Mostert and Others v Nash and Another

The Sable Industries Pension Fund was placed under curatorship in terms of s 5(2) of the Financial Institutions (Protection of Funds) Act 28 of 2001. Mr Antony Louis Mostert, an attorney, was appointed curator. The court order provided that his remuneration be in accordance with the norms of the attorneys’ profession, as agreed with the Executive Officer of the Financial Services Board (FSB). Because the fund had no liquid assets and only contingent claims, Mr Mostert concluded an agreement with the FSB entitling him to remuneration calculated as a percentage (33.33%) of amounts recovered for the fund. Mr Simon Nash and Midmacor Industries Ltd challenged the lawfulness of this fee agreement, alleging that it was inconsistent with the norms of the attorneys’ profession, contrary to public policy, and unlawful. The High Court set aside aspects of the fee arrangement. Mr Mostert, the fund, and the regulators appealed to the Supreme Court of Appeal.

The appeal against paragraphs 1, 2, 3, 6 and 7 of the High Court order was dismissed. The appeal against paragraphs 4 and 5 succeeded and those paragraphs were set aside. Each party was ordered to pay its own costs of appeal.

The case is significant for clarifying the limits of permissible remuneration arrangements for curators of pension funds, the interpretation of 'norms of the attorneys’ profession', and the standing of affected parties to challenge curatorship decisions. It also affirms a broad approach to locus standi under the Constitution and s 5(8) of the FI Act, and cautions against using allegations of misconduct to bar access to courts through abuse-of-process arguments.