Mostert and Others v Nash and Another (604/2017) [2018] ZASCA 62; [2018] 3 All SA 1 (SCA); 2018 (5) SA 409 (SCA) (21 May 2018)

Mostert and Others v Nash and Another (604/2017) [2018] ZASCA 62; [2018] 3 All SA 1 (SCA); 2018 (5) SA 409 (SCA) (21 May 2018)

The Supreme Court of Appeal held that the fee agreement between the curator and the Financial Services Board, which provided for remuneration as a percentage of amounts recovered for the Sable Industries Pension Fund, was not in accordance with the norms of the attorneys' profession as required by paragraph 9 of the curatorship order. The evidence established that the conventional norm for attorney remuneration is an hourly rate, not a percentage of recoveries, unless specifically authorized by the court. While such contingency arrangements are not per se unlawful and may be authorized by the court in appropriate circumstances, the agreement in question was not authorized and thus...

Citation
[2018] ZASCA 62
Parties
Appellant: Antony Louis Mostert; Appellant: Antony Louis Mostert N O; Appellant: The Sable Industries Pension Fund; Appellant: A L Mostert & Co Incorporated; Appellant: The Executive Officer of the Financial Services Board; Appellant: The Registrar of Pension Funds; Respondent: Simon John Nash; Respondent: Midmacor Industries Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
21 May 2018
Case Number
604/2017
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal against paragraphs 1, 2, 3, 6 and 7 of the High Court order dismissed; appeal against paragraphs 4 and 5 succeeds and those paragraphs are set aside; each party to pay its own costs of appeal.
Judges
Ponnan, Wallis, Willis, Swain, Pillay
Legal Topics
Curatorship Remuneration, Contingency Fees Act, Public Policy in Contracts, Pension Fund Surplus, Administrative Action Review, Locus Standi
Commercial and Corporate Civil Procedure Banking and Finance Curatorship Remuneration Contingency Fees Act Public Policy in Contracts Pension Fund Surplus Administrative Action Review +1 more

Case Brief

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Parties

Antony Louis Mostert

Appellant

Antony Louis Mostert N O

Appellant

The Sable Industries Pension Fund

Appellant

A L Mostert & Co Incorporated

Appellant

The Executive Officer of the Financial Services Board

Appellant

The Registrar of Pension Funds

Appellant

Simon John Nash

Respondent

Midmacor Industries Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the fee agreement between the curator and the Financial Services Board complied with the norms of the attorneys' profession as required by the curatorship order.
  2. 2 Whether the fee agreement constituted administrative action subject to review under PAJA or the principle of legality.
  3. 3 Whether the applicants had locus standi to challenge the fee agreement.

Ratio Decidendi

The Supreme Court of Appeal held that the fee agreement between the curator and the Financial Services Board, which provided for remuneration as a percentage of amounts recovered for the Sable Industries Pension Fund, was not in accordance with the norms of the attorneys' profession as required by paragraph 9 of the curatorship order. The evidence established that the conventional norm for attorney remuneration is an hourly rate, not a percentage of recoveries, unless specifically authorized by the court. While such contingency arrangements are not per se unlawful and may be authorized by the court in appropriate circumstances, the agreement in question was not authorized and thus...

Court Disposition

Appeal against paragraphs 1, 2, 3, 6 and 7 of the High Court order dismissed; appeal against paragraphs 4 and 5 succeeds and those paragraphs are set aside; each party to pay its own costs of appeal.

Orders

  • The appeal against paragraphs 1, 2, 3, 6 and 7 of the order of the High Court is dismissed.
  • The appeal against paragraphs 4 and 5 of the order of the High Court succeeds and those paragraphs are set aside.