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[2020] ZAGPJHC 83
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Nash and Another v CADAC Pension Fund and Others; In Re: Nash v CADAC Pension Fund and Others; Cronje and Others v CADAC Pension Fund and Others (43585/2019) [2020] ZAGPJHC 83 (14 May 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 43585/2019
14
May 2020
In the
interlocutory application between:
SIMON
JOHN
NASH
First Applicant
CADAC
(PTY)
LTD
Second Applicant
and
THE
CADAC PENSION FUND (IN
CURATORSHIP)
First Respondent
(REGISTRATION
NUMBER: 12/8/0020425)
ANTON
LOUIS MOSTERT
N.O.
Second Respondent
JOHAN
ESTERHUIZEN
N.O.
Third Respondent
KAREN
KEEVY
N.O.
Fourth Respondent
NMG
ADMINISTRATION (PTY)
LTD
Fifth Respondent
(REGISTRATION
NUMBER: 1998/005937/07)
In
re the main application between:
SIMON
JOHN
NASH
Applicant
and
THE
CADAC PENSION FUND (IN
CURATORSHIP)
First Respondent
(REGISTRATION
NUMBER: 12/8/0020425)
ANTON
LOUIS
MOSTERTN.O.
Second Respondent
JOHAN
ESTERHUIZEN
N.O.
Third Respondent
KAREN
KEEVY
N.O.
Fourth Respondent
NMG
ADMINISTRATION (PTY)
LTD
Fifth Respondent
(REGISTRATION
NUMBER: 1998/005937/07)
In
the application for intervention between:
.
ANTOINETTE
CRONJE
First Applicant for Intervention
IRIS
ROSE
SCHOEMAN
Second Applicant for Intervention
SAMANTHA
MAYS Third Applicant for Intervention
SIMON
JOHN
NASH
First Applicant
CADAC
(PTY)
LTD
Second Applicant
and
THE
CADAC PENSION FUND (IN
CURATORSHIP)
First Respondent
(REGISTRATION
NUMBER: 12/8/0020425)
ANTON
LOUIS MOSTERT
N.O.
Second Respondent
JOHAN
ESTERHUIZEN
N.O.
Third Respondent
KAREN
KEEVY
N.O.
Fourth Respondent
NMG
ADMINISTRATION (PTY)
LTD
Fifth Respondent
(REGISTRATION
NUMBER: 1998/005937/07)
JUDGMENT
FRANCIS
J
1.
There are two applications that were enrolled for a hearing in
the urgent court during the lockdown period. The first application
is
referred to as the interlocutory application and the second as the
intervention application.
2.
The applicants, Simon John Nash (first applicant) and Cadac
(Pty) Ltd (the second applicant) brought an urgent interlocutory
application
on Tuesday 5 May 2020 for the following order:
"1. The usual forms and services provided for in
the rules be dispensed with and this matter be disposed of at such
time and
place and in such manner and in accordance with such
procedure as the court deems fit.
2. Granting the First Applicant leave to institute
this Application and to to seek the relief set out hereinafter, as
contemplated
in terms of paragraph 4 of the order of the above court
under case number: 2010/50596, granted on 21 December 2010 and in
paragraph
3 of the order of the above court under case number:
34664/2017 dated 14 August 2018.
3. Granting the Second Applicant, insofar as it is
necessary, leave to intervene in the Application instituted by the
First Applicant
under the above case number in terms of the notice of
motion dated 9 December 2019.
4. Pending the outcome of the relief sought in the
aforesaid notice of motion:
4.1
interdicting the curators of the First Respondent (being the Second,
Third and Fourth Respondents) and/or the administrators
of the First
Respondent (being the Fifth Respondent) from:
4.1.1.
from refusing to accept farther contributions. from or on
behalf of the Second Applicant and/or the members of the First
Respondent;
4.1.2.
refunding any contributions from or on behalf of the second
applicant and/or the members of the first respondent;
4.2
directing the Respondents to continue administering the First
Respondent in terms of the Pension Funds Act, 1956 (as amended)
and
the rules of the First Respondent.
