REPORT OF THE JUDICIAL COMMISSION OF INQUIRY

INTO ALLEGATIONS OF IMPROPRIETY AT THE

PUBLIC INVESTMENT CORPORATION

SUBMITTED TO

THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA

HIS EXCELLENCY PRESIDENT MATAMELA CYRIL

RAMAPHOSA
 TABLE OF CONTENTS

EXECUTIVE SUMMARY .................................................................................................. 7

CHAPTER I – INTRODUCTORY REMARKS ............................................................... 183
INTRODUCTION .......................................................................................................... 183
BACKGROUND TO THE APPOINTMENT OF THE COMMISSION ............................. 186
TERMS OF REFERENCE............................................................................................. 193
THE PROCESS FOLLOWED BY THE COMMISSION .............................................. 204
THE STRUCTURE AND FUNCTIONING OF THE PIC ................................................. 215
DEVELOPMENTS AT THE PIC SINCE THE JAMES NOGU/NOKO/LEIHLOLA EMAILS
239
CHAPTER II – LEGISLATIVE AND REGULATORY FRAMEWORK ........................... 248
THE FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT 37 of 2002 (FAIS
Act) 248
FAIS ACT: CODES OF CONDUCT FOR ADMINISTRATIVE AND DISCRETIONARY FSPS, BN 79
OF 8 AUGUST 2003 ............................................................................................. 262

THE COMPANIES ACT 71 OF 2008 .......................................................................... 267

THE GOVERNMENT EMPLOYEE PENSION LAW, 1996 (GEP LAW)....................... 280
THE PROTECTED DISCLOSURES ACT 26 OF 2000 (PDA) ..................................... 282
THE FINANCIAL INTELLIGENCE CENTRE ACT, 38 OF 2001 (FICA) ...................... 283
THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS ACT, 25 OF 2002 286
THE PUBLIC FINANCE MANAGEMENT ACT 1 OF 1999 (PFMA) ............................ 287
THE PUBLIC INVESTMENT CORPORATION ACT 23 OF 2004 (PIC ACT) ............... 290
CHAPTER III – EVIDENCE, FINDINGS AND RECOMMENDATIONS PER TERM OF
REFERENCE ................................................................................................................ 293
TERM OF REFERENCE1.1 .......................................................................................... 293
CASE STUDY: MAPONYA MATOME INVESTMENT HOLDINGS (MMI) ................................. 295
CASE STUDY: INDEPENDENT NEWS AND MEDIA SOUTH AFRICA (PTY) LTD .................... 302
CASE STUDY: PREMIER FISHING .................................................................................. 308
CASE STUDY: SAGARMATHA (TO BE READ WITH THE INMSA SECTION ABOVE) .............. 310
CASE STUDY: AYO .................................................................................................... 312
CASE STUDY: S & S REFINERY.............................................................................. 344
CASE STUDY: LANCASTER STEINHOFF........................................................................ 354
CASE STUDY: ERIN ENERGY LIMITED ........................................................................... 365
CASE STUDY: ASCENDIS HEALTH TRANSACTION.......................................................... 371
CASE STUDY: KARAN BEEF .................................................................................... 378

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 CASE STUDY: TOSACO (PTY) LTD............................................................................... 390
TERM OF REFERENCE 1.2 ......................................................................................... 410
AYO TECHNOLOGY SOLUTIONS (AYO) ......................................................................... 411
INDEPENDENT NEWS AND MEDIA SOUTH AFRICA (PTY) LTD (INMSA) AND SAGARMATHA
.......................................................................................................................... 412
STEINHOFF/LANCASTER TRANSACTION ....................................................................... 414
TOSACO................................................................................................................... 414
ASCENDIS .................................................................................................................. 415
S&S REFINERIES ........................................................................................................ 416
VBS MUTUAL BANK ................................................................................................... 416
ERIN ENERGY ............................................................................................................. 417
MST 418
TERM OF REFERENCE 1.3 ......................................................................................... 419
HARITH ...................................................................................................................... 419
THE VBS MUTUAL BANK CASE STUDY ......................................................................... 428
THE EDCON MANDATE LETTER.................................................................................... 432
FINDINGS ................................................................................................................... 433
Recommendations ...................................................................................................... 435
RECOMMENDATIONS IN RELATION TO HARITH ............................................................... 435
RECOMMENDATIONS IN RELATION TO THE EDCON MANDATE LETTER............................. 436
RECOMMENDATIONS IN RELATION TO THE WHOLE OF TOR 1.3....................................... 436
TERM OF REFERENCE 1.4 ......................................................................................... 438
STATUTORY FRAMEWORK ........................................................................................... 438
FINDINGS ................................................................................................................... 448
RECOMMENDATIONS ................................................................................................... 449
TERM OF REFERENCE 1.5 ......................................................................................... 451
FINDINGS ................................................................................................................... 460
RECOMMENDATIONS ................................................................................................... 461
TERM OF REFERENCE 1.6 ......................................................................................... 462
EVENTS LEADING TO THE INVESTIGATIONS ................................................................... 463
APPROVAL OF THE INVESTIGATIONS ............................................................................ 465
NUMBER OF INVESTIGATIONS ...................................................................................... 466
THE CONTENT OF THE INVESTIGATIONS........................................................................ 467
FINDINGS ................................................................................................................... 470
RECOMMENDATIONS ................................................................................................... 471

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TERM OF REFERENCE 1.7 ......................................................................................... 472
PIC POLICIES ON INFORMATION................................................................................... 472
THE CORPORATE AFFAIRS DEPARTMENT AND THE NEWS AND SOCIAL MEDIA POLICY ... 472
CONFIDENTIALITY CLAUSES IN EMPLOYMENT AGREEMENTS........................................... 473
INFORMATION TECHNOLOGY USE POLICY (IT USE POLICY) ........................................... 474
LEGISLATION .............................................................................................................. 475
WHAT OTHER PIC-HELD INFORMATION WAS OBTAINED? ............................................. 476
EMPLOYEES THAT OBTAINED INFORMATION WITHOUT AUTHORISATION ......................... 477
PAST DISCIPLINARY PROCESSES.................................................................................. 477
FINDINGS ................................................................................................................... 485
RECOMMENDATIONS ................................................................................................... 486
TERM OF REFERENCE 1.8 ......................................................................................... 488
INFORMATION DISCLOSED WITHOUT AUTHORITY............................................................ 488
INFORMATION DISCLOSED WITHOUT FOLLOWING THE PROTECTION OF DISCLOSURE ACT, NO
26 OF 2000 (PDA) .............................................................................................. 489
DID DISCLOSURE OF CONFIDENTIAL INFORMATION NEGATIVELY IMPACT ON THE INTEGRITY OF
THE PIC? ........................................................................................................... 489

DID DISCLOSURE HAVE A NEGATIVE IMPACT ON THE FUNCTIONING OF THE PIC?............. 492
FINDINGS ................................................................................................................... 494
RECOMMENDATIONS ................................................................................................... 494
TERM OF REFERENCE 1.9 ......................................................................................... 496
CURRENT MEASURES IN PLACE ................................................................................... 496
ACCEPTABLE USE POLICY: IT SECURITY SECTIONS ...................................................... 497
DISPOSAL POLICY ...................................................................................................... 498
THIRD PARTY MANAGEMENT ....................................................................................... 499
WERE THESE MEASURES BREACHED? ........................................................................ 499
FURTHER PROTECTIVE MEASURES TO BE CONSIDERED ................................................ 502
FINDINGS ................................................................................................................... 505
RECOMMENDATIONS ................................................................................................... 506
TERM OF REFERENCE 1.10 ....................................................................................... 508
SCOPE OF THE ENQUIRY OF TOR 1.10 ......................................................................... 508
BACKGROUND TO THE PEPS CONCEPT ....................................................................... 510
INTERNATIONAL LEGISLATIVE ORIGIN ........................................................................... 511
THE PEPS CONCEPT CLOSER TO HOME ........................................................................ 512
THE PIC’S UNIQUE POSITION ...................................................................................... 513

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 EVIDENCE HEARD BY THE COMMISSION ....................................................................... 516
PEPs regulation part of broader policy framework ........................................... 516
DEVELOPMENT AND CONTINUED IMPROVEMENTS ON THE PIC PEPS POLICY .................. 518
FINDINGS ................................................................................................................... 530
RECOMMENDATIONS ................................................................................................... 531
TERM OF REFERENCE 1.11 ....................................................................................... 532
INTRODUCTION ........................................................................................................... 532
CLIMATE SURVEY ....................................................................................................... 532
REMUNERATION AND INCENTIVES ................................................................................ 533
FINDINGS ................................................................................................................... 548
RECOMMENDATIONS ................................................................................................... 549
TERM OF REFERENCE 1.12: ...................................................................................... 552
FINDING ..................................................................................................................... 557
RECOMMENDATION ..................................................................................................... 557
TERM OF REFERENCE 1.13 ....................................................................................... 559
INTRODUCTION ........................................................................................................... 559
PIC POLICIES ............................................................................................................. 560
FINDINGS ................................................................................................................... 573
RECOMMENDATIONS ................................................................................................... 574
TERM OF REFERENCE 1.14 ....................................................................................... 576
INTRODUCTION ........................................................................................................... 576
THE ALLEGATIONS ...................................................................................................... 577
FINDINGS ................................................................................................................... 584
RECOMMENDATIONS ................................................................................................... 585
TERM OF REFERENCE 1.15 ....................................................................................... 587
GOVERNANCE ........................................................................................................ 588
EVIDENCE CONSIDERED BY THE COMMISSION .................................................. 620
RECOMMENDATIONS ............................................................................................. 641
TERM OF REFERENCE 1.16 ....................................................................................... 651
SHAREHOLDERS COMPACT: ........................................................................................ 651
MEMORANDUM OF INCORPORATION (MOI).................................................................... 652
MANDATE ................................................................................................................... 652
DELEGATION OF AUTHORITY ....................................................................................... 653
THE RECOMMENDATIONS ON THE AMENDMENT OF LEGISLATION ................................... 654

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 GENERAL RECOMMENDATIONS.................................................................................... 656
TERM OF REFERENCE 1.17 ....................................................................................... 658
CONSIDERATION OF THE TERM OF REFERENCE ............................................................ 658
THE PIC GIVING EFFECT TO ITS CLIENT’S MANDATES .................................................... 659
THE LEGAL RELATIONSHIP BETWEEN THE GEPF AND THE PIC ..................................... 663
EVIDENCE................................................................................................................ 665
FINDINGS ................................................................................................................... 675
RECOMMENDATIONS ................................................................................................... 679
CHAPTER IV RESPONSIBILITY AND ACCOUNTABILITY ......................................... 685
DR DAN MATJILA, CEO .............................................................................................. 685
FINDINGS ................................................................................................................... 711
RECOMMENDATIONS ............................................................................................. 714
CHAPTER V – RECOMMENDATIONS AND REMEDIES ............................................ 717
RECOMMENDATIONS FOR NEXT STEPS REGARDING INVESTMENT LOSSES AND
THOSE AT RISK .......................................................................................................... 717
NEXT STEPS: FIT AND PROPER / VIOLATIONS OF FAIS ....................................... 726
INTRODUCTION ........................................................................................................... 727
APPLICATION OF THE FAIS ACT TO THE PIC ................................................................ 732
RECOMMENDATIONS ................................................................................................... 750
THE PIC AND TRANSACTION ADVISORS ................................................................. 751
RECOMMENDATIONS ON DIVIDEND POLICY .......................................................... 767
FINDINGS ................................................................................................................... 771
RECOMMENDATIONS ................................................................................................... 772
LIFESTYLE AUDITS .................................................................................................... 774
RECOMMENDATION ..................................................................................................... 777
CONCLUSION .............................................................................................................. 778
GLOSSARY .................................................................................................................. 784

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EXECUTIVE SUMMARY

INTRODUCTION

1 On 4 October 2018 the President of the Republic of South Africa, President Cyril
Ramaphosa (the President), acting in terms of section 84(2)(f) of the Constitution
of the Republic of South Africa, appointed a Commission of Inquiry (the
Commission) into allegations of impropriety regarding the Public Investment
Corporation (the PIC/ the Corporation). The appointment of the Commission was
published in the Government Gazette, No. 41979 of 17 October 2018, under
Proclamation No. 30 of 2018.

2 The PIC is a Financial Services Provider (FSP) in terms of the Financial Advisory
and Intermediary Services Act, No 37 of 2002 (the FAIS Act)1.

3 The PIC is an asset management company that manages assets for clients for a
fee. As a company, it is subject to the provisions of the Companies Act 71 of
2008 (Companies Act) and it, being a state–owned company, is also subject to
the provisions of the Public Finance Management Act, No 1 of 1999 (PFMA).

4 The assets managed by the PIC on behalf of its clients amounted to R2.08 trillion
as of March 2018. Its mandate is to generate returns and to contribute to the
developmental goals of South Africa.

1Section 4 of the FAIS Act provides that the main object of the Corporation is to be a financial
services provider in terms of the FAIS Act.

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5 In order for it to qualify as an FSP in terms of the FAIS Act, the PIC has to satisfy
the Registrar of Financial Services Providers that it complies with the
requirements for ‘fit and proper financial services providers’ in respect of:

5.1 personal character qualities of honesty and integrity;

5.2 its competence and operational ability to fulfil the responsibilities imposed
by the FAIS Act; and

5.3 its financial soundness.

6 In addition, as a FSP, the PIC would have to satisfy the registrar that any ‘key
individual’ in respect of it (PIC) complies with the requirements of honesty and
integrity, as well as competence and operational ability, to the extent required, in
order to fulfil the responsibilities imposed on key individuals by the FAIS Act.2

THE TERMS OF REFERENCE

7 The Commission’s Terms of Reference (ToR), which are set out in the schedule
to the Proclamation, and which, on 19 March 2019 was amended to include ToR
1.17, read as follows:

‘1. The Commission must enquire into, make findings, report on and make
recommendations on the following:

1.1 Whether any alleged impropriety regarding investment decisions

by the PIC in media reports in 2017 and 2018 contravened any legislation,
PIC policy or contractual obligations and resulted in any undue benefit for

2
See section 8(1) of the FAIS Act. A ‘key individual’ is defined, in relation to an authorised financial services provider
(licenced in terms of section 7 of the FAIS Act), or a representative, carrying on business as a corporate body, as ‘any
natural person responsible for managing or overseeing, either alone or together with other so responsible persons, the
activities of the corporate body relating to the rendering of any financial service.’

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 any PIC director, or employee or any associate or family member of any
PIC director or employee at the time;

1.2 Whether any findings of impropriety following the investigation in

terms of paragraph 1.1 resulted from ineffective governance and /or
functioning by the PIC Board;

1.3 Whether any PIC director or employee used his or her position or
privileges or confidential information for personal gain or to improperly
benefit another person;

1.4 Whether any legislation or PIC policies concerning the reporting

of alleged corrupt activities and the protection of whistle-blowers were not
complied with in respect of any alleged impropriety referred to in paragraph
1.1;

1.5 Whether the approved minutes of the PIC Board regarding

discussions of any alleged impropriety referred to in paragraph 1.1 are an
accurate reflection of the discussions and the Board’s resolution regarding
the matters and whether the minutes were altered to unduly protect persons
implicated and, if so, to make a finding on the person/s responsible for the
alterations;

1.6 Whether the investigations into the leakage of information and the
source of emails containing allegations against senior executives of the PIC
in media reports in 2017 and 2018, while not thoroughly investigating the
substance of these allegations, were justified;

1.7 Whether any employees of the PIC obtained access to emails and
other information of the PIC, contrary to the internal policies of the PIC or
legislation;

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 1.8 Whether any confidential information of the PIC was disclosed to
third parties without the requisite authority or in accordance with the
Protected Disclosures Act, 2000, and, if so, to advise whether such
disclosure impacted negatively on the integrity and effective functioning of
the PIC;

1.9 Whether the PIC has adequate measures in place to ensure that
confidential information is not disclosed and, if not, to advise on measures
that should be introduced;

1.10 Whether measures that the PIC has in place are adequate to
ensure that investments do not unduly favour or discriminate against -

1.10.1 a domestic prominent influential person (as defined in section 1 of

the Financial Intelligence Centre Act, 2001);

1.10.2 an immediate family member (as contemplated in section 21H(2)of

the Financial Intelligent Centre Act, 2001) of a domestic prominent
influential person; and

1.10.3 known close associates of a domestic prominent influential person;

1.11 Whether there are discriminatory practices with regard to

remuneration and performance awards of PIC employee;

1.12 Whether any senior executive of the PIC victimised any PIC
employees;

1.13 Whether mutual separation agreements concluded in 2017 and

2018 with senior executives of the PIC complied with internal policies of the
PIC and whether pay-outs made for this purpose were prudent;

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 1.14 Whether the PIC followed due and proper process in 2017 and
2018 in the appointment of senior executive heads, and senior managers,
whether on permanent or fixed- term contracts;

1.15 Whether the current governance and operating model of the PIC,
including the composition of the Board, is the most effective and efficient
model and, if not, to make recommendations on the most suitable
governance and operational model for the PIC for the future;

1.16 Whether, considering its findings, it is necessary to make

changes to the PIC Act, the PIC Memorandum of Incorporation in terms of
the Companies Act, 2008 and the investment decision – making framework
of the PIC, as well as the delegation of authority for the framework (if any)
and, if so, to advise on the possible changes.’

