The Venda Pension Fund saga is heading for the high courts and the thousands of pensioners who have pinned their hopes on some sort of compensation may have to wait a few more years.
In the latest development, the Minister of Finance filed a motion in the Gauteng North High Court indicating that he would apply for the Public Protector’s instruction for remedial action to be set aside.
The Public Protector (PP), Busisiwe Mkhwebane, recently criticised government institutions for not implementing remedial actions stipulated in reports. She mentioned the Vhembe Concerned Pensioners case as an example that “demonstrates the gravity of the problem” faced by her office.
In 2011, her predecessor, Adv Thuli Madonsela, investigated the complaints by pensioners that the National Treasury and the Government Employees Pension Fund (GPEF) had acted improperly when privatising the Venda Pension Fund. Madonsela found, among other things, that the complainants had suffered prejudice as they were influenced to privatise their pension benefits but were not properly informed about the consequences of the privatisation.
Following Madonsela’s finding, a task team was formed to investigate the claims and verify the information of the claimants.
Not much seemed to have happened after this and the issue gathered dust on the desks of various officials. The matter eventually ended up on the desk of the new PP, Advocate Busisiwe Mkhwebane. In her “Special Report” she directed Lungisa Fuzile, the director general of finance, to submit an action plan on remedial action to be taken.
Mkhwebane’s report tried to address certain fears expressed, among others that payment of compensation in this matter would open up a floodgate of claims by former state employees. “The remedial action in [the 2011 report] was designed to address maladministration that is demonstrably unfair and unreasonable in the specific set of circumstances of this matter,” it said.
The special report said only genuine, credible complainants identified in the report would have any chance of approval. The consolidated list of complainants estimated the number at approximately 7 000, many of whom are “penniless, relying on old-age grants, while a number had already passed on”.
In December 2017, Treasury said it was working together with the GPAA to address the remedial action. The GPAA embarked on a process of reviewing available data, saying that this was necessary to ensure that the project would be implemented accurately. Treasury also enlisted the services of an actuary in an attempt to establish a reliable database of potential beneficiaries of the proposed remedial action.
Early in August 2018, Treasury announced that the actuarial firm appointed to verify potential beneficiaries had handed over its final report. “National Treasury is currently reviewing the report to develop recommendations on the next best course of action. Once this is done, Treasury is obliged to submit its recommendations and the report by the actuarial firm to the Public Protector and Speaker of the National Assembly.”
Treasury said it would provide an update on the matter before the end of August 2018. This date came and went, without more light being shed on the issue.
The pensioners, in the meantime, grouped together and formed the Venda Concerned Pensioners Group (VCPG). Collectively they represent a claimed 16 300 former members of the Venda Pension Fund. The VCPG mandated Erwee Attorneys from Musina to fight on their behalf. “Erwee is working with Senior Counsel Advocate Jaap Cilliers, a well-known advocate who helped over 60 000 Transnet pension beneficiaries get their pensions. We are very confident that government will pay this time,” said Mr Tshimangadzo Tshiololi, the chairperson of the group last year.
Tshiololi said that they were left with no other option but to approach the Constitutional Court to force the government to implement the remedial actions proposed by the PP. “The majority of Venda pensioners are living in abject poverty, depending on social grants. It really hurts to see people dying as paupers, having served the government for a period of 30 to 40 years,” he said.
In February this year, the PP openly criticized the National Treasury for not acting on the recommendations. This apparently led to the motion’s being filed, indicating that the High Court will be asked to either discharge the remedial action or have the PP’s report reviewed and set aside.
In the application, the Finance Minister also asks the court to extend the 180-day period imposed by the Promotion of Administrative Justice Act (PAJA) for it to act.
Erwee Attorneys responded last week by saying that they would approach the court to obtain the necessary approval to be seen as a collective, so that a class action could be instituted. The VCPG will also apply to be considered a respondent in the case, so that the Minister of Finance’s review application can be opposed.
Erwee Attorneys will be making use of two very experienced legal representatives, namely advocates Jaap Cilliers and Leon Kellerman.
Date:31 March 2019 - By: Anton van Zyl
Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror for over 27 years. He graduated at the the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.