5. The costs of the application shall be paid by the
Respondent, in their personal capacities, on the attorney and client
scale,
jointly and severally, the one paying the other to be absolved
6. Further and alternative relief"
3. In
the interlocutory application, the first respondent is Cadac Pension
Fund (in curatorship). The second respondent is Anton
Louis Mostert
in his capacity as the curator of the first respondent. The third
respondent is Johan Esterhuizen also a curator
of the first
respondent. The fourth respondent is Karen Keevy a curator of the
first respondent. The fifth respondent is NMG Administrators
(Pty)
Ltd which is the administrator of the first respondent.
4.
The interlocutory application was instituted on 20 April 2020
and it required the respondents to file their answering affidavits
by
27 April 2020 and its replying affidavit by 30 April 2020.
5.
The interlocutory application was opposed by the first to
fourth respondents (the respondents) on several grounds including
that
of urgency. The respondents had
inter alia
stated in
their answering affidavits that Cadac has no
locus standi
itself
and on behalf of members of the Fund for the relief that it is
seeking who are employees of Cadac. It stated that the first
applicant had failed to provide any mandate to do so and the
employees of Cadac were not parties to the main application or the
present application. Insofar as the relief was sought by the first
applicant he likewise has no
locus standi
to seek such relief
on behalf of the employees of Cadac. The issue of the first
applicant's entitlement to withdraw pension benefits
and that the
respondents pay such pension benefits to him formed part of the
subject matter of the main application which is pending
before this
court.
6. The
intervention application dated 29 April 2020 was instituted on an
urgent basis and was enrolled for a hearing on 5 May 2020.
The
intervention applicants sought the following relief:
"1. Directing that the First to Third Applicants
for intervention be joined as the Third to Fifth Applicant in the
Interlocutory
Application set down for 5 May 2020 under the above
case number;
2. In the event this application for intervention
alternatively the urgent application is not determined on 5 May 2020,
granting
the relief sought in paragraph 4 (paragraphs 4.1, 4.1.1.
4.1.2 and 4.2 inclusive) of the applicants' notice of motion, pending
the determination of the urgent interlocutory application.
3. Costs in the event of opposition;
4. Further and/ or alternative
relief"
7. The
first to third applicants in the intervention application are
Antoinette Cronje, Iris Rose Schoeman and Samantha Mays respectively.
The respondents remain the same respondents as cited in the
interlocutory application. The first applicant remains Simon John
Nash and the second applicant Cadac (Pty) Ltd.
8.
Both applications were opposed by the respondents on the issue of
urgency or lack thereof and on the merits. The interlocutory
application was also opposed on the grounds that that the first
applicant first had to obtain leave from this court to institute
the
present application in terms of orders granted by Claassen J in 2010
and Matojane J in 2018. The first applicant sought such
leave in the
main and interlocutory application.
9.
It is common cause that on 10 December 2019 the first applicant,
Simon John Nash (Nash), brought an application which for ease
of
reference is called the main application. The relief sought in the
main application is for an order granting Nash leave to institute
the
application in terms of paragraph 4 of the order granted on 21
December 2010; directing that the decision of the curators of
the
Cadac Pension Fund (the CPF) - the second to fourth respondents to
instruct the fifth respondent to flag the pension benefits
of Nash in
terms of
section 37D
of the
Pension Funds Act, to
be unlawful;
directing the respondents to pay to Nash such benefits which he might
be entitled to in terms of the
Pension Funds Act and
the rules of the
CPF and costs of the application.
10. It
is further common cause that the main application is opposed by the
respondents. All that remains in the main application
is for the
parties to file heads of arguments and to obtain a date of hearing.
The answering affidavit in the main application
was served and filed
on 14 February 2020. The replying affidavit was served on 28 February
2020 and filed on 3 March 2020.
11. The
first issue that arises for determination in the interlocutory
application is whether Nash is required to first seek leave
of this
court in a separate application to issue this application or whether
he is required to seek leave at all. It is clear from
the main
application and the interlocutory application that he sought leave to
institute the application and is also seeking the
relief set out in
his application in one application and has referred to the orders
granted by Claassen J and Matojane J respectively.
The respondents
contended that Nash requires the Court's permission to litigate in
his own name.
12. It
was contended on behalf of the applicants in the interlocutory
application that Nash does not have to seek leave to institute
the
application since the parties are different to those in the Matojane
J order. However, if it was found that he must seek leave
to
institute the application, he can do so in one application and there
is no need for him to bring two different applications.
