Edition: October / December 2016
Editorials

CURATORSHIPS

Carefully towards a conclusion

Serious attempt to terminate the protracted SNPF curatorship while the fund’s dismissed principal officer loses in the CCMA.

There appears a good chance that, after almost 14 years, curatorship of the R6bn Saccawu national provident fund is at last coming to an end.

SNPF curator Tony Mostert confirms: ”In conjunction with the Financial Services Board, I am preparing an application for a significant rule amendment to the fund with a view to termination of the curatorship and the appointment of a board of trustees. Meetings have been held with the FSB, proposals have been documented and suggestions have been made. I am not at liberty to disclose the details at this stage.”

It certainly has been a long and contentious saga (TT July-Sept). Mostert points out that, as far back as 2003-04, there had been attempts by the FSB and himself to end the curatorship. There were subsequent discussions with himself, the then Deputy Registrar, Cosatu and the SA Commercial, Catering & Allied Workers’ Union.

Later, a commission of enquiry under an acting judge found that the delay in progressing the curatorship was attributed to union members and former trustees, not to the curator. There were also court applications that resulted in similar findings. Since 2011, Mostert says, he has ”been involved with the FSB in endeavouring to find a mechanism whereby the SNPF could be brought out of curatorship without the undue influence of the union”.

There are indeed such mechanisms. Some have been suggested (TT April-June).

While attempts to find a solution were going on, in the Commission for Conciliation, Mediation & Arbitration the challenge to his dismissal by suspended SNPF principal officer Mafa Dlamini (TT Dec ’15–Feb ’16) has resulted in a hands-down triumph for Mostert. Ruling that the dismissal was ”procedurally and substantively fair”, commissioner Thembekile Nslbanyoni was scathing in her comments about Dlamini.

She found him guilty of ”various excessive expenses using the money of the fund, failure to report suspicious fraud activities at Capitec, failure to fill in a logbook, and dishonesty in that he denied having received notice of a disciplinary hearing”. Citing examples of excessive use of money, she specified:

  • His beverages spending on four separate occasions averaged some R700. Although Dlamini claimed that he’d been entertaining shop stewards in the course of his duties, the commissioner found ”perplexing” his statement that he ”did not see the expenses as extravagant since the SNPF was worth more than R6bn”. Also, there was no proof that he had been entertaining shop stewards;
  • A two-night visit to a Drakensberg hotel, partially paid for by the fund, was for personal and not business reasons;
  • On a holiday to Greece with his wife, he charged R6 700 in expenses to the fund. Although he said that the claim was made in error, he only paid back the money five months later when he heard that the curator had found out. Nothing illustrates better, said the commissioner, that ”he treated the fund’s money as his personal account”;
  • For a stay of five nights in Cape Town, the fund paid R28 000 for the two hotels booked because Dlamini had not checked out of the more expensive hotel when transferring to the less expensive.
  • He could not explain ”excessive usage” of his cellphone. The only plausible reason was the download of data for personal entertainment.

In all, Dlamini had failed to exercise care with regard to the fund’s money and to act in the best interests of the fund.

In all, Dlamini had failed to exercise care with regard to the fund’s money and to act in the best interests of the fund. He’d become principal officer well into the fund’s curatorship, and at the time of his dismissal he was earning R45 000 a month.

At the CCMA arbitration, Mostert was represented by counsel and an attorney from his law firm. Dlamini was initially represented by an attorney but, by the time of his cross-examination, had to represent himself. The commissioner made a costs award in favour of the Mostert attorney and advocate.

Attempts to contact Dlamini for comment have been unsuccessful.