joint Liquidators and the insolvent estate of MTI have obviously incurred (and will continue to incur) wider legal costs in pursuing the continuation of the English proceedings, including some of the costs of issuing and serving the Further Main Application and the costs of pursuing the litigation more generally. In this way, the Joint Liquidators are incurring costs in England on behalf of the insolvent estate of MTI which they might otherwise not have incurred. To that limited extent it could be said that the Joint Liquidators are suffering a degree of prejudice (or detriment), not in relation to their legal position but in respect of their costs (at least until such time as recoveries of their costs are made). I consider that position to be obvious and self-evident, but I confirm that position now for the sake of clarity. 1 (If the Joint Liquidators' position on prescription is correct)”

“16. First, the Applicant claims at paragraph 12 of the Replying Affidavit that under paragraph 14 of the Order of ICC Judge Mullen dated 23 October (the CMC Order)', "South African law is to apply to the avoidance claims". That statement is wrong. Paragraph 14 of the CMC Order sets out the scope of evidence the parties to the English Proceedings are able to adduce on the matter of SouthAfrican law — it makes no comment about the governing law of any claims pursued. For completeness, I note that the relevant order on this matter in the English Proceedings is the Order dated 28 March 2025 of ICC Judge Greenwood, which says (at paragraph 3) that the Joint Liquidators have permission to bring claims pursuant to both South African law (under the South African Insolvency Act 24 of 1936) and English law (under the English Insolvency Act 1986) [JMC3/22-27]. 17. Although this Third Affidavit is not the appropriate place for detailed legal submission, it may assist the Honourable Court to explain briefly that the applicable legal framework which applies to claims brought before the English courts under provisions of foreign law is the Foreign Limitation Periods Act 1984 (the FLPA 1984). As pleaded in the Joint Liquidators' Points of Reply filed in the English Proceedings, the FLPA 1984 states that for certain matters (including what act determines when a claim has been sufficiently instituted for the purposes of calculating limitation dates) English law shall be determinative. 18. At paragraph 29 and 30 of the Replying Affidavit, the Applicant appears to assert that we have advised the Joint Liquidators on the relevant prescription date in England by confusing the provisions of English and South African law on limitation and prescription. We have not, and the various assertions made on this topic (including at paragraphs 30 and 33 of the Replying Affidavit) are incorrect. Indeed, that the Applicant refers to things such as "an English 3-year limitation period" (which does not exist in this context or apply to claims like this) at paragraph 32, shows a general misunderstanding on the part of the Applicant and lack of knowledge about the relevant legal framework. I do not understand that the Applicant is English law qualified; as such, it is perhaps understandable that his conclusions on matters of English law are mistaken. 19. In this context, paragraphs 24 to 30 of the Replying Affidavit are similarly misconstrued. It is the Joint Liquidators' case, as pleaded before the English Court, that the claims they are pursuing in England (brought under both English and South African law, as explained in paragraph 18 of the Farrer Letter) are not subject to a valid limitation or prescription defence. Although the Respondents contest this, it is a matter in dispute in the English Proceedings, of which the English Court is fully appraised and will rule at trial in England. Until then, it cannot be asserted by either party that their view on limitation/prescription is correct; and it is wrong for them to do so (as the Applicant does repeatedly). 20. Relatedly, the Applicant has claimed repeatedly that the Farrer Letter sought to deliberately mislead the South African Court on the issue of limitation in the English Proceedings. This contention is without any merit and is denied by my firm. 21. At paragraph 14 of the Replying Affidavit, the Applicant asserts that the Farrer Letter contains a deliberate and misleading omission because it does not state that prescription constitutes a complete defence to the claims in England under South African law. This is wrong.”

“22. Similarly, the Applicant argues at paragraph 32 of the Replying Affidavit that the Joint Liquidators having filed their initial application in the English Proceedings on 9 April 2024 is somehow proof that they know they are pursuing time-barred claims. This is also wrong. The Joint Liquidators sought to file claims at this time precisely because they envisaged that certain Respondents might seek to run misconceived prescription arguments which suggest (wrongly) that the proper prescription date is 9 April 2024. Notwithstanding that the earliest correct prescription date under South African law is 1 June 2025 2 (at the earliest), the Joint Liquidators sought to avoid the wasted time and costs of defeating Respondents' arguments about earlier prescription dates by filing the original application in England on 9 April 2024. These are precisely the flawed arguments by the Respondents which the Joint Liquidators are now having to spend time defeating.”