Nash sought
leave in terms of prayer 2 of the notice of motion to institute this
application. The possible need to do so arises
out of two orders of
this court namely that of Claassen J and Matojane J.
13. It
was further contended that upon a proper reading of the Claassen J
order, and having regard to the provisions of the
Financial
Institutions (Protection of Funds) Act 28 of 2001
and in particular
section 5(8)(a)
thereof, no leave to institute this application is
required. Section 5(8)(a) of the Act pertains to pension funds under
curatorship
and read as follows:
"5(8)(a)Any person, on good cause shown, may
make application to the court to set aside or alter any decision
made, or any
action taken, by the curator or the registrar with
regard to any matter arising out of or in connection with, the
control and management
of the business of an institution which had
been placed under curatorship."
14.
Reliance was also made to the matter under case number 43195/2013
where Mostert was a party in his personal capacity as a curator
of
the Sable Industries Pension Fund, where Tuchten J, interpreted an
identical order dealing with the Sable Industries Pension
Fund as
follows:
"21. Manifestly, this paragraph was designed to
stay and restrict proceedings from the conduct of the business of the
Sable
Fund before its business was placed under curatorship and not
to restrict proceedings arising from the conduct of the curatorship.
This is reinforced by the provisions of section 5(8)(a) of the FIA
Act which, as I shall show, empowers anyone to bring proceedings,
without further leave of the court, to set aside or alter any
decision made or any action taken by the curator or the registrar
with regard to any matter arising out of, or in connection with, the
control or management of the business of a fund under curatorship.
22. As I shall show, the applicants have raised
matters of considerable substance in that regard and to the extent
necessary leave
ought to be, and is, given."
15. It
was further contended that insofar as the order of Matojane J is
concerned, leave was not necessary in terms thereof, either
Mostert
was a party to that matter in his personal capacity and in his
capacity as a curator of the Sable Industries Pension Fund
and not
the CPF. Nash is not seeking relief against Mostert in his personal
capacity (save for the costs order, which is an ancillary
issue not a
self-standing one). Nor does he seek relief against Mostert N.O. in
his capacity as the curator of the Sable Industries
Pension Fund.
Leave is not required for those proceedings to be instituted against
Mostert N.O. as a curator of the CPF.
16. It
was further contended that in any event and
ex abundante cautela
that a proper case was made out for leave, inasmuch as it may be
required, for these proceedings to have been instituted and to
continue therewith in the light of the fact that the first applicant
has raised matters of considerable substance in regard to the
curatorship of the CPF. Inasmuch as leave is necessary that he is
entitled to seek leave in this application it is not required
to
institute a prior separate application to do so. This so it was
contended was in line with the court's approach to leave being
sought
as a prerequisite for proceedings against companies in business
rescue. In terms of
section 133(1)(b)
of the
Companies Act 71 of
2008
, no legal proceedings may be commenced or proceeded with against
a company after business rescue has commenced without the consent
of
the business rescue practitioner or leave of the court.
17. It
was further contended that in
Chetty t/a Nationwide Electrical v
Hart and Another NNO
2015 (6) SA 424
SCA, it was held that the
provision of
section 133
was merely procedural limitation and not an
absolute bar to the institution of legal proceedings. Inasmuch as it
limits, or intrudes
upon the constitutional right of access to court
which a litigant may ordinarily enjoy, it must be interpreted in a
manner which
is least restrictive of such rights. A generous
construction should be adopted over a merely textual or legalistic
one in order
to afford affected parties the fullest possible
protection of such rights of access to court. It was submitted that
to require
the first applicant in this matter to seek leave of the
court in a separate application, would constitute too great an
infringement
of his right of access to the court. In addition, given
the urgency of the matter, and in the absence of any undertaking from
the
respondents, a separate application could render the relief
sought herein nugatory.
18. It
is common cause that the CPF was placed in provisional curatorship in
terms of an order granted by Claassen J on 21 December
2010 under
case number 2010/50596 where the first respondent Anton Louis Mostert
N.O. was appointed as a provisional curator of
the CPF. Paragraph 4
of that order provides that all actions, proceedings, execution of
all writs, summonses and processes against
the Fund be stalled and be
not instituted for or proceeded without the leave of the court.
