Sewpersadh, Khumalo, Sasolburg Masala Benefits: Petitions deliberations

NCOP Petitions and Executive Undertakings

22 March 2011
Chairperson: Mr A Nyambi (ANC)
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Meeting Summary

The Committee tabled and received advice on three petitions.

The first petition was from Mr R Sewpersadh, who had been provisionally sequestrated by Standard Bank in 2004, and his property removed by the trustee and stored with Aucor. The final sequestration order was not granted, due to procedural problems, but when Mr Sewpersadh attempted to recover his property, he found that certain property was apparently not reported to the Master of the High Court, and was not returned. He laid criminal charges against the trustee and Aucor, but the National Prosecuting Authority declined to prosecute. He also laid civil suits against all parties, including the Minister of Justice. He claimed that the Specialised Commercial Crime Unit had promised him that a prosecution would ensue. He wrote to the State President, but he was told to pursue a private prosecution or seek civil recourse. He claimed that his case was handled badly by public officials, that he had been bullied by high-profile officials and sought assistance from the Committee in pursuing the private prosecution. Members noted that Mr Sewpersadh had previously approached other Members of Parliament privately, and their recommendations had been given. A Member thought that this Committee could not assist and certainly had no right to give instructions to the National Prosecuting Authority, and, in answer to another Member’s suggestion that perhaps the Committee should interview Mr Sewpersadh, pointed out that the Committee would have to interview everyone involved in the case, but still could not make a decision on the facts, as it would be attempting to act as a court if it did. A draft report would be drawn, incorporating recommendations by this Committee and other MPs, for finalisation by the Committee.

The second petition was from Ms Khumalo, who made her living buying repossessed houses from banks, then renovating and reselling them. She faced a problem with cancellation of sales by four purchasers who, despite claiming their deposits back from the estate agent, also claimed the money from her and laid charges of fraud. She was apparently arrested, without a warrant, and brought before a magistrate, and had signed a paper, without reading it, that was presented to her by a lawyer. She assumed this related to postponement of the matter, but subsequently discovered that it was a guilty plea to four charges of fraud, despite the fact that no charge sheet detailing the charges was ever presented. She also claimed that when she claimed payment, from a conveyancer acting on her instructions, of money held in his trust account, he had instead paid over the money to the magistrate, who deducted R10 000, saying that it was payment of the fraud fine, before paying over the remainder. She claimed that the court had no record of this fine being paid. She wished to complain about the improper conduct of the Magistrate. She had borrowed money to travel to Cape Town to consult with the Chief Whip, who had asked the Committee Chairperson to interview her, and he thought that she needed assistance, as she was a pensioner who was desperate to reclaim money that was rightfully hers. Members agreed that it would be useful for the Committee to interview her, but would also refer the matter to the Public Protector.

The third petition had been referred to the Free State Legislature about four years ago, by the Sasolburg Masala Benefits committee. It noted that there was a dispute regarding non-payment of surplus apportionments, and claimed relief for active and former members of various pension and provident funds. The Provincial legislature said that it had no jurisdiction to make any determinations on this, and had suggested that the national legislature should deal with the matter. Members agreed that it would be useful to interview the Benefits Committee, and would combine this, during the following week, with a visit to Ms Khumalo, to petitioners in Kroonstad Correctional Centre.

The Committee also wished, if possible, to meet with the Minister to discuss the Committee’s intention to make the visits and hold a press conference on what it was doing, but agreed that although the Minister would be informed of its intentions, it would not delay the matters if the Minister could not see the Committee, nor wait for a formal response. Members also noted the Committee’s difficulties in not having a permanent legal advisor, and agreed to raise this with Parliamentary Legal Services. It was vital that this Committee must be fully equipped to deal with matters swiftly and correctly, as it impacted strongly on the lives of ordinary people.

Meeting report

Mr R Sewpersadh: Presentation of Memorandum and Paper for referral
The Chairperson said that Mr Sewpersadh’s petition had been raised before, and asked a Parliamentary Researcher to outline the facts.

Mr Martin Ouder, Parliamentary Researcher, informed Members that although he had not had time to collect all relevant information about this petition, he could give a background, and undertook to keep the Committee advised further.

Mr R Sewpersadh stated that in 2004 Standard Bank had brought an application for his provisional sequestration, which he had opposed, but it was granted and his property was seized by Standard Bank and stored at Aucor South. Later, Judge Dlodlo ruled against Standard Bank, refusing to grant the final order of sequestration, because the provisions of the Insolvency Act 24 of 1936 had not been complied with. Standard Bank had appealed against this decision, but it was dismissed with costs.

In 2005 Mr Sewpersadh laid a charge of theft of property against the appointed trustee, Eileen Fey, in respect of the goods seized. He then included Aucor as a party to the theft, because he alleged that certain property was taken, but did not appear on the inventory of property provided to the Master of the High Court. This matter was dealt with by Advocates Bell and Ketani, who asked for further investigations to be conducted.

