Mostert con­firmed cu­ra­tor of Cadac fund

Weekend Argus (Saturday Edition) - - GOODPOSTER - BRUCE CAMERON

High-pro­file re­tire­ment fund cu­ra­tor Tony Mostert has won a ma­jor le­gal vic­tory over busi­ness­man Si­mon Nash, the ex­ec­u­tive chair­man of in­dus­trial com­pany Cadac, who also faces crim­i­nal charges for strip­ping sur­pluses from re­tire­ment funds in the 1990s.

In a judg­ment cov­er­ing nu­mer­ous ap­pli­ca­tions and coun­ter­ap­pli­ca­tions handed down in the Jo­han­nes­burg High Court this week, Judge Caro­line Heaton-Nicholls has con­firmed Mostert as the cu­ra­tor of the Cadac Pen­sion Fund. This comes af­ter a long-run­ning and bit­ter dis­pute be­tween Mostert and Nash in which the Nash camp launched a vi­cious smear cam­paign against Mostert, the Fi­nan­cial Ser­vices Board and even Per­sonal Fi­nance.

Mostert was ap­pointed pro­vi­sional cu­ra­tor in De­cem­ber 2010. How­ever, the judge found it un­ac­cept­able that Mostert was us­ing his own law firm to deal with the cu­ra­tor­ship and has or­dered that he use another firm.

The judge was ex­tremely crit­i­cal of Nash, against whom she awarded costs on a puni­tive scale. She found that it was the ac­tions of Nash, who, she said, dis­played a “cal­lous dis­re­gard” for pen­sion­ers, to­gether with pre­vi­ous trustees of the Cadac fund, that ne­ces­si­tated the ap­point­ment of a cu­ra­tor.

Re­fer­ring to email ev­i­dence, she said that, over a pe­riod of years, Nash had “fraud­u­lently de­vised a strat­egy” whereby the busi­ness of the Cadac fund could be trans­ferred with a nil-sur­plus val­u­a­tion by cre­at­ing a fic­ti­tious claim against the fund by another re­tire­ment fund in­volved in the sur­plus-strip­ping.

“Any claim that ex­isted (against the Cadac fund) was fic­ti­tious and con­cocted for this pur­pose.”

The judge found that, in­stead of Mostert, it may have been bet­ter ini­tially to ap­point a neu­tral cu­ra­tor who was not in­volved in the sur­plusstrip­ping saga. But she says the mat­ter is too far gone, and Mostert has been in­stru­men­tal in un­rav­el­ling some of the com­plex trans­ac­tions that “on the face of it are un­law­ful”.

Trans­ac­tions re­ferred to in the judg­ment in­clude us­ing as­sets of the Cadac fund to pay the le­gal costs of Nash’s crim­i­nal trial for strip­ping the sur­pluses of two other funds.

Heaton-Nicholls says it is to the gen­eral ad­van­tage of all con­cerned, par­tic­u­larly the pen­sion­ers, that Mostert’s ap­point­ment be con­firmed. Her judg­ment can be viewed at Cadac Pen­sion Fund judg­ment

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