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Cadac Pension Fund curator speaks out

Explosive affidavit points to ‘sinister conspiracy.’

A war of words has broken out between Tony Mostert, the provisional curator of the Cadac Pension Fund (CPF), and Simon Nash, executive chairman of Cadac.

Mostert has also cautioned CPF members not to become party to what he described as a “smear and frustration campaign” instigated by Nash and his wife Elena Forno-Nash, former trustees of the CPF.

Moneyweb is in possession of a dossier that points to Nash having abused the CPF for his own ends. It contains an explosive affidavit by Nash’s former attorney, June Marks. The documents point to what looks like a sinister conspiracy by Nash to subvert the rules of the CPF for his own benefit to the detriment of some thirty-five existing members and thirty-five pensioners.

Nash, in three emails to Moneyweb, vehemently denies this. Nash: “Every single approval required for any single action taken by the CPF was authorised by every trustee at various times over 12 years and this in fact was a period where there were approximately 10 other trustees.”

We put Nash’s emails to Mostert.

His response, and the reasons for not publishing Nash’s emails, can be read here.

Surplus

There are also some eight hundred former CPF members who may become entitled to share in the surplus. It is estimated to be in the region of R30m. Investigations are still in progress and further recoveries may be made.

The CPF was placed under curatorship in December 2010 by the North Gauteng High Court with Mostert being appointed provisional curator on the recommendation of the Financial Services Board (FSB).

In a letter dated 11 July 2013, Mostert cautioned CPF members not to become party to a smear and frustration campaign, allegedly instigated by Nash and his wife.
The curatorship order divested Nash and Forno-Nash of their powers as trustees.

Mostert disclosed to CPF members that Nash had instructed Johannesburg attorneys Werksmans in October 2010, after having received notification of an inspection of the CPF’s affairs by the FSB, to limit the scope of investigations and to delay applications into the affairs of the Fund. This was prior to Mostert’s appointment.

The resolution reads as follows: “That the CPF instruct Werksmans Attorneys to oppose the application to conduct an investigation into the CPF or to limit the scope of such application or to delay such application to a date that is timeous within the broad parameters.” Nash failed to tell Moneyweb what the “broad parameters” were.

Prior to Mostert’s appointment, Werksmans were instructed by Nash and Forno-Nash in September 2010 to represent them, the trustees and other staff in a criminal investigation by Saps Captain Jan Judeel into the legal fees paid by the CPF to attorney June Marks. This was paid for by the CPF.

Mostert successfully sued Marks, and her law firm June Marks Incorporated, for the recovery of R10.7m in respect of legal fees paid to her by the CPF. According to Marks, these included legal fees relating to Nash’s personal criminal trial and personal civil litigation.

The Supreme Court of Appeal (SCA) dismissed the petition by Marks against the judgment of the High Court. Mostert has judgments against Marks totalling R10.7m.

Moneyweb has an affidavit dated July 2013 by Marks in which she says, “Nash “required” a nil surplus to be reflected in order to avoid an investigation into the Cadac Fund after he isolated an identified surplus amount and removed all members from the Cadac Fund … to do a surplus distribution.”

Mostert’s letter to the CPF members came about as a result of a letter addressed by Nash to his attorney, Darren Willans of Werksmans.

It was dated March 11 2013 and written on a Cadac letterhead and signed by 37 employees of Cadac, including Nash and Forno-Nash. The signatories all have @cadac.co.za email addresses.

Mostert believed that Forno-Nash was intercepting his emails to CPF members, which meant that they could not be apprised of their rights. Mostert pointed out in his letter to CPF members that the fund also had pensioners and that they were not signatories to the letter. Members of a pension fund are employees whereas pensioners are those who have retired from the company.

In line with Nash’s instructions to Werksmans, his emails also disclose an arrangement to confine Mostert to administrative tasks, as opposed to executing investigations into the reasons why the court placed the fund under curatorship. Nash is the personal guarantor of fees incurred by Werksmans in opposing Mostert’s final appointment as curator of the Cadac Fund.

Read the emails here.

Paragraph 18 of Mark’s affidavit reads: “I am personally aware that Nash instructed Werksmans attorneys with Cadac Fund money to obstruct the FSB and Mostert with regard to an investigation into the affairs of Cadac.”

Attorney Darren Willans of Werksmans told Moneyweb that they only acted for Nash in his capacity as a CPF trustee and not personally. This is at odds with what Marks says in her affidavit. Willans’s gave Moneyweb his unsigned court affidavit in support of his contentions.

Read June Marks’s 75 page affidavit here (and below the article).

According to Mostert, R4.3m of CPF monies were recovered directly from attorneys Werksmans and Cowan Harper. He told Moneyweb that so far R7.6m of the R14m awarded has been secured.

In his letter to CPF members, Mostert urged members to give careful thought to their decision to align themselves with Nash.

He pointed out that, as employees, they were reliant on Nash’s goodwill to keep them employed. According to Mostert, Nash:

(i) either retrenched or dismissed those members who previously did not support Nash’s decisions concerning the CPF.
(ii) prevented pensioner representation on the fund.
(iii) Disregarded an FSB notice concerning the CPF’s lack of pensioner representation in the fund’s decision making.

Mostert told the members that Nash had hired attorney June Marks, “to find ‘loopholes’ in the surplus legislation to give effect to a surplus removal from the CPF.”

This would have seen 75% of the CPF’s surplus to be repatriated to Cadac (Pty) Ltd.

In his letter, Mostert suggested that members ask why Nash and his newly appointed CPF trustees were unable to explain why R10.7m was paid by the CPF to attorney Marks for Nash and Cadac’s personal civil and criminal litigation.

Last month the FSB asked the South Gauteng High Court to confirm Mostert’s final appointment. Judgment is awaited.

June Marks’s response can be read here.

Cowan Harper had not responded by the time of going to press.

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