Ex-Cadac attorney ordered to pay R2.4m

Ex-Cadac attorney ordered to pay R2.4m
January 12 2012 at 10:18am

Bruce Cameron


Johannesburg-based attorney June Marks had been ordered by the South Gauteng High Court to pay R2.38 million plus punitive costs of about R500 000 to Tony Mostert, the provisional curator of the Cadac Pension Fund, the court said in a written judgment handed down this week.

The successful court action forms part of total claims of more than R10m that are being pursued by Mostert against Marks, who was the one time attorney to the Cadac fund, and against Cadac executive chairman Simon Nash, who was the former chairman of the fund.

Nash is currently standing trial on charges of theft, fraud and contravening the Prevention of Organised Crime Act arising from the stripping of the surpluses of more than R100m in current values from the Sable Industries Pension Fund and the Power Pack Pension Fund (later the Cullinan Group Pension Fund).

For the past year he has been fighting in court against the confirmation of Mostert as the curator of the Cadac fund and waging a high profile smear campaign against numerous parties including the Financial Services Board (FSB) and its chief executive, Dube Tshidi.

Marks has since last year also been representing fraud accused Arthur Brown, the former chief executive of financial services company Fidentia.

In the judgment handed down this week, Judge Haseena Mayat agreed with Mostert’s contentions, with a supporting affidavit from forensic accountant Alphonso Brand, that Marks should not have invoiced the fund for various costs totalling R2.38m in five separate matters because the payments “did not relate to legal costs arising from legal matters involving the fund”.

In his application to the court, Mostert contended that:

n The money was being used to pay for the criminal charges and other matters involving Nash that had nothing to do with the Cadac fund. This was one of the reasons why the FSB successfully applied to the high court to have the Cadac Pension Fund placed under the provisional curatorship of Mostert in January last year. According to various affidavits Nash and his wife, Elena Forno Nash, as another trustee, approved the payments.

n Marks had not submitted proper invoices to the fund and there had been changes to the invoices and the amounts that she said had been shared in payment between Nash and the fund had in fact been fully paid by the fund as reflected in the fund’s bank account. There were also differences between what various advocates had billed for their services and the amounts invoiced by Marks to the fund.

Judge Mayat severely criticised Marks in her judgment, saying that she and her legal firm had abused the court’s process by circumventing the enforcement of an order of the court to provide proper information on the amounts debited to the fund. According to the judgment, Marks had not provided an affidavit refuting Mostert’s contentions.

In an e-mailed response, Marks claimed that the judgment had gone against her “purely upon the basis that answer papers had not been filed in the matter”.

She said her personal indemnity insurer would be appealing the judgment.

Marks added: “In any event, our firm has no further interest in the matter… as our firm has taken steps to formally sever all legal relationships with the… trustees of the Cadac fund and we refer you to Mr Nash and Mr Mostert for further comment. We caution you against publishing any incorrect or defamatory information.”

Nash did not respond to an e-mail asking him for his comments on the judgment.