The former Financial Services Board executive officer Dube Tshidi has filed papers requesting a review of the public protector’s report on his appointment of a particular attorney as curator for a pension fund that had fallen victim to ‘surplus stripping’.
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Mostert’s statement is as follows:
In his article, Sam Sole writes that trustees have accused the Financial Services Board (FSB) chief, Dube Tshidi, and Tony Mostert of “despicable behaviour” by “colluding” to place the Cadac Pension Fund under curatorship.
The accusations are false. Sole’s sources are what he himself describes as a “rogue lawyer”, June Marks, illegal tape recordings procured by her, and purported “trustees” employed and appointed by the managing director of Cadac (Pty) Ltd, Simon Nash.
Nash is standing trial on charges of theft, fraud and racketeering related to plundered pension funds under Mostert’s curatorship.
The background to the accusations is a pending court application in response to the court’s curatorship of Cadac. Nash has never challenged the court order, despite the serious allegations of wrongdoing levelled against him.
Oddly, the “trustees” Nash has now had put in place admit the necessity of Cadac’s curatorship and the investigation into Nash’s alleged wrongful conduct in using Cadac assets for personal benefit or for his company.
Ironically, however, on the back of an attempt to obtain payment of almost R500 000 of past legal expenses to Nash’s attorneys at the time of the court order, Werksmans, the “trustees” now object on spurious grounds to the court’s appointment of Mostert.
Two of these “trustees” only joined Cadac months after the curatorship order. Another joined seven weeks before, but recently resigned as trustee and employee with effect from end-November. A fourth trustee has now also resigned. This prompts one to ask: Where do these revolving-door appointees get the information to support the accusations?
The answer is obvious. Firstly, they all serve as Nash’s employees, their salaries being authorised by Nash each month. Secondly, in the court papers quoted by Sole, the “trustees” confirm that they rely “— heavily on Nash for facts, documents and information”.
The “trustees” themselves describe Marks (who for years advised Nash and Cadac) as someone whose “credibility is in tatters”. They say the “integrity of her views and legal opinions are doubtful” and that her “behaviour displays a lack of professional integrity and — honesty”.
A recent strategy developed by those accused of criminal wrongdoing, such as Nash, is to attack those charged with redressing the prejudice to pensioners (for example the FSB, the National Prosecuting Authority – NPA – and curators) to frustrate and obstruct the civil and criminal prosecution they face.
The accusations against the FSB and Mostert are fabricated. The following main aspects are highlighted:
Court records show that Tshidi did not lie about Mostert’s involvement in preparing the curatorship application. The portion quoted by Sole excludes a critical aspect of Tshidi’s answer in the court record: “I don’t know. I spoke to my legal team.” This is entirely different from accusing Tshidi of denying Mostert’s involvement in preparing the papers.
The FSB by law controls all pension funds. It has no need to “collude” to place the Cadac fund under curatorship.
Court papers will show that the substance of the curatorship application was based on information already available to the FSB before meeting Mostert. Frequent meetings between the FSB and curators are necessitated by the court orders appointing curators.
The affidavits before the court, which appointed Mostert, fully disclosed his involvement as curator of the funds stripped by Nash and FSB inspectors found that Nash indeed used the fund to finance his criminal prosecution.
The allegations of “personal enrichment” are simply vexatious. Mostert is remunerated in terms of court orders and FSB directives.
Cadac’s actuary reports that Nash’s company owes the fund at least R9-million in unpaid contributions, which Mostert is demanding from it.
Thus the allegations of wrongdoing in the curatorship team led by Mostert, emanating from Nash and Marks, on which Sole relies, are false. Their purpose is to divert attention from Nash’s criminal prosecution.
Evidence of a paid smear campaign driven by Nash and Marks is under investigation. Criminal and civil charges of extortion, intimidation and defeating the ends of justice are being investigated against those responsible for the dissemination of false information.
