Introduction
The recent High Court judgement in Cadac Pension Fund and
Others v Nash and Others (Gauteng Division, Johannesburg, 16
April 2025) offers important guidance on the role of interim
interdicts in pension fund disputes — particularly where
issues of curatorship, member entitlements, and alleged fund
mismanagement are concerned.
The case deals with a pension fund under curatorship, the legitimacy of members admitted after the fund's closure, and the rights of those members (including Mr. Nash, the First Respondent) to claim pension benefits. It also addresses the stringent test required to vary or discharge an interim interdict granted to preserve the status quo pending final determination.
Background
The Cadac Pension Fund formally closed to new members on 1 March
2003. Despite this, it continued to operate as if open, admitting
new members and accepting contributions. In 2010, the Fund was
placed under curatorship amid governance concerns, including
questions about the admission of members post-closure and
allegations of mismanagement.
Mr. Nash, a director of Cadac (Pty) Ltd and a former trustee of the Fund, sought to withdraw his pension benefits in 2018. The curators refused payment, citing potential deductions in terms of section 37D of the Pension Funds Act due to alleged misconduct by Nash, including the misappropriation of Fund surpluses while he was in a position of control.
In response, Nash launched proceedings seeking declaratory relief regarding his entitlement to full pension benefits. Pending the finalisation of the main application, he successfully obtained an interim interdict preventing the Fund from implementing the curators' decision to refund contributions (plus interest) to post-2003 members — including Nash himself.
The Application to Discharge the Interdict
The Fund and its curators subsequently applied to discharge part of this interim interdict. They sought permission to proceed with refunding contributions (with interest) to those putative members who wished to accept refunds, despite the unresolved dispute regarding membership status and benefit entitlement.
Key issues before the court included:
- Whether the High Court had jurisdiction to discharge an interdict granted by the Supreme Court of Appeal (SCA);
- The proper test for varying or discharging an interim interdict;
- Whether circumstances had materially changed to warrant the discharge of the order.
The Court's Decision
The court confirmed that once the SCA's interim interdict became an order of the court of first instance, it had jurisdiction to consider the application to discharge. However, it emphasised that the test for discharging an interim interdict is strict: there must be a material change in circumstances that renders the original order unnecessary or inappropriate.
The court found that no such change had occurred. The central dispute — whether post-2003 members are legitimate members entitled to full benefits, or merely to refunds of their contributions — remains unresolved. Discharging the interdict at this stage would undermine the purpose of preserving the status quo and risk pre-empting the outcome of the main proceedings.
The court accordingly dismissed the application, confirming that the interim interdict remains in place. Costs were ordered to be costs in the cause.
The judgement offers several important insights for pension fund administrators, curators, employers, and members. Below are some of the key principles and implications arising from the court's decision:
- Preservation of Rights Pending Final
Determination:
The judgement reinforces the principle that interim interdicts serve to maintain the status quo where serious disputes remain unresolved. In pension fund disputes involving member rights and fund governance, courts will be reluctant to allow steps that could irreversibly affect those rights before final adjudication. - Strict Test for Discharging Interim Interdicts:
A party seeking to discharge an interim interdict bears a heavy burden. The existence of ongoing, live disputes militates against variation or discharge unless the circumstances that justified the interdict have fundamentally changed. - Pension Fund Governance under Curatorship:
This case underscores the complexities that can arise when funds have operated irregularly for extended periods. Decisions taken by curators, while intended to rectify past mismanagement, remain subject to judicial scrutiny where affected parties assert competing rights. - Section 37D and Withholding of Benefits:
The Fund's resistance to paying out Nash's pension benefits is partly grounded on Section 37D of the Pension Funds Act, which permits the withholding or deduction of benefits where a member is liable for damages due to misconduct. The judgement, however, does not resolve this issue on the merits — it merely ensures that neither side can act prematurely pending that determination.
Conclusion
The Cadac Pension Fund and Others v Nash and Others
judgement provides an instructive example of how South African
courts approach interim relief in pension-related disputes. It
demonstrates the judiciary's commitment to balancing the
interests of fund governance with the procedural fairness owed to
putative members. Until the core questions of membership legitimacy
and benefit entitlement are resolved, the status quo —
protected by the interim interdict — remains sacrosanct.
This decision offers valuable lessons for pension fund administrators, curators, employers, and members alike: in complex disputes, the road to finality may be long, but the courts will ensure that neither side undermines the integrity of that process through premature action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
