Lawyer June Marks, who is currently defending J Arthur Brown, who is on trial on various fraud charges relating to the collapse of Fidentia, reached the end of the line this week when the Constitutional Court made short shrift of her attempts to avoid paying back more than R10 million to the troubled Cadac Pension Fund.
Marks, who now faces sequestration if she does not pay up, has been fighting a year-long battle against a claim by the provisional curator of the Cadac Pension Fund, Tony Mostert, to get her to repay amounts allegedly fraudulently withdrawn from the fund to, among other things, finance the criminal trial of Cadac’s chief executive and former chairman of the Cadac Pension Fund, Simon Nash.
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 R100 million in current values from the Sable Industries Pension Fund and the Power Pack Pension Fund (later the Cullinan Group Pension Fund) in the 1990s. Last year, Mostert brought several successful court actions against Marks, who was at one time the attorney to the Cadac fund.
Mostert’s court actions came after Marks initially agreed to repay the R10 million but then changed her mind.
The R10 million was used for payments to Marks and her company to pay advocates used by her relating to Nash personally. In court documents it is also revealed that Marks inflated a number of the invoices of advocates and she failed to account to Mostert for the use of pension fund money from Cadac.
The payments were authorised by Nash and his wife, Elena Forno Nash, who was also a trustee of the Cadac fund.
The fund was placed under provisional curatorship because the Financial Services Board (FSB) alleged that Nash had allowed various unacceptable property transactions involving Cadac.
In all, Marks has made six unsuccessful applications to the High Court to set aside the judgments and six unsuccessful applications for leave to appeal the six decisions, which were all then unsuccessfully taken to the Supreme Court of Appeal and then to the Constitutional Court.
The Constitutional Court dismissed the application by Marks and her company without even hearing the views of Mostert.
Added to the R10 million will be interest and the punitive costs awarded against Marks and her company in all the actions.
In the initial successful two judgments against Marks, the judges hearing the cases were severely critical of Marks in their judgments.
Judge Haseena Mayat said that Marks and her legal firm had abused the court 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.
Marks has repeatedly threatened to sue Personal Finance for reporting on her activities relating to the Cadac fund and at one stage lodged a garbled complaint with the Media Ombudsman, which she later withdrew.
Marks has also done a volte face a number of times in the Cadac matter. According to various court documents she initially volunteered extensive information about fraud and the workings of the Cadac fund to the FSB, its inspectors and to Mostert.
However, she secretly recorded the conversations as well as the conversations of the FSB and Mostert and their legal teams when she was not present.
In detailing the activities of the Cadac fund, Marks sought indemnity from prosecution related to monies allegedly unlawfully removed from the Cadac fund for her benefit. She also asked Mostert to assist her and pay for her services in providing assistance to the Cadac fund.
When both were refused she handed over the recordings to the Nash team, which has since attempted to use them selectively in a vicious campaign vilifying numerous parties, including the FSB and its senior executives, Mostert and his legal team, and people involved in his criminal prosecution. Marks has since fallen out with the Nash camp.