1.17 Whether the PIC has given effect to its clients’ mandates as
required by the Financial Advisory and Intermediary Services Act, 2002 (Act
no. 37 of 2002) and any applicable legislation.’

8 The ToR further provide as follows in relation to the temporal scope of the
enquiry:

‘ 2. The Commission must, in its enquiry for the purpose of its

findings, report and recommendations, consider the period 1 January 2015
to 31 August 2018.

3. The commission must submit -

3.1. an interim report to the President by not later than 15 February

2019; and

3.2. a final report by not later than 15 April 2019.

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 4. The commission may, if necessary, investigate and make findings
and recommendations on, any other matter regarding the PIC, regardless
of when it is alleged to have occurred, on condition that such other
investigations, findings and recommendations do not cause any delay in
the submission of the reports on the applicable dates referred to in
paragraph 3.’

9 To empower the Commission in its fact-finding function, the TOR further provided
that:

‘5. The Commission may request the advice or views of any organ
of state or any other person or organisation that the Commission is of the
opinion may be able assist.

6. In order to -

6.1 enable the Commission to conduct its work meaningfully and effectively;
and

6.2 facilitate the gathering of evidence, by conferring on the Commission

such powers as are necessary to secure the attendance of witnesses and
to compel the production of documents and any other required information,
including the power to enter and search premises, regulations must be
made under the Commissions Act, 1947, which will apply to the
Commission.’

THE PROCESS FOLLOWED BY THE COMMISSION

10 The hearings were held over a period of 63 days, from 21 January 2019 until 14
August 2019.

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11 The Commission’s hearings were widely publicised, which, together with the
testimonies of particular witnesses given in public, we believe, encouraged a
number of people, particularly employees of the PIC, to come forward to testify.

12 Where the legal team intended to present a witness to the Commission whose
evidence would, or might, implicate another person, it was required in terms of
Rule 3.3, through the Secretary of the Commission, to notify that person in writing
within a reasonable time before the witness gave evidence. The legal team by
and large complied with the provisions of this rule, but where a person was
implicated whilst not having been notified beforehand, they would be informed
after the fact and advised to lodge a statement or an affidavit in response should
they so wish, or apply, in terms of regulation 9(3) of the Regulations or rule 3.3.6
of the Commission Rules, to cross-examine the witness concerned and to give
evidence. Two witnesses who testified before the Commission were cross-
examined under these provisions; leave having been obtained from the
Commissioner.

13 77 (seventy-seven) witnesses gave oral testimony before the Commission over

the 63 (sixty-three) days of hearings. The names of the persons who testified
before the Commission are set out in an annexure to the Report.

THE STRUCTURE AND FUNCTIONING OF THE PIC

14 The structure and functioning of the PIC is set out here so that the Commission
would be in a position to assess and explain whether any findings of impropriety
could be located in structural deficits or organizational pathologies impeding the
proper functioning of the PIC. As the testimony and explanation of the structure
indicates, sound structures and operating procedures were in place but these
cannot act as a complete check on the malfeasance of public officials.

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15 In terms of section 8 of the PIC Act, the business of the PIC is controlled by a
Board of directors (the Board) which, in terms of section 6, must be determined
and appointed by the Minister, in consultation with Cabinet. The Minister is
enjoined to appoint the members of the Board ‘on the grounds of their knowledge
and experience, with due regard to the FAIS Act, which, when considered
collectively, should enable the Board to attain the objects of the corporation’ 3.

The Memorandum of Incorporation

16 There was some confusion during the testimony of Dr Matjila relating to the
Memorandum of Incorporation (MOI) under which the PIC is currently operating.
The Commissioners had been provided with a copy of a MOI that had been
signed by the then Minister of Finance, Mr Pravin Gordhan (Mr Gordhan), on 26
April 2013 (2013 MOI). Clause 7.1.11 of that MOI provided that the Board ‘shall,
with prior approval of the Minister, appoint the nominees for chief investment
officer (CIO), chief financial officer (CFO) and chief operations officer (COO) to
those positions as employees, in accordance with applicable labour legislation’.
It was common cause that the PIC has been operating without a CIO and COO.
Dr Matjila was appointed to the position of CEO in December 2014.

17 The evidence has revealed that on 24 March 2017, Minister Gordhan wrote to
his deputy, Mr Mcebisi Jonas (Mr Jonas), in his capacity as chairman of the
Board, advising that he (Minister Gordhan) had identified three sub-clauses in
the 2013 MOI which needed to be amended, namely, sub-clauses 7.1.12, 7.3.1
and 7.3.6.

18 One of the proposed amendments (sub-clause 7.1.12) would make provision for
the CEO and CFO becoming ex-officio directors of the Corporation. Minister
Gordhan also requested that the PIC call a shareholders’ meeting within two days

3
Section 6(3) of the FAIS Act.

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 of the date of his letter.4 However, on 29 March 2017, the Board, in addition to
approving the Minister’s proposed amendments, resolved to approve further
amendments, including the deletion of sub-clause 7.1.11.5 The effect of the
deletion would be the elimination of the positions of CIO6 and COO in the PIC.

19 At the shareholders meeting held on 29 March 2017, a special resolution was

passed in terms of which ‘the existing Memorandum of Incorporation of the Public
Investment Corporation . . . is hereby amended’. All the proposed amendments
were accordingly approved and Minister Gordhan signed the amended version
of the MOI on 30 March 2017 (amended MOI).7 The amended MOI was accepted
and filed by the Commissioner of the Companies and Intellectual Property
Commission (CIPC) on or about 19 April 2017.8

20 We are satisfied that the statutory procedures to amend the PIC’s 2013 MOI were
followed and that the amendments were, consequently, valid. It is, however,
common cause that subsequent to Mr Gigaba succeeding Minister Gordhan as
Minister of Finance in March 2017, he requested the Board, in a letter dated 19
April 2017, to not implement the amended MOI and that the 2013 MOI remain in
existence until he had familiarised himself with the PIC. The attempted
substitution of the amended MOI was not in accordance with statutory
requirements and, on this basis, it was concluded that the PIC’s current MOI is
the amended MOI, which was signed by former Minister Gordhan on 30 March
2017 and accepted by CIPC on 19 April 2017.

4
A copy of the letter is annexure ‘DD 30’ of Dr Matjila’s statement.
5
Extract from approved minutes of Board meeting held on 29 March 2017 attached as ‘Appendix 3’.
6
The ditching of the position of CIO was in line with an organisational restructuring that took place, according to Dr
Matjila’s testimony (para 102 of his statement) in 2014 and 2015, resulting in the CIO position being split into four
Executive Heads of investments, namely of Listed Investments, Private Equity & Structured Investments,
Developmental Investments, and Properties.
7
Copies of the resolution passed at a shareholders meeting on 29 March 2017 and of the amended MOI are attached
as ‘Appendix 4’ and ‘Appendix 5’ respectively.
8
A copy of letter dated 19 April 2017 attached as ‘Appendix 6’.

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The Composition of the Board

21 Clause 7.1.1 of the Corporation’s MOI provides that the Board ‘shall comprise of
no less than 10 and no more than 15 directors . . .’. The shareholder, defined in
the MOI as the State acting through the Minister, is required, in terms of clause
7.1.2.1 to ensure that the Board consists of executive and non-executive
directors.

22 The Board committees which have been established can be seen in the diagram
below:

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23 The individuals who serve on these Board committees are all members of the
Board as envisaged in section 7(1) of the PIC Act.

24 The Board has issued DoAs in respect of the following:

24.1 Corporate Governance/Affairs;

24.2 Unlisted Investments;

24.3 Listed Investments; and

24.4 Property Investments.

25 The powers of the Board and management committees are set out in the
Delegations of Authority (DoA). In addition, policies and procedures have been
developed, which are designed to influence, determine and guide all major
investment decisions and actions.

The Executive Committee

26 The responsibility of the day to day management of the PIC rests with the CEO
in line with the approved DoA framework and the strategic direction set by the
Board. The CEO is assisted in the discharge of further responsibilities by an
Executive Committee (EXCO), comprising the CEO as Chairman, the Chief
Financial Officer (CFO) and the Executive Heads of the ten (10) PIC divisions,
namely:

26.1 Research and Project Development;

26.2 Impact investing;

26.3 Private Equity and Structured Investment Products (SIPS);

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26.4 Property Investments;

26.5 Listed Investments;

26.6 Investment Management;

26.7 Human Resources;

26.8 Risk;

26.9 Legal Counsel, Governance and Compliance; and, lastly

26.10 Information Technology.

27 The EXCO has established six (6) sub-committees, three (3) of which relate to
corporate affairs and the other three (3) to assets under management. These
sub-committees are in line with the PIC investment strategy to instil a culture of
compliance and good governance, so as to ensure that the Corporation’s
governance processes and affairs are conducted in a transparent, fair and
prudent manner and that accountability becomes a certainty. The Executive
Committee and its Sub-committee structures are depicted below:

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Client mandates

28 The PIC’s clients have provided the PIC with investment mandates, which set
out, among others, their investment objectives, risk appetite, investment
parameters as well as the asset class allocations. In order to ensure compliance
with client mandates, the PIC utilises a special system, which enables it to
capture the mandates for monitoring purposes. According to Ms W Louw, the
PIC reports to clients on a monthly and quarterly basis, detailing, among other
things, portfolio performance. Clients are thus able to engage with the PIC during
these presentations and to seek clarity, if they so wish.

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DEVELOPMENTS AT THE PIC SINCE THE JAMES
NOGU/NOKO/LEIHLOLA EMAILS

1 The James Nogu emails led to an atmosphere that was not conducive to good,
healthy and effective working relations between members of the Board and
between the Board and certain senior executives, particularly the CEO and CFO.
These emails were sent on 31 August 2017, 5 September 2017, 13 September
2017, 28 January 2019 and 30 January 2019 (For convenience, we shall refer to
the emails collectively as the ‘James Nogu emails’.)

2 An extraordinary general meeting was convened by Minister Nene on 25 July

2018, where the Board was instructed to conduct a forensic investigation on the
Nogu/MST allegations and to develop a plan of action by 17 August 2018.
Subsequently, after some consultation with counsel, the Board appointed
Advocate Budlender SC to conduct the above investigation.

3 Advocate Budlender SC found that there was no evidence of a romantic

relationship between Dr Matjila and Ms Pretty Louw (Ms P Louw) and that no
impropriety could be found in the MST transaction.

4 Dr Matjila was aggrieved by the action of the chairman of the Board, deputy
Minister Gungubele (the Chairman), of failing to oppose the UDM application that
was brought in the Pretoria High Court to have him suspended for the very
allegations in respect of which he had been cleared. He met the chairman at his
office in Cape Town and advised him that he (Dr Matjila) had decided to exit the
PIC in due course, but only once the Budlender SC report had been released.
Apparently, the chairman had not at that point shared the report with the other
non-executive directors.

5 The Board then put together a task team consisting of Dr Xolani Mkhwanazi
(Deputy Chairman of the Board), Ms Toyi and Dr Goba to negotiate the CEO’s

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 exit. When Dr Matjila subsequently met the task team, Dr Mkhwanazi was not in
attendance, apparently because he wanted the CEO to first present a letter of
resignation. Dr Matjila reluctantly delivered a letter on 7 November 2018 in which
he made certain exit proposals to the Board.

6 On 23 November 2018, Dr Matjila was called to a Board meeting. His letter was
tabled at this meeting for the first time, although already in public circulation. At
this meeting, the Chairman informed him that the Board had accepted his
resignation with immediate effect. His protestations that he had not resigned, but
had merely given an exit proposal containing, amongst others, an intention to
give notice to resign in keeping with his contract, fell on deaf ears. The
Chairman’s response was that his employment contract had been terminated.

7 A little over two months thereafter, at a Board meeting on 1 February 2019, the
Chairman, having taken a call from the current Minister of Finance, Mr Mboweni,
informed the rest of the members of the Board that the Minister wanted the whole
Board to resign immediately, failing which they would be dismissed by Monday,
4 February 2019. Ms Hlatshwayo said the mood became one of indignation and
the Board members decided to resign en masse. A letter to that effect was
dispatched to Minister Mboweni. However, they continued with their function until
the interim Board was appointed.

8 The James Nogu emails and media reports about the PIC not only affected the
Board but also senior employees of the PIC. On 5 December 2017, Ms Vuyokazi
Menye (Ms Menye), who was the Executive Head: Information Technology, and
Mr Simphiwe Mayisela (Mr Mayisela), who was the Senior Manager: Information
Security, were charged with ‘accessing unauthorised documentation during an
investigation commissioned to unearth the penetration of the PICs mailing list’
and intercepting emails of Executive Directors without obtaining the necessary
approval. They were also alleged, inter alia, to have withheld information in a
case opened against the CEO under the pretext that it was erroneously done and

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Investment Corporation Page 21 of 794
 Mr Mayisela for obtaining confidential information without prior approval, for the
sole purpose of advancing their case, while purporting to be assisting the
investigation regarding the identity of James Nogu. Ms Menye left the PIC, having
reluctantly accepted a settlement figure of approximately R7.5 million on 11 April
2018.

9 Mr Mayisela was dismissed following a full disciplinary process. Ms Bongani

Mathebula, the Company Secretary, who was placed on suspension on 11 April
2018, was charged with, inter alia, breaching her duty of good faith and
confidentiality as an employee in her position as Company Secretary, in that she
caused the distribution and/or copying of confidential PIC information. The
chairman of the disciplinary committee found her guilty and recommended that
she be dismissed with immediate effect. However, having been recommended
for a dismissal, Ms Mathebula returned to occupy her position of Company
Secretary on 27 March 2019.

10 Ms More, the CFO, and Mr Madavo: Executive Head: Listed Investments are
currently under suspension and face disciplinary charges relating to their conduct
in handling a particular transaction, namely AYO, which will be discussed below.
Mr Victor Seanie, the Assistant Portfolio Manager: Non-Consumer Industrials,
faced disciplinary charges over the same transaction. His disciplinary hearing
was concluded, finding him guilty, and he was dismissed on 22 October 2019
with one month’s pay in lieu of notice.

EVIDENCE, FINDINGS AND RECOMMENDATIONS PER TERMS OF

REFERENCE

TERM OF REFERENCE 1.1

1. In 2018 the media reported on certain political parties that had called for
transparency in the PIC. Mention was made of particular transactions.

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Investment Corporation Page 22 of 794
2. The transactions that formed the subject of media reports during this period are
discussed below. It should be noted, however, that these transactions and/or
case studies do not constitute a comprehensive list of improprieties identified by
the Commission.

3. The case studies prepared by the Commission appear in this ToR, with the
exception of the VBS and Harith case studies, which are contained in ToR 1.3,
below.

CASE STUDY: Matome Maponya Investment Holdings (MMI)

4. The Isibaya Fund’s investment in MMI is an example of multiple investments with

a single counterparty.

5. While prior exposure to any single counterparty would be raised as part of

deliberations at approval committees, there was previously no firm counterparty
limit. However, recently counterparty limits have been established, and they are
contained in the Private Placement Memorandums (PPMs).

6. The Commission found that the total PIC exposure to Mr Matome Maponya (Mr
Maponya) amounted to R1.85 billion. The exposure to Mr Maponya in the
investments of Magae Makhaya and Daybreak alone amounted to R1.023b.
Therefore, one could say the PIC was overexposed.

7. The Commission finds that the PIC’s decision to make cumulative investments
in various transactions with a single individual has resulted in significant
exposure to reputational risk and financial losses.

8. The MMI investments call into question the PIC’s thoroughness in conducting its
due diligence as well as its assessment of cumulative and reputational risks.

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Investment Corporation Page 23 of 794
9. In order to ensure that PIC funds are available to as many South Africans as
possible and to not be exposed to risks associated with any single party, single
counterparty limits should be determined and adhered to by the PIC.

10. The PIC must also restrict funding from the Isibaya Fund to counterparties or
unlisted investments to a maximum of two projects (businesses) but only until
capacity and servicing of loans has been established. It should also limit the
cumulative monetary amount of exposure to a single counterparty or unlisted
investment.

SA Home Loans (SAHL) Investment

11. Regarding the investment in SAHL, Dr Matjila confirmed the statement by Mr

Kevin Penwarden of SAHL that a combination of SAHL and JP Morgan were the
first to present the equity opportunity and a proposal for housing finance for
GEPF members to the PIC. Consequently, Dr Matjila’s statement that, ‘I was
under the impression that this R9bn funding application was a joint plan of the
SAHL and MMI partnership’9 is extremely concerning. The question must be
asked how thorough the processes were before a transaction of R9 billion was
approved that the CIO/CEO did not know, or did not endeavour to find out, what
the actual situation was.

