Edition: March - May 2015
Editorials

COVER STORY

Justice unseen

There is no reason not to accept the word of the GEPF that due process was followed in its decision to fire the chief executive for “misconduct”. There are strong public-interest reasons for it to reveal much more.

This is a challenge to the Government Employees Pension Fund. It’s to release the record of the disciplinary inquiry into the charges and findings against John Oliphant. His dismissal as the fund’s principal executive officer is marked by a paucity of public information. If justice was done, so far it isn’t seen to have been done.

Failure to release the record will put the kibosh on the GEPF’s claim to transparency. This claim is core to the vision statement contained in the GEPF annual report. It defines transparency as “communicating openly and frequently with our stakeholders; setting out information that is clear and understandable, and being open to scrutiny and oversight”.

Failure will also damage the GEPF’s credibility in a key principle of its mission statement. This is to “invest responsibly by engaging with organisations in which we invest to encourage good governance”. Having taken the most high-profile stance on engagement with investee companies, and voting for all to see at their shareholder meetings on its assessments of their good governance, its secretive handling of the Oliphant matter is not an example to be emulated.

Time and again, since the disciplinary process began in late-2013, the GEPF was requested for relevant information. Each time it was refused on grounds that “at this stage...(your request) relates either directly or indirectly to the disciplinary process currently underway (and) the GEPF would not want to prejudice any parties to that process”.

It was a strange response. Oliphant was on record as having said that he had no objection. He actually wanted documents released so that he could publicly defend his reputation, besmirched by the mere facts of his suspension and its announcement. Thus it isn’t clear which party’s interests would have been prejudiced by disclosure. A trial in open court would have allowed a public defence.

There should be nothing secret about the record. Had he wanted, Oliphant could have progressed the internal process to a trial before the Labour Court. All would then have been revealed and openly adjudicated.

Be that as it may, once the disciplinary process was concluded, requests for the same information were repeated with other requests added (see e-mail below). Despite several reminders over many weeks – to the GEPF’s legal & compliance manager with copies to the fund’s chairperson and acting principal executive officer, as well as its external PR – the requests met with no response.

So much for transparency as a pillar of good governance. Let the GEPF and its asset manager, the Public Investment Corporation, continue to demand it of others.

There should be nothing secret about the record. Had he wanted, Oliphant could have progressed the internal process to a trial before the Labour Court. All would then have been revealed and openly adjudicated.

From the perspective of public interest, bearing in mind the power and position of the GEPF in the retirement-fund industry, it’s a pity that he elected not to progress it. From his personal perspective, having regard to the weariness and costs that the protracted internal process entailed, it’s understandable that he’s preferred to move on and join a company that actually wants him.

But that cannot be the end of the story. There are bigger issues than whether a single employer treated an individual employee fairly or otherwise. The GEPF, by far SA’s largest pension fund, must be held to the highest standards of accountability.

It is a founding signatory to the UN-backed Principles for Responsible Investment. Under the direction of Oliphant, it was instrumental in formulating the Code for Responsible Investing in SA (CRISA) that’s now widely adopted through the local retirement-fund industry. The codes are all about the promotion of good governance.

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More than this, the accolades that Oliphant has received locally and internationally have positively impacted on the GEPF’s global stature. The danger is that, without Oliphant at its helm and without the retirement-fund industry knowing why he was kicked from it, perceptions of the GEPF can go into reverse.

Subsequent to his dismissal, two other senior executives have resigned. They are Hemel Naran (the fund’s head of investments and actuarial services, the position held by Oliphant prior to his promotion) and Adrian Bertrand (manager for environmental, social and governance research, who’ll be returning to the UN PRI as head of its Africa, Networks and Global Outreach division). It leaves a thin team in the small GEPF investments office to continue the work that Oliphant had started.

The GEPF will be hard-pressed to regain its reputation; less so for Oliphant, because there’s no shortage of prominent people who’ve expressed the hope that his services won’t be lost to the retirement-fund industry. They needn’t be lost; for example, on the Batseta and CRISA committees.

THE FIRED PEO

 

 

John Oliphant, still in his early 30s, is a role model for any youngster of similarly impoverished background.

Brought up in a township outside Parys, where his mother was a domestic worker, at his local school fewer than 30% of the students passed matric. Oliphant, however, was a star. He’d discovered an aptitude for maths through his fascination with the Learning Channel television lessons of William Smith.

With hard work and the help of an academic scholarship, at Wits he obtained a BSc in actuarial science and mathematical statistics as well as a BSc (Hons) in the advanced mathematics of finance. Fresh from university, at age 20 he joined Stanlib and at 22 he became its head of quant investing.

After two years, prepared to accept lower pay and sacrifice share options so that he could be of greater public service, he joined the GEPF department of investments and actuarial services that he was soon to head. At age 29 he became the GEPF acting principal executive officer, and at 30 the principal executive officer. During his year-long suspension from the GEPF, he began studying for an MSc in economic policy.

Now he has teamed up with employee-owned Fieldstone – described as an “independent international banking boutique” and a “leading Pan-African advisory firm” – to form Gia Investment Partners where he’ll be chief executive.

Gia intends to “provide complete funding solutions across the African continent with an initial focus on the SA market”. Particularly targeting infrastructure and renewable energy, it will house skills that include technical engineering, project finance, deal flow, capital markets, asset management and retirement fund management.

Even before its formal launch, Gia had concluded transactions of R1,3bn in the SA renewable energy programme.

