THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case No: 545/2020

In the matter between:

SIMON JOHN NASH
FIRST APPELLANT

CADAC (PTY) LIMITED                                            SECOND APPELLANT

ANTOINETTE CRONJE                                                THIRD APPELLANT

IRIS ROSE SCHOEMAN                                           FOURTH APPELLANT

SAMANTHA MAYS                                                          FIFTH APPELLANT

and

THE CADAC PENSION FUND (IN
CURATORSHIP) (REGISTRATION
NUMBER: 12/8/0020425)                                             FIRST  RESPONDENT

ANTONY LOUIS MOSTERT NO                         SECOND RESPONDENT

JOHAN ESTERHUIZEN NO                                    THIRD RESPONDENT

KAREN KEEVY NO                                              FOURTH RESPONDENT

NMG ADMINISTRATORS (PTY) LIMITED
(REGISTRATION NUMBER: 1998/005937/07)       FIFTH RESPONDENT

Neutral citation: Simon Nash and Others v The Cadac Pension Fund (In
Curatorship) (Registration Number: 12/8/0020425) and
Others (545/2020) [2021] ZASCA 144 (11 October 2021)
Coram:
DAMBUZA, MAKGOKA and MBATHA JJA and
LEDWABA and UNTERHALTER AJJA
Heard:

17 May 2021
Delivered:            This judgment was handed down electronically by circulation
to the parties' representatives by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The
date and time for hand-down is deemed to be 12h00 on 11
October 2021.
Summary: Application for interim interdict – whether requirements for interim
order were met – whether the appellant should have brought a separate prior
application to institute the application – leave had been sought – no requirement
for separate prior application for leave – requirements for intervention by
additional appellants were met - requirements for interim interdict met – appeal
succeeds.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Francis J
sitting as court of first instance):
The appeal is upheld with costs.
The order of the Gauteng Division of the High Court, Johannesburg is set
aside and is substituted with the following order:
‘(1)
The first applicant is granted leave to institute the interim relief
application.
(2)
The second applicant is granted leave to intervene and is joined in

the main application.
(3)
The third, fourth and fifth applicants are granted leave to intervene

and are joined in the interim application.
(4)
Pending the finalisation of the main application instituted on 9
December 2019,
4.1 An interim interdict is granted against curators of the first respondent
(second, third and fourth respondents) and the fifth respondent the
administrator from:
4.1.1 refusing to accept further 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 members of the first respondent.
(5)
The respondents are jointly and severally ordered to pay the costs,
including costs of employment of two counsel.’

JUDGMENT

Ledwaba AJA (Dambuza, Makgoka and Mbatha JJA and Unterhalter AJA
concurring)

Introduction
[1] This is an appeal against an order granted by the Gauteng Division of the
High Court, Johannesburg (the high court), per Francis J, on 14 May 2020, in
terms of which two urgent interlocutory applications were dismissed. In the first
application, the first appellant, Mr Simon Nash (Mr Nash) sought an interdict
against the second to fourth respondents being the curators of the first respondent,
the CADAC Pension Fund (in curatorship), together with the fifth respondent,
NMG Administrators (Pty) Ltd (the Fund administrator). The interdict was sought
as provisional relief, pending the determination of the main application brought
by Mr Nash a few months earlier, on 19 December 2019, against the same
respondents and the Fund. In the same urgent application CADAC (Pty) Ltd
(CADAC) sought leave to intervene in the main application.  In the second
application the third to fifth appellants, Ms Antoinette Cronje, Ms Iris Schoeman,
and Ms Samantha Mays (the intervenors) sought to intervene in the interlocutory
application.

[2] The high court dismissed both applications – the interdict application was
dismissed on the basis that Mr Nash had failed to obtain the leave of the court to
institute the application as required in terms of two orders of the same court (per
Claassen and Matojane JJ), and the intervention applications on the basis of the
dismissal of the interdict application. This appeal, against the order of the high
court, is brought with its leave.