12. Furthermore, Mr Kevin Penwarden, CEO of SAHL, stated that Mr Wellington

Masekesa (Mr Masekesa), Executive Assistant to Dr Matjila and PIC non-
executive director on the board of SAHL, and Mr Maponya had approached a
colleague, Mr Dlamini, and said that SAHL should ‘regularise’ what were called
‘arranging fees’ of R95 million.10

9
Para 520 of Dr Matjila’s statement signed on 17 July 2019.
10
Para 59-70 of Mr Penwarden’s statement signed on 28 May 2019.

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13. The Commission recommends that the Board should develop clear policies to
guide the involvement of PIC employees and non-executive directors in investee
companies. Appointment of PIC employees and/or non-executive directors of the
PIC to serve on the boards of investee companies must be reconsidered.

14. The role played by Mr Masekesa in respect of the SAHL Investment, as indicated
in paragraph 12 above, is found to be an irregularity as envisaged in Section 45
of the Auditing Profession Act, being, in the SAHL auditors’ (Deloitte) opinion, a
prima facie contravention of Section 3 of the Prevention and Combatting of
Corrupt Activities Act (soliciting a bribe to obtain a contract).

15. The Board should ensure that there is a full inquiry into the role played by Mr
Masekesa in the SAHL matter and engage with the GEPF to ensure that there
has been no undue influence exerted by any party on the SAHL application for
R10 billion further funding.

Conclusion

16. In relation to a number of the transactions considered above, there were

contraventions of PIC Policy, processes were not followed, necessary
disclosures were not made to the Board and on certain occasions the Board was
misled. Furthermore, in certain transactions, the Commission found that the
Standard Operating Procedure was not followed.

17. The Commission found that a number of individuals unduly benefited from the
improprieties identified. The role of Dr Matjila is concerning in terms of his one-
on-one meetings with individuals who stood to be vastly enriched, undercutting
the objectives of the Isibaya Fund and in contravention of the PIC’s mandate
from its clients. In addition, the Commission found that Dr Matjila’s role in
pressurising Mr Mulaudzi was improper and posed a reputational risk for the PIC.

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18. The PIC’s decision to make cumulative transactions with a single individual is of
concern to the Commission and recommendations in this regard are made.

19. Finally, governance, at a variety of levels, was undermined by the conduct of

several individuals in relation to the transactions discussed above and in the
conduct addressed in the ToRs which follow.

CASE STUDY: SEKUNJALO GROUP

20. The following companies, within the Sekunjalo Group, are dealt with below:

21. Sekunjalo Independent Media (Pty) Ltd (SIM) and Independent News and Media
South Africa (Pty) Ltd (INMSA), which was later renamed Independent Media
(Pty) Ltd (IM).

22. Sagarmatha Technologies Limited (Sagarmatha).

23. Premier Food & Fishing Limited, later renamed Premier Fishing and Brands
Limited (Premier Fishing).

24. Ayo Technology Solutions Limited (Ayo).

SIM AND INMSA

25. During 2013, the PIC advanced a number of loans to SIM and INMSA. The PIC
also bought a 25% equity stake in INMSA. The loans were for a period of five
years and, together with interest thereon, were repayable in August 2018.

26. The GEPF did not support the deal and expressed the view that it was an
investment in a sector that ‘had a bleak future’. However, their view was that the
PIC should make the decision provided that the exposure did not exceed R2
billion.

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27. In 2017, it became clear that INMSA and SIM would not be able to repay the
loans as they became due. Sekunjalo Investment Holdings (Pty) Ltd (SIH), the
holding company of both INMSA and SIM, made an offer to the PIC in a letter
dated 14 September 2017 proposing that the PIC exit its investment in INMSA
and SIM. In terms of the offer, SIH and/or its nominee would acquire the PIC’s
shares in and loan claim(s) against INMSA as well as its loan claim(s) against
SIM.

28. The letter stated that SIH intended to list one of its subsidiaries (Sagarmatha)
with a primary listing on the JSE, with secondary listings on the New York and
Hong Kong Stock Exchanges. It further stated that SIH would not make any cash
payment for its acquisition of PIC’s shares and loan claims and that the payment
would be settled through the issue of shares in Sagarmatha to the PIC.

29. In terms of the letter, a similar offer had been extended to the PIC’s co-
shareholders in INMSA and Dr Matjila was requested to countersign the letter, if
it was acceptable to the PIC, resulting in the conclusion of a binding agreement
between the PIC and SIH.

30. In a credit risk report signed on 9 and 10 November 2017, the risk team assessed
the risks relating to the proposed transaction as ‘HIGH’.

31. The Private Equity, Priority Sector and Small Medium Enterprise Fund
Investment Panel (PEPPS FIP) approved the offer subject to certain conditions.
It is apparent from these conditions that the PEPPS FIP required SIH to make a
cash payment for the proposed acquisition of the PIC’s shares and loan claims
and that there would be no link to the proposed listing of Safarmatha. This is
important to note because agreeing to the proposal would have meant that the
exit of the PIC from IM would have been funded by the PIC itself. It is clear from
the conditions that were imposed that the resolution was in the best interests of
the PIC.

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Investment Corporation Page 27 of 794
32. Despite the resolution taken by the PEPPS FIP, on 13 December 2017 Dr Matjila
signed what appears to be a sale of shares and claims agreement between the
GEPF represented by the PIC and Sagarmatha. The agreement was signed on
behalf of Sagarmatha a day later.

33. In terms of clause 5 of the agreement, the debt of approximately R1.5 billion due
to the PIC would be discharged through the issuing of shares to the PIC in
Sagarmatha. The agreement stated that the price per share was R39.62.

34. Dr Matjila signed/approved the appraisal report on 15 November 2017,

approximately one month prior to signing the share swap agreement. That report
was for the attention of the PEPPS FIP and made it clear that its purpose was to
request approval from PEPPS FIP for the PIC to accept the offer from SIM to
acquire all the shares and loan claims that the PIC has in and against INMSA
and SIM, (the ‘Offer’), thereby exiting its investment in INMSA.

35. As someone who knew the operations of the PIC, Dr Matjila was aware, or ought
to have been aware, that the risk, legal and ESG teams would also have to
submit their reports for consideration by the PEPPS FIP.

36. When questioned about the share swap agreement and when informed that the
terms thereof violated the PIC resolution, Dr Matjila claimed to have not been
aware of the resolution. Even if he had not seen the PEPPS FIP resolution, one
would have expected him to enquire what resolution had been taken before
signing the share swap agreement.

37. Dr Matjila was also aware, or ought to have been aware, that the Listed
Investments team had not yet done a valuation of Sagarmatha when he signed
the share swap agreement.

38. If the Sagarmatha listing had proceeded (it did not because the JSE did not
approve the listing) and the share swap agreement signed by Dr Matjila

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 executed, the PIC would have invested in Sagarmatha at a price of R39.62 and
not the R7.06 valuation of the PIC team. Moreover, PIC funds would have been
used to settle INMSA debt to the PIC, with the full knowledge by Dr Matjila that
this was effectively what was going to happen.

SAGARMATHA (TO BE READ WITH THE INMSA SECTION ABOVE)

39. In late 2017, Sagarmatha offered the PIC to subscribe for shares worth between
R3 billion and R7.5 billion. The price for the shares was R39.62 per share.

40. The deal team valued the shares at R7.06 per share. It is clear from the evidence
of the members of that team that they did not support the transaction. The
transaction was eventually abandoned after the JSE disapproved Sagarmatha’s
listing.

41. Dr Matjila, who was not a member of the deal team, was actively involved in the
transaction. He wanted PIC to subscribe for Sagarmatha shares at R39.62 per
share or at another price higher than that recommended by the deal team. Dr
Matjila had already signed the share swap agreement and irrevocably bound the
PIC to a share price of R39.62 prior to Sagarmatha being valued by the deal
team.

42. The deal team members, in particular Mr Molebatsi and Mr Seanie, made it clear
that they were opposed to the PIC investing in Sagarmatha. Notwithstanding this,
not only did Dr Matjila negotiate the share price without the knowledge of the
deal team, but he also requested Ms Mathebula to arrange a telephone
conference and a meeting between members of the IC and Sagarmatha officials
shortly before the IC was to consider the transaction. Dr Matjila’s support of the
transaction went to the extent of asking Ms Mathebula to forward documents in
support of the transaction from various trade unions and other organisations –

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Investment Corporation Page 29 of 794
 which were going to be part of the BEE component of the deal - to members of
the IC. This was improper conduct and went against standard practice.

43. It is difficult to understand why Dr Matjila sought to invest in a company at a price

significantly higher than that recommended by the very experts he claimed
throughout his testimony to rely on, and ignoring the fact that the company
already had liquidity problems and was not servicing debt due to the PIC.

44. The conduct of the IC in referring the transaction back to the PMC despite serious
concerns raised by some of its members, calls into question its professionalism
and whether, at all times, it was acting in the best interests of the PIC.

PREMIER FISHING

NOTE: This transaction is merely included for the sake of completeness of the
transactions that the PIC undertook within the Sekunjalo Group

45. PMC Listed ratified a maximum amount of R339.3 million at R4.50 per share in
a private placement for a 29% shareholding in Premier Fishing, ahead of its
listing on the JSE on 2 March 2017. Premier Fishing was a subsidiary of African
Empowerment Equity Investment (AEEI).

46. The deal team was interested in this opportunity. However, the PIC ESG team
had identified that there were governance issues around the fact that the
chairman and majority of directors of Premier Fishing were also AEEI directors
and therefore were not independent. The ESG team had identified, in their due
diligence (DD) report, that Mr Arthur William Johnson (Mr Johnson) from 3 Laws
Capital, a related party company to the Sekunjalo Group, was listed as an
independent non-executive director and a member of the Premier Fishing audit
committee. Mr Johnson was appointed as a director of 3 Laws Capital in April
2008 which makes him a non-independent non-executive director of Premier
Fishing. Ms Rosemary Mosia had also been identified as an independent non-

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Investment Corporation Page 30 of 794
 executive director on the audit committee. Subsequently, on 10 October 2017,
Ms Mosia was appointed as a non-executive director to the Sagarmatha Board
and on 22 August 2018 she was appointed to the Ayo Board.

47. She resigned from the Sagarmatha Board on 26 September 2019, and on 30
August 2019, her daughter, Ms Moleboheng Gabriella Mosia, was appointed as
a non-executive director on the AEEI Limited Board.

48. Other issues identified by ESG were around the need for a remuneration policy
aligned to the business strategy and performance indicators linked to both short-
and long-term incentives. The company also did not provide details on its health
and safety programmes, labour practices or working conditions.

49. The PIC’s Risk Due Diligence report had foreign exchange risk as its only high
risk, but overall did not raise any objection to continuing with the transaction. The
PMC Listed also requested that at least two board seats be allocated to the PIC,
one being that of the lead independent director, or that they have the opportunity
to participate in the appointment of the lead independent director.

AYO

50. In this transaction, the PIC subscribed for 99.8 million shares at a total price of
R4.3 billion, being R43.00 per share.

51. The opportunity to invest in Ayo was presented to Dr Matjila in or around October
2017 by Dr Survé, the chairman of the Sekunjalo Group of companies. Dr Matjila
testified that, because he did not get involved with the analysis of investment
potential of opportunities presented to the PIC and the processing thereof, he
requested the Executive Head of Listed Investments, Mr Fidelis Madavo (Mr
Madavo), to look into the opportunity and assess its investment potential.

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Investment Corporation Page 31 of 794
52. On 16 November 2017, Mr Madavo instructed Mr Seanie, the Assistant Portfolio
Manager for Non-Consumer Industrials, and Equity Analyst at the PIC, to attend
a meeting with Ayo representatives. Mr Seanie learnt at the meeting that Ayo’s
intended listing on the JSE was scheduled for 15 December 2017.

53. Due to the time pressure, and before scheduling a PMC1 meeting, on 27 and 30
November 2017, Mr Seanie requested ESG, Risk and Legal teams to allocate
team members to assist in the Ayo initial public offering and to conduct a due
diligence which, in terms of the PIC’s processes, would be done once PMC1 had
approved a due diligence exercise. However, meetings of PMC1 failed to
materialize and the due diligence was never authorized.

54. Due to the looming placement date, namely 15 December 2017, and since the
PMC1 meeting did not materialize, Dr Matjila told Mr Molebatsi that it was
impossible to organize another meeting of the PMC at such short notice. He
therefore suggested to Mr Molebatsi that they both sign an irrevocable share
subscription form, subject to the understanding that he would request PMC to
regularize the transaction at the first available opportunity. The subscription form
was signed on 14 December 2017 by Dr Matjila and Mr Molebatsi who
irrevocably committed the PIC to participating in the listing of Ayo.

55. The transaction was approved at a hastily scheduled PMC2 meeting held on 20
December 2017, chaired by the CFO, Ms More. Dr Matjila, Ms More (who had
signed the disbursement memo the day before) and Mr Seanie attended the
meeting, but none of them informed those present at the meeting that an
irrevocable subscription form had already been signed, as had the disbursement
memo, and that PMC2 should ratify the actions of Dr Matjila and Mr Molebatsi of
prematurely signing the irrevocable subscription form instead of approving the
transaction.

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Investment Corporation Page 32 of 794
56. Further evidence came to light that Dr Matjila had, in fact, signed an irrevocable
commitment to purchase 92% of Ayo – the full issue – at a price of R43 per share,
on 4 December 2017, ten days prior to the signing referred to above. This, too,
was not revealed to the PMC2 meeting of 20 December 2017.

57. Emails provided to the Commission also indicate that PSG Capital, the
transactional advisor and sponsor for the listing, received a “generous” bonus in
the region of R4 million from Dr Survé for successfully listing Ayo.

58. Dr Survé and Dr Matjila had both indicated at the Commission that the monies
received from the PIC are still in Ayo’s bank accounts. This is partly correct, due
to the fact that the results are published at a point in time and indicate that the
monies were transferred back to Ayo just before the interim and year end cut-off
periods (28 February and 31 August respectively). The evidence gleaned from
various bank statements show that there has been significant movement of the
funds between different related parties. This created the impression of funds in
bank accounts but, in reality, this was only the case at specific moments in time.

59. The Commission has also noted that Grant Thornton signed off on a limited
assurance report on forecasted financial information contained in Ayo’s PLS.
BDO and Grant Thornton merged in July 2018. BDO Cape Incorporated has
been the auditor of Ayo for 21 years. This indicates a long-standing relationship
between the audit firm and Ayo and brings into question its independence.

Findings

60. It is found by the Commission that the failure of the PIC to obtain approval from
PMC1 to proceed to the due diligence and the signing of the irrevocable
subscription form without first obtaining the approval to invest from PMC2
amounted, in each case, to improper conduct since the actions were not in
accordance with the PIC’s investment procedures.

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Investment Corporation Page 33 of 794
61. By instructing ESG, Risk and Legal to proceed with the due diligence without the
approval of PMC1, Mr Seanie acted improperly and thereby contravened the
PIC’s policy on Standard Operating Procedure.

62. In failing to disclose to PMC2 that an irrevocable share subscription form had
already been signed, Dr Matjila and Mr Seanie acted improperly and were
dishonest. (Mr Molebatsi did not attend the PMC2 meeting.)

63. As a key individual in terms of the FAIS Act, Dr Matjila failed to comply with the
fit and proper requirements in terms of section 8A(a) of the FAIS Act in that he
acted dishonestly and without integrity, thereby contravening the provisions of
section 8A(a).

64. There is no evidence that the impropriety or contravention resulted in any undue
benefit for any PIC director, or employee or any associate or family member of
any PIC director or employee at the time.

Recommendations

65. The Commission recommends that stringent measures be taken to ensure that
there is adherence to, and compliance with, the procedures which are designed
to serve the interests of both the asset manager and the investee company.

66. Both Dr Matjila and Mr Seanie are no longer employees of the PIC, Mr Seanie
having been charged and dismissed following disciplinary proceedings arising
from his actions or inaction relating to the Ayo transaction. With regard to Dr
Matjila, the PIC must consider reporting the contravention of the provisions of the
FAIS Act to the relevant authorities.

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OVERALL FINDINGS AND RECOMMENDATIONS IN RELATION TO
THE SEKUNJALO GROUP INVESTMENTS

67. The Sekunjalo Group investments showed a marked disregard for PIC policy and
standard operating procedures.

68. Proper governance was absent or poor, and risk identification processes were
downplayed by looking for risk mitigants to make sure the deals were approved.

69. Due diligence reports highlighting issues around independence of Board

members, policies to be implemented etc. were not followed up by the PIC to
ensure implementation post the deal being approved and monies having flowed.

70. The “close relationship” between Dr Matjila and Dr Survé created top down
pressures that the deal teams experienced to get the requisite approvals.

71. Board members within the Sekunjalo Group of companies are not independent.
Some board members are related to Dr Survé, are long-serving employees, long-
time friends or are non-executive directors on other Sekunjalo Group company
boards and dominate the board seats in those companies. Independent non-
executive directors are in the minority on the boards of AEEI and Ayo.