Mr Sewpersadh was unhappy about the delays in the criminal matter, and then brought a civil suit against Standard Bank, the Director of Public Prosecutions, South African Police Service (SAPS), Eileen Fey and the Minister of Justice. He then claimed that the matter was transferred to the Specialised Commercial Crimes Unit (SCCU). Adv Ketani declined to prosecute on the criminal charges. However, Mr Sewpersadh claimed that the SCCU promised to prosecute once a new Head of the National Prosecuting Authority (NPA) had been appointed. Mr Sewpersadh said that he had sent documentation to President Zuma at Luthuli House, but that Inspector Botes had told him either to institute a private prosecution, or to seek civil recourse.

Mr Sewpersadh said that his case had been handled badly by public officials, and that high profile people had bullied him. Mr Sewpersadh was therefore pleading that this Committee assist him to correct what he believed was a failure of the justice system in prosecuting those liable for loss of his property. He also asked for assistance in pursuing a private prosecution, for which he needed the case docket from the NPA and the certificate of refusal to prosecute.

Mr Ouder said that there were many grey areas in this case, and it might be necessary for the petitioner to brief the Committee.

The Chairperson said that Mr Sewpersadh’s case sounded very sensitive and legally complex. Various Members of Parliament, who had been approached by Mr Sewpersadh previously, had attempted to assist him, and had made their recommendations to this Committee.

Mr F Adams (ANC, Western Cape) said that Mr Sewpersadh should go back to court in his own private capacity, possibly being able to obtain orders against the parties for contempt of court. Parliament had no right to instruct the National Prosecuting Authority to pursue or to dismiss a case, and he thought that the Committee should not even discuss this aspect. The Committee could, at best, only give advice to Mr Sewpersadh on the recourse he should follow.

The Chairperson asked how the Committee could advise a petitioner what to do next. He also asked whether the Committee might rather wish either to write to him, or to visit him. He commented that it would be desirable that this Committee should have a researcher of its own and should have a legal advisor present at all meetings to tend to problems and queries, as it was simply not practical for the Committee to constantly have to ask for a legal advisor to be assigned ad hoc.

Mr Adams said that the Committee used to have a permanent legal assistant present at all meetings. He suggested that the Chairperson should write to Parliamentary Legal Services, requesting a permanent legal assistant, as legal advice was a basic requirement for Members of this Select Committee.

The Chairperson responded that although a permanent legal person had apparently at some stage been assigned, there seemed to be some structural problem.

Mr Adams expressed caution against inviting Mr Sewpersadh to present his case to the Committee. Only one side of the story would be presented, and if he were to be invited, then the Committee must also invite all other relevant parties.

Mr J Gunda (ID, Northern Cape) agreed with Mr Adams. He further cautioned that if the Committee was to hear all these parties, it might be seen to be acting as a court, which would be incorrect.

Mr M Mokgobi (ANC, Limpopo) pointed out that some recommendations were attached to the document. He agreed with his colleagues, and thought that those recommendations already made should rather be substantiated with well articulated legal advice, to compile a full report for finalisation by the Committee. The Committee’s comments to date should also be included.

The Chairperson said that this would be done. He stressed the importance of the Committee’s work, saying that the committee would not avoid acting out of fear or indifference, but would continue to be constantly engaged and active in the lives of ordinary South Africans.

Ms L Khumalo: Memorandum and Paper for referral
Mr Ouder noted that Ms L Khumalo said she was a self-employed person, who would buy repossessed and vandalized houses from banks, then renovate and resell them. She said that she was not legally required to register as an estate agent or developer. In 1994 Ms Khumalo entered into four agreements of sale of renovated houses, but all four purchasers apparently resiled from the sale without informing her, and had claimed reimbursement of their deposits that they had paid to the estate agent, who also did not inform Ms Khumalo of the purported cancellation, and paid them out. Two clients apparently then later attempted to recover the same deposits from Ms Khumalo, and brought a fraud charge against her.

Ms Khumalo was arrested, allegedly without a warrant, by a police official and was taken before Magistrate Mr Wolmarans, who asked her for her version of the events. She informed him that the monies were held in trust by the conveyancer who performed transfers for her, and were available to satisfy any claims. There was apparently no charge sheet. She claimed that she was “made” to sign a statement drawn up by her attorney, but did not read it, as she was led to believe that it was merely a postponement order. However, she had signed a plea of guilty on four counts of fraud.

Ms Khumalo later approached the conveyancer acting for her, Mr Nonyongo, and demanded reimbursement of an amount of R46 828.00 that he was allegedly holding in trust in respect of the sale of a property to clients. He refused, telling her instead that he would send a cheque for that amount to the Magistrate. However, when she approached the Magistrate he paid R36 828.00 to her, telling her that the remaining R10 000 was to satisfy the fine in respect of the fraudulent transactions. Ms Khumalo believed that the Magistrate had no right to take her money. She was informed that the finance section of the court had no record of the payment of R10 000 as a fine. She believed the Magistrate had acted improperly.

