Nash and Midmacor are the co-accused in a long running criminal trial at the Johannesburg Specialised Commercial Crimes Court. It is alleged that they stripped the surplus from a number of pension funds using the eponymous Ghavalas Scheme. Nash challenged 28 respondents in the SGHC, alleging that his on-going criminal trial would be rendered unfair if the SGHC did not intervene in respect of their legal professional privilege that, they allege, was breached by their former attorney, June Marks.
According to the judgment, the respondents were divided into four groups. They were the FSB, pension funds curator Tony Mostert, his curatorship team, June Marks, the former attorney of Nash and Midmacor, and, Magistrate Piet du Plessis, who presiding in the criminal trial.
The pension funds concerned are the Sable Fund, the Power Pack Fund and Cadac Pension Fund.
Nash and Midmacor allege that their attorney, Marks, handed over “masses of privileged information” to the FSB which will have the result of rendering their criminal trial unfair.
The pension fund respondents describe the application as a “shotgun” approach, saying that, “The application does not specify any single document as privileged, regardless of the nature and extent of the alleged privilege being relied upon.”
In analysing the law, Judge Wright observed that Nash and Midmacor had not alleged that the trial Magistrate did not have the power to deal with the issues before him. “In my view, a Magistrate who held that he or she did not have the power to consider or rule on the kind of complaint raised in the present case would not be interpreting the relevant legislation while promoting the spirit, purport and objects of the Bill of Rights.”
He also expressed concerns that should he rule in Nash and Midmacor’s favour that he would “set a dangerous precedent” and that “the High Court may become flooded with applications by accused persons in criminal trials when the trial magistrate has the power to deal with the issues.”
Some of the respondents asked the judge to strike out of Nash and Midmacor’s Founding Affidavit allegations which were “irrelevant and harsh”.
Judge Wright: “The barb is that Mostert will benefit unlawfully from doing what he is said to be doing. These allegations are roundly refuted. The FSB and Mostert teams are said to consist in a cabal which operates against the applicants. This allegation too, is denied in detail but in a restrained manner. Apart from these observations, the tone of Nash and Midmacor’s affidavit is strident and provocative, and far too long.”
Judge Wright said that Nash and Midmacor had launched the court challenge without any advance notice to the respondents.
Nash and Midmacor were ordered to pay the costs of 27 of the 28 respondents on an attorney and client scale.
The criminal trial resumes later this year.