72. In the light of the above, the Commission recommends that the PIC must conduct
a forensic review of all the processes involved in all transactions entered into with
the Sekunjalo Group and ensure that the PIC obtains company registration
numbers of every entity in the Sekunjalo Group to be able to conduct a forensic
investigation as to the flow of monies out of and into the Group.

73. It is further recommended that the PIC must ensure that all pre- and post-
conditions for all investments made, not just those in the Sekunjalo Group, have

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Investment Corporation Page 35 of 794
 been fully met and implemented, and that effective processes and systems are
in place to properly monitor investments post disbursement.

74. Steps must be taken to recover all monies with interest due to the PIC, especially
where personal or other sureties was a precondition to approval of the
investment.

75. The PIC must also determine the future role, if any, of the PIC in all of the
transactions with the Sekunjalo Group, to protect the interests of the PIC and its
client; and review all aspects of the transactions entered into with the Sekunjalo
Group to determine whether any laws or regulations have been broken.

76. It is also recommended that the PIC reviews its internal processes, including its
standard operating procedures, together with the DoA, to determine
responsibility and culpability, and to consider whether there are grounds for
disciplinary, criminal and/or civil legal action against any PIC employees or Board
members, current or previous.

77. The Commission recommends that the Regulatory and Other Authorities should
consider whether any laws and/or regulations have been broken by either the
PIC and/or the Sekunjalo Group; determine what legal steps, if any, should be
taken to address any such violations; and assess whether the movement of funds
between accounts, as indicated above, was intended to mislead/defraud
investors and/or regulators.

Case Study: S & S REFINERY

78. S&S Refinery (S&S) is a palm oil refinery and saponification plant based in
Nacala, Nampula Province, Mozambique. The PIC decided, in October 2014, to
invest in S&S. The legal agreements relating to the investment decision were
concluded on 14 November 2014.

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Investment Corporation Page 36 of 794
79. Although the investment decision was made in 2014 and therefore falls outside
the period 1 January 2015 and 31 August 2018, the transaction is among those
mentioned in media reports in 2017 and /or 2018 as per ToR 1.1.

80. The allegations in the media reports were that Dr Matjila had authorised an
investment to the tune of nearly R1 billion in a dilapidated Mozambican palm oil
refinery plant (S&S) that was not operational. It was also alleged that, apart from
injecting US$ 63 million (approximately R812 million) for a 50% stake in S&S,
the PIC also paid millions in facilitation fees to a company named Indiafrec Trade
& Investment (Pty) Ltd.

81. A reading of the evidence of the four witnesses who testified before the
Commission on the S&S transaction shows that there was no substance in the
media reports that the PIC invested in a dilapidated refinery and does not show
any impropriety in the investment decision. However, given the evidence
presented before the Commission and the fact that a further investment was
made by the PIC in the same project, the information, in particular matters
presented in the Risk report, will be considered.

82. In or about August 2014, the PEPSSME Fund Investment Panel approved the
total investment of US$ 62.5 million in S&S. On 21 January 2016, the PIC,
through the PEPSS Fund Investment Panel, resolved to increase its investment
in S&S from 45% to 70% by acquiring a further 25% shareholding for a
consideration of US$ 10 million.11 In the result, as a number of Mozambican
banks also invested in the project, the PIC’s total exposure in S&S stood at US$
63 million.

11 The PEPSSME FIP of 20 October 2014 reflects a reduced investment from the original US$
62,5 million to US$

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Findings

83. It is found that the Risk assessment and investment decisions relating to the S&S
investment did not take sufficient account of the following issues

83.1. The fact that raw materials essential for the business were imported and
paid for in US dollars, while earnings were in the local currency, namely the
Mozambican metical;

83.2. The purchase by the PIC of its equity shares in S&S was in US dollars,
while repayment would be in meticals;

83.3. The reliability and sustainability of supplies of the imported raw material, as
well as the transport costs thereof, would also have to be paid for in US
dollars;

83.4. The economic outlook in Mozambique, where deteriorating economic

conditions affected the financial viability of the enterprise, and interest rates
on local borrowing escalated rapidly;

83.5. The dependency on imported raw materials; and

83.6. The assumptions used for the assessment of risks were not rigorous
enough.

Recommendations

84. Accordingly, it is recommended that greater focus and interrogation must be

given post an investment decision to the management and the performance of
existing investments, prior to such investments becoming distressed.

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85. The IT infrastructure for unlisted investments must be addressed as a priority, as
at the time of giving evidence, there were no automated portfolio management
systems in place. This would make the process of monitoring compliance more
efficient and effective.

86. Furthermore, a separate workout and restructuring department that focusses on

resolving and reconfiguring distressed assets should be established as well as a
stand-alone division within the PIC that looks at investment proposals to be made
outside South Africa.

87. It is also recommended that the role of risk, in investment decisions, needs to be
strengthened.

88. It should also be noted that the conditions precedent which applied to the
transaction were not implemented. This failure is a serious management
oversight and those responsible should be held to account.

89. When investing abroad, a careful analysis of local partners, who should be
established corporates and not individuals or family run businesses, must be
undertaken.

90. The documentation submitted to the various committees for decisions must be
reviewed to ensure authenticity and any changes to investment amounts and that
shareholding reflects both names and percentages, and dates.

Case Study: Lancaster Steinhoff

Project Sierra

91. The investment proposal was prepared by Symphony Capital on behalf of the
Lancaster Group for the acquisition of 2.75% of the shares in Steinhoff
International Holdings N.V. (SNH) amounting to R9.35 billion. Symphony Capital

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 was paid R76.95m for this work, and an amount of R22,85m was paid to
Lancaster Group, and to L101, a subsidiary of the Lancaster Group.

92. Paragraph 20 of the 20 July 2016 appraisal report of the PIC states that Mr
Jayendra Naidoo (Mr Naidoo) has a long and established relationship with major
shareholders of SNH, particularly Mr Christo Wiese. This was confirmed by Mr
Naidoo.12

93. Steinhoff had a voting pool arrangement in place, which pool controlled 33% of
the company and exercised significant influence over all matters that required
shareholder approval. Through this transaction, Mr Naidoo, being the sole
Shareholder of Lancaster Group, had been invited to join the voting pool. The
PIC at the time owned 9% of Steinhoff. At no point was the PIC going to get a
seat on the Board, and Mr Naidoo in testimony before the Commission stated
that the shares were ordinary shares and did not have any special voting rights,
as claimed by Dr Matjila.13

94. The proposal further provided for the PIC to acquire a 50% equity stake in L101
for R50 million.

95. The total funding provided by the PIC amounted to R9,4 billion (loan + equity).
This was reduced from the initial request for R10,4bn, according to Dr Matjila, so
that the investment decision would fall within his delegated authority and would
not have to be referred to a higher committee or the Board for consideration.14

96. An equity derivative backed financing structure was put in place by L101(ratio
collar structure), with the PIC’s capital guaranteed by an international bank
(Citibank) through a primary cession and pledge of L101’s put option proceeds

12
At page 14 of the Transcript for day 63 of the hearings held on 14 August 2019.
13
Ibid. page 23.
14
At page 98 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 as security for its loan obligations. However, the security arrangements were
altered with 100% of the primary cession being granted to Citibank for it to
provide R6,5bn to fund the transaction as part of a second phase of the
transaction, known as Project Blue Buck (L102).

Findings and Recommendations

97. The PIC could have purchased any quantum of Steinhoff shares outright in the
market instead of entering into a transaction to do so through Mr Naidoo. The
‘joining’ of the “voting pool” by Mr Naidoo did not materialise.

98. The Investment Committee (IC) of the PIC approved the transaction. The chair
of the IC was Mr Roshan Morar, a PIC non-executive director, who signed off on
the IC resolution for this investment. At the same meeting, he was also appointed
as a board member to L101 representing PIC’s interests which clearly indicates
a conflict of interest. He continues to be a director of the Lancaster Foundation
which is a non-profit company.

99. As at the end of February 2019, the amount outstanding on this loan was
approximately R11.6 billion with interest accrued. The loan has not been serviced
by L101 to date.

100. On 26 September 2016, a SENS announcement was put out by Steinhoff stating
that a 2.5% underwriting commission was paid to the Lancaster Group (this was
not reflected in L101’s financials) when the shares were subscribed for in
Steinhoff – R114 million was paid to the Lancaster Group, and not to L101.

101. The Commission finds that it would not have been possible for these shares to
have been subscribed for by L101 had it not been for the funding advanced by
the PIC. Yet the underwriting commission was paid to the Lancaster Group.

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102. It is questionable whether the Lancaster Group or L101 should have received an
underwriting commission at all, and whether this should have gone to the PIC
itself.

103. Based on the evidence of Mr Naidoo, it also appears that no discussion took
place in relation to whether the commission should have been paid to L101,
instead of the Lancaster Group.

104. The Commission recommends that the PIC must obtain a legal opinion as to
whether the R114 million underwriting commission that was paid to the Lancaster
Group should have been paid to L101, or if it was in fact due to the PIC, and if
the latter is shown to be the case, appropriate steps should be taken to recover
the money.

105. It should further be noted that a total of R100 million in equity contributions were
made by both the PIC and Mr Naidoo which Mr Naidoo has failed to prove is still
in the relevant bank account.

106. The Commission has noted that the PIC did not use any transaction advisors,
notwithstanding the complexity of the proposed structure and deal. The PIC team
indicated that the Lancaster Group then dictated the terms through their advisors.
This is found to have placed the PIC team at a significant disadvantage.

107. The Commission finds that the conduct of Dr Matjila in reducing the amount so
that it falls within his DoA was wholly improper. This might be taken to indicate
collusion between Dr Matjila and Lancaster.

108. The Commission recommends that the PIC’s MOI and DoAs regarding the PIC’s
investment decision making framework be amended to require the Board to
approve any amendments to proposals which require the Board’s approval when
they are submitted to the PIC.

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Project Blue Buck

109. L101 was to subscribe for shares in STAR for R6.2 billion (5.9%). This was to be
funded by raising new bank finance against the put option proceeds under the
ratio collar. The amount raised was R6.5 billion.

110. The PIC loan and security package was re-negotiated in favour of L101 and
essentially was diluted with an addition in security over the shares that L101
would acquire in STAR through a primary cession and pledge over these shares.

111. Steinhoff agreed to match the R6.2 billion of funding in order to ultimately buy
additional shares in STAR, after the acquisition of Shoprite held by Thibault. Due
to free float issues, the funding was later reduced to R4 billion. Steinhoff
committed to provide the additional R2.2 billion to L101 for future investments,
which did not materialise.

Findings

112. A significant amount of money had already been loaned to Mr Naidoo, amounting
to R9.4 billion for Project Sierra. Yet the PIC was ready to entertain a second
transaction, notwithstanding that the terms of their loan and security package
were diluted in favour of L101.

113. The reasons provided by Dr Matjila for his decision to invest in Steinhoff through
Mr Naidoo reflect a disregard for the interests of the clients of the PIC in pursuit
of an ostensible ability to secure influence over a JSE listed company. Given that
Mr Naidoo is also a PEP, the PIC was obliged to ensure a thorough due diligence
was undertaken. Yet the PIC IC, and Dr Matjila, approved a transaction that
would significantly enrich a single individual, and at the same time took decisions
that removed the safeguards that were in place to protect the interests of the PIC.

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114. The PIC renegotiated the terms of its loan and security and in the process diluted
its security. The proceeds from the ratio collar put option proceeds of L101 were
then ceded in favour of an international bank, which would then fund the R6.2
billion acquisition of STAR shares by L101. PIC agreed to a reversionary cession
and pledge on these proceeds (their loan capital no longer guaranteed) whereas
previously it had a primary cession and pledge over these proceeds (their loan
capital was guaranteed.)

115. The only security the PIC has that has any value is the primary cession and
pledge over the STAR shares which could be sold and set-off the debt owed
under Project Sierra, but this would realise a significant loss.

116. It is concerning that the PIC approved the first and second transactions and
transferred the funds, notwithstanding that the Lancaster Group had not
established the B-BBEE Trust. This constituted an inexplicable waiver of the
PIC’s right to defer the transaction as a result of the Lancaster Group’s failure to
adhere to the conditions upon which its proposal to the PIC was approved. Those
responsible for this very material oversight must be the subject of disciplinary
action within the PIC.

117. It would have also been appropriate for the PIC to ensure that conditions
precedent were expressly agreed to as part of the approval of the transaction,
particularly with regard to the date for the establishment of the Trust, prior to any
transfer of funds. This would have enabled the PIC to monitor and enforce such
conditions and to cancel the transaction if such conditions were not adhered to.

118. It should also be noted that, although the initial approval by the PIC was for the
establishment of a Trust; there was a subsequent request for the Trust to be
converted into a non-profit company, which the PIC approved. The non-profit
company was only established in 2017, a year after the transaction was finalised.

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119. The PIC agreed to a second transaction with the same individual, ignoring both
cumulative and counterparty risk, at great cost to the PIC/GEPF.

120. The PIC did not adhere to its criteria for funding B-BBEE as these two
transactions had the same single individual as a counterpart. The transaction
also enabled significant enrichment to accrue to a single individual.

121. A B-BBEE transaction with one individual cannot be construed as a broad-based

empowerment transaction and does not comply with the Structured Investment
Products mandate to facilitate B-BBEE given by the GEPF. The PIC essentially
imposed the creation of an empowerment trust on the Lancaster Group, but
provided the funding without it being in place.

CASE STUDY: ERIN ENERGY

122. ERIN, previously Camac, sought, in February 2014, a secondary listing on the
JSE. Dr Matjila signed a letter in which the PIC confirmed that on the day of the
secondary listing of Camac, an injection of USD135 million would be made by
the PIC and a further amount of USD135 million would be paid 90 days
thereafter.

123. In 2013, Camac declared that it was technically bankrupt. This fact was not
disclosed to the JSE in the PLS. By virtue of the cash injections (totaling USD
270million) made by it, the PIC acquired a 30% shareholding in ERIN15.

124. During May 2016, ERIN approached the PIC for a guarantee in the amount of
USD100 million to cover loan funding it had requested from the Mauritius
Commercial Bank. The IC considered ERIN’s request and resolved to approve

15
Ibid, para 2.

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 it. ERIN then obtained a loan facility for the amount of the guarantee from the
Mauritius Commercial Bank (“MCB”).

125. There is no evidence before the Commission to support a finding of impropriety

in the PIC’s decision to approve the provision of a guarantee in favour of MCB.
However, it is necessary, to make the following observations:

126. In their report, the risk team, consisting of Mr Tshifhango Ndadza and Mr Paul
Magula, recommended that the approval of the guarantee be subject to a number
of conditions. In its wisdom, the IC did not include this recommendation as a
condition precedent to the approval coming into effect.

127. It is understood, from certain media reports in Nigeria, that in 2019 the Nigerian
government revoked ERIN’s oil mining licence/lease (OML) 120 and 121.

128. ERIN had drawn down on the MCB loan facility amounts totaling approximately
USD67 million, which the PIC has had to pay as guarantor.

Findings

129. In approving the transaction to provide a guarantee of USD100 million, while

disregarding the recommendation of the risk team to approve the transaction
subject to certain conditions precedent, the Investment Committee acted
improperly.

130. In addition, no thorough due diligence and legal risk assessment was done to
enable the IC to give proper consideration to Erin’s application for funding and
for the provision of the guarantee referred to above.

131. This impropriety is in contravention of the investment policy of the PIC relating to
investment processes.

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132. However, there is no evidence that the impropriety or contravention resulted in
any undue benefit for any PIC director, or employee or any associate or family
member of any PIC director or employee at the time.

Recommendations

133. The Commission is of the view that, if due diligence and legal risk assessments
had been given proper attention, the difficulties encountered by ERIN would
probably have been highlighted. Their respective roles therefore need to be
strengthened so as to ensure that no investment decisions are made without
following due process.

134. The PIC should investigate what measures can be taken to retrieve any tangible
assets of ERIN to reduce losses and engage with the Nigerian government in
this regard if deemed appropriate.

CASE STUDY: ASCENDIS HEALTH TRANSACTION

135. The PIC concluded two transactions that involved the same BEE company and
Mr Lawrence Mulaudzi from Kilimanjaro Capital (KiliCap), namely Tosaco and
Ascendis, in terms of which an investment was to be made into Ascendis Health
and Bounty Brands. Kefolile Health Investments (Pty) Ltd (KHIH) was the
investment vehicle.

136. During the review of the deal, the Commission found that R100 million which was
approved by the PIC for the purchase of shares in Ascendis, was not used for
that purpose. Rather, it seemed that the R100 million had been added to the
transaction fees and paid to two entities of Mr Mulaudzi.

137. It was also established that the transaction in question was not initially approved
but, according to Dr Matjila, as chairman of the Social and Economic

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 Infrastructure and Environmental Sustainability Fund Investment Panel, Ms Zulu,
albeit after this transaction, whose personal relationship with Mr Mualudzi was
confirmed during his testimony, signed the resolution in terms of which it was
resolved that the PIC would provide the funding to KHIH.

