Public Protector disappointed with court decision on the Venda Pensioners’ case

Public Protector Adv. Busisiwe Mkhwebane notes with disappointment the court decision to review and set aside the remedial action contained in two investigation reports issued in 2011 and 2017 in respect of a 12-year pension dispute affecting dozens of former employees of the defunct Venda homeland.

The decision follows former Minister of Finance Mr. Tito Mboweni’s March 2019 application to the Gauteng Division of the High Court in Pretoria to have the two reports reviewed and set aside.

In a 29-page judgment handed down electronically on Thursday, November 18, 2021, Judge Norman Manoim ruled that the remedial action in question related to complaints concerning events that were more than two years old at the time the complainants approached the Public Protector.

In terms of section 6(9) of the Public Protector Act, the Public Protector has discretionary power to entertain such matters. However, special circumstances necessitating the consideration of such complaints should be shown to exist.

In the case at hand, the court held that no special circumstances were advanced to justify the investigation of the complaints and that the subject matter of the remedial action was no longer capable of proper investigation by the time the reports were written.

The court also found that the subject matter pertained to matters that a court had previously found not to be actionable and therefore in contravention of section 182(3) of the Constitution, in terms of which the Public Protector may not investigate court decisions. The decision to pursue the matter was, according to the court, ultra vires and therefore unlawful.

In 2008, Messrs LJ Rambau and MP Ramavhale, Mr. Tshimangadzo Tshiololi approached then Public Protector Adv. Lawrence Mushwana on behalf of a group calling itself the “Vhembe Concerned Pensioners”.

They alleged that the Government Employees Pension Fund (GEPF) and the National Treasury acted improperly during the privatisation of the Venda Pension Fund (VPF), thereby prejudicing members of the fund. They also alleged that, as a result of the said privatisation, they were not entitled to full pension benefits in terms of the Government Employees Pension Law (GEP Law).

In the 2011 investigation report, another former Public Protector, Adv. Thuli Madonsela, found that the complainants had been prejudiced and directed the Department of Public Services and Administration (DPSA) and the National Treasury to review the implementation of Privatisation Schemes of the former VPF.

She also directed the GEPF to recalculate the pension benefits for Messrs. Tshiololi and Ramavhale as if they retired with all their years of service as members of the fund, including the VPF and afford them the opportunity to repay any benefits they might have received, excluding the amounts repaid by them to the Venda Government. She further directed the DPSA and the Treasury to order a forensic audit of the list of the first Privatisation Scheme of the Venda Pension Fund to determine the accuracy of the transferred amounts in respect of each member.

By 2017, the implementation of remedial action remained outstanding, with government citing a number of stumbling blocks including fears that implementation would “open the floodgates” in respect of the potential of similar claims from former members of pension funds in respect of other erstwhile homeland governments.

Adv. Mkhwebane then issued a special report on the matter, seeking to assist the Treasury to expeditiously implement the old report issued by Adv. Madonsela in pursuit of deliberations held with the former Treasury Director-General, Mr. Lungisa Fuzile and then Minister of Finance, Mr. Pravin Gordhan.

It has since emerged that the complaint to Adv. Mushwana was not the first. In 2002, the Dabalorivhuwa Patriotic Front lodged the initial complaint with then Public Protector and current judge of the High Court, Judge Selby Baqwa.

In response to Mr. Mboweni’s court action, Adv. Mkhwebane filed a rule 6(5) (d) (iii) notice in terms of the Uniform Rules of Court (URC), raising a number of points of law including peremption. She submitted that the Minister’s application was perempted in that, until the review application was filed, the National Treasury had been intent on complying the remedial action.

Reacting to the decision reviewing and setting the two reports aside, Adv. Mkhwebane expressed sadness for the Venda pensioners, several of whom have passed on penniless while hopeful and awaiting the final determination of the matter, which has spanned the terms of all four Public Protectors.

“This is a blow to all the affected former civil servants of the erstwhile Venda administration, who have had to endure the protraction of case while depending on the old age grant for survival. Many of them have regularly called the office to follow up on the progress of this case in the hope that their rights would be vindicated,” Adv. Mkhwebane said.

Meanwhile, the court went against Mr. Mboweni’s seeking of a personal cost order against Adv. Mkhwebane, reasoning that she did not initiate the complaint that formed the basis for the impugned remedial action and that she inherited the matter from her predecessors, who had “had shown some sympathy to the plight of the complainants who were victims of history even if not of maladministration.”

“The factual history was complex. In any event the Madonsela report contains the same fault lines the present Public Protector’s report does. It would be unfair to visit upon the present incumbent all responsibility. Moreover, there is no showing of bad faith or gross negligence. An ordinary costs order … will suffice.”