Ms Khumalo therefore requested the Select Committee to assist her in getting her money back and in challenging corrupt court officials.

Mr Gunda suggested that the Committee should go through all the documentation thoroughly and collect all the evidence relevant to this matter.

The Chairperson noted that Ms Khumalo, whom he estimated to be between 65 and 70 years old, had apparently raised money to fly to Cape Town to see the Chief Whip, who had asked him to speak to her. The Chief Whip suggested also that Ms Khumalo be assisted with State funding to fly back to Johannesburg. She was clearly a senior citizen who had difficulty in making ends meet. The Chairperson suggested that this was probably a matter that could be sorted out quickly and that this Committee could ask the Public Protector to investigate the matter in full, and that the Committee should, in the meantime, pay a visit to Ms Khumalo.

Mr D Bloem (COPE, Free State) agreed with the Chairperson that the Public Protector must be consulted as soon as possible and then thereafter the Committee can decide to meet with her, but that this should happen only if the Committee made some progress. He noted also that the way in which these matters were brought to the Committee needed to be considered, as he had noted that the document was received on 28 October 2010, yet was only referred to the Committee now.

Mr Gunda questioned how serious the Committee was about dealing with cases, because, no matter that the Committee might request the Public Protector to deal with the case urgently, it was likely to take at least two months before an answer was received from that office. He thought that the Committee should start to deal with matters differently. No pensioner should have to wait that long to try to access his or her rightfully-obtained money.

Mr Adams said that Ms Khumalo had first complained to the Public Protector about this in 1999 and she had been waiting for a substantial time to get the matter settled. He endorsed the idea of paying her a visit as soon as possible.

The Chairperson urged that a visit should be paid to her in the following week, and said that he agreed that this committee should change its approach to the plight of ordinary people. The Committee should not be afraid to expose public officials who had not served the people. In the meantime a letter requesting the relevant documents would go out to the Public Protector for its urgent attention, but the two approaches would both be used together.

Mr Bloem was pleased with the Chairperson’s remarks, with which he fully agreed. This Committee must act without fear or prejudice to assist ordinary people. The Committee would be taken seriously only if it took on matters in a serious and meaningful way.

Mr T Mofokeng (ANC, North West) agreed with other Members, and suggested that it might be useful to inform the public about its actions by calling a press conference, which may rock the boat, but would be necessary.

Mr Gunda referred to a matter discussed in the previous year, pointing out that the Committee should also pay a follow-up visit to petitioners who had approached this Committee last year, and were still being held in Kroonstad Correctional Centre. He suggested that the Committee might be able to start its visit in Kroonstad, then follow on to visit Ms Khumalo the following day.

The Chairperson agreed.

Mr Mokgobi referred to Mr Mokgobi’s remark about rocking the boat, and noted that this Committee was one mechanism, and should do things accordingly. He suggested that the Committee should inform the Minister of its intentions, and only thereafter proceed with press briefings.

Mr Mofokeng queried how it would help to consult with the Minister, pointing out that it often took some time to arrange a meeting, leading to prolonged delays which might mean that help to ordinary citizens might come too late. Diplomatic consultation could delay the immediate goals. Committee Members were all aware of the consequences of disagreement with a Committee’s actions or methods.

The Chairperson pointed out that departments often never arrived at meetings, which meant that the Committee was constantly delayed from that alone. He would prefer the Committee to take action as it thought proper and to allow anyone who objected to its actions to then come to the Committee.

Mr Adams said that the Committee must follow the systems. He noted that notifying the Minister of the Committee’s intentions did not mean that the matter had to be delayed.

The Chairperson agreed that the Minister would be notified, but the Committee did not have to wait for a response before acting. The Committee will continue with its plans in the meantime.

Mr Mokgobi noted that there were\many frustrations in government, but that consistency of actions must be maintained.

The Chairperson added that it would be useful if the Committee could meet with the Minister or Deputy Minister in Pretoria, and that the Committee would try to arrange this; if not, the trip would still proceed.

Sasolburg Masala Benefits Committee petition
The Chairperson noted that the Sasolburg Masala Benefits Committee (SMBC) had lodged a complaint through the Free State Legislature, asking for Parliamentary intervention in a dispute regarding non-payment of surplus apportionments, and other relief sought by active and former members of pensions and provident funds administered by SMBC. These covered employees falling under AECI, Sasol, Sentrachem Group Pension Fund, Sasol Pensions Fund and Sasol Coal Provident Fund, Omnia Pension Fund and Mibfa Engineering industries Pension Fund/Metal Industries Provident Fund. The Provincial Legislature stated that it had no jurisdiction to determine the surpluses apportionment claims dispute and other relief sought, and suggested that this complaint fell within the competency of the National Parliament.

The Chairperson added that this had been discussed within Parliament. The matter dated back about four years. He suggested that in view of the time lapse, it would be useful to include a visit to the Sasolburg Masala Benefits Committee, in Free State, during the following week, ideally combining it with the other matters mentioned earlier. The whole Committee would be expected to attend.

The meeting was adjourned.


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