Public Protector saddened by the passing of Mr. Tshimangadzo Tshiololi of the Vhembe Concerned Pensioners

Public Protector Adv. Mkhwebane wishes to express her deepest sympathies to the family, friends and colleagues of Mr. Tshimangadzo Tshiololi, who passed away on Tuesday night. Mr. Tshiololi was one of three complainants in a 12-year pension dispute affecting dozens of former employees of the erstwhile Venda homeland. He joins several of his former colleagues who have passed on penniless while awaiting justice despite two Public Protector reports in which findings were made and remedial action was taken in their favour.

 

Along with two of his colleagues, Messrs LJ Rambau and MP Ramavhale, Mr. Tshiololi approached then Public Protector Adv. Lawrence Mushwana in 2008 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 a report released in November 2011, 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 issued a special report on the matter.

 

The report sought 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.

 

In the report, Adv. Mkhwebane confirmed Adv. Madonsela’s findings and remedial action, and allayed government’s fears that resolving the dispute in line with the remedial action would amount to “opening the floodgates”. She recommended a process based on a closed list of complainants to establish a reasonably reliable database of beneficiaries of this office’s remedial action and to assess the potential prejudice and losses of these beneficiaries with the aid of an actuary.

 

She also recommended that the Treasury commits funds to facilitate the recalculation of pension benefits by the Government Pension Administration Agency (GPAA) of those complainants who became members of GEPF after 1996 and/or ad hoc compensation of those who retired prior to the amalgamation of the various pension funds, to reimburse their reasonable losses as estimated with the assistance of the actuary.

 

The two reports by Adv. Madonsela and Adv. Mkhwebane are now the subject of litigation after Finance Minister Tito Mboweni in March 2019 approached the high court to have the reports reviewed and set aside.

 

In response to the Minister’s application, 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, all along, he had decided to abide by the remedial action.

 

Responding to the Public Protector’s rule 6(5) (d) (iii) notice, the Minister brought an interlocutory application, taking exception to the points of law set out in the notice. The exception was in terms of rule 23(1) of the URC.

 

On 31 August 2020, Judge Fayeeza Kathree-Setiloane dismissed the Minister’s interlocutory application, with costs. The Minister indicated that he would appeal. His papers in this regard have yet to be received.

 

“It is saddening that Mr. Tshiololi, like several former civil servants from the defunct Venda administration, passed away while still awaiting justice even after successfully obtaining the assistance and intervention of an independent constitutional institution,” said Adv. Mkhwebane.

“This case, which spans the tenures of three Public Protectors, has dragged for a dozen of years, subjecting the complainants to secondary victimisation. We plead with government to do right by the Venda pensioners and their families.”

 

She assured Mr. Tshiololi’s family, friends and colleagues that her office would do all in its power to see to it that justice is served. He will laid to rest on Saturday in Mulendzhe, Thohoyandou.