“The Applicant discusses at paragraphs 58 to 62 a complaint which has been filed with the English Solicitors Regulation Authority (the SRA) about this firm and named lawyers, including me (the SRA Complaint). The focus of the SRA Complaint appears to be that Farrer & Co has deliberately misled or deceived the English (and/or South African) Court. The purported 'concrete evidence' provided in support of the SRA Complaint mainly concerns the purported omission in the Farrer Letter (referenced at paragraph 21 above). For the reasons I have explained, there was no such omission, deliberate or otherwise. The SRA Complaint is, in my view, baseless and an attempted abuse of process.”

“32. Individuals resident in the UK, South Africa, Australia, the USA and other jurisdictions received bitcoin from MTI, either as a purported return on their deposits of bitcoin, or by way of referral fees paid by MTI. 33. The Joint Liquidators have appointed digital forensics specialists and tracing agents to determine the identity and address of all recipients of bitcoin from MTI. Through these investigations, the Joint Liquidators have established that there appear to be approximately 8624 individuals who resided in the United Kingdom at the time when they registered as investors in MTI ("UK Bitcoin Recipients"). 34. The Joint Liquidators have presently resolved to pursue claims against the Respondents. 35. Each of the Respondents: 35.1. From time to time opened, controlled, transacted in and/or held accounts in MTI for his/her own benefit under various "User ID" numbers and account names; and 35.2. From time to time transferred bitcoin to MTI and received transfers of bitcoin from MTI (each transfer or receipt, a "Bitcoin Transaction"). 36. Each Respondent's Bitcoin Transactions with MTI are set out chronologically in the Transaction Schedules appended to these Points of Claim. Each Transaction Schedule sets out an individual Respondent's Bitcoin Transactions with MTI.”

“39.8. Accordingly, the eighth column (labelled `section 26 claim') reflects the amount of bitcoin (and its rand equivalent) transferred by MTI to a Respondent at a specific point in time over and above a positive running balance. Each of the amounts in this column constitutes a transfer of "Additional Bitcoin." In other words, each transfer of Additional Bitcoin is a transfer of bitcoin to a Respondent that is in excess of a Respondent's liability to MTI. For the reasons pleaded below, these amounts are recoverable under section 26 of the SA Insolvency Act. 39.9. For the purposes of calculating the amount owed under the section 26 claims, the table treats the Defendant's running balance of bitcoin with MTI as having been `returned' to zero bitcoin by the claim, before the next Bitcoin Transaction takes place. 39.10. In the ninth column (labelled section 29 claim less section 26): 39.10.1. In broad terms, the column reflects each Respondent's liability under section 29 of the SA Insolvency Act, but reflects what the position would be if the Court finds that credit should be given for any concurrent section 26 claim. 39.10.2. The numbers in the column reflect the amount of bitcoin (and its rand equivalent) transferred by MTI to a Respondent at a specific point in time less so much of that transfer as constitutes a transfer of Additional Bitcoin in that particular Bitcoin Transaction (and which therefore forms the subject of a section 26 claim); 39.10.3. Only transactions that are below the bold horizontal line occurred within six months of the deemed date of MTI's liquidation, and therefore only those transactions can give rise to a claim under section 29. 39.11. The tenth column (labelled 'section 29 claim`) represents bitcoin transferred from MTI to a respondent within six months from the date of liquidation, but without giving credit for a section 26 claim by deducting the Additional Bitcoin for that particular Bitcoin Transaction. 39.12. The eleventh column (labelled `section 30 claim') reflects the amount of every receipt of bitcoin by a Respondent from MTI, in rand and bitcoin. 40. The eighth, ninth, tenth and eleventh columns reflect the value of the Joint Liquidators' South African and UK statutory insolvency claims against each Respondent, as further pleaded to below.”

“50. Under South African law, any Bitcoin deposited into MTI's wallets by its investors became the property of MTI by virtue of those investors' exercise of their right of disposal over their property, and/or by virtue of commixtio with other Bitcoin held by MTI. 51. Every transfer of bitcoin from MTI to each Respondent therefore constituted a "disposition" of MTI's bitcoin by MTI to each Respondent within section 2 of the SA Insolvency Act, and in any case under the common law of South Africa.”