From the general to the particular, there remains a sour aftertaste that the scales were weighted against Oliphant:

  • The GEPF decided to institute quasi-judicial disciplinary proceedings, replete with batteries of lawyers, behind closed doors. These proceedings were an alternative to mediation or arbitration had the GEPF been more inclined to reach an amicable settlement, either for Oliphant to have left or enabled him to stay;
  • In these disciplinary proceedings, chairpersons of the hearing and appeal were appointed by the employer. They might well have been thoroughly competent and impartial, but it would have given greater comfort if they were appointed by agreement between the parties. This would have happened with mediation or arbitration, which also would have been much cheaper and quicker than the year-long dispute;
  • Costs incurred by the GEPF – inclusive of the forensic report commissioned from PricewaterhouseCoopers, chairpersons’ fees and engagement of senior counsel to conduct the prosecution – are borne by the fund and hence its members. Oliphant’s cost obligations, being from his own pocket, precluded engagement of counsel;
  • From information to hand (see papers published on the TT website), it can be argued that the punishment of dismissal is disproportionate to the nature of the “misconduct” i.e. financially insignificant contraventions of supply-chain management policy, in any event open to different interpretations and applied at different levels of delegated authority;
  • Operationally, in any large corporation, a board could take a view on the detail of what its chief executive should have known and what he was reasonably to have known e.g. that only a full board’s retrospective interpretation of a policy is correct and that lesser officials routinely tasked with implementation had misapplied it. Although a chief executive is ultimately responsible, the context and circumstances can mitigate the difference from a dismissal to a warning;
  • Costs of the inquiry surely exceed, by far, the miniscule amount of money in the “misconduct”. There have been no allegations of misappropriation, corruption or similar. No money was lost, or could have been lost, to the GEPF. Nobody was either enriched or prejudiced;
  • Until his dismissal, Oliphant’s record at the GEPF was unblemished. In fact, he had contributed significantly to the fund’s prestige. That much is acknowledged by external awards he’s received for service to both the GEPF and the retirement-fund industry. Did his record count for nothing in the determination of sentence?

THE PRESENT CHAIR

 

 

Renosi Mokate, who’s headed the GEPF board since its installation early last year, has a CV as long as one’s arm. It certainly is impressive.

Born in Krugersdorp and having completed her schooling in Swaziland, her top academic qualification is a PhD from the University of Delaware in the US. Areas of specialisation are development economics, urban economics and policy analysis. In addition to having lectured abroad, she served a stint as chief executive of the Unisa School of Business Leadership.

She’s also served on the boards of numerous private-sector companies and state-owned enterprises. Amongst other things, she’s a former executive director of the World Bank group (also serving as chair of its audit committee) and was later a deputy governor of the SA Reserve Bank (where she was a member of the monetary policy committee, the governors’ executive committee and the audit committee).

An irony of the Oliphant matter is that Mokate too has experience of suspension. Back in 2003, when chief executive of the SA Strategic Fuel Fund, she was suspended and later found guilty on charges relating to financial losses in the SSF’s oil-trading operations.

In examining the case against Oliphant, she might have had a slight twinge if she recalled one of the charges against her. It was about what she should have known.

It’s pointless to keep asking the GEPF. Proceedings against Oliphant were initiated by the old board, chaired by Arthur Moloto who was then an ANC MP. His board is no longer in office to answer. The present board, chaired by Renosi Mokate, cannot be expected to explain why Moloto appears suddenly to have disrupted the mutually-supportive working relationship that previously had prevailed with Oliphant.

But it can explain whether it had merely allowed the Moloto-instigated process to run its course and then to follow its finding, which amounts simply to a recommendation. As the employer, a board is entitled to take an independent view on the dismissal of a chief executive.

THE FORMER CHAIR

 

 

During his four-year tenure as the GEPF’s non-executive chief, Arthur Moloto handled his position with aplomb. So far as outsiders could see, he was even-tempered and highly supportive of the fund’s executive chief. The GEPF moved from strength to strength both in terms of its assets build-up and its responsible-investment initiatives.

In fact, it was Moloto who’d overseen Oliphant’s promotions. But once Moloto had decided that he had reason to go against Oliphant, the analogy of a deadly crocodile-versus-elephant embrace became irresistible. Moloto’s middle name, Kuena, means crocodile. In the wild, however, it’s usually the elephant that wins.

Having been an ANC MP for 10 years to 2009, for little over a year to July 2010 he was special advisor to the minister of public enterprises. Afterwards, simultaneously with his GEPF position, he was a nominated ANC MP.

Not having made it back to parliament from the ANC list for the 2014 general election, he became political and economic advisor to national assembly speaker Baleka Mbete. Earlier this year, in January, he was appointed to chair the Land Bank board.

Moloto holds a master’s degree in finance and financial law from the University of London.

For the public perception of Oliphant, against a background of controversy over executive-level upheavals in state-related entities from the Hawks to the SA Revenue Service, dismissal is no disgrace. For the GEPF, however, it’s a different matter.

Its reputation, particularly for adherence to its own policy of transparency, is at stake. The policy cannot be allowed to degenerate as window dressing, but demonstrated as a commitment in practice; the more so because of the GEPF’s self-proclaimed role to monitor and pronounce upon the governance of others.

As a defined-benefit fund for government employees, it’s underwritten by taxpayers. Its performance impacts on the extent and affordability of annual benefits to its 1,5m members and pensioners. A huge shareholder in major corporates and promoter of infrastructural development, it’s in the forefront of active ownership and socially-responsible investment.

Good governance of the GEPF is critical. Silence does not serve its cause.