Simon Nash and Others v The Cadac Pension Fund (In Curatorship) and Others

The CADAC Pension Fund was placed under curatorship in 2010 following unlawful surplus withdrawals linked to the so-called Ghavalas scheme. Simon Nash, a long-standing member, director of CADAC (the principal employer), and former trustee, became embroiled in extensive litigation with the fund’s curators. After turning 70, Nash sought to withdraw his pension benefit, but the curators instructed the administrator to flag his benefit under s 37D of the Pension Funds Act. While Nash’s main application challenging the flagging was pending, the curators decided in April 2020 to treat the fund as closed, stop accepting further contributions, and refund contributions to members. Nash, CADAC, and other members urgently sought an interim interdict to preserve the status quo pending the main application. The High Court dismissed the applications on the basis that Nash, declared a vexatious litigant, had not obtained prior leave to institute proceedings.

The appeal was upheld with costs. The High Court order was set aside and replaced with an order granting leave to institute the interim relief application, allowing intervention by CADAC and the other members, and granting an interim interdict preventing the curators and administrator from refusing to accept further contributions or refunding contributions pending finalisation of the main application.

The case clarifies that where a litigant is required to obtain leave before instituting proceedings, such leave may be sought within the same application as the substantive relief, and a separate prior application is not necessary. It also reaffirms the principles governing interim interdicts and intervention, and underscores a practical, non-formalistic approach to access to courts even in the context of vexatious-litigant orders.