“5. As for paragraphs 7 to 12, the Macgregor Respondents deny that: 5.1 bitcoin purportedly deposited with, or transferred to, MTI became the property of MTI as opposed to Mr Steynberg in his personal capacity; 5.2 bitcoin purportedly transferred from MTI to the Macgregor Respondents were transfers or dispositions from MTI, as opposed to Mr Steynberg in his personal capacity and accordingly, the Macgregor Respondents require the Joint Liquidators to prove that transfers of bitcoin from and to the Macgregor Respondents were to and from MTI and not Mr Steynberg in his personal capacity.”

“19. The Macgregor Respondents admit the Letters of Request referred to in paragraph 41. The interpretation and scope of the Letters of Request are matters for submissions but the Macgregor Respondents contend that it would neither be “just and appropriate” as that phrase is used in paragraph 13.2 of the Letter of Request dated 19 April 2024, nor permissible taking into account the applicable “rules of private international law”, as that phrase is used in section 426(5) IA 1986, for the Joint Liquidators to obtain relief under the UK Claims if the South African Claims fail. The Macgregor Respondents accordingly contend that the Joint Liquidators cannot claim relief under English law if the claims under South African law fail.”

“24.2 The Joint Liquidators’ claim under section 26 has prescribed because: 24.2.1 the SA Prescription Act applies in these proceedings in terms of the Foreign Limitation Periods Act, 1984; 24.2.2 the Joint Liquidators’ claim under section 26 is a “debt” for the purposes of the SA Prescription Act and is accordingly subject to the three-year prescription period prescribed in section 11(d) of the SA Prescription Act, which commenced to run from the date on which the debt became due; 24.2.3 the debt became due, and the three-year prescription period started to run, from when the Western Cape Division of the High Court of South Africa granted the Joint Liquidators’ extended powers in terms of section 386(5) of the SA Companies Act 1973, including the power to institute legal proceedings, on 22 January 2021, alternatively when the Joint Liquidators were finally appointed on 11 November 2021, and the Joint Liquidators had knowledge of the identities of the Macgregor Respondents and the facts from which the debt arise, alternatively could have acquired such knowledge by exercising reasonable care, on or before either date; 24.2.4 the Application Notice was served on the Macgregor Respondents on 7 April 2025; 24.2.5 service of process on the Macgregor Respondents accordingly took place more than three years after the debts became due; and 24.2.6 the claim under section 26 has accordingly prescribed in terms of section 11(d) of the SA Prescription Act. 24.3 In the alternative to paragraph 24.2 above, and if, as the Joint Liquidators contend in, inter alia, paragraph 54.1, “[a]ll transfers of bitcoin by and to MTI” were made pursuant to agreement that were “void for illegality under South African law”, then: 24.3.1 South African law applies to all transfers, or purported transfers, of bitcoin from and to the Macgregor Respondents, and applies to the consequences of those transfers, including the consequences of those transfers being “void for illegality under South African law”; 24.3.2 under South African law, each Macgregor Respondent had a claim in unjustified enrichment against MTI in terms of the condictio ob turpem vel iniustam causam; 24.3.3 transfers of bitcoin to the Macgregor Respondents discharged, wholly or in part, each Macgregor Respondent’s unjustified enrichment claim against MTI; and 24.3.4 transfers of bitcoin to the Macgregor Respondents were accordingly not dispositions without value because MTI received value in the form of whole or partial discharge of MTI’s liability in unjustified enrichment to each Macgregor Respondent.”

“As for paragraphs 74 to 83 generally, the Macgregor Respondents…31.2 in the alternative to paragraph 31.1 above: 31.2.1 repeat paragraph 5 and 11 above; and 31.2.2 contend that the SA Prescription Act applies in these proceedings in terms of the Foreign Limitation Periods Act, 1984, and accordingly the UK Claims: 31.2.2.1 are “debts” for the purposes of the SA Prescription Act; 31.2.2.2 are subject to the three-year prescription period prescribed in section 11(d) of the SA Prescription Act; and 31.2.2.3 have prescribed because service of process on the Macgregor Respondents took place more than three years after the debts became due and, in this respect, the Macgregor Respondents repeat paragraph 24.2 above.” respect, the Macgregor Respondents repeat paragraph 24.2 above.”

