Edition: July 2016/ September 2016
RIGHT OF REPLY
Curator states his case
Comments by Tony Mostert* in response to the cover story in the TT
edition of Dec ’15-Feb ’16 which argued that the 13-year curatorship
of the SA Commercial, Catering & Allied Workers Union national
provident fund (SNPF) was long enough.
The duration of the curatorship of a badly
managed retirement fund, particularly
where the trustees have failed to protect the
Fund and its members from mismanagement, maladministration
and fraud, cannot be decided simply
by its term. There are many other considerations,
which have been well-documented in reports and
court papers accessible to Today’s Trustee which was
ignored by Mr. Greenblo and not checked with me.
For any fund to be placed under curatorship
reflects that there has been very serious abuse and
a failure to meet the requirements of the Pension
Fund Act. This was the case with the SNPF, with
its approximate 1 000 participating employers and
presently, approximately 100 000 members. The
pension fund members had been taken advantage of
and were severely prejudiced by the conduct of the
former board of trustees.
The Fund was placed under curatorship by the
Pretoria High Court on application by the Financial
Services Board. Among other things the FSB alleged
that senior Saccawu members had abused the fund
to the detriment of its members. The twenty former
trustees and the principal officer of the fund were removed by order of court and replaced with myself
as curator. They allowed the fund to make irregular
investments in a company established by the Union
for its own illegal gain to the exclusion of Fund
members. A payment directed to this company of fund
money was channeled from an irregular payment of
R100 million under the guise of a socially desirable
investment. The then principal officer was permitted
to use Fund assets for personal gain.
RULING BY PRESS OMBUD
TT apologises to Tony Mostert, curator of the Saccawu national provident fund, for inaccurately and unfairly having stated that his “latest available communication” to fund members was dated 24 August 2011 and that his report dated 31 October 2015 was the first in all the years of the fund’s curatorship to have been published on the FSB website, as well as for not having asked him to comment prior to publication.
In the article headlined ‘Indeterminate sentence – Registrar must please disclose why, and until when, the Saccawu fund needs the protection of a curator’ (Dec ’15-Feb ’16), we were critical of the long period of time that Mostert had been curator of the fund (13 years).
Mostert lodged a complaint with the Press Ombud who found that we were in breach of the Press Code regarding the matters that we hereby apologise for. The Ombud dismissed other parts of the complaint.
Read Mostert’s right of reply on this page. Also visit www.presscouncil.org.za for the Ombud’s full finding.
Further substantial abuses of the Fund were
uncovered after the Fund was placed under
curatorship resulting in numerous litigious claims
which were strenuously opposed and the legal process
was delayed and frustrated by the former trustees to
prevent finality. The Fund’s claim against others in
the involving the misuse of fund monies involving
hundred of millions of Rands was frustrated by the
former trustees in failing to render any cooperation.
The Fund is still recovering millions of Rands from
the Union after it had eventually obtained a final
judgment against the Union.
In an effort to accelerate the return of the fund
to normalcy a “shadow Board of 5 trustees” was
appointed some years ago which were, nominated by
the Union and Cosatu. This effort failed as the shadow
trustees attempted to frustrate pending litigation to
recover lost assets to avoid claims against the Union
and investigations into the conduct of the precuratorship
trustees. I am on record at least since 2010
stating that the Fund should come out of curatorship
but I have demonstrated in reports to FSB and to court
since then, the very sound reasons why the Fund has
remained under curatorship.
Pretoria High Court judge Bertelsman in a
judgment of April 2012 refusing to lift the
curatorship of the Fund stated: “Good cause must
be established to discharge the curator, which must
clearly be shown to serve the interests of the Fund
and its members better than a continuation of the
The key issue that any court must decide in
disbanding the curatorship is whether there will be a return to a situation where trustees would again
be pressurised into doing the bidding of the Union,
allowing the inappropriate diversion of assets into
among other things, Union control and again placing
the savings of members in jeopardy.
Despite the efforts to frustrate the curatorship
more than R250 million has been recovered and the
Fund has been placed in a far stronger and governance
position with improved systems and structures to
prevent or at least limit the reoccurrence of events
which caused the fund to be under curatorship in
the first place. A further challenge is ongoing fraud
being committed by reason of the submission of false
beneficiary claims, particularly with regard to Section
37C distribution. This would appear to be widespread
fraud occurring in a number of Union related and
municipal pension funds.
This Fund has an unfortunate history of delinquent
principal officers, the last of which was dismissed
in April 2015. It would appear that Today’s Trustee
champions the cause of the former principal officer of
the Fund and is most critical of the curatorship and its
term yet giving little or no criticism of the numerous
reasons for the Fund having been placed under
curatorship involving the prejudice to its members
of hundred of millions of Rands and not recognizing
the challenges which the curator has faced due to the
frustration of litigation by the former trustees and
Union, all of whom are senior Union members, all
of which is of record in reports and court papers but
ignored by Mr. Greenblo for reasons only known to