Sam Sole’s article hurled a number of allegations at the FSB’s executive officer, Dube Tshidi, and the FSB. Sole saw fit to ignore the board’s response to the draft article forwarded to him beforehand.
We need to clarify some of the points raised in the article, as they convey an utterly distorted picture:
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- The impression was created that the independence of Tshidi and the FSB was compromised when he and other FSB officials attended a meeting with Mostert and Marks on December 15 last year. The FSB attended the meeting after I received a phone call from Mostert indicating that he had a material witness who was prepared to make disclosures concerning the Sable Fund and irregularities in the Cadac fund.Tshidi was informed that this witness was Marks, formerly Nash’s attorney. As registrar of pension funds, Tshidi felt duty bound to attend the meeting.
Exchanges between the FSB and curators are frequent. Curators function under the registrar’s control. Curatorship orders oblige curators to report to the registrar should it appear that the curatorship needs to be extended to another entity. Therefore, there was nothing strange or sinister in the meeting between Mostert, as curator of the Sable Pension Fund, and the registrar.
- The impression was created that the independence of Tshidi and the FSB was compromised when he and other FSB officials attended a meeting with Mostert and Marks on December 15 last year. The FSB attended the meeting after I received a phone call from Mostert indicating that he had a material witness who was prepared to make disclosures concerning the Sable Fund and irregularities in the Cadac fund.Tshidi was informed that this witness was Marks, formerly Nash’s attorney. As registrar of pension funds, Tshidi felt duty bound to attend the meeting.
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- The claim of “breach of professional privilege” to cast doubt on the integrity of the inspection and the curatorship application is devoid of merit. The question of legal privilege was discussed at the meeting. Marks said she had obtained legal advice in this regard and was comfortable that she was not breaching her duty. Her only significant contribution to what the FSB already knew was her statement that, days before, Nash was still abusing the Cadac fund’s assets by having a R10-million mortgage bond registered for property jointly owned by the fund and the Cadac company, the fund receiving no benefit from the proceeds of the bond.
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- In the week when the application was prepared, the two in-house lawyers of the FSB who normally attend to the drafting of curatorship papers were absent. Therefore, Tshidi cannot be faulted for asking advocate Lucas van Tonder, who was present, to attend to the preliminary drafting of the application and collating the supporting documentation. We knew that one of our lawyers, a Mr Wessels, was returning the following weekend and would work on the draft application before it was presented to court.
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- Much of Sole’s article centres on the cross-examination of Tshidi in court in January this year. Questioned on the curatorship application, he was asked: “Who drafted this affidavit?” He replied “My legal team.” This answer is correct because Wessels worked on and finally settled the entire affidavit. The next question was: “Did Mr Mostert have a role in the drafting?” to which the reply was: “I don’t know.” This was also correct, as Tshidi did not know what role Mostert played. To Tshidi’s knowledge, Mostert did not draft the application and his role was to assist with information that was quite in order, for the reason given in the first paragraph.
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- Sole’s article suggests that other individuals are critical of the “relationship” between the FSB, the prosecution and Mostert. No one has raised these concerns with Tshidi or the FSB.
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- Sole’s article refers to Peter Ghavalas’s application for the removal of the two prosecutors, but fails to tell the full story. That application was withdrawn. The prosecutors remained on the prosecution team and continued with the prosecution, including that of Nash, until their NPA contracts expired. Did Sole obtain the NPA’s comment on this?
- A number of the allegations raised by Sole seem to be a slavish repetition of what Nash told him. The slanderous brush wielded by your newspaper on Nash’s behalf indiscriminately taints many individuals who have nothing to gain personally and are merely performing their official duties. In matters of this nature, involving years of litigation, professional journalism requires a careful study and understanding of the court papers. Your article is selective in emphasising Nash’s (unsubstantiated) allegations while ignoring how they were addressed in the court papers. Sole should also have looked at the indictment against Nash and, if nothing else, at least have awaited the outcome of the trial and pending civil litigation.
