In a recent court case the former bookkeeper of Grahamstown vet Philllip Gilfillan, Louise Bowker, opposed an application to have her estate sequestrated on the grounds that this might prejudice a pending criminal case against her.
In a recent court case the former bookkeeper of Grahamstown vet Philllip Gilfillan, Louise Bowker, opposed an application to have her estate sequestrated on the grounds that this might prejudice a pending criminal case against her. Now the court has granted a final sequestration order – allowing the State to seize Bowker's assets – partly on the grounds that a pending criminal case can't be allowed to prevent a civil matter from proceeding.
The main basis for the Grahamstown High Court decision earlier this month was Bowker’s admitted misappropriation of R1 260 000 and her factual insolvency.
Bowker, the former financial manager of Gilfillan's veterinary practice, who also had access to his personal account, admitted to having misappropriated R1 260 000 after Gilfillan’s wife detected discrepancies in his statements. Bowker claimed to have used these funds to pay the South African Revenue Service.
When she was asked for proof, however, and not being able to provide any, she resigned. According to court records, an audit later established that Bowker had in fact misappropriated R3 143 796.80 from Gilfillan’s practice, and R192 588 from his personal account.
In September the state froze Bowker’s assets and denied her application to access her funds. She had opposed this, saying she needed the money to cover her legal expenses. Gilfillan was granted a provisional sequestration order in October on the grounds of Bowker’s admitted misappropriation and her apparent factual insolvency.
Bowker opposed the provisional sequestration order, arguing that it might carry potential prejudice in a pending criminal case against her, as the criminal case relates to the very basis upon which the claim for the sequestration order is founded – the misappropriation of funds.
She also argued that she had agreed to pay back the admitted sum of money to Gilfillan, provided he withdraws the application for a sequestration order, but another affidavit opposed this.
Obtaining a provisional order was also seen by Bowker as a way for Gilfillan to abuse the mechanism of an insolvency interrogation, as section 65(2) of the Insolvency Act provides that a person who is liable to be interrogated for insolvency may not decline to answer questions on grounds that such answer may incriminate him/her.
The judge found, however, that there was no law which precludes civil proceedings continuing in circumstances where there is a pending criminal prosecution” and that “a finding in these proceedings has no bearing on findings that another court may be called upon to make upon the evidence before that court even if similar evidence is before this court”.
Bowker also claimed that the sequestration order held no advantage for Gilfillan, something the judge did not agree with. The judge said the order had significant advantages for Gilfillan and that he was not obliged to accept the tender [sum offered by Bowker]of a lesser amount than which he contends is due to him”. Bowker has already paid R 650 000 back to Gilfillan, and incorporated into her opposition to the sequestration order the offer to pay the additional sum of R700 000.
To grant the final sequestration order the court was not concerned with the exact amount of money misappropriated, but rather that it was indeed misappropriated, and that it exceeded the sum of R100, and that Bowker was factually insolvent. Once this was established, the order was granted.
The court also found that the original offer made to pay back the admitted misappropriated money had been made with the clear intention of ensuring that the criminal prosecution should not proceed”. The case is set to run in the Commercial Crime Court in Port Elizabeth today.