Paragraph 5 of that order provides that
the curator is authorised to
pay pensions or other benefits to those members of the fund who are
legitimately entitled thereto,
having regard to the rules of the fund
and their financial position, after consultation with the fund's
valuator. Paragraphs 1
to 4, 5.1 to 5.8 and 5.10 to 5.16, 6.3, 8.1 to
8.5 and 9 of the provisional order was confirmed by Heaton Nicholls
Jon 13 December
2013. The provisional order was confirmed and made
final by the Supreme Court of Appeal on 29 February 2016 and was
later varied
by the same court on 31 May 2018.
19. I
have considered the arguments raised on behalf of Nash. The arguments
are persuasive but misses an essential point namely
that there are
two court orders granted in this court that requires Nash to obtain
the leave of the court before instituting any
action.
Section 5(8)(a)
of the Financial Institutions (Protection of Funds) requires him to
bring such an application. The afore aid section is not applicable
in
the present matter since there is a court order that requires him to
seek leave. The provisions of the
Companies Act does
not assist Nash
since that deals with a different issue. The context is also
different. In terms of the
Companies Act there
is nothing that
prevents a party from seeking both relief in one application. That
position does not apply to Nash who has been
severely criticised by
various courts.
20.
This matter has a rather unfortunate history between Simon John Nash
and Anton Louis Mostert in his official capacity. Simon
John Nash who
is an applicant in both applications is required in terms of two
court orders to seek leave of the court before he
can institute any
application. He has in essence been declared a vexatious litigant. He
has made the courts his play ground and
battle fields. The only
parties who are benefitting in his litigation are the lawyers that he
has been paying to represent him
in those matters. There are various
judgments of our courts including the Constitutional court that has
been scathing about how
he has litigated and the stratagem that he
has used. Our courts are not here to be used and abused by persons
who have a propensity
to litigate.
21.
This brings me to the judgment and order of Matojane Jon 14 August
2018 under case number 34664/2017 where he stated the following
at
paragraphs 92 and 93:
"In my view, the fact that Nash succeed in his
application to have the contingency fee agreement between Mostert and
the FSB
declared invalid ("the Tuchten judgment) is not the
reason why Nash and Midmacor should not be compelled first seek leave
of this court prior to instituting any further legal proceedings
against the applicants. Nash is dishonest and is motivated by
ulterior motives to disrupt the progression of the administration of
the Sable Fund the Power Pack Fund and the Cadac Fund by bringing
a
series of applications aimed at delaying and derailing civil and
criminal[ sic] against him and Midmacor.
The Ghavalas scheme has caused severe financial
distress to some pension funds, and an immediate intervention by the
court is called
for in the public interest to ensure that frivolous
applications do not delay the conclusion of civil and criminal
proceedings
that have already been instituted The relief sought does
not constitute a bar to Nash's access to the courts. Instead, it
imposes
a judicial oversight as the first step in any further
proceedings that are to be instituted by Nash.
"
22.
Matojane J then made and order that the first and fourth respondents
(who were cited as Simon John Nash and Midmacor Industries
Limited
Cadac Pension Fund (under curatorship) were ordered first to obtain
the leave of the Court as a prerequisite to instituting
any further
proceedings against the applicants. The applicants in that case were
Antony Louis Mostert (first applicant) and Antony
Mostert N.O. the
second applicant in his official capacity as curator of the Sable
Industries Pension Fund under curatorship (the
third applicant) and
Power Pack Pension Fund (in liquidation) as the third applicant.
23. The
order granted by Matojane J is similar to an order that is
contemplated in section 2(b) of the Vexatious Proceedings Act
3 of
1956. The section provides as follows:
(b) If, on an application made by any person against
whom legal proceedings have been instituted by any other person or
who has
reason to believe that the institution of legal proceedings
against him is contemplated by any other person, the court is
satisfied
that the said person has persistently and without
reasonable ground instituted legal proceedings in any court or in any
inferior
court, whether against the same person or against or
different persons, the court may, after hearing that person or giving
him
an opportunity of being heard, order that no legal proceedings
shall be instituted by him against any person in any court or any
inferior court without leave of the court, or any judge thereof or
that inferior court, as the case may be, and such leave shall
not be
granted unless the court or judge or the inferior court, as the case
may be, is satisfied that the proceedings are not an
abuse of the
process of the court and that there is prima facie ground for the
proceedings.