“19.3. As to paragraph 24.2: 19.3.1. Paragraph 24.2.1 is denied. The effect of ICC Judge Greenwood’s order dated 28 March 2025 under section 426(5) of the Insolvency Act 1986 was to apply sections 26, 29 and 30 of the SA Insolvency Act, but not the law of South Africa relating to prescription. Accordingly, section 1(a) of the Foreign Limitation Periods Act 1984 does not apply. 19.3.2. If, contrary to the above paragraph, the Prescription Act 68 of 1969 (“Prescription Act”) does apply in these proceedings, then the below sub-paragraphs plead to paragraph 24.2 and its sub-paragraphs in the alternative. 19.3.3. As to paragraph 24.2. of the Macgregor Defence and paragraph 8 of the Barraj Defence, it is denied that prescription commenced to run from the date on which the debt became due (as alleged in paragraph 24.2.2 of the Macgregor Defence). Prescription commenced to run from the dates set out in the next paragraph. 19.3.4. Paragraph 24.2.3 of the Macgregor Defence (as well as paragraphs 11-12 and the last sentence of paragraph 14 of the Barraj Defence) are denied. As a matter of South African law, the three-year prescription period started to run in respect of each Macgregor and Barraj Respondent: 19.3.4.1. In respect of each Macgregor and Barraj Respondent, from the dates on which the Joint Liquidators obtained actual knowledge of the name and address of each Respondent from their forensic investigators, as set out in the table at Appendix A of this Reply. This is because, as a matter of South African law, prescription starts to run only when the creditor (here, the Joint Liquidators) obtains sufficient information for a process server to be able to identify the debtor by name and address. 19.3.4.2. Alternatively, in respect of each Macgregor and Barraj Respondent, from the dates on which the joint liquidators obtained actual knowledge of the name of each Respondent, as set out in the table at Appendix A of this Reply. If (contrary to the above paragraph) prescription does not start to run under South African law when the creditor obtains knowledge of the name and address of the debtor, then prescription starts to run when the creditor (here, the Joint Liquidators) has knowledge of the minimum facts necessary to institute a claim, which includes at least the name of the debtor. 19.3.4.3. Alternatively, from (at the earliest) 1 June 2022. The Joint Liquidators could not have acquired knowledge of the identities of the Macgregor Respondents by exercising reasonable care prior to this date, as the Joint Liquidators were unable to meaningfully analyse or deduce the identities of any given Respondent from MTI’s data without the aid of suitable and bespoke computer software. The necessary software, called MARS, was only technically capable of analysing MTI’s data so as to deduce the identities of any given Respondent from some point in June 2022. 19.3.4.4. In the further alternative, from 11 November 2021, when the Joint Liquidators were finally appointed. 19.3.5. As to paragraph 24.2.4 of the Macgregor Defence and paragraph 14 of the Barraj Defence, it is denied that the dates of service on the Barraj and Macgregor Respondents were 19 December 2024 and 7 April 2025 respectively. Rather: 19.3.5.1. The Barraj Respondents were served on 23 December 2024. 19.3.5.2. All the Macgregor Respondents (except Robin Miller and Elliot Heather) were served on 23 December 2024. 19.3.5.3. Robin Miller was served out of the jurisdiction in Scotland on 14 January 2025. 19.3.5.4. Elliot Heather was served on 19 February 2025. 19.3.6. Further as to paragraph 24.2.4 (as well as the first sentence of paragraph 14 of the Barraj Defence), it is denied that the prescription period ceased to run on the date of service of process on the Macgregor Respondents: 19.3.6.1. On a proper construction, the effect of the Foreign Limitation Periods Act 1984 (“FLPA 1984”) and in particular section 1(3) thereof is that prescription ceased to run on the date and at the time at which the Application Notice commencing these proceedings was CE-filed with the High Court, that is, 8 November 2024. 19.3.6.2. In any event, section 15(1) of the Prescription Act (which provides that prescription ceases to run upon service of process) is contrary to the public policy of England & Wales and/or would, if applied, cause undue hardship to the Joint Liquidators. Section 15(1) therefore falls to be disapplied by the operation of section 2(1) or (2) of the FLPA 1984. 19.4. Paragraphs 24.2.5 and 24.2.6 of the Macgregor Defence are denied.”