138. It should be noted that, during his testimony, Mr Mulaudzi also stated that:

‘I … received a call from Dr Matjila, requesting my urgent assistance. He

advised that the same lady [Ms Pretty Louw]… was in financial trouble … He
asked me to urgently come to her rescue by settling her debts…’16

Findings

139. The Ascendis transaction was presented to the PIC at virtually the same time as
the Tosaco transaction, yet the two appear to have been considered by the
relevant PIC approval committee as two discrete investments.

140. The PIC approval conditions, in this instance how the funding was to be utilised,
were very specific. Yet again, the Ascendis investment shows the PIC’s
weakness, indeed failure to monitor the implementation of the decision and
ensure that the funds provided were used as approved. Transaction costs were
determined as R19m, yet there is a payment to Mr Mulaudzi of R79,8 million from
KHIH.

141. Dr Matjila states that ‘we had to buy some time to assess the performance of
Kisaco in the Tosaco transaction before we commit to another entity led by Mr
Mulaudzi’.17 It is highly questionable that the approach to be taken is one of

16
Paras 52-58 of Mr Mulaudzi’s statement signed on 26 March 2019.
17
Para 360 of Dr Matjila’s statement signed on 17 July 2019.

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 buying time to assess the previous transaction. This borders on reckless
investing, and timelines should not drive deal decisions.

142. Ms Zulu requested that the Ascendis transaction be brought back for
consideration by a committee that she chaired. Mr Mulaudzi asserts that he has
‘not attempted to influence her professional views in any way…’. 18 Yet the
sequence of events and the eventual outcomes raise significant concerns as to
the role of non-executive directors in investment decision making, as well as
undue and inappropriate influence from the Board. This is a critical matter.

143. Dr Matjila’s repeated efforts to have Mr Mulaudzi provide financial assistance to

Ms Pretty Louw reflects the abuse of his office and influence over investee
companies. The investigative work into tracing the money also raises concerns
as to how influence and advisor fees were utilised behind closed doors, and that
fees may have been paid out of client funds, regardless of value received.

Recommendations

144. The PIC must undertake a forensic audit of the utilisation of the funds provided
to Ascendis to ensure they were utilised as approved, and legal avenues be
pursued to recover any money not utilised in accordance with the PIC approval
stipulations.

145. Parallel investments in different transactions with a common counterparty should

be limited by the PIC both in number and value.

146. Coordination within the PIC between the different approval structures and
processes must be addressed to ensure that investments and exposures to an

18
Para 69 of Mr Mulaudzi’s statement signed on 26 March 2019.

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 entity or counterparty are clearly understood, and that cumulative financial and
reputational risk is integral to risk assessment.

147. The role of non-executive Board members in investment decisions must be

reviewed and the relevant PIC legislation and DoAs reconsidered. The matters
of governance and oversight must be given a higher priority and role. Such a
review should be completed by no later than June 2020.

148. Controls must be put in place to ensure investment decisions as approved in the
governance process are implemented in the actual transaction prior to funds
being dispersed.

149. The PIC should reconsider the use of SPVs and layered legal entities within
investment structures or ensure there are appropriate mechanisms to enforce its
rights.

CASE STUDY: KARAN BEEF

150. Allegations of impropriety in the Karan Beef transaction came by way of the email
of 30 January 2019, referred to in Chapter I of the report, from a sender with the
name or pseudonym ‘James Noko’. It was alleged in the email that a non-
executive director of the PIC, Ms Dudu Hlatshwayo (Ms Hlatshwayo), as
Chairperson of the Fund Investment Panel, approved the Karan Beef transaction,
in which a high ranking politician, Mr Paul Mashatile, Treasurer-General of the
ANC, has a financial interest, held through another individual. It was also alleged
that the construction of the deal was simply to inflate the selling price by R1
billion, and to pay the amount to Mr Mashatile.

151. Despite numerous invitations issued by the Evidence Leader and announced by
the Commissioner during the hearings, for those with information relevant to the
Commission’s Terms of Reference to come forward, no one came forward to
substantiate the allegations made in the email referred to above. The only person

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 who submitted a comprehensive statement to the Commission was Mr Sello
Adson Motau (Mr Motau).

152. Mr Motau sets out, in his statement, the route the transaction proposal took to
the PIC investment process. It went through PMC1, PMC2 and ultimately the
Investment Committee, which approved the transaction on certain conditions.
The conditions were met. However, since the resignation of the whole Board of
the PIC on 1 February 2019, the transaction has stalled – the executive,
according to Mr Motau, decided that the deal should be referred back to PMC2.19

153. The Commission finds that the allegations in the James Noko email of corruption
and impropriety in the Karan Beef transaction have not been substantiated.
There is therefore no substance in them. Consequently, no finding of impropriety
in the investment decision in the Karan Beef transaction can be made.

CASE STUDY: Mobile Satellite Technologies (MST)

154. In the James Nogu email of 5 September 2017, it was alleged that Dr Matjila had
funded Ms P Louw in the amount of R21 million through her company, Maison
Holdings, co-owned by Ms Annette Dlamini (Ms Dlamini). It was further alleged
that Ms P Louw was Dr Matjila’s girlfriend. Dr Matjila denied these allegations.

155. There was no other evidence placed before the Commission (nor in fact before
the Budlender Inquiry) on this issue.

156. Dr Matjila conceded that he was introduced to Ms Dlamini and Ms P Louw by

then Minister of Intelligence, Mr David Mahlobo at OR Tambo International
Airport. Dr Matjila then introduced Ms P Louw and Ms Dlamini to Mr Lawrence
Mulaudzi.20 At a later date, upon Dr Matjila’s request, Mr Mulaudzi made a

19
Paras 28 – 41 of Mr Motau’s statement signed on 21 May 2019.
20
At page 27-28 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 donation, in his personal capacity of R300 000.00 to Ms P Louw to assist Maison
Holdings with the financial difficulties it was facing. 21

157. As to the PIC’s funding of MST, Mr Rajdhar testified that MST applied to the PIC
in June 2015 for a loan of R45 million to procure buses.22 After completion of the
due diligence, PMC 2 approved the transaction for a term loan of R50 million plus
25% equity at a nominal amount of R25. However, MST was not willing to offer
equity to the PIC unless the company value was increased. After some
negotiation, PMC-UI granted approval of a revised proposal in the form of a debt
facility of R21 million plus a 5% profit share.23 The loan facility was to be
disbursed upon fulfillment of conditions precedent set by PMC-UI. Thereafter,
term loan agreements were signed and the funds disbursed on 6 July 2017.
However, the conditions precedent was not fulfilled in more than one respect.

158. Although it has been found that there is no substance to the allegation that Dr
Matjila directly funded Ms P Louw to the tune of R21 million, which in fact, is the
funding that was provided by the PIC to MST; it appears that there were certain
MST proposals to the PIC, in which Ms P Louw was involved.24 Mr Rajdhar also
testified that Ms P Louw initiated a number of CSI proposals that were not
approved.

159. On 1 April 2017 MST paid an amount of R438 000 plus VAT to Maison Holdings
for ‘work done to date’. It was found in the Budlender report that the money was
paid as a reward for Ms P Louw’s efforts and to encourage her to continue
therewith.

21
Ibid. page 33.
22
At page 8 of the Transcript for day 20 of the hearings held on 26 March 2019.
23
A copy of the revised proposal is attached as annexure ‘D’ to Mr Royith Rajdhar’ statement of 18 March 2019. See
para 10.4.
24
Para 35 of the Budlender Report.

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Findings

160. No finding of impropriety can be made on the established facts regarding the
investment decision of the PIC in the MST transaction. What is of concern is the
failure, on the part of the PIC, to demand from MST its 30 July 2016 audited
financial statements prior to disbursing the funds.

161. The Commission finds that Dr Matjila acted improperly in pressuring Mr

Mulaudzi, as the owner of an investee company of the PIC, to assist Ms P Louw
and Maison Holdings. This conduct constitutes an abuse of Dr Matjila’s position
as CEO and is a reputational risk to the PIC.

162. MST did not adhere to the conditions precedent for the loan of R21 million, which
were very specific, namely, that the borrower (MST) would apply all the funds for
the purpose of designing, constructing, assembling, operating and leasing of bus
units; and that MST would submit to the PIC its Audited Financial Statements by
no later than a period of 90 days after its financial year end. In addition, the funds
were not used by MST for the agreed purposes set out above. Indeed, a number
of busses were not purchased and monies were used to settle the debts of MST.

163. The R5 million CSI donation made directly to MST, of which approximately half
a million went to Ms Louw’s company, reflects a misuse of what the funds were
intended for.

164. The Commission recommends that the R500 000 paid to Ms Louw from the PIC
CSI donation must be repaid by MST to the PIC.

CASE STUDY: TOSACO (PTY) LTD

165. During 2015, TOSACO announced its intention to sell 91.8% of its shares to
qualifying buyers.

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166. Three companies, namely, Kilimanjaro Capital (Pty) Ltd (Kilicap), Sakhumnotho
(Pty) Ltd (Sakhumnotho) and Lereko (Pty) Ltd, separately approached the PIC
for funding to purchase the shares. The PIC’s Investment Committee (IC)
approved funding to the Kilimanjaro Sakhumnotho Consortium (Pty) Ltd, a
consortium comprising of KiliCap and Sakhumnotho, in the amount of R1.8 billion
to acquire the shares. However, the Consortium acquired the shares for R1.7
billion. The additional R100 million was allegedly funding for transaction fees, but
this was not brought to the attention of the PIC’s relevant committees for
approval.

167. Certain concerns were raised in relation to the circumstances surrounding the
merging of the two companies. Dr Matjila denied the allegation that he imposed
the merger on the two companies however, evidence to the contrary was put
before the Commission.25

168. On the issue of whether due diligence was conducted by the PIC on
Sakhumnotho before the merger, it was conceded that this had not been done.
However, it is clear from the evidence of Mr Mongalo that a thorough due
diligence should have been done as it is a critical part of the PIC’s decision-
making processes.

Findings

169. The Commission is of the view that there is no merit to the claims that –

169.1. the merger between KiliCap and Sakhumnotho was voluntary.

169.2. there was no need to do a detailed due diligence on Sakhumnotho as it was

already an existing client of the PIC;

25
At page 70 of the Transcript for day 53 of the hearings held on 11 July 2019.

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169.3. Dr Matjila only became aware of the transaction fees through media reports.

170. There was also no justification for the various PIC committees not to be informed
of the transaction fee.

171. While advice offered to the two entities, KiliCap and Sakhumnotho, to merge for
purposes of improving their chances to win the bid, would probably not be
improper, Dr Matjila should not have, imposed the merger on KiliCap.
Notwithstanding this, the Commission is unable to point to any policy of the PIC,
legislation or contractual obligation that may have been contravened in this
regard.

172. The failure to do due diligence on Sakhumnotho or the new entity, KISACO, after
the merger amounted to a disregard of the PIC’s investment policy.

173. In giving the instruction that the transaction amount be increased from R1.7
billion to R1.8 billion and thereafter failing to ensure that the alteration is
disclosed to the approving committee, Mr Rapudi acted improperly. As a FAIS
representative in terms of section 7(1)(b), read with section 13 of the FAIS Act,
he failed to comply with the requirements of ‘fit and proper’ relating to personal
character qualities of honesty and integrity, thereby contravening the provisions
of section 8A(a).26

174. There is no evidence that the contravention resulted in any undue benefit for any
PIC director or employee or any associate or family member of any PIC director
or employee at the time.

26
The Fit and Proper requirements are addressed in detail in Chapter V of the report.

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Recommendations

175. The Board should interrogate the approval process and authorisation of the
payment of the R100 million transaction fee and determine whether the R50
million paid to both KiliCap and Sakhumnotho was due, and in fact paid to the
advisors.

176. If the money was not due, then the PIC should institute legal proceedings with
regard to recovering the R100 million.

177. The Board should review the structure of the PIC to ensure that there are no
parallel processes and teams working with different potential investees on the
same transaction, unbeknown to each other.

178. The signing-off approval and disbursement processes require greater legal
oversight to ensure that the proposals, approvals and final disbursements are
not manipulated or changed from the original decision.

179. The role of the PIC in proposing advisors to investees for potential transactions
needs to be reconsidered as it can inappropriately create a system of patronage
and enrichment.

180. The PIC should consider whether or not appropriate action must be taken against
Mr Tshepo Rapudi as a FAIS representative in terms of section 7, read with
section 13, of the FAIS Act, for issuing the instruction to increase the amount of
the transaction from R1.7 billion to R1.8 billion, and determine on whose authority
he issued the instruction.

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TERM OF REFERENCE 1.2

'Whether any findings of impropriety following the investigation in terms

of paragraph 1.1 resulted from ineffective governance and/or functioning
of the PIC Board.’

1. When considering the above Term of Reference, it is necessary to take account

of a number of factors, including current best practice and codes for the effective
functioning and accountability of boards, the legislation applicable to the PIC
(and GEPF), and the practice and role of the Board of the PIC. This, together
with further issues regarding governance, has been addressed in ToR 1.15
below.

2. ToR 1.1 refers to ‘any alleged impropriety regarding investment decisions by the
PIC …’ Consequently, as illustrative examples, reference will be made to the
following ten transactions, all of which have been dealt with in different chapters
of this report, as set out below:

2.1. The Sekunjalo Group of companies, namely:

2.1.1. Ayo Technology Solutions (Ayo);

2.1.2. Independent News and Media South Africa (Pty) Ltd (INMSA); and

2.1.3. Sagarmatha;

2.2. Steinhoff/Lancaster Transaction

2.3. TOSACO

2.4. Ascendis

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2.5. S&S Refineries

2.6. VBS Mutual Bank

2.7. Erin Energy

2.8. MST27

3. The approach taken has been to consider whether there was impropriety in the
above transactions, and if so, was this the result of a failure of governance and/or
ineffective functioning of the Board. The details of each transaction will not be
covered and can be found in the case studies in ToR 1.1, above.

Ayo Technology Solutions (Ayo)

4. The Commission has found that there was impropriety in the Ayo transaction in two
respects, viz:

4.1. Mr Seanie giving instructions to ESG, Risk and Legal to proceed with due
diligence approval from PMC1, thereby contravening the policy on Standard
Operating Procedure; and

4.2. Failure by both Dr Matjila and Mr Seanie to disclose to PMC2 that an

irrevocable subscription form had already been signed by Dr Matjila when
PMC2 considered approval of the transaction.

5. The Commission concludes that these improprieties resulted from ineffective

governance.

27
Reference is made to these case studies throughout the report however detailed reference is made to each
transaction as a case study, in Term of Reference 1.1 and elsewhere in the report.

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6. This is found in the decision-making process, the material non-disclosures, as well
as a lack of interrogation of essential information – such as the determination of
the valuation – and the parallel processes that took place to give effect to the
transaction.

7. There was no proper valuation to back the investment that was done, and
therefore the question remains as to whether the PIC subscribed for the shares at
a fair and reasonable value. At the listing date, the shares were R43 per share,
while as at 23 October 2019 the share price was R5.60 per share, a decrease in
value per share of 87%.

Recommendation:

8. It is recommended that the PIC should introduce stringent measures to ensure that
each step in the investment procedure is followed before the transaction is allowed
to proceed to the next step. In this regard, a committee should satisfy itself before
dealing with a matter that there was compliance with the processes leading up to
its consideration of the transaction.

CASE STUDY: Independent News and Media South Africa (Pty)

Ltd (INMSA) and Sagarmatha.

9. The Commission did not consider the initial investment in INMSA, and therefore
cannot make any findings in that regard. However the Commission finds that in
the subsequent INMSA and Sagarmatha proposed transactions, there was
impropriety that occurred as a result of ineffective governance.

10. The impropriety lies in Dr Matjila signing the share swap agreement with
Sagarmatha, claiming that he did not know of the resolution by the approving
committee, (the PEPPS-FIP), in terms of which the transaction had been
approved with conditions diametrically opposed to the share swap agreement

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 that he signed. This evidences a complete disregard of the PIC’s investment
processes by Dr Matjila.

11. Further indicators of ineffective governance relating to these transactions are:

11.1. The PIC appraisal documents did not assess the implications of cumulative
group exposure in any of the applications to invest. Moreover, even when the
investment proposals were tabled at the required approving structures, the
question of overall exposure to a group seemed to not be an issue, nor was the
fact that INMSA was not servicing their loan.

11.2. The Sekunjalo investments showed a marked disregard for PIC policy and
standard operating procedures.

11.3. Proper governance was absent or poor, and risk identification processes were
downplayed by looking for risk mitigants to make sure the deals were approved.

11.4. Due diligence reports highlighting issues around the independence of Board
members and policies to be implemented were not followed up by the PIC to
ensure implementation post the deal approval and monies having flowed.

11.5. The proposed Sagarmatha transaction, including the suspected share price
manipulation and essentially attempting to use the PIC’s own investment to pay
the debt INMSA owed to the PIC, demonstrates a lack of ethics, lack of
compliance with laws and regulation, and a disregard for the best interests of
the PIC and its clients.

