Dr. Pieter Mulder, FF Plus leader and Adv. Anton Alberts, FF Plus MP said:
The FF Plus laid a criminal charge in Pretoria against Transnet and its chief executive officer, Mr. Brian Molefe on 29 September 2011. The complaint was made in terms of Sections 7(a) and 27(1) of the Powers, Privileges and Immunities of Parliament and Provincial legislatures Act, 4 of 2004.
The FF Plus and Transnet pensioners have for years been fighting for a fair pension dispensation. A pension dispensation which, unlike now, will not impoverish pensioners year after year. Following public hearings, Parliament instructed that the two funds, i.e. the Transnet Second Defined Benefit Pension Fund (TSDBPF) and the Transnet Pension Fund (TPF) must be supplemented with the amount of R1,9 billion in order to ensure that the increases and bonuses of the impoverished Transnet pensioners can be paid.
Mr. Brian Molefe, chief executive officer of Transnet who is now being charged, was party to that decision in Parliament and accepted it as such. The decision was later ignored by Mr. Molefe and Transnet by not implementing the instruction, as determined by Parliament. According to the FF Plus it constitutes an offence in terms of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 4 of 2004.
In terms of section 7(a) of this Act, no person may improperly interfere with or impede the exercise or performance by Parliament or committees of its authority or functions. Section 27(1) stipulates that such an action constitutes an offence.
According to Dr. Pieter Mulder, FF Plus Leader, Transnet had, in the person of its chief executive officer accepted Parliament’s instructions and undertook to execute the instruction. Despite this, the CEO later refused to allow the funds to be paid over to the TSDBPF and TPF. The implementation of the decision of Parliament is further being delayed by Mr. Molefe instructing a committee to investigate how the funding could take place. This committee will possibly only finalise its report at the end of November 2011. It is a year after the Parliament’s investigation and six months after the Parliament’s instructions having been given to Transnet to supplement the funds. In the mean time there is no assurance that anything will improve for the impoverished pensioners.
“Mr. Molefe had also apparently indicated that he does not want to reflect the payment of R1,9 billion on the statements of Transnet and that the fund’s surpluses should rather be used to pay the increases. He even stated that the pension funds should invest more aggressively. It is most certainly not a modus operandi which dare be used for a pension fund. This action is indicative of Transnet ignoring the instructions of Parliament and should be seen as contempt for Parliament,” according to Mulder.
The FF Plus is also investigating a civil action against Transnet. According to Adv. Anton Alberts, the FF Plus’ parliamentary spokesperson on economic affairs, a strong and clear message should be sent to Transnet and government.
“The situation with regards to the pensioners is critical. That is why it is important that the government drastically amend their funding priorities to rescue the pensioners. It appears that government and Transnet are purposefully stretching out this process in order that more pensioners die of old age or stress so that the problem basically resolves itself over time. It is shockingly unacceptable and it can be likened to former president Mbeki’s refusal to acknowledge that HIV does in fact cause AIDS. Through Mr. Mbeki’s calculated ignoring of the problem the epidemic increased,” Alberts said.
The combination of criminal and civil actions should encourage Transnet to get its priorities right and fulfil its promise.
The basis of the criminal charge is set out below:
- In terms of the report of the committee on public enterprises, approved and accepted on 2 November 2010, the Treasury and Transnet participated in the process and decided that to supplement the two relevant pensions funds with R1,9 billion and to pay increased pensions and a bonus to Transnet pensioners (report available on request). The report and instruction was eventually issued by the Speaker of Parliament;
- Both parties indicated in the report that the funding solution was affordable;
- In May 2011, Transnet in the person of Mr. Brian Molefe took over the sole responsibility to pay the R1,9 billion into the two pension funds and promised and gave the assurance that the parliamentary committee’s instructions would be implemented;
- On 10 June 2011 the Board of Transnet held a meeting and decided that the pension fund’s surplus of more than R3,2 billion should rather be used to pay the increases. A committee was however later established to once again look at the funding, a task which had already been done by the parliamentary portfolio committee on public enterprises and of which their findings Transnet had already accepted;
- In September 2011 the CEO of Transnet once again indicated that the pension funds would not be supplemented by Transnet and that the pension fund’s surpluses would be used to supplement the shortfall. He also recommended that the funds use a more aggressive investment model in order to supplement any shortfalls, a modus operandi which is definitely not used by pension funds in general.
The conclusion is drawn from the above listed actions that Transnet is reneging on its agreement with Parliament and through this, is interfering with and infringing on Parliament’s and the committee’s constitutional functions and authority.