Background
[3] The court order of 14 May 2020 had been preceded by a long history of
civil and criminal litigation between Mr Nash and the curators of the Fund (Mr
Anton Mostert, Mr Johan Esterhuizen and Ms Karen Keevy). The issues raised
in those court proceedings concerned surplus funds that were withdrawn from
eight pension funds, of which the CADAC Pension Fund was one. The
withdrawals were effected through a scheme termed the ‘Ghavalas scheme’ and
were unlawfully appropriated to certain persons and entities, including Mr Nash
and his erstwhile business associate, Mr Ghavalas. The scheme entailed that the
funds were divested of most of their most active members who were transferred
to another pension fund, leaving the first fund with a large surplus that would then
be accessed by the principal employer and other parties.

[4] As a result, the pension funds were either placed under curatorship or were
wound up. Mr Mostert was appointed a co-curator and/or liquidator of all of the
funds. His extensive involvement in the liquidation and curatorship of the pension
funds resulted in an acrimonious relationship between him and Mr Nash,
culminating in numerous court battles between them.1

[5] Relevant to this appeal is that on 21 December 2010 the CADAC Pension
Fund was placed under provisional curatorship in terms of an order of the high
court (Claassen J). At the time Mr Nash was a member of the Fund, having been
a member since 1995. He was the director and chairman of CADAC, the principal
employer in relation to the Fund, with a casting vote. He was also the chairman

1 The Financial Services Board and the Registrar of Pension Funds also had to enter the fray. See for example,
Executive Officer of the Financial Services Board (the FSB) v Cadac Pension Fund; In Re: Executive Officer of
the Financial Services Board v Cadac Pension Fund and Others [2013] ZAGPJHC 401; Mostert and Others v
Nash and Another [2018] ZASCA 62; [2018] 3 All SA 1 (SCA); 2018 (5) SA 409 (SCA); and an unreported
judgment in Simon Nash and Another v The Executive Officer of the Financial Services Board Case No 31650/12
(Gauteng Division of the High Court, Johannesburg).

and a trustee of the Fund. His wife, Mrs Elena Formo-Nash, was a director of
CADAC and a trustee of the Fund.

[6] The relationship between Mr Mostert and Mr Nash was adversarial. In one
instance, Mr Nash instituted court proceedings to set aside Mr Mostert’s
appointments as curator and liquidator and challenged his entitlement to fees in
relation to the discharge of his duties.

[7] In another instance, Mr Mostert alleged that Mr Nash, through the
Ghavalas scheme, had unlawfully transferred a surplus of R36 million from the
Sable Pension Fund to ‘his’ company, Midmacor Industries Limited. He also
alleged that Mr Nash had misappropriated R11 million from the CADAC Pension
Fund with the intention of using it to finance his defence in a criminal trial. Mr
Nash responded by accusing Mr Mostert of involvement in corrupt activities and
exerting undue influence on the executive members of the Financial Services
Board (FSB). These allegations resulted in Mr Mostert obtaining an interdict
against Mr Nash in the high court on 14 August 2018, barring him from
‘disseminating defamatory allegations’ about Mr Mostert.

[8] After Mr Nash had turned 70, in November 2018, he gave notice to NMG
of the withdrawal of his pension benefit of R36 525 806.31 from the Fund. The
effective date of his withdrawal was stated as 31 May 2019. On 22 October 2019
he was advised that the fund’s curators had instructed NMG to flag his benefit in
terms of s 37D of the Pension Funds Act 24 of 1956 (the Act).2 As a result, NMG
did not process the requested withdrawal. It is in this context that on 6 December
2019 Mr Nash launched the main application seeking the declaratory order that
the instruction to flag his pension benefits be declared unlawful, that he was

2 In terms of s 37D an amount due by a member of a pension fund to his or her employer in certain specified
circumstances may be deducted from the member’s benefit on withdrawal of the member’s benefits from the fund.

entitled to withdraw the benefits, and that the respondents be directed to pay them
to him.

[9] Whilst that application was pending, during April 2020 the curators
notified Mr Nash (and other members) that from that time the Fund would be
treated as a ‘closed fund’ and that no further contributions would be accepted
from them. Instead, all of their past contributions would be refunded to them. This
led to the urgent interlocutory application for an interdict which was dismissed
by the high court.

