Mostert confirmed curator of Cadac fund

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 http://docs.iol.co.za/ Cadac Pension Fund judgment