12. The recommendation proposed in Ayo above, applies equally in respect of this
INMSA/Sagarmatha transaction.

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CASE STUDY: Steinhoff/Lancaster Transaction

13. The Commission finds that there was impropriety in the decision to invest in both
the Steinhoff and Lancaster transactions. This was due to ineffective governance
and the poor functioning of the PIC Board.

14. This is evidenced in the approach taken by Dr Matjila to essentially ‘buy’ influence
and a Steinhoff Board seat, the change from the original proposal from Mr J
Naidoo for an investment of R10,4 billion, reduced by the PIC to R9,35 billion to
enable the transaction to fall within the mandate limit of the Investment
Committee and the further decision to invest in Lancaster for the STAR
transaction.

15. The statement by Dr Matjila exemplifies this ineffective governance: ‘we could
have gone to the Board but it was more convenient for the IC to deal with the
matter at that level’ adding that the Board has never rejected an Investment
Committee decision.

CASE STUDY: TOSACO

16. The Commission has found that there was impropriety in the process that led to
the approval of the transaction. The merger imposed by Dr Matjila, the failure to
do due diligence on Sakhumnotho and the inclusion in the capital amount of
transaction fees that were not requested by KISACO, nor recommended or
approved by the committees, reflects this.

17. In giving the instruction that the transaction amount be increased from R1.7
billion to R1.8 billion and thereafter failing to ensure that the alteration was
disclosed to the approving committee, Mr Tshepo Rapudi acted improperly. As a

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 FAIS representative in terms of section 7(1)(b), read with section 13 of the FAIS
Act, he failed to comply with the requirements of ‘fit and proper’ relating to
personal character qualities of honesty and integrity, thereby contravening the
provisions of section 8A(a).

18. The Commission finds that there was impropriety that resulted from ineffective
governance in the TOSACO Transaction

CASE STUDY: Ascendis

19. The Ascendis transaction was presented to the PIC at virtually the same time as
the TOSACO transaction, yet the two appear to have been considered by the
relevant PIC approval committee as two discrete investments, notwithstanding
the comment below.

20. Ms Zulu, a non-executive Board member, requested Mr Rajdhar (Head:

Impacting Investing at the PIC) to bring the Ascendis transaction back for
consideration by a committee that she chaired. Mr Mualudzi asserts that he has
‘not attempted to influence her (Ms Zulu’s) professional views in any way and
have never expected any undue influence from her through the positions she
holds, including at the PIC’.28 Yet the sequence of events and the eventual
outcomes raise significant concerns as to the role of non-executive directors in
investment decision making, as well as undue and inappropriate influence from
the Board. This is a critical matter. Clearly, as chair of the relevant committee,
Ms Zulu played a significant role, not only in getting the deal back onto the table
but also in the recommendations to make the investment.

21. It is of concern that Mr Mulaudzi admitted in his testimony before the Commission
that he had known Ms Zulu from around 2016, but they only began a personal

28
Para 69 of Mr Mulaudzi’s statement signed on 26 March 2019.

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 intimate relationship in 2018. He confirmed that at the time of appearing before
the Commission he was in an intimate relationship with Ms Zulu.

22. The Commission finds that there was impropriety in the Ascendis transaction due
to both ineffective governance at executive level and in the functioning of the PIC
Board, in that Ms Zulu participated in the PIC consideration of a transaction in
which Mr Mulaudzi had an interest. This is particularly important given the roles
that non-executive directors play in the PIC’s transaction decision making, and
the responsibilities exercised in that regard. This issue is addressed in the
section on ‘Lifestyle Audits’ in Chapter V.

CASE STUDY: S&S Refineries

23. The Commission found that there was no impropriety regarding the decision
taken to invest in S&S Refineries.

24. The Commission finds that failure to ensure that the decision taken to invest was
based on a rigorous and thorough analysis of the relevant information points to
ineffective governance, which is also evidenced by the fact that the conditions
precedent which applied to the transaction were not implemented.

CASE STUDY: VBS Mutual Bank

25. The Commission found that there was no impropriety on the part of the Board of
the PIC in the decision to invest in the VBS transaction.

26. The Commission is of the view, however, that there is clear evidence of
ineffective governance in the PIC in that two of its executive directors, Mr Nesane
and Mr Magula, egregiously violated their fiduciary duties towards both VBS and
the PIC.

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27. They acted in collusion, such that the PIC was not aware of critical information
relating to, among other things, shareholding in VBS, notwithstanding that the
information that they were privy to was critical to any investor/shareholder. They
hid behind the excuse that they could not share such information as they had
fiduciary responsibilities to the VBS Board. Nor did they act responsibly as non-
executive directors on the Board of VBS as they did not insist that the information
be made available to all shareholders and investors.

28. Both men used their positions of trust and responsibility to unduly enrich
themselves at the expense of the depositors, clients and investors of VBS,
including the PIC.

CASE STUDY: Erin Energy

29. The Commission found that there was impropriety in the decision to approve the
Erin transaction. This came about, in the Commission’s view, as a result of
ineffective governance. This investment (provision of a guarantee) was made
notwithstanding Erin being technically insolvent and against the advice of the
PIC’s own energy experts and internal team that had identified the problem as
being one of insolvency and not that of liquidity. Dr Matjila himself conceded that
the legal risk assessment was not properly done. Given the fact that this
transaction was to be performed outside the South African borders, and
particularly that the first transaction was to facilitate the purchase, by the
investee, of oil leases/licenses, it was imperative that legal risk established that
the purchase did occur, yet legal risk did not establish this fact. In addition,
conditions precedent proposed by credit and risk analysts of the PIC were
disregarded. These factors point to a serious lack of effective governance.

30. The question has to be asked as to how appropriate it is for an asset manager of
a pension fund to invest in oil exploration, which is a high risk endeavor.

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CASE STUDY: MST

31. The Commission found that there was no impropriety in the decision to invest in
MST. However, the circumstances that led the PIC to consider the investment in
the first place are indicative of a serious lack of appropriate governance.

32. During the presentation by MST for loan funding in November 2015, Dr Matjila
requested Corporate Affairs (PIC) to consider CIS funding for the MST project.
After a number of unsuccessful attempts to obtain funding, as the request did not
find favour with the Executive Committee, R5 million was approved in February
2017, with payment authorised by Dr Matjila on 20 March 2017. On 1 April 2017
MST paid R438 plus VAT (R500 000) to Maison Holdings, Ms Louw’s company,
‘for work done to date’.

33. The link to Ms Louw arose from the former Minister of Intelligence, Mr Mahlobo,
calling Dr Matjila to a meeting at OR Tambo airport without any indication of the
purpose of the meeting or who would be present. Moreover, Dr Matjila said he
saw no problem with this conduct. In this instance, he was asked, as the PIC, to
help Ms Pretty Louw.

34. There was ineffective governance in the provision of R5 million as a CSI

contribution to MST, of which Ms Louw received R500 000.

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TERM OF REFERENCE 1.3

‘Whether any PIC director or employee used his or her position or privileges,
or confidential information for personal gain or to improperly benefit another
person.’

1. This Term of Reference will be answered by way of illustration using the case
study of Harith, Venda Building Society Mutual Bank (VBS) and the Edcon
Mandate letter.

Harith

2. From the evidence and testimony before the Commission, the PIC created two
funds – PAIDF I and PAIDF II – and appointed a senior employee, Mr Tshepo
Mahloele (Mr Mahloele), to establish the funds and who, in due course,
became the CEO of Harith in its various forms.

3. Harith was a company established precisely to manage the two Funds, and at
significantly high fees. The Deputy Minister and Chair of the PIC, Mr Moleketi,
was appointed chairman of Harith. Through various processes, two employee
bodies were created, the HSIST and Harith Holdings, which was held 100%
by an employees’ equity trust of the same type as the HSIST, in which its
skilled employees participated.

4. The GEPF, the most significant investor in the Funds, initiated a legal process
to enforce its rights to both dividends and share ownership.

5. The earnings and incentive schemes provided rich rewards for those selected
by the PIC to fulfil these roles, confirming that PIC directors and employees
used their positions for personal gain and/or to benefit another person.

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6. Legal structures can be engineered such that they obfuscate substance for
form. In other words, the substance may still be legal. The ‘arm’s length’ loan,
based on the minutes of the PIC, clearly shows that this was not done at an
arms’ length. It is the Commission’s view that there is no question that the
approach taken provided easy access to PIC funds and influence including an
enhanced ability to secure additional investment, including from the GEPF.

7. Harith’s conduct was driven by financial reward to its employees and

management, and not by returns to the GEPF. In essence, the PIC initiative,
created in keeping with government vision and PIC funding was ‘privatised’
such that those PIC employees and office bearers originally appointed to
establish the various Funds and companies reaped rich rewards.

8. The Commission recommends that the GEPF and the PIC should jointly
appoint an independent investigator as soon as possible after receiving this
report. The mandate must be to examine the entire PAIDF initiative to
determine that all monies due to both parties have been paid and properly
accounted for; to determine whether any monies due to overcharging or any
other malpractice should be recovered, and to provide the results of such
investigation within six months to the Boards of both the GEPF and the PIC.

9. The Board of the PIC should examine whether the role played by either Mr
Moleketi and Mr Mahloele breached their fiduciary duties or the fit and proper
test required of a director in terms of the Companies Act.

10. The Board of the PIC should develop appropriate policies and guidelines for
the secondment/transfer/appointment of employees to external entities such
that the interests of the PIC and its clients are duly protected.

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The VBS Mutual Bank

11. The PIC saw VBS as a strategic asset with the potential to grow into a regional
bank. According to Dr Matjila, the PIC supported the conversion of VBS from
a building society into a mutual bank as a vehicle to assist in the development
of a black-owned and black managed player in the banking sector.29

12. On 29 March 2012, Dr Matjila proposed that the Directors’ Affairs Committee
(DAC) of the PIC appoint two of its senior executives to the VBS Board,
namely Mr Ernest Nesane (Mr Nesane) and Mr Paul Magula (Mr Magula).
Their appointment was approved. The resolution does not reflect any concern
by the DAC that both men were responsible for signing off on PIC legal and
risk approvals for the investment, and were now being appointed to the board
of VBS, which would be a conflict of interest.

13. In her evidence, Ms Brendah Mdluli (Ms Mdluli), stated that the VBS request
for a revolving credit facility (RCF) from the PIC was introduced by Mr Magula
and was approved by the relevant committee.30

14. Giving testimony before the Commission, South African Reserve Bank Deputy
Governor, Mr Kuben Naidoo (Mr Naidoo) covered the investigation into VBS,
the evidence of Mr Magula and Mr Nesane and the confidentiality of their
evidence given to the Motau investigation.

15. Mr Naidoo testified that,

‘(Mr Nesane) eventually confessed after putting up strenuous denials

that he had received unlawful payments made to a nominee

29
Para 499 of Dr Matjila’s statement signed on 17 July 2019.
30
Page 69 of the Transcript for day 20 of the hearings held on 26 March 2019.

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 company31… in a total amount in excess of R7,2 million in order to buy
his silence. Mr Nesane resigned from his post at the PIC two days after
testifying …’32

16. In relation to Mr Magula, it is stated at paragraph 21.4 of Motau’s report that:

‘…[he] eventually confessed, after putting up strenuous denials, that he

had received unlawful payments, made to two companies which acted
as his nominees, in a total amount in excess of R7.6 million in order to
buy his silence.’

17. Motau’s report further states at paragraph 39.3 that:

‘The monthly payments of R300 000 all took place on the same date
each month that Vele made a distribution of monies to a variety of related
parties, including Magula’s front companies, Nesane’s front company,
Makhavhu, who is the advisor to the Venda king.’

18. In Para 52.4, it is stated that Mr Nesane testified that he ‘did not properly
comply with his fiduciary duties as a director of VBS.’

19. The Motau report, in paragraph 237, deals with the extent of the looting,
indicating that R1 894 923 674 was gratuitously received from VBS by 53
individuals for the period 1 March 2015 to 17 June 2018. These recipients
included Vele and Associates (R936 699 111) and the two PIC senior
executives who were appointed to the Board as non-executive directors to
exercise their fiduciary duties to ensure PIC investments were not wasted. It
was found by Adv Motau SC that, in total, Mr Nesane received R16 646 086

31
At page 6 of the Transcript for day 23 of the hearings held on 2 April 2019.
32
Para 21.5 of the Motau report.

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 and Mr Magula, R14 818 098. They seem to have been handsomely rewarded
for turning a blind eye.

20. The Commission finds that Mr Nesane and Mr Magula egregiously violated
their fiduciary duties towards both VBS and the PIC. They acted in collusion,
such that the PIC was not aware of critical information relating to, among other
things, shareholding in VBS, notwithstanding that the information that they
were privy to was critical to any investor/shareholder. They hid behind the
excuse that they could not share such information as they had fiduciary
responsibilities to the VBS Board. Nor did they act responsibly as non-
executive directors on the Board of VBS as they did not insist that the
information be made available to all shareholders and investors.

21. Both men used their positions of trust and responsibility to steal and unduly
enrich themselves at the expense of the depositors, clients and investors of
VBS.

22. The Commission recommends that the Board of the PIC must ensure due
legal process is pursued to recoup investment funds lost in so far as this is
possible. This is dealt with in more detail in Chapter V Next Steps: Investment
Risks and Losses.

23. The Board of the PIC must institute due legal process to recover the ill-gotten
gains from both Mr Nesane and Mr Magula, who were in their employ at the
time of the theft.

24. The PIC should explore recovering any bonus or enhanced payments made
to both men during the period that they served on the VBS board, whether
related to the VBS matter or their regular duties.

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25. The actions of both Mr Nesane and Mr Magula should be referred to the
relevant regulatory and professional bodies to consider what action they
should take, should this not have been done already.

26. It is further recommended that the criminal conduct of Mr Nesane and Mr

Magula should be referred to the National Prosecuting Authority.

The Edcon Mandate Letter

27. Kleoss Capital, in a letter to the PIC’s Mr M Muller dated 8 August 2017, and
signed by Mr Andile Keta, sets out the terms of their appointment as joint
financial advisors to the PIC in relation to a potential investment by the PIC
and/or funds managed by it into Edcon Holdings Ltd. The second adviser is
Mr Koketso Mabe of Keletso M Squared (Pty) Ltd). He is a former PIC
employee who, at the time of his employment, was Executive Head, Private
Equity and SIPS (structured investment products). He left the PIC at the
beginning of February 2017.

28. The fees and expenses to be paid to the joint financial advisors, were “a
success fee in the amount of 1,5% of the total capital raised from the PIC,
including any potential co-investors, payable upon closing of the transaction
once all the conditions precedent have been fulfilled”.

29. The relevant part of this agreement is contained in Paragraph 4.2, which
states that:

“It is confirmed that, unless otherwise agreed by both parties on

termination of this Appointment Letter, or unless this Appointment Letter
shall have been terminated as a result of a breach by the Joint Financial
Advisers of their obligations in terms of this Appointment Letter, should
the Transaction be completed within a period of 2 years from termination
of this Appointment Letter, the Joint Financial Advisers full fee in respect

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 of the Transaction shall remain payable upon completion thereof,
regardless of such termination, and regardless of the fact that the PIC
may have completed the Transaction with the assistance of no advisers
or advisers other than the Joint Financial Advisers”.

30. Confirming this agreement, the “PIC hereby agrees to the terms and
conditions of the appointment of the Joint Financial Advisers as recorded
above.

31. The above agreement is signed by Ms More on behalf of Dr Matjila on 17

August 2017.

32. On 11 October 2019, Kleoss Capital, on behalf of the joint advisors, presented
an invoice to the PIC claiming R44 661 975 as payment from the PIC for the
services rendered as per the Appointment Letter.

33. The terms of the above agreement significantly disadvantage the PIC, to put
it mildly

34. The open-ended commitment in the agreement raises a number of questions:

34.1. Is this the only contract with such a clause, and if so, what were the
special circumstances that gave rise to it?

34.2. Was this contract signed off and approved by the PIC legal team?

34.3. Was any work as set out in the appointment letter performed by the
advisors, and if so was any assessment of their contribution made to the
conclusion of the Edcon deal undertaken?

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Recommendations:

35. The PIC Board of Directors institute a review of all contracts signed with
advisors over the past five years to see if any contain similar or the same
agreements.

36. The PIC review the Edcon transaction and determine whether the joint
advisors executed the mandate they were engaged to fulfil, or were utilised in
any way.

37. The PIC consider the legal options available to it regarding recouping any
payments made to the advisors.

38. Ms More be asked to explain her approval of the flawed agreement.

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TERM OF REFERENCE 1.4

‘Whether any legislation or PIC policies concerning the reporting of

alleged corrupt activities and the protection of whistle-blowers were not
complied with in respect of any alleged impropriety referred to in
paragraph 1.1.’

1. On the evidence before the Commission, the Commission finds that the PIC failed
to implement a Fraud Prevention Plan in terms of the Protected Disclosure Act, 26
of 2000 (PDA).

