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Wednesday 24 April 2019
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Ex-Rossing workers wants auditors to determine payout

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Ex-Rössing employees have called on the trustees of the Rössing Pension Fund to contract auditors to determine the exact amount to be disbursed to former Rössing Uranium employees. This is the view of the chairperson of the committee of former Rössing Pension Fund members, Winston Groenewald. The former workers last week emerged victorious after a lengthy court battle against the trustees over their pension money. “The most important aspect of the pension issue is to know how much the former workers will receive from the Fund as former members. We need to get independent people, who will work on that figure, such as auditors and the trustees should pay these auditors,” Groenewald said in an interview on Wednesday. Groenewald maintained that the former workers would like to see the Fund working according to the instructions of the court judgment. “What we want to see now are the trustees working according to the judgment and they should consult us.” Following last week’s judgment, it is still unclear whether the pension fund plans to appeal the judgment. “They should call us in and inform us if they are planning. If they are to appeal, we should know their grounds of appeal so that we can work on it. If they provide us with their grounds of appeal, we will know how to work on it, of course, but without that I cannot really say much about the appeal,” Groenewald added.

Former members of the Rössing Foundation Pension Fund called on the pension fund to consult the group on their decisions and abide by the judgment. The fund’s trustees and the company decided that former employees would get 15 percent of the pension surplus, a further 33 percent is to go to the company to fund about three years of company contributions towards the pension fund, two percent will go towards members’ contributions to the fund, and 50 percent goes to current members and pensioners. There are 1 268 pension fund members, and between 5 000 and 10 000 former members. If lump sums were to be paid out to former members, they would receive just over N$6 000 or slightly more than N$12 000. Judge Shafimana Ueitele ruled that the pension fund trustees’ decision about the distribution of the surplus was unlawful and a nullity because the trustees did not exercise their own discretion, but acted as a rubber stamp for Rössing Uranium, or acted under the dictation of the company when they took the decision.

Groenewald urged the trustees to consider supporting former Rössing Uranium employees with illnesses that might have been caused by exposure to radiation while they were working for the uranium mining company. The Namibian this week quoted the Fund trustee board chairperson Ruth Chun as saying that having received the written judgment of Judge Ueitele last week, the fund’s next steps are to consult with their legal advisers to consider whether the Fund should appeal. When asked about what sharing formula the fund was considering following the ruling, Chun reportedly said the fund will first consider its options and constraints in terms of the judgment and the legal process, guided by good governance principles and their fiduciary duties. “We will communicate the way forward with our former members in due course from the desk of the principal officer,” Chun was quoted a having said. There is currently no legislative framework in Namibia to guide trustees of pension funds on how to deal or distribute surplus funds arising in a given fund. Because of the absence of the legislative guidelines, the trustees of the fund followed the developments in South Africa and during 1998 enacted an amendment to the funds rules to enable the trustees to deal with surpluses occurring in the fund. The former members of the Rössing Uranium took their application to court for review and that the court set aside the decision of the trustees of the Rössing Pension Fund to distribute the surplus funds in accordance with an actuarial formula. The applicants argued that the trustees acted in accordance with the dictates of Rössing, thereby effectively undermining the powers of the trustees.

Both Rössing Pension Fund and Rössing Uranium admitted that the decision, as to how the surplus funds will be allocated and distributed, was that of Rössing but denied that such decision was in contravention of the fund’s rules. They alleged that the accepted principle of the law is that a discretionary power vested in one official may not be taken by another. If an official in whom the power to act is vested fails to do so and any other person or body makes a decision; such decision surplus following therefrom is unlawful and of nullity and qualifies to be reviewed and set aside. The court ordered that the trustees of the Rössing Pension Fund distribute surplus funds in the Rössing Pension Fund according to a formula of 15% to the former members through a cash distribution in a fashion to be determined by the trustees, 33% to the company through a three-year contribution holiday and 52% to the members through the three-year contribution holiday; and one-off defined contribution to their pension account. It was also ordered that the Rössing Pension Fund and Rössing Uranium, jointly and severally, pay the former members of the pension fund’s cost for their applications and such cost to include the cost of one instructing and two instructed counsel.

On 26 September 2012, the former members of the Rössing Pension Fund launched an application with the High Court in which they requested the court to review and set aside a decision taken by the trustees of the Rössing Uranium Fund and communicated to the members and the pensioners of the fund on 14 March 2012, that the surplus funds in the fund will be distributed according to a specific formula. The former members of the fund were then informed that their application was faulty, it was thus decided to withdraw the application in March 2014. In August the same year, the former members of the fund relaunched their application, requesting the court to review and set aside the fund’s decision to distribute the surplus funds in accordance to the formula. Both the fund and Rössing Uranium Company opposed the application filed by the former members of the pension fund. The pension fund was established to provide pensions and other benefits for Rössing’s black and coloured day rates employees. Since January 1993, the members of the fund were on holiday contribution and have not made any contributions to the fund. As from March 2002, the fund was closed for new members. As at 31 March 2011, the fund had an active membership of 564 members.
The surplus amounted to over N$450 million in 2012.

 




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