Sitting in the High Court in Johannesburg, Judge Kenneth Matojane last week upheld an urgent application by pension fund curator Tony Mostert for a defamation interdict against Cadac CEO Simon Nash, his wife Elena Forno-Nash and part-time journalist Lance Rothschild.
The court also granted Mostert’s request that Nash and his company, Midmacor Industries, be declared vexatious litigants.
The application was brought by Mostert in his personal capacity and in his capacity as curator of the Sable Industries Pension Fund and Power Pack Pension Fund (both part of the Cadac stable).
Since Mostert’s appointment as curator, Nash and his wife have run a relentless campaign of vilification by way of defamatory websites through Rothschild and UK businessman Matthew Machin.
Read: Mostert targets Machin
In his judgment, Matojane quoted a December 2013 finding against Nash by Judge Caroline Heaton-Nicholls: “As Mostert delved deeper into the [Peter] Ghavalas [pension fund surplus stripping] transactions, the extent of Nash’s dishonesty became apparent. Nash’s counter strategy was to claim a corrupt relationship between Mostert and [Financial Services Board CEO Dube] Tshidi. In an email to his attorney, he suggests how public perception about him will be transformed and ‘the press will start to accuse Mostert and the FSB of corruption’. This will result in the NPA ‘loosing heart’ (sic), presumably a reference to the criminal charges Nash is facing. In relation to the present matter he warns that this trial is ‘high risk and high publicity’. It has to be the ‘one large fight we have. It has to be the watershed fight’.”
Matojane: “Despite the critical findings by [Judge Heaton-Nicholls], Nash continues with his vilification campaign against Mostert. He provides no proof that the facts on which his statements are based are true. Nash makes repeated allegations that Mostert is guilty of corruption and fraud without any basis and in flagrant disregard of consequences. The allegations cannot be regarded as ‘in the public interest’ as they are based on falsehood and distorted facts. The imputation lowers Mostert in the estimation of ordinary people straddling all sectors of our society and is outrageously defamatory.”
The Nashes adopted a two-pronged defence to the defamation case advanced by Mostert.
Firstly, that Mostert had not proved publication of the defamatory statements.
Secondly, that the statements amounted to fair comment and were made in the public interest.
Matojane: “The defamatory statements by [Simon] Nash are not made honestly and in good faith and are not supported by any evidence. They are retaliation against Mostert for uncovering Nash’s fraud and corruption. He imputes base and corrupt motives in the circumstances [where] such imputations are not warranted by the facts.”
Forno-Nash did not respond to Moneyweb’s request for comment.
Matojane cited five instances where Nash litigated solely for the purpose of delaying and frustrating Mostert’s curatorship. “It took five years for Mostert’s provisional appointment to be finalised. As a result, the curatorship of the Cadac Pension Fund has been sterilised for seven years.”
He declared Nash and Midmacor to be vexatious litigants in relation to the applicants. This means that, should Nash or Midmacor wish to institute further civil proceedings in any court, they would first have to make an application to court, giving Mostert notice of their intention to do so.
When asked for comment on the judgment, Nash told Moneyweb: “I have not actually read the defamation judgment but legal feedback is that it is so poor as to be almost ‘laughable’ and will be appealed. Since in the past you have been entirely biased in your reporting, I must advise you that the ‘laughable’ comment is NOT a comment from either me or any of the legal advisors to me.”
Lance Rothschild acknowledged Moneyweb’s request for comment but did not respond.
Mostert told Moneyweb he was pleased that Judge Matojane agreed with him. “It resulted in prejudice to the former pension fund members, all of whom are at an advanced age, and may be deceased before the surplus apportionments are made.”
Last year Nash challenged Mostert’s curatorship fees in the Pretoria High Court, and was successful.
Mostert appealed to the Supreme Court of Appeal. Four of its five judges ruled earlier this year – in a lengthy and complex judgment – that Nash has been successful in his challenge to Mostert’s curatorship fees but that “the order of the high court must be substantially altered”.
The legal question was whether Mostert’s fees fell under the umbrella of the Contingency Fees Act. It noted that “in principle there is no objection to a fee agreement for a curator involving the payment of a percentage of the amounts recovered in the course of the curatorship”.
Each party was ordered to pay its own costs, the court noting that Nash and Midmacor were compelled to bring the proceedings in order to establish their primary point.
- Judge Matojane had regard to the fact that Nash succeeded in his Pretoria High Court application but nevertheless declared him a vexatious litigant. “Nash is dishonest and is motivated by ulterior motives to disrupt the progression of the administration of the three pension funds by bringing a series of applications aimed at delaying and derailing civil and criminal proceedings against him and Midmacor.”
- The Financial Services Board is now known as the Financial Sector Conduct Authority.