“30.2.3. As to paragraph 31.2.2, it is denied that the SA Prescription Act or the Foreign Limitation Periods Act 1984 applies to or is relevant to the UK Claims. The English law of limitation applies to the UK Claims. Under that law the UK Claims were not time-barred on either the date of issue or the date on which they were served on the Macgregor Respondents.”

“(2) The court may strike out a statement of case if it appears to the court—(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; (c) that there has been a failure to comply with a rule, practice direction or court order;…”

“In contrast with the applications under CPR r 3.4(2)(b), the applications under CPR rr 3.4(2)(a) and 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call “reasonable arguability”

“33. An application can be made to strike out all or part of a statement of case on the grounds that it discloses no reasonable grounds for bringing or defending the claim (applying CPR rule 3.4(1) and (2)(a) ). The correct approach to an application to strike out, based on this aspect of the CPR , was considered by Warby J in HRH The Duchess of Sussex v Associated Newspapers [2020] EWHC 1058 (Ch) where he stated at [33(2)]: "An application under CPR 3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should "grasp the nettle": ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, But it should not strike out under this sub-rule unless it is "certain" that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266 [2004] PNLR 35 [22]. Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment". 34. The passage referred to by Warby J in the Court of Appeal's judgment in Richards v Hughes is worth setting out in full in the context of the present case. There Peter Gibson LJ (with whom all other members of the court agreed) explained: "22. I start by considering what is the correct approach on a summary application of the nature of Mr. Richards's application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson). Lord Browne-Wilkinson went on to add: "[I]n an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.” "An application under CPR 3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should "grasp the nettle": ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, But it should not strike out under this sub-rule unless it is "certain" that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266 [2004] PNLR 35 [22]. Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment". "22. I start by considering what is the correct approach on a summary application of the nature of Mr. Richards's application at this early stage in the action when the pleadings show significant disputes of fact between the parties going to the existence and scope of the alleged duty of care. The correct approach is not in doubt: the court must be certain that the claim is bound to fail. Unless it is certain, the case is inappropriate for striking out (see Barrett v Enfield London Borough Council [2001] 2 AC 550 at p. 557 per Lord Browne-Wilkinson). Lord Browne-Wilkinson went on to add: "[I]n an area of the law which was uncertain and developing (such as the circumstances in which a person can be held liable in negligence for the exercise of a statutory duty or power) it is not normally appropriate to strike out. In my judgment it is of great importance that such development should be on the basis of actual facts found at trial not on hypothetical facts assumed (possibly wrongly) to be true for the purpose of the strike out.”

“Without the benefit of independent experts on both sides, a joint memorandum and the full exploration of the legal sources which only a trial of some kind could facilitate, I do not feel able fairly to resolve the issues of UAE law which are in dispute on a summary basis. UAE law is an unfamiliar system, and both the legal authorities and the court filings I was referred to are translated from Arabic. The court filings are themselves open to conflicting interpretations, and do not always appear to be internally consistent or reflect a consistent position on the part of each side. These difficulties enhance the caution which the court is enjoined to adopt when determining whether a foreign judgment has preclusive effect in proceedings in this jurisdiction.”

“48. I accept the contention made on behalf of the claimant that the wording of CPR r 3.4(2)(b) creates a high bar for a strike-out with its focus on abuse of process or a Statement of Case which is “otherwise likely to obstruct the just disposal of the proceedings”

“whether the appellant's conduct in this case rendered the just of fair trial impossible or whether his conduct corrupted the trial process so that a just result could not be achieved”

“10 Extinction of debts by prescription (1) Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt. (2) By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription. (3) Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt. 11 Periods of prescription of debts The periods of prescription of debts shall be the following: (a) thirty years in respect of (i) any debt secured by mortgage bond; (ii) any judgment debt; (iii) any debt in respect of any taxation imposed or levied by or under any law; (iv) any debt owed to the State in respect of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances; (b) fifteen years in respect of any debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor, unless a longer period applies in respect of the debt in question in terms of paragraph (a); (c) six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt in question in terms of paragraph (a) or (b); (d) save where an Act of Parliament provides otherwise, three years in respect of any other debt. 12 When prescription begins to run (1) Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due. (2) If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt. (3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”