Pension fund curator and attorney Tony Mostert won another battle last month in the seemingly never-ending litigation war with Simon Nash, the CEO of the outdoor lifestyle group Cadac.
The Johannesburg High Court handed Nash a suspended two-month jail sentence for being in contempt of court.
Judge Raylene Keightley ruled that several statements Nash made in an email to investigative journalist and regular Moneyweb contributor Tony Beamish were false and defamatory of Mostert and in contravention of an interdict handed down by Judge Kenneth Matojane in 2018.
Judge Matojane’s judgment was scathing of Nash, and the interdict granted prohibited Nash from disseminating any false or defamatory statements about Mostert.
Judge Keightley also found that the false and defamatory statements were in contravention of another judgment, handed down by Judge Allyson Crutchfield in July last year, which also prohibited Nash from making such statements.
The latest case stems from email correspondence between Beamish and Nash after Crutchfield’s judgment. Beamish emailed questions to Nash related to the judgment, to which Nash replied – and it is in this replying email that Nash made false and defamatory comments.
The email response contains several disparaging statements related to Mostert, including remarks that Mostert was earning excessive fees as curator of affected pension funds and efforts by Mostert to stop the publication of a report penned by private investigator Paul O’Sullivan.
Mostert approached the high court and claimed that several statements were false and defamatory and claimed Nash was in contempt of court.
In the 34-page judgment, Judge Keightley agreed with Mostert.
“The Matojane order interdicted Mr Nash from disseminating false and defamatory allegations pertaining to him in both his personal and nomine officio capacities. Any statements that are both false and defamatory in nature will obviously constitute a breach of that order. Having considered each of the impugned statements, I conclude that they are indeed false and defamatory,” Judge Keightley wrote.
Nash defended his latest statements by arguing that the statements were factual and in the public interest and that he did not intend to defame Mostert.
Judge Keightley rejected Nash’s arguments. “His version lacks credibility, and the evidence he has presented to support his evidentiary burden is not sufficient to raise the reasonable doubt required to avoid the conclusion that he was acting wilfully and mala fide in making false and defamatory statements in respect of Mr Mostert.”
The court sentenced Nash to two months in jail but suspended this on the condition that Nash “refrains from disseminating, either directly or indirectly, any false and defamatory averments about Mr Mostert in either his personal capacity or his capacity as liquidator or curator bonis“.
The feud between Nash and Mostert stems back to the 1990s when several pension funds were stripped of surplus assets through the so-called ‘Ghavalas option’, named after former Nedbank employee Peter Ghavalas.
Ghavalas, who has since moved to Australia, received a 15-year prison sentence for his role in stripping the surpluses. The sentence was suspended on the condition that he cooperate with authorities to prosecute Nash and others.
The Financial Services Board (FSB), now known as the Financial Sector Conduct Authority (FSCA), placed the funds under curatorship and in 2005 appointed Mostert as curator and tasked him to recover the stripped assets.
Mostert has already recovered hundreds of millions of these assets and settled with several institutions such as Alexander Forbes, Old Mutual and Sanlam.
Nash, however, denies all wrongdoing and remains defiant.
The FSB placed two funds of which Nash was a trustee at the time under Mostert’s curatorship, being the Sable Industries and Power Pack pension funds. Subsequently, the Cadac Pension Fund was also placed under Mostert’s curatorship.
The FSB laid several criminal charges, including fraud and theft against Nash, and his criminal trial in respect of his stripping of pension funds’ surpluses is still ongoing.
In response to questions, Mostert said that it is “regrettable that Nash, having removed illegally millions of rands which he has enjoyed for the past 20 years, unlike others who participated in the scheme, does not do the right thing, except employ Zuma tactics and attacks those legally obligated to bring him to book”.
Nash referred Moneyweb to his attorney for comment. Moneyweb approached the attorney for comment but had not received a response by the time of publication.