Wiseman Khuzwayo

THE TRIAL of businessman Simon Nash and his company, Midmacor Industries, was parked for the entire morning session yesterday while the court heard argument regarding the subpoenas issued against key players in the investigation.

Nash had subpoenaed Dube Tshidi, the chief executive of the Financial Services Board (FSB), Tony Mostert, the curator and liquidator of pension funds, and Cor Potgieter, an FSB-appointed inspector.

He wanted them to produce numerous documents, without which his ongoing trial would be rendered unfair.

They did not attend court but sent counsel who argued why they could not comply.

Nash faces criminal charges arising from the stripping of surpluses of two retirement funds in the 1990s under the so-called Ghavalas option.

Advocate Etienne Theron said Tshidi was in the process of finalising his affidavit explaining why he could not deliver the documents. He said the FSB had about 4 500 electronic documents to process.

Theron said it was important for Tshidi to go over all these documents because of the previous attack on him by the defence in a trial within the trial.

Tshidi also wanted to be indemnified against the costs involved in producing the documents, which amount to thousands of pages.

Theron said the subpoena should be set aside because it was an abuse of the court process and a large number of the documents related to events after the commencement of the trial.

Arguing for Potgieter, Theron said his affidavit was on its way. In it, Potgieter would say he had returned all the documents to whoever had instructed him and he was no longer interested in the case.

Advocate DJ Joubert said the accused had subpoenaed Mostert as a way to make him his witness even though the prosecution’s case was still in progress. He said the subpoena was an abuse of the court process.

Mostert had been appointed curator of the funds by order of court, which meant leave of the court had to be obtained before he was subpoenaed. He said the documents sought were with the accused and were of no relevance to the trial.

Joubert said the subpoena had an ulterior motive because Nash had stated publicly he wanted to use the documents in litigation.

Advocate Willem de Bruyn said Nash wanted the documents and cassettes because Mostert and the FSB ran a clandestine operation with June Marks, Nash’s former attorney of record, who had delivered privileged information to Mostert. He said the cassettes could be relevant to Tshidi’s cross-examination.

However, magistrate Pieter du Plessis insisted the subpoena had to identify a person who had the document and it had to be relevant to the criminal case.