This article first appeared in Moneyweb.
Transnet pensioners have fought a decade-long battle to get their former employer to cough up an estimated R100 billion in benefits as a result of a 1989 promise made in the dying years of apartheid as Transnet assumed the legal responsibilities of SA National Transport Services.
This staggering sum of money is sufficient to sink the economy should Transnet lose the case, says Advocate Anton Alberts, chairperson of the Freedom Front Plus, which has campaigned on behalf of pensioners. “Transnet is holding the country to ransom. If they lose this case, SA is finished. We will straight away be downgraded to junk.”
Not that Transnet would have to pay out R100 billion in one go. But it would have to fork out several billion rands a year to top up the pension funds, putting additional strain on its already tattered balance sheet.
While the case has careened through the courts, the number of pensioners has declined from 80 000 to 50 000. According to some estimates, they are dying off at the rate of 300 to 400 a month. The question some pensioners are asking is whether there will be any pensioners alive to witness the successful conclusion of the case.
The case originates with a promise made by management in 1989 to top up the pension funds by 70% of the rate of inflation plus 2% each year, as was the case in the years prior. This promise was upheld until 2003 when all but the 2% annual payments were stopped. With inflation running at about 6%, this meant pensioners’ benefits were sliding back at the rate of about 4% a year. The pensioners’ lawyers, based on 2013 figures, claimed 80% of pensioners were receiving less than R4 000 a month.
“Some pensioners have nothing left at the end of the month after paying their medical bills. Now it seems that Transnet is reneging on its responsibility,” says one of the pensioners, Nicky Oelofse.
Transnet has fought the case every inch of the way, first by contesting the right of pensioners to be recognised as a class of claimants with substantially similar arguments. The case has been mired in technical argument and exceptions raised by Transnet, all of which were struck down in the Constitutional Court in April. The ConCourt case dealt mainly with exceptions raised by Transnet, rather than the merits of the pensioners’ claims.
Time running out
Pensioners saw this as a major victory and it looked for a time as if they were close to settling the case a few months ago, as Transnet itself reported to Parliament. But this turned out to be false. This means the case must go back to the High Court for argument. This is likely to happen next year, by which time a few more thousand Transnet pensioners will likely have died.
In a recent update to Transnet pensioners, Alberts said negotiations with Transnet over a settlement had failed, and the case would now proceed to court: “I will also speak with (public enterprises) minister Pravin Gordhan to ascertain why Transnet did not heed his instructions to settle the matter on an equitable basis. It is clear that something is seriously wrong with the board of directors. If Transnet loses the court case they will cause harm to the country’s economy to the point of being downgraded to junk status. Minister Gordhan knows the country can’t survive such an event. Clearly, the board of directors is not acting in your or the country’s interest.
“We will now also have to look at other methods to increase pressure on Transnet. Now more than ever we must not lose faith, but make the pressure on Transnet unbearable.”
Lawyers for the pensioners proposed a settlement they believed was affordable to Transnet and would not place the company or the economy at risk. This involved:
- A base uplift of approximately 42% for all pensioners
- Annual increases of 70% of the consumer price index (CPI); the percentage increased on a yearly basis subject to affordability
- A once-off bonus of R20 000
- Transnet funding the shortfall by way of a ‘top-up’ annually for about nine years
- The rules of the funds being amended to address not only governance issues but also the vexed 2% rule.
Alberts says the counter-offer from Transnet was virtually a non-offer. The only points where the two offers matched were the yearly increase of 70% of inflation and bonus payments.
One of the sticking points was the pension funds’ offer to use an R4.5 billion actuarial surplus to top up the fund. “That’s crazy,” says Alberts. “That surplus belongs to the pensioners, not to Transnet, and now the company wants to make a gift of something that does not belong to it.”
With that, negotiations broke down and the lawyers are back in the saddle.
An actuarial valuation in 1989 found that the affected funds were underfunded by R17.6 billion. The then National Party government acknowledged that the debt would have to be paid, but failed to act on this.
SA has a terrible history of corporate raids on pension funds, often by grabbing actuarial surpluses through devious means. Transnet’s pensioners claim with some justification that they are the ones left with the bill for years of abysmal management and corruption at the company.