Business Practices Committee Report 79

The advertisements placed by Metro were aimed at those consumers who were retired, those who were contemplating retirement, those who were retrenched and those who have been retrenched. This is clear from the words "Are you going on retirement?" and "Have you been retrenched?" in the copy of the advertisement reproduced in section 5. The attention of these consumers was further captivated by the promised monthly income and the statement that the shares could later be sold for the same amount that they were bought for.

The advertisement was designed to mislead potential investors. For example, the statement "These shares can be sold for the same amount you bought them for’ is extremely misleading. No person or company can make such a claim and in the case of Metro, the misrepresentation is exacerbated because of the limited scope to sell the shares of an unlisted company. The phrase "Limited amount of shares available" conveyed the message that a firebrand sale was being held and that latecomers would be left wanting of a once in a lifetime opportunity.

There can be no doubt that consumers who responded to the advertisements were misled and that the relations between them and Metro were harmed. There are obviously also those investors, probably a small minority, who invested in Metro with one eye on the interest income in cash and the other eye on the prospect of paying a reduced income tax.

Although Metro implemented an accounting system, the figures reflected therein were of limited use because of the commingling of Holsthauzen’s and Metro’ funds. Holsthauzen managed Metro. He did so without knowing whether Metro was profitable or solvent. The absence of an operational accounting system and commingling of the affairs and funds of Holsthauzen and Metro meant that Holsthauzen, and Bezwick for that matter, had no means of understanding and appreciating the financial status of Metro and the various cash loan branches. These factors were extremely prejudicial to all Metro investors.

Holsthauzen and Bezwick knew that Metro experienced cash flow problems and they probably knew that Metro was not profitable. They were aware of this, probably not later than February 2000, because Metro/Holsthauzen did not have funds available to place more advertisements. Yet, they accepted investments by investors (victims) at least up to 28 April 2000. These investors were unreasonably prejudiced by Metro, Holsthauzen and Bezwick.

Were it not for the efforts of the Metro committee, the officials would have recommended to the Consumer Affairs Committee that the Committee recommend to the Minister, in terms of section 12(1)(b) of the Act, to take steps for the dissolution of Metro and that a curator be appointed, in terms of section 12(1)(d) of the Act, to limit the financial losses of the majority of investors.

It would, however, probably be inappropriate for the Consumer Affairs Committee to recommend to the Minister that Metro should be closed down when a group of investors, consisting of creditors and minority shareholders, are considering ways to save the company. The appointment of a curator would not be cost effective because it appears that Metro does not possess any significant assets.