Wiseman Khuzwayo

There was a brief hiccup yesterday in the resumption of the never-ending trial of Simon Nash, the chairman of Cadac, when the State sought to revert to a trial within a trial but its motion was turned down.

The matter was postponed to Monday, when Quentin Southey, the former financial director of Midmacor and Cullinan, two other companies of which Nash was chairman, will give evidence in the main trial.

Nash has been charged with theft and fraud arising from the alleged stripping of surpluses worth more than R100 million in the current value from the Sable Industries Pension Fund, the Power Pack Pension Fund and the Cadac Pension Fund.

The trial began in November 2010 and has been dominated and delayed by intrigue. It is being held at the Specialised Commercial Crimes Court, sitting at the Johannesburg Regional Court.

Numerous other people implicated in stripping surplus funds have repaid some of the R900m to the funds’ curator, Tony Mostert, after entering into plea bargains with the State. Nash is the only accused who has refused a plea bargain and has opted to fight in court.

Yesterday lead prosecutor Dries van Rensburg, assisted by Henry Nxumalo, said the State wanted to cross-examine state witness Cor Potgieter, an investigator from the Financial Services Board, the regulator of pension funds, in a trial within a trial. The aim would be to determine the admissibility of certain documents.

However, defence advocate Willie de Bruyn objected and called for the continuation of the main trial. He said the State had no difficulty previously with the main trial and had called three witnesses, including star witness Peter Ghavalas, the architect of the surplus stripping scheme.

Magistrate Pieter du Plessis agreed with De Bruyn that the trial had to continue while Nash’s petition to the Supreme Court of Appeal was being considered by that court, which was expected to make a decision by September.

De Bruyn also objected to Van Rensburg’s assertion that the State did not know of the petition when the National Prosecuting Authority was in fact the main respondent.

Nash had brought an application to the North Gauteng High Court from the regional court where it was alleged a number of parties were complicit in breaching his right to a fair trial. The high court held it had no right to decide on the matter and referred the matter back to the lower court.

Southey is a section 204 witness, which means he must answer to the full satisfaction of the court, otherwise his indemnity from prosecution will be withdrawn.