2. The Commission further finds that Dr Matjila failed to initiate training programmes
to create awareness of the PIC whistle-blower policy and the Board in situ at the
time also failed to exercise its oversight function in this regard.

3. Dr Matjila also acted in breach of the PIC’s whistle-blowing Policy by demanding

the passwords from the IT Department, insisting that all whistle-blower reports be
handed to him and taking charge of a forensic investigation in which he and his
fellow executive director, Ms More (CFO), were directly implicated.

4. The Commission is of the view that the content and tone of the Noku/Nogu emails
indicate that the intention of the originator was not to blow the whistle on corruption
but to cause maximum reputational damage to the PIC and its directors/top
management. Investigations conducted by the forensic team of the Commission,
assisted by the FIC, could not establish the veracity of the allegations contained in
the emails, except for the R 300 000 paid to Ms Pretty Louw (discussed in the MST
transaction) by Mr Mulaudzi at the request of Dr Matjila.

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5. Noku/Nogu cannot seek protection as a whistle-blower in terms of the PDA as
his/her emails cannot be classified as bona fide as they contain false information
in general except for elements of the ‘Pretty Louw’ matter. The probabilities are
that Nogu/Noku is a person within the PIC with access to information not readily
available to PIC employees, such as Board/Exco minutes.

6. The Commission cannot, on the evidence before it, comment on the disciplinary
enquiries of Mr Mayisela and Ms Mathebula as the enquiries were conducted in
terms of the PIC disciplinary policy and the hearings were chaired by independent
chairpersons. It must be recorded that Ms Mathebula was suspended and resumed
her duties after the departure of the former CEO, following a decision by the Board
not to implement the sanction of dismissal as recommended by the Chairperson of
her disciplinary hearing.

7. It is important to note that the practice of issuing anonymous emails has continued
at the PIC, with the latest being in or about October 2019. With regard to the latest
email, it is clear that the contents were obtained from a specific PIC email address,
probably by hacking emails of certain employees of the PIC and distributing them
in various forums. It appears that information within the PIC’s information system
platforms of communication continues to be accessed without permission and
leakages continue unabated, including records of meetings of various forums
within the PIC, such as the Exco, Board and Board subcommittees.

8. The Commission recommends that the Board of the PIC must, as a matter of
priority, develop a comprehensive policy to give effect to the PDA and institute a
programme to ensure that there is information and training available to implement
the amended policy. The implementation and effectiveness of such a programme
must be regularly reviewed and measured by the Board.

9. A complete review of the whistle-blowing policy and how it has been implemented
is essential.

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10. The Commission further recommends that the PIC IT systems need to be
adequately and appropriately secured and the document management policy
should be reviewed to reflect levels of confidentiality, access, processes and
versions that can be tracked appropriately.

11. The continued use of anonymous emails, the leaking of confidential documents
and abuse of social media reflects a serious breakdown of trust and confidence
within the PIC. The Board and Executive need to address this as a matter of
urgency through, among other things, reviewing existing policies on ethics and
values; examining and addressing the behaviour of leadership, including that of
the Board and Executive, to ensure they practice, and are seen to live up to, the
values and ethics the PIC espouses. This will ensure transparency and fairness
throughout the organisation.

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TERM OF REFERENCE 1.5

‘Whether the approved minutes of the PIC Board regarding the

discussions of any alleged impropriety referred to in Clause 1.1 are an
accurate reflection of the discussions and the Board’s resolution
regarding the matters, and whether the minutes were altered to unduly
protect persons implicated and, if so, to make a finding on the person/s
responsible for the alterations’

1. In order to answer the question ‘whether the approved minutes of the PIC Board
regarding the discussions of any alleged impropriety referred to in Clause 1.1 are
an accurate reflection of the discussions and the Board’s resolution regarding
the matters, and whether the minutes were altered to unduly protect persons
implicated and, if so, to make a finding on the person/s responsible for the
alterations’ it is necessary to consider the following two aspects:

1.1. Firstly, in relation to whether the approved minutes accurately reflect the
discussions of the Board and the resolutions taken, it is clear that the Board
was concerned about recording the discussions. The instruction to Ms
Mathebula not to record the meeting, and the subsequent redaction of the
minutes to exclude references to the discussions, reflect the concerns, and
perhaps fears and tensions within the Board, of individual comments and
opinions being recorded. The concern about leakages also informed this
approach.

1.2. Secondly, it is not possible to determine the accuracy of the minutes as only
resolutions were in the minutes of the Board meeting of 29 September
2017. The above minutes were signed by the Chairman of the Board. These
are therefore the final minutes and evidence of the proceedings of the

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Investment Corporation Page 77 of 794
 meeting. Furthermore, the only changes to the minutes were those that
occurred in the normal course of Board members commenting on or
changing draft minutes, and the final minutes presented to the Board took
such changes into account, and were then signed by the Chairman on 29
September 2019.

2. The evidence presented to the Commission consistently indicates that there was
a decision not to record the Board meetings dealing with the anonymous email
allegations, as there were concerns about such minutes being leaked and
becoming public.

3. Furthermore, the content containing discussions that took place in the meeting
was deliberately removed from the draft minutes, but there was no apparent
difference of view between Board members as to the accuracy thereof.

4. It would be impossible for the Commission, given the time and resources
available, to properly examine all the minutes of all the investment decisions.
Nothing was brought to the attention of the Commission regarding alteration of
minutes of investment decisions.

5. In relation to the Board meeting of 29 September 2017, it is reasonable to

conclude that there was no intention to change the record of the discussions or
purposefully alter the outcome and decisions. It is reasonable to recognise this
as an honest error of judgement taken at a time of great tension and fragility in
the PIC and significant distrust among members of the Board itself.

6. Therefore, the Commission recommends that the Company Secretary must in

future ensure that the Board minutes document the discussions that lead to
decisions, including the issues raised and the reasons for the decision.

7. All Board meetings, whether ad hoc, in camera or regular meetings, as well as

those of Board sub-committees established for any special purpose, should have

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Investment Corporation Page 78 of 794
 an experienced minute-taker and an audio recording for ease of reference. Audio
recordings must be kept for at least 30 days after the formal minutes have been
adopted.

8. Where appropriate, resolutions should indicate whether the decisions taken were
unanimous or record the vote and any dissenting views, including, if requested,
the director/s name.

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Investment Corporation Page 79 of 794
TERM OF REFERENCE 1.6

‘Whether the investigations into the leakage of information and the source
of emails containing allegations against senior executives of the PIC in
media reports in 2017 and 2018, while not thoroughly investigating the
substance of these allegations, were justified;’

1. At the Board meeting of 15 September 2017, besides finding no wrongdoing by

the CEO as alleged in the contents of the Nogu email, the Board authorised Dr
Matjila to investigate the leakage of information himself.

2. The Commission finds that the investigations into the leakage of information and
the source of emails containing allegations against senior executives of the PIC
in media reports in 2017 and 2018 were justified.

3. The Commission finds that the Board abdicated its responsibilities by failing to
take charge of all aspects of the investigations. It was the responsibility of the
Board to manage the process, to ensure that the IT systems of the PIC were
protected and that due and fair process was followed throughout the
investigations.

4. The PIC suffered considerable reputational damage as a consequence of the

leakages and the internal turmoil that resulted.

5. The role of the Board is to ensure due process and proper governance at all
times. In the matter of the anonymous email allegations, the Board did not
respond adequately. It should have obtained specialist legal advice on the
matter.

6. The Commission recommends that conflicts of interest need to be thoroughly

evaluated and properly managed and the policies of the PIC should be reviewed
to ensure that provision is made for appropriate guidance in the circumstances

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Investment Corporation Page 80 of 794
 such as those under consideration. Such policies must be known to all and
adherence thereto must be enforced.

7. The Board must also ensure that investigative processes are fair, transparent
and thorough in the interests of affected parties, the PIC and its employees.

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Investment Corporation Page 81 of 794
TERM OF REFERENCE 1.7

‘Whether any employees of the PIC obtained access to emails and other
information of the PIC, contrary to the internal policies of the PIC or
legislation?’

1. In June 2018, the PIC commissioned a legal opinion from the law firm ENS Africa
(opinion) in response to the actions of Mr Simphiwe Mayisela (Mr Mayisela) with
regard to him accessing or attempting to access the PIC’s confidential
information without authorisation. Human Resources head, Mr Christopher
Pholwane (Mr Pholwane), attached the Opinion as an annexure to his
statement33 which he confirmed under oath at a hearing on 27 May 2019.

2. The background to the Opinion was that Mr Mayisela had allegedly informed Mr
Lufuno Nemagovhani (Mr Nemagovhani), the Head of Internal Audit, that he was
in possession of an electronic password protected copy of the internal audit
report on the investment by the PIC in Ayo Technology Solutions. He requested
Mr Nemagovhani to provide him with the password for the report, but Mr
Nemagovhani declined the request.

3. The Opinion concluded that Mr Mayisela could have contravened, among

others, section 86(1) of the Electronic Communications and Transactions Act, 25
of 2002 (ECTA), which reads:

‘Subject to the Interception and Monitoring Prohibition Act, 27 of 1992, a

person who intentionally accesses or intercepts any data without authority
or permission to do so is guilty of an offence.’

33
A copy of the legal opinion is annexure ‘CP15’ to Mr Christopher Pholwane’s statement.

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4. The Commission agrees. The Commission is of the view that, since Mr
Nemagovhani refused to provide Mr Mayisela with the password and the latter
could therefore not gain access to the report, he could also have been guilty of a
contravention of section 88(1) of ECTA, in that he had attempted to commit an
offence referred to in section 86. Section 88(1) provides that:

‘[a] person who attempts to commit any of the offences referred to in

sections 86 and 87 is guilty of an offence and is liable on conviction to the
penalties set out in section 89(1) or (2), as the case may be’.

5. It should also be noted that, over the past few years, especially in 2017 and 2018,
confidential information belonging to the PIC has found its way to external
parties, including the media and retired General Bantubonke Holomisa (General
Holomisa).

6. An important point to note is that a number of employees went through

disciplinary processes (which are dealt with below) presided over by independent
Senior Counsel, where they were represented by experienced lawyers during
hearings that often lasted many days. The Commission will not interfere with the
findings and recommendations or conclusions of these hearings. It has no review
or appeal jurisdiction.

Past disciplinary processes

7. Mr Mayisela faced a number of charges, including being found guilty of being in

possession of a document – Loan Market Association (LMA) Risk Participation -
that related to a transaction between Deutsche Bank, the Government
Employees Pension Fund (GEPF) and the PIC. According to the decision of the
chairman of the disciplinary committee, he also ‘accessed and retained the letter
of appointment of Naledi Advisory Services to investigate the circumstances
relating to the opening of the corruption case against the CEO’. This document

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Investment Corporation Page 83 of 794
 related to an investigation conducted into Mr Mayisela himself. The disciplinary
committee held that there was no justifiable reason or reasonable explanation for
accessing and retaining these documents. This amounted to misconduct on his
part and a dismissal was recommended by the Chairperson (Advocate N.A.
Cassim SC), which recommendation was carried out by the PIC.

8. Ms Matshepo More (Ms More) testified that Mr Mayisela utilised the access
privileges to monitor email communications of employees, including hers. Ms
More said granting of super-administration rights to Mr Mayisela without following
procedures exposed the PIC to major risks.34

9. The Commission finds that Ms Menye did not follow the process laid out by the
PIC to grant the access rights to Mr Mayisela, and Mr Mayisela utilised this to
obtain wide ranging information not related to the police investigation into Dr
Matjila’s alleged acts of corruption. In any event, he was not supposed to
irregularly access this information.

10. Ms Mathebula, the Company Secretary, went through a full and, in our view,
independent, disciplinary process where she was charged with enabling Mr
Mayisela to have access to confidential minutes of the Board, which were then
found to be in the public domain.

11. Ms Mathebula was found guilty in March 2019 of breaching PIC policies and a
dismissal was recommended by the Chairperson, Adv W Hutchinson SC.

12. Although Ms Mathebula denied, before the Commission, that she caused the
distribution of confidential PIC information in the form of minutes of the Board,
the Commission accepts the findings of the disciplinary committee until they are
successfully challenged. After Ms Mathebula had been found guilty of a
dismissible offence, the Board of the PIC opted to give her a final written warning.

34
At page 104 of the Transcript on day 45 of the hearings held on 24 June 2019.

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Investment Corporation Page 84 of 794
 However, it was never suggested that Ms Mathebula was irregularly in
possession of the minutes at the time that she would have breached PIC policies,
or at any other time. She can therefore not be said to have ‘obtained access to
emails and information of the PIC contrary to the internal policies of the PIC or
legislation’.

13. There may well be more PIC employees involved in irregularly obtaining and
disseminating information of the PIC. In fact, Mr Mayisela testified that he was
still receiving documents leaked from the PIC, which he passed on to a member
of the South African Police Service.35 This was after he had been dismissed from
the PIC. Despite the Commission having appointed, through the investigation
team, experts in the field of IT, the person/s behind the pseudonyms James
Nogu, James Noko and Leihlola could not be identified.

14. The question whether any employees of the PIC obtained access to emails and
other information of the PIC, contrary to the internal policies of the PIC or
legislation, is answered in the affirmative. There is sufficient evidence for the
Commission to conclude that Mr Mayisela obtained access to emails and other
information of the PIC contrary to the internal policies of the PIC or legislation (at
least section 86(1) of the Electronic Communications and Transactions Act, 25
of 2002).

RECOMMENDATIONS

15. The PIC has thorough policies and procedures in relation to safeguarding its
information and employees are obliged to familiarise themselves therewith. It is
accordingly recommended that the PIC should regularly review and enhance its
policies on protection of its information, particularly given the pace of change
taking place in the IT environment.

35
Page 10 of Mr Mayisela’s statement signed on 27 February 2019.

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Investment Corporation Page 85 of 794
 16. Leakage of information and similar transgressions of policies and ethics have a
great deal to do with the culture of the organisation. The PIC should therefore
continue to inculcate values of integrity, honesty and transparency.

17. The Board of the PIC must determine what legal recourse it intends taking with
regard to the deliberate actions by Mr Mayisela to obtain privileged information
and pass such information on to third parties, with severe consequences for the
PIC. As indicated above, Mr Mayisela could have contravened, among others,
section 86(1) of the Electronic Communications and Transactions Act, 25 of 2002
(ECTA), which reads:

‘Subject to the Interception and Monitoring Prohibition Act, 27 of 1992, a

person who intentionally accesses or intercepts any data without
authority or permission to do so is guilty of an offence.’

18. Furthermore, Mr Mayisela may well have contravened section 88(1) of ECTA, in that
he had attempted to commit an offence referred to in section 86. Section 88(1)
provides that:

‘[a] person who attempts to commit any of the offences referred to in

sections 86 and 87 is guilty of an offence and is liable on conviction to the
penalties set out in section 89(1) or (2), as the case may be’.

19. It should also be noted that, Dr Matjila alleged that the first Nogu email appears to
have emerged, in some ways, through the electronic platforms of Dr Mkhwanazi and
that his personal assistant might also have played a role here, which allegation Dr
Mkhwanazi denied. Though not related to this ToR, but treated here, it should also be
noted that Dr Matjila accused Dr Mkhwanazi of being involved in political interference
at the PIC. Dr Mkhwanazi has yet to answer to these allegations. It is recommended
that the Minister and/or Chairperson of the PIC investigate these concerns and bring
them to finality.

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Investment Corporation Page 86 of 794
TERM OF REFERENCE 1.8

‘Whether any confidential information of the PIC was disclosed to third

parties without the requisite authority or in accordance with the Protected
Disclosures Act, 2000, and, if so, to advise whether such disclosure
impacted negatively on the integrity and effective functioning of the PIC;’

1. From the second half of 2017 to the present, the PIC has received negative
media and other coverage. Confidential information found its way into the hands
of a variety of third parties, including print, radio, television and social media.
These platforms have disseminated material that contained confidential
information on PIC transactions, internal treatment of staff and PIC Board
deliberations.

2. It has been determined that highly confidential documents, including Board

papers, transaction reports and correspondence were leaked to the media and
other external parties (Statement of Ms Sandra Beswick, non-executive director,
paragraph 3.3.4), irregularly and without the requisite authority of the PIC (also
see ToR 1.7).36 Even prior to the James Nogu emails, confidential PIC
information could already be found in the public domain. This distribution of
information was in violation of PIC protocols on handling of information and was
thus done irregularly.

3. Certain of the witnesses who testified before the Commission emphasised that
information that was released was in keeping with the PIC’s Whistle-Blowing
Policy (WBP), which policy is based on the PDA. However, there was no
evidence that anyone followed the protocols contained in the WBP and PDA,
including Nogu / Leihlola; nor were these protocols taken into account,

36
Para 3.3.4 of Ms Sandra Beswick’s statement signed on 27 February 2019.

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Investment Corporation Page 87 of 794
 notwithstanding the damage that would be inflicted on the reputation and
functionality of the PIC. The leakage of information through the Nogu emails was
not in keeping with the processes as determined by the WBP. The confidential
information disclosed to the SAPS by Mr Mayisela was done without authority
nor in accordance with the PDA.