[10] In his answering affidavit in the interlocutory application, Mr Mostert
contended that the application was an abuse of court process and part of the
‘lawfare’ that had been conducted by Mr Nash against him since the
commencement of the curatorship in December 2010. He maintained that Mr
Nash had manipulated the Fund to his benefit by causing unsuspecting employees
to deposit moneys into the Fund which had closed down and become paid up in
March 2003. He highlighted that the transfer of the members of the Fund to the
Optimum Pension Fund was approved by the Registrar of Pension Funds on 25
April 2005. However, in September 2004, Mr Nash attempted, impermissibly, to
retrospectively (with effect from February 2003) transfer the employees and new
members, including himself, back to the paid-up Fund, at a time when its rules
had not been amended as required in terms of s 12 of the Act.

[11] Mr Mostert contended further that, to Mr Nash’s knowledge, the Fund’s
evaluator had advised the curators that no benefit statements should be issued in
respect of membership of the Fund until the question of the administration of the
Fund has been resolved, including the fact that the Fund had become a paid-up
fund from 01 March 2003. He contended that, in any event, Mr Nash had failed

to obtain the prior approval of the court to launch proceedings against him, as
required by the court orders granted by Claassen and Matojane JJ.

[12] As stated, the high court upheld Mr Mostert’s contentions and dismissed
the application for the interdict on the basis that Mr Nash had failed first to seek
the leave of the court, before instituting the proceedings, having been declared to
be a vexatious litigant in terms of the order of 14 August 2018 (Matojane J). On
appeal, Mr Nash and the CADAC contended that none of the two court orders
‘were an impediment’ to their ‘right of access to court’. It was also submitted on
their behalf that a proper case was made out in the urgent application and they
were entitled to the interdictory relief that they sought.

The issues
[13] The issues that arise for determination in this appeal are: first, whether Mr
Nash and CADAC required the leave of the court, when they launched the urgent
application in April 2020. A related issue is whether Mr Nash and the other
appellants should have brought a separate application for leave prior to launching
the interdict application. If they did not have to do so, then a determination must
be made as to whether a proper case was made out for the interim interdict that
was sought.  Furthermore, if Mr Nash did not require prior leave of the court, then
the application for intervention must be determined, and lastly the question
whether a proper was made out for an interdict will be considered. I turn first to
the issue of leave.

Leave to institute proceedings
[14] In the relevant part the order of 21 December 2010 (Claassen J) provided
that:

‘All actions, proceedings, the execution of writs, summonses and other processes against the
Fund, [shall] be stayed and be not instituted (sic) or proceeded with without the leave of the
Court.’
In the relevant part the order of 14 August 2018 (Matojane J) provided that:
‘3. The first and fourth respondents are ordered to first obtain the leave of the Court as a
prerequisite to instituting any further proceedings against the applicant.’
In view of the conclusion we reach in respect of the issue whether Mr Nash
required the leave of the court to institute the interdict proceedings, it is not
necessary to interpret the court orders. This is all the more so because the
respondents’ submissions on this issue migrated somewhat, from the appellants
not having sought leave as required by the orders, to their having failed to seek
leave separately, prior to launching the application for an interdict.

[15] It is necessary to highlight that the order of 14 August 2018 that requires
Mr Nash first to obtain the leave of court before instituting proceedings against
Mr Mostert and his co-respondents, was intended to curb the vexatious conduct
of Mr Nash. Matojane J found Mr Nash to have been:
‘dishonest and motivated by ulterior motive 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 [litigation] against him and Midmacor.’
The intention therefore was that further proceedings brought by Mr Nash should
be scrutinised by a court. Such assessment could only be made taking into account
the basis for such further proceedings.

[16] Insofar as Mr Nash was required to seek leave to institute proceedings
against Mr Mostert, he did seek leave. So did CADAC.3 In para 2 of the
application for interim interdict an order was sought:
‘2. Granting the First Applicant [Mr Nash], leave to institute this Application and to seek the
relief set out hereafter, as contemplated in terms of paragraph 4 of the order of the above court

3 CADAC could only have been required to seek leave as per order of Claassen J.

under case number: 2010/50596, granted on 21 December 2010 [the order of provisional
curatorship] and in paragraph 3 of the order of the above court under case number 64664/2017
dated 14 August 2018.
3. Granting the Second Applicant [Cadac], 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 [the main application].’