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An investigation by the public protector’s office into the Financial Services Board (FSB), following the stripping of pension fund surpluses in a fraudulent scheme that led to them being placed under curatorship, is being taken on review, with claims of bias against advocate Busisiwe Mkhwebane.
The pension fund mismanagement occurred a decade ago while the complaint was laid with Mkhwebane in 2017 by EFF leader Julius Malema. Among matters probed was that an attorney appointed as curator used his own law firm to recover assets on behalf of the fund under curatorship.
In her report in March this year, the public protector made findings of impropriety and maladministration against the FSB, now called the Financial Sector Conduct Authority (FSCA), and its then executive officer, advocate Dube Tshidi.
The regulating authority has now filed papers in the North Gauteng High Court requesting the court to review and set aside the report by the public protector. The matter is scheduled to be on the court roll in November.
“The review is sought on the basis that it is immediately apparent from the report that the public protector’s findings and conclusions are entirely unreasonable. It is also our view that the manner in which she conducted her investigation renders the findings reviewable for perceived bias, bad faith and/or ulterior motives. The only other explanation for these failures is gross incompetence and negligence,” the authority purports in a statement accompanying its legal challenge.
Tshidi has hit back in a lengthy affidavit, accusing the public protector of failing to respond to detailed submissions made to her office by the authority and of irregular duplication of matters already resolved in the courts.
He accused her of being “hostile” towards him and of failing to assess the credibility of the allegations being made against himself, the curator and the FSB.
Tshidi says there is clear self-interest from an implicated party behind the entire matter, and he is the “true source” of the unfounded allegations.
In the court challenge papers, he states that the EFF contacted the FSB directly before going to the protector’s office with its claims. At a meeting, Malema was accompanied by a man who is facing criminal charges in connection with the pension fund stripping scheme to the meeting.
The curator was attempting to recover assets worth millions of rand from this man on behalf of a pension fund linked to the surplus-stripping, said Tshidi.
Since 2010, the man has been subject to criminal prosecution for his involvement in the scheme. These proceedings are ongoing and Tshidi has testified as a state witness against him.
The charges include fraud, theft and breach of fiduciary duties relating to his involvement in the surplus-stripping scheme implemented in two pension funds, one of which was later placed into liquidation.
The man has been criticised in the courts for making “substantially untrue” statements against the curator, the FSB and Tshidi.
“That (he) is motivated by a desire to obstruct his prosecution and the civil claims against him, and in doing so, resorts to false allegations against the FSB, myself and (the curator) in this endeavour, is by now a matter of public record,” said Tshidi.
“…Unfortunately, it appears that the public protector had no regard to the true source of the complaints against me and the FSB, or the judgments (mentioned in the court papers). As a result, she failed properly to assess the credibility and veracity of the allegations she purported to investigate.”
The public protector’s investigation was to second-guess court orders governing curatorships, and to duplicate investigative processes that were long under way, Tshidi said.
Tshidi states the public protector’s conduct towards him was biased when she questioned him, and that her findings are “unjustified and unreasoned”.
“The public protector failed to address or discuss the credibility of the various sources of information she considered, their reliability or the probabilities when faced with mutually destructive versions.
“It is therefore impossible to discern whether her findings are pursuant to deductive reasoning, inductive reasoning or any reasoning at all.”
Mkhwebane dismissed the source of the complaint as “immaterial” in her report. According to a Business Day column, her key findings included irregularities in the nomination of curators by Tshidi, a failure by Tshidi to discharge his regulatory duty “to properly manage the possible or perceived conflict of interest between (the attorney’s) role as curator and the appointment of his own law firm to assist in the administration of pension funds placed under curatorship”; and when written questions were posed to the minister of finance, the answers that Tshidi provided had caused the minister to mislead parliament.
These are all denied in the legal challenge filed by Tshidi.
The public protector’s remedial actions included that there should be a wider pool of prospective curators to draw from through a competitive and transparent bidding process, and that the regulatory authority should adopt a policy to regulate the nomination process of curators.
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ONAFHANKLIK 