Wesbank

BPOPF management sues trustees

SHARE   |   Tuesday, 02 December 2014   |   By Ditiro Motlhabane
BPOPF management sues trustees

Huge public funds belonging to pensioners will be lost when the tussle over the composition of Botswana Public Officers Pension Fund (BPOPF) board is finally settled, as management entered the tussle between employee trustees this week. 

The fight over representation in the board of trustees of the multi-billion pula pension fund deteriorated midweek when the acting chief executive officer Lesedi Moakofhi, on behalf of the fund slapped all member associations with a lawsuit, demanding an amendment to an earlier settlement agreement endorsed by the high court emanating from a complaint by manual workers union over exclusion from the board.

As per the settlement agreement there has been nomination process at the Employee Trustee level, results of which have been challenged by the other unions on two counts. On Friday 14 November, all the association/ union members met and nominated names to be submitted to the regulator-Non Bank Financial Institutions Reguilatory Authority (NBFIRA) for vetting, as per the settlement agreement. Once again the five major public sector unions, which collectively make up BOFEPUSU, used their numerical superiority to exclude the smaller associations.

BPOPF management, represented by Moakofhi, is unhappy with the outcome of the nomination and the exclusion of smaller associations. In her founding affidavit Moakofhi said the application is brought for the amendment and or variation of a settlement agreement or order entered into between some unions, on the basis that it did not include all the unions. She said the board cannot currently function due to the fact that its composition is incomplete and the issue needs to be addressed as one of utmost urgency as urgent decisions need to be made about placement of investments and other issues. "(BPOPF is desirous to have all unions be included in the voting process which ultimately will decide which members sit on the applicant's board," she said.

In an answering affidavit Johnson Motshwarakgole of manual workers union, who instigated the lawsuit which culminated in the settlement agreement, said BOTASA and BoPRITA and BOGOWU are not recognised employee associations as they do not meet the threshold of recognition in terms of the public service act. "It would be patently illogical, undemocratic and unfair to seek to give an employee association like them the same voice as a union like BOPEU for instance that represents over 23 000 members of the fund," he said.

Attorney Mboki Chilisa, representing the five BOFEPUSU trade unions, has also notified court that they will raise legal arguments against the urgent application because the time afforded it was too short and that "the application lacks candour and honesty required of urgent applications".

He contends that the application has been brought before the wrong judge and shoulkd have been filed before Justoce Motswagole who presided over the case when it first came to court. "Employee trustees have been duly appointed following Justice Motswagole's order. The appropriate remedy is by way of instituting review proceedings," he said.

The unions also want Moakofhi to personally bear the costs of the lawsuit because the application has not been authorised by any of the elected trustees. They argue that the issue of whether employee representatives have been properly appointed must be litigated by the recognised employee association,and that the Fund has no legal stand to sue. "The dishonestyon the part of the deponent  is a further basis upon which the court must order her to pay the costs perosnally.  It would be unfair for to the the Fund's members to have to foot the costs of such a frivolous application that lacks integrity. We are in the process of lodging a complaint with the Botswana police and Non Bank Financial Institutions Regulatory Authority against the deponent for perjury," said Motshwarakgole. 

Moakofhi violates court order

Investigations by The Patriot on Sunday have uncovered information showing that contrary to a settlement order signed by Justice Tshepo Motswagole on October 6, 2014 Moakofhi has been communicating via email with members of the dissolved board of trustees. In the emails Moakofhi has been communicating and discussing BPOPF management issues, thus effectively carrying out business of the fund despite that court had ordered that ""the employee trustees shall forthwith vacate their offices and no further business of board of trustees shall be carried out until the terms of this settlement agreement have been duly complied with".

Moakofhi confirmed that she is aware of the order. "The said court order, cannot be contravened by the BPOPF including myself safe for me to update the Board on the developments as they unfold".

Although Moakofhi claims in her response that she is duty bound to update other trustees who are not affected by the settlement agreement The Patriot on Sunday can reveal that she is not telling the truth. One of the recepients of her emails include Allen Keitseng of Tertiary and Allied Workers Union (TAWU)-one of the employee organisations. 

 The BPOPF Board constitutes constituencies:

Pensioner Trustee      -not affected by the court order

Independent Trustee –not affected by the court order  

Employer Trustees  –  not affected by the court order .

Employee Trustees   – affected by the court order

"It is my duty to update and report to the Board (not affected) on the developments thereof on this pending matter. In terms of the Pension and Provident Funds Act 13(3) (a) the Principal Officer or the CEO is duty bound to fulfill all compliance obligation of the Fund," she said. Notwithstanding such claim, the high court had explicitly stated that the BPOPF board (affected or not) shall not conduct any business until the settlement agreement is complied with.

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Even though Moakofhi denies ever telling 'board members' that the regulator-NBFIRA instructed her on the inclusion of the other unions, The Patriot on Sunday has seen emails from her to members of the dissolved board to the same effect.

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BPOPF boss meddling

Some employee trustees have accused Moakofhi of meddling in matters of the board of trustees, which are way above her mandate. One trustee said Moakofhi has no business dictating to the employee representatives on how to vote for trustees. They said their suspicion is that she has 'friends' in the old employee trustees whom she is trying to have retained in the board to support her appointment as the substantive chief executive officer.

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Moakofhi has vehemently denied interference on the part of BPOPF staff including her. "We are not part of the nomination process, lest to receive the results and any correspondence for administration. At this stage, and in view of the prolonged non conclusion of this matter, the matter has been taken for legal advice and implications thereof with the intention of bringing the matter to finality and for the Fund to start operating in the normal manner as soon as possible. Now since this is still in the hands of the attorneys ,the fund is limited to give further details until we have the full legal position  to inform all the stakeholders " she said.

"I do not have any personal interest in the constitution of the board ,and find no reason to. My professional concern and area of interest is that the BPOPF executes its functions inclusive of up to the Board level. Neither do I have any personal relationship with any member of the board, to me they are my bosses and that is it. That has never and will never be part of my life," she continued.

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Trustees want Moakofhi fired

Daggers have been drawn against the acting CEO with some employee trustees calling for her removal and the appointment of a substantive, as soon as the board resumes business. Moakofhi's substantive position is that of General Manager Marketing & Communications, a position she has held for more than five years at the BPOPF. On the recruitment, and or contract for the CEO, she referred questions to BPOPF Board Chairman, Carter Morupisi. The position has since been advertised, and the Board is expected to announce a successful candidate. Moakofhi angered some employee trustees when she started insinuating that the regulator is unhappy with the exclusion of some associations in the nomination of trustees when such was not the case. They accuse her of interfering in the selection of board members when she is just an employee of the fund, trying to advance personal interests.

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Moakofhi denied disruptions in the governance of the fund saying the BPOPF is still executing its day to day duties, and members are being served in the normal manner, despite that she had earlier raised concerns about the unavailability of the board.