[17] The contention by Mr Mostert that a separate prior application for leave
was required is mere formalism. The facts on which the prior application would
have been brought would have been exactly the same as those advanced in
support of the application for an interdict. The court was entitled to consider the
application for leave together with the application for the interim interdict,
particularly in view of the cost implications that would result from the duplication
entailed in the separate application for leave contended for by Mr Mostert. The
order simply required that leave first be obtained. There is no reason why the
application to obtain such leave should not have been contained in the same
application that sought substantive relief. The high court was in a position first to
determine whether leave should be granted to bring the proceedings, and if such
leave was granted, then to proceed to hear the merits of the substantive
application. Such an approach is practical and entirely consistent with the order
made by Matojane J.  The application for an interdict which he sought to bring
was neither frivolous nor vexatious. Leave should have been granted.

The application for intervention
[18] The application(s) were dismissed by the high court based on the dismissal
of the interim interdict application. The high court reasoned that the intervenors
had only sought to support the unsustainable application brought by Mr Nash and
that they brought nothing new to the proceedings. There was no finding, however,
in the judgment of the high court that the intervenors had not demonstrated a legal

interest as envisaged in Uniform Court Rule 12, which could be prejudicially
affected in the subject matter of the proceedings.  The rejected pension
contributions had been made by CADAC as the employer. The members’ legal
interest and the prejudice that they stood to suffer, individually, is apparent from
the discussion on the interim interdict.  The submission that they were Mr Nash’s
alter ego is unsustainable. The parties should have been allowed to intervene and
have their interests considered and, ultimately, protected.

Entitlement to an interim interdict
[19] Essentially, in the main application, Mr Nash, having been informed that
his pension benefits had been flagged, sought a declarator that he was entitled to
his full pension benefits and an order that such benefits be paid to him.  Until
March 2020 the appellants’ pension contributions were accepted by the Fund.
Indeed, the issues relating to the management or administration of the Fund
during the period commencing March 2003 were to be decided in the main
application. The decision by the curators to determine those issues by excluding
the appellants from the Fund in March 2020 was taken abruptly, without
consulting the appellants, at the start of the national lockdown declared in terms
of the Disaster Management Act 57 of 2002. The decision to exclude them posed
significant irreparable prejudice to them as they would be left without pension
and related benefits. The evidence was also that they would be liable for income
tax on the refunded contribution.

[20] The appellants had therefore established a prima facie right which was
under threat as a result of the conduct of the curators. Their request to the curators
to maintain the status quo, which had prevailed for decades, pending the outcome
of the main application was rejected. None of these facts were in dispute. The
appellants had no option but to approach the court for relief. The balance of

convenience favoured them. The requirements for a provisional interdict had been
met.

[21] It was submitted on behalf of the respondents that the interim interdict
would entitle Mr Nash to act as if he was a member of the Fund when he was, in
fact, not. It is not clear that the interim interdict has any such entailment. It simply
preserves the status quo until the issue of Mr Nash’s membership can be
determined in the main application. Should Mr Nash threaten to take any action
that would subvert that determination, the respondents may approach the courts
to preserve the status quo.

[22] The appellants sought an order that the respondents be directed to ‘continue
administering [the Fund] in terms of the Pension Funds Act, 1956 (as amended)
and the Rules of the First Respondent’. This prayer is framed in impermissibly
wide terms and cannot be granted for that reason. The appellants will be
sufficiently protected in the interim if their contributions must continue to be
accepted and not refunded. How those contributions should have been dealt with
is a matter for the main application.

[23] Accordingly the appeal must succeed. The following order is granted:
The appeal is upheld with costs.
The order of the Gauteng Division of the High Court, Johannesburg is set
aside and is substituted with the following order:
‘(1)
The first applicant is granted leave to institute the interim relief
application.
(2)
The second applicant is granted leave to intervene and is joined in

the main application.
(3)
The third, fourth and fifth applicants are granted leave to intervene

and are joined in the interim application.

(4)
Pending the finalisation of the main application instituted on 9
December 2019,
4.1 An interim interdict is granted against curators of the first respondent
(second, third and fourth respondents) and the fifth respondent the
administrator from:
4.1.1 refusing to accept further 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 members of the first respondent.
(5)
The respondents are jointly and severally ordered to pay the costs,
including costs of employment of two counsel.’