24. It
is trite that an order granted in terms of the provisions of the
Vexations Proceedings Act is not unconstitutional and does
not
infringe a person's right to access the courts. Similarly the order
granted by Matojane J does not infringe Nash's right to
access the
courts. In this regard see
Beinash
and Another v
Ernst & Young and Others
1999 (2) SA 116
(CC). Such a party
will have to show the court that he has a
prima facie
case and
the application or action is not an abuse of court.
25.
It is clear that in all the matters that served before the courts
that the common denominator was Nash. Reference is made in
the
Matojane J judgment to the Cadac Pension Fund which has been placed
under curatorship. It is a co respondent in these
applications
before me. Anton Louis Mostert was the first applicant in the matter
before Matojane J. He was the second applicant
in his official
capacity. There were two other respondents in that matter namely the
Sable Industries Pension Fund (under curatorship)
and the Power Pack
Pension Fund (in liquidation). The first respondent in that matter
was Nash. In the Claassen J order Nash was
also a party as well as
the CPF.
26. It
is clear from the order made by Matojane J that Nash must first
obtain the leave of the Court as a prerequisite before instituting
further proceedings against Mostert N.O. and in his personal
capacity. Matojane J was mindful of the Tuchten J judgment and ruled
that Nash still had to obtain the leave of the court as a
prerequisite to instituting any further proceedings against the
applicants
in that case. He said that that is where the judicial
oversight as referred to him would take place. In other words he must
first
bring an application seeking such leave. He will have to
convince that court that the proceedings are not an abuse of the
process
of the court and that there is a
prima facie
ground
for the proceedings. I share the views and approach adopted by
Matojane J.
27. The
provisions of
section 133(l)(b)
of the
Companies Act is
not
applicable in the present matter. There are two court orders issued
in this court against the first applicant that requires
him to obtain
an order first before he can institute legal proceedings. None of
those orders were set aside and are still binding
on the parties.
28.
Taking into account the history of the matter and what the various
courts have said about Nash he is required to first bring
an
application separately for leave to institute the interlocutory
application. That is where the judicial oversight must take
place
before he is granted or refused permission to institute the
proceedings. The bar that was imposed by both Claassen J and
Matojane
J still exist. It follows therefore that since Nash has failed to
bring an application separately for leave to institute
the
interlocutory application, the interlocutory application stands to be
dismissed.
29. It
follows that the intervention application stands to be dismissed
since that application is in support of the interlocutory
application
that was brought by Nash and the second applicant for the relief that
was being sought. The intervention applicants
had sought to be joined
as the third to fifth applicants in the interlocutory application.
The intervention application is premised
on an interlocutory
application that is dismissed for the reasons stated above.
30. It
becomes unnecessary to deal with the remainder of the issues.
31.
There is no reason why costs should not follow the result. I do not
believe that this is a matter where a punitive cost order
should be
granted.
32. In
the circumstances I make the following order:
32.1.
The interlocutory
application is dismissed.
32.2. The costs of the interlocutory application are to
be borne by the first and second applicants jointly and severally the
one
paying the other to be absolved.
32.3.
The intervention
application is dismissed.
32.4.
The costs of the
intervention application are to be borne by the first to third
intervention applicants jointly and severally, the
one paying the
other to be absolved.
________________
FRANCIS
J
HIGH
COURT JUDGE
GUATENG
LOCAL DIVISION
FOR
INTERLOCUTORY APPLICANTS: GD WICKENS SC INSTRUCTED BY KWA ATTORNEYS
FOR
INTERVENTION APPLICANTS: P STAIS SC WITHS PUDIFIN-JONES INSTRUCTED BY
IAN LEVITT ATTORNEYS
FOR 1 -
4 RESPONDENTS: JG WASSERMAN SC INSTRUCTED BY ASSHETON-SMITH
INCORPORATED
FOR
FIFTH RESPONDENT: NO APPEARANCE
DATE OF
HEARING: 5 & 6 MAY 2020
DATE OF
JUDGMENT: 14 MAY2020