________________________

LEDWABA AJA

ACTING JUDGE OF APPEAL

Appearances:

For first and second appellants:
Greg Wickins SC
Instructed by:

KWA Attorneys, Johannesburg
Hill, McHardy & Herbst Attorneys,

Bloemfontein

For third to fifth appellants:

Sarah Pudifin-Jones
Instructed by:

Ian Levitt Attorneys, Sandton

Lovius Block Inc, Bloemfontein

For first to fourth respondents:             J G Wasserman SC with S Quinn
Instructed by:

Assheton-Smith Inc, Cape Town

Michael Du Plessis Attorneys,

Bloemfontein
THE SUPREME COURT OF APPEAL OFSOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED

FROM

The Registrar, Supreme Court of Appeal

DATE

11 October 2021

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part
of the judgment.

Simon Nash and Others v The Cadac Pension Fund (In curatorship)
(Registration Number: 12/8/0020425) and Others (case no 545/2020) [2021]
ZASCA 144 (11 October 2021)

MEDIA STATEMENT

Today the Supreme Court of Appeal (SCA) upheld an appeal against an order of the
Gauteng Division of the High Court, Johannesburg (high court) in terms of which an
application for an interdict was dismissed. The appellant, Simon Nash, approached
the high court seeking an urgent interdict against the Cadac Pension Fund (in
curatorship), its curators and its administrator, NMG Administrator. Cadac (Pty) Ltd,
the employer, in relation to the Fund, sought to intervene in the interdict application.
So did three other members of the Fund. All these applications were dismissed by the
high court.

The applications were prompted by communication sent by the Fund administrators to
Mr Nash and other members of the Fund in March 2020 to the effect that their pension
contributions would no longer be accepted by the bank and that contributions received

from them during the period commencing from March 2003 to April 2020 would be
refunded to them. When the communication was received, a court application between
Mr Nash and the Fund together with its curators and administrators, was pending in
the high court in relation to pension benefits due to Mr Nash. The background to these
events is that, until December 2010 when the Fund was placed under curatorship, Mr
Nash had been one of its trustees. He was also a director of Cadac Pty Ltd.

After turning 70 in November 2018, Mr Nash gave notice to NMG for the withdrawal of
his pension benefit of R36 525 806.31 from the Fund. The withdrawal date of the
benefit was stated as 31 May 2019. However, he was advised by the fund
administrators that the curators had instructed that his benefit be flagged in terms of
section 37D of the Pension Fund Act 24 of 1956. This turn of events was rooted in a
long history of litigation between Mr Nash and the Fund curators, particularly Mr
Mostert who was a co-curator and co-liquidator in seven other Funds in which Mr Nash
had been involved which were also placed in curatorship or liquidation following
fraudulent withdrawal of surplus funds from them through a scheme that came to be
known as the ‘Ghavalas scheme’. Mr Nash and his erstwhile business Associate,
Ghavalas were implicated in the scheme.

Court proceedings instituted by Mr Mostert following an exchange of accusations
between himself and Mr Nash, led to the high court, in August 2018, making findings
that Mr Nash was a dishonest and vexatious litigant, among other things. The court
then ordered that Nash had to first obtain the leave of the court as a prerequisite to
instituting any further proceedings against Mr Mostert.

When the appellants instituted the urgent interdict application against the respondents
in April 2020, the response was that Mr Nash and Cadac had failed to first obtain leave
of court to institute proceedings. The respondents also maintained that the appellants
also failed to meet an obligation under the 2010 court order of curatorship, to seek
leave of court prior to instituting proceedings against the Fund.

The SCA was satisfied that Mr Nash and Cadac did seek leave to institute the
proceedings. It rejected the submission that the application for leave should have been
brought separately from and prior to the interdict application. It considered that the

prior application argument by the respondents was mere formalism; that the court had
a discretion to grant leave, and further that both the leave and interdict applications
were based on the same facts. The SCA also found that the appellants had established
a right that required protection. Further the right was under threat by the threatened
conduct of refunding the appellants’ pension contributions, which could leave them
without pension and open them to income tax liability. The SCA also found that the
both Cadac and the other intervenors had a legal right to the subject matter of the
litigation. The court then set aside the order of the high court and granted the interdict.

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