4. As outlined above, negative media coverage escalated over the past few years.
External parties have had access to confidential information and placed it in the
public domain. General Holomisa was also provided with much of the
information, which was integral to his allegations against the PIC. Certain parties
that appeared before the Commission were critical of the PIC and how it had
handled the leakage of its information. Among these, the Association for
Monitoring and Advocacy of Government Pensions (AMAGP) and Congress of
South African Trade Unions (COSATU), organisations that have a direct interest
in the funds managed by the PIC, expressed unhappiness with losses that the
PIC had allegedly incurred, as per evidence placed before the Commission.

5. AMAGP’s key complaints against the PIC related to the various transactions that
had attracted controversy such as VBS losses, the R5 billion loan to Eskom and
the Harith/Lebashe transactions. They accused the PIC of lack of accountability
and transparency.

6. COSATU accused the PIC of looting pensioners’ funds and claimed that they
had lost faith in the PIC and demanded that labour federations have
representation on the Board of the PIC.

7. Inevitably, the information leaks have fueled negative public and stakeholder
perceptions about the PIC, which has in turn impacted negatively on the integrity
of the PIC, denting the confidence in it by key stakeholders and clients.

8. The extent to which the PIC’s Board of Director’s Code of Conduct and Code of
Ethics Policy have been breached, as per the testimonies presented to the

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Investment Corporation Page 88 of 794
 Commission, and the widespread concerns raised by the general public and
stakeholders with regard to the functioning of the PIC – at both Board and
Executive level – makes it is clear that confidence in, and the integrity of, the PIC
have been impacted negatively.

9. From evidence presented before the Commission, there is no doubt that the
effective functioning of the PIC, at all levels, has been negatively affected by the
events of the past two to three years. From receipt of the first James Nogu email
on 5 September 2017, the PIC has been severely affected. This is reflected in
the resignation letter of Dr Manning to the then Minister of Finance Nene, dated
22 July 2018, wherein she states: ‘I would urge you, as the shareholder
representative of the PIC, to act swiftly to introduce stability and restore public
confidence in the PIC …’.37

10. In the aftermath of the Nogu emails, the representative of the shareholder of the
PIC, the Minister of Finance, Minister Mboweni, was called upon to intervene.
This resulted in the Finance Minister commissioning the Budlender report.

11. The Board experienced deep divisions on how to deal with the issue of the CEO,
Dr Matjila, in relation to the allegations contained in the emails and what action
should be taken.

12. The functioning of the Board was significantly affected, particularly in 2018 when
General Holomisa launched litigation to have Dr Matjila suspended.

13. Individual members of the Board resigned at various times. The Board, as a
whole, offered to resign and the Minister of Finance, Mr Mboweni, ‘advised’ the
members of the Board, through its Chairperson, Deputy Minister Gungubele, to
resign.

37
At page 46 of the Transcript for day 5 of the hearings held on 29 January 2019.

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14. Ultimately, the Board resigned on 1 February 2019 and a new interim Board was
appointed to serve from 12 July 2019. Investigations, including various
disciplinary charges, were instituted that resulted in a number of senior
executives of the PIC losing their jobs.

15. At present, the PIC has a substantial number of executive heads in acting
positions, including acting positions for the CEO, CFO, heads of legal, risk and
others. The staff at the PIC operated under extremely difficult circumstances
during these times, but they have largely continued to execute their duties in a
professional manner.

16. The Commission finds that confidential information was disclosed to third parties
without the requisite authority. This was neither in accordance with the PDA of
2000 nor in keeping with the PIC’s own whistle-blowing policy.

17. This unauthorised disclosure of the PIC’s confidential information impacted

negatively on the integrity and functioning of the PIC. Major reputational damage
has been done to the PIC. It is apparent that while codes and policies to address
ethics and values were developed and put in place, they were not respected in
many of the practices followed at the PIC.

RECOMMENDATIONS

18. The Commission recommends that the Board must review the codes and policies
that address ethics, values and whistle-blowing, examine why they have not
been effective and put in place appropriate measures to enhance the value
system adhered to by all employees, including management, the executive and
directors of the PIC.

19. The PIC should take measures to ensure that directors, management and
employees at all levels know, espouse and live the values and policies of the
PIC.

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Investment Corporation Page 90 of 794
20. Initiatives and induction for all new employees and/or Board members should be
reviewed and strengthened so as to embed the values and ethics of the PIC into
the culture of the organisation. This should include the protection of information
and the imperative to always carry out duties and responsibilities with integrity.

21. The Board will need to take appropriate measures to rebuild trust, confidence
and integrity both internally and with clients and stakeholders, as well as with the
business sector and the general public.

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Investment Corporation Page 91 of 794
TERM OF REFERENCE 1.9

‘Whether the PIC has adequate measures in place to ensure that

confidential information is not disclosed and, if not, to advise on
measures that should be introduced;’

1. As indicated in ToR 1.7 above, the PIC has implemented various measures to
safeguard its confidential information. These measures are embedded in the
Corporate Affairs Department, employee contracts, Information Technology (IT)
policies and procedures and also include reference and adherence to relevant
legislation. The PIC requires physical space to secure information in its physical
form, such as printed documents, as well as the ability to ensure the physical
security of its hardware and IT systems; in other words, essentially all elements
of IT security. There is no suggestion that physical space for these purposes is
inadequate.

2. IT security is found in the following policies of the PIC.

2.1. Acceptable Use Policy;

2.2. IT Disposal Policy; and

2.3. Third Party Management.

3. In relation to whether any of the abovementioned measures were breached, it

should be noted that from August/September 2017 the PIC experienced
unprecedented instances of leaked information. The first occurred on 5
September 2017, namely, the Mobile Satellite Technologies (MST) investment

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Investment Corporation Page 92 of 794
 and allegations regarding Dr Matjila’s romantic involvement with Ms P Louw. For
purposes of this ToR, it is important to trace the events relating to this leak:

3.1. The message emerged from an external email address in the name of ‘James
Nogu’ (Nogu).

3.2. The message was sent to a number of people, including Board members of the
PIC and National Treasury officials.

3.3. It is not clear how the sender –

3.3.1. obtained the email addresses of the people to whom the message was
sent;

3.3.2. obtained the information contained in the body of the email; or

3.3.3. obtained access to the document attached to the email, which was about
the Pan African Infrastructure Development Fund (PAIDF, but referred
to as PADF).

3.4. It appears that the anonymous sender obtained access to internal information
of the PIC and sent it to the parties he/she desired. There are, seemingly, three
possible means by which ‘Nogu’ could gain access to the information:

3.4.1. Irregularly breaching the IT systems of the PIC by exploiting the

vulnerabilities therein, essentially hacking into the systems; or

3.4.2. Internal parties at the PIC with access to the information providing that
information to ‘Nogu’; or

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Investment Corporation Page 93 of 794
 3.4.3. Being provided with illegal access to the IT system by unknown internal
parties such that the information could be directly accessed by ‘Nogu’.

4. Ms Menye testified that there was no hacking of the IT systems during the time
of the leak. In her statement, she said the following:

‘24. He then enquired whether there was anyone who would like to say
something. Mr Deon Botha raised his hand and he said that he does not
believe that we were hacked, Mr Botha indicated that whoever has been
sending those emails has that information. I also raised my hand to clarify
that what was contained in the email, which I had seen is far from hacking.
I then explained what hacking is. I also indicated that the information that
was contained in the email by the looks of things appeared to come from
someone who has been "drinking coffee from the same cup and eating from
the same plate with Dr Dan". I also clarified that the systems of PIC do not
store such personal information.’38 (Emphasis added).

5. It is difficult to ensure protection against this form of breach since the means to
enable a contravention have, in all likelihood, been provided by internal parties.

6. The PIC’s IT team responded as follows to the breach:

6.1. Further dissemination via the PIC IT system was blocked.

6.2. Steps were taken to investigate employees of the PIC who had access to
and/handled the information that was leaked and whether they may have
sent or delivered it to external parties.

38
Para 24 of Ms Menye’s statement signed on 6 March 2019.

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6.3. Steps were taken to identify the domain source of the emails and to
establish ‘Nogu’s’ identity so as to halt further leaks.

6.4. The contents of the email were investigated to establish whether policies of
the PIC were flouted and any legislation contravened. The Board mandated
the Internal Audit Department to investigate the matter and later appointed
an external and independent Counsel, Advocate G. Budlender SC, to
investigate the veracity of the allegations contained in the email.

7. From the above, it appears that the PIC had put in place a reasonable level of
protection for its information. Notwithstanding such policies, collusion between
internal parties in breach of policies, practices and laws, or collusion between
internal and external parties, is very difficult to prevent.

8. Securing information is clearly a multi-dimensional undertaking and since the

leaks the PIC has moved to strengthen its protection measures in the following
way:

8.1. It took action immediately after the leaks. The then CEO, Dr Matjila,
indicated at the hearings that the PIC had commissioned an investigation
into options to strengthen the IT protective environment. He stated that the
action and future plans, recommended in the resulting report, are being
implemented.

8.2. There is an on-going effort to finalise a comprehensive classification of the

PIC’s information so that various levels of access can be designated,
accordingly.

9. The current and planned measures for the protection of the PIC’s information are
wide ranging and among best-in-class levels. The successful implementation,
monitoring and regular review of the measures are essential steps to ensure
ongoing effective protection that is able to adapt to the rapidly changing world of

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Investment Corporation Page 95 of 794
 IT systems. This must include vulnerability awareness programmes for all
employees at all levels, an improved overall control environment and ensuring
that a suitable IT system is put in place for unlisted investments.

10. The PIC is intent on strengthening the protection of its information and aspires to
have a high-level state of security in the next few years. Security remains a
moving target. The PIC has taken significant steps to address the vulnerabilities
identified and to create a greater awareness among all employees. It has
committed to assigning responsibilities for information security, enhancing the
capacity of the IT teams and implementing a security strategy that focuses on
key areas the Board and Executive have identified.

11. The Commission finds that the PIC had reasonably good information protection
policies in place prior to the leaks, which policies did not allow the type of action
taken by those parties who deliberately chose to leak information and
documents. Policies that were in place include the Acceptable Use policy, the IT
Disposal Policy and the Third Party Management Policy that covered key aspects
of the PIC’s IT resources.

12. The parties who participated in the leaks appear to have simply taken the
information to which they had access and provided it to third parties.

13. Besides admitting that he stole and was given PIC information, Mr Mayisela
misused the super-administrator rights enabling him full access to the whole of
the PIC’s IT systems. He did not need to and did not, in fact, hack the system.

14. The PIC is instituting comprehensive measures to protect its information from
current and possible future threats.

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Investment Corporation Page 96 of 794
RECOMMENDATIONS

15. Clearly defined and enforced classification of information will enhance the
security of sensitive information.

16. The Commission recommends that the PIC should continue to strengthen its
information protection measures. Appropriate measures on how to classify and
declassify information should assist with security of information and enable the
detection of leaks with more certainty. The IT systems should be state of the art
and regularly updated in keeping with changes in technology, including the
capacity to deal with cybercrime.

17. The Commission further recommends that the PIC manual systems that are still
in use must be automated as a priority. The PIC should develop an ethical,
transparent and value-driven culture and ensure that employee disputes are
fairly and quickly addressed.

18. Investments in IT security systems and human resources should continue to be

made and the PIC should live its values of integrity, empathy, accountability and
respect to ensure a workforce that pulls together.

TERM OF REFERENCE 1.10

‘Whether measures that the PIC has in place are adequate to ensure that
investments do not unduly favour or discriminate against –

1.10.1 a domestic prominent influential person (as defined in section 1 of

Financial Intelligence Centre Act, 2001 [“FICA”]);

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1.10.2 an immediate family member (as contemplated in section 21H(2) of
[FICA]) of a domestic prominent influential person; and

1.10.3 known close associates of a domestic prominent influential

person.’

1. The term ‘domestic prominent influential person’, as referred to in ToR 1.10 is more
self-descriptive and unambiguous than PEPs (but will be used interchangeably with
the latter term), is defined in section 1 of the Financial Intelligence Centre Act, 38
of 2001 (FICA), as a person referred to in Schedule 3A of the FICA.

2. Schedule 3A of the FICA, in turn, defines such persons, through a comprehensive

list, as individuals who hold ‘a prominent public function’, ‘including in an acting
position for a period exceeding six months, or has held at any time in the preceding
12 months, in the Republic’: in national, provincial and local government, political
leaders, traditional leaders, army generals, certain diplomatic officials, judges, as
well as accounting officers, CEOs, CFOs and CIOs of entities listed in Schedules
2 and 3 of the Public Management Finance Act, 1999 and those appointed in term
of section 54A of the Local Government: Municipal Systems Act, 2000, or in terms
of section 80(2) of the Municipal Finance Management Act, 2003.

3. This fairly comprehensive list further includes executives, board chairs and audit
committee chairs of companies that provide goods or services to a State organ
worth a certain threshold fixed by the Minister of Finance; and head or executive
of an international organisation based in the Republic.

4. In respect of the term ‘immediate family member’, section 21H(2) of the FICA
provides, in relevant part, that it –

‘includes-
the spouse, civil partner or life partner;

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 the previous spouse, civil partner or life partner, if applicable;
children and stepchildren and their spouse, civil partner or life partner;
parents; and
sibling and step siblings and their spouse, civil partner or life partner.’

5. Whilst the list in Schedule 3A of FICA (relating to the term “domestic prominent
influential person”) is fairly exhaustive, section 21H(2) (in relation to the term
“immediate family member”) is not, because of the use of the word “includes” in
the latter provision, which implies that the ensuing list is not exhaustive.

6. The self-contained test for the adequacy of the measures, discernible from ToR
1.10, is that such measures: ‘ensure that investments’ neither ‘unduly favour’ nor
‘discriminate against’ the class of persons in question.

7. As one of the largest asset managing companies in the country, wholly owned by
the State (represented by the Minister of Finance), that manages a diversified
investment portfolio comprised of multiple asset classes spanning all sectors of
the South African economy, the PIC is vulnerable to the challenges concerning
Politically Exposed Persons (PEPs). Dr Matjila in his evidence stated that ‘[w]ith
funds exceeding R2 trillion the PIC is a very tempting piggybank for many.’39 He
referred to the adverse influence of politics on the PIC, stating that the PIC
received a barrage of funding proposals from politically connected people across
political formations.

8. However, despite the barrage of proposals that the PIC receives from politically
connected persons, and because of the ‘PIC’s stringent compliance practices,’ Dr
Matjila testified that many of such proposals ‘have not been fruitful.’40 The
‘stringent compliance practices’ referred to by Dr Matjila include the PIC policies

39
At pages 4-5 of the Transcript for day 53 of the hearing held on 11 July 2019.
40
Ibid at page 72.

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 relating to PEPs, which, inter alia, stipulate that once PEPs are identified, an
enhanced due diligence be conducted in transactions involving them.

9. Dr Matjila confirmed that whilst there are proper measures in place as part of the
internal PIC ‘process’, that ‘access’ pressures is something that still has to be dealt
with. Such ‘pressures’ are ascribable to the reality of the PIC’s unique position as
a state-owned asset manager.

10. The Commission also heard evidence that the PIC has a plethora of policies that
form part of the regulatory framework within which it operates. Ms Wilna Louw (Ms
Louw), the PIC’s Acting Company Secretary, in her capacity as custodian of the
PIC’s policies and records, stated that the PIC’s policies and procedures are
designed to influence, determine and guide all major decisions and actions.’41

11. When Mr Roy Rajdhar (Mr Rajdhar), the Executive Head for Impact Investing, who
heads the Private Equity, Impact Investing and Unlisted Properties subdivisions,
gave evidence before this Commission on, inter alia, the investment process,
function and operation of his division, the two main points that emerged from his
evidence were that the PIC PEPs policy is continually being improved to respond
to the needs of the PIC and that the PIC adopts a broader understanding of PEPs
to include people who are known to be ‘politically aligned’ from reports in the public
domain. This encompasses more than ‘known close associates’ and it thus
provides for a more effective policy framework governing the risks associated with
PEPs.

12. The PIC’s PEPs policy is titled the ‘Unlisted Investment Isibaya Fund: Policy on
Treatment of Politically Exposed Persons’ (the PEPs Policy) and is dated May
2014 and was reviewed by the Investment Committee in December 2014.

41
At page 26 of the Transcript for day 1 of the hearings held on 21 January 2019.

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13. Dr Matjila stated the following in relation to the underpinnings and purpose of the
PEPs Policy:

‘… The politically exposed persons policy, it’s actually derived from the law,
this law that deals with politically exposed person, I think it’s under FIC. So we
have taken that and crafted a politically exposed persons policy that allows us
to do deeper due diligence on the parties spends in any transaction, if there
are politicians, we need to understand their sources or finance, delve deep
into . . . the relationships that they have . . . so that we ensure that the political
reputational risk exposure on the PIC’s side resulting in this transaction is
minimised if not eliminated.’(sic) 42

14. These are some the main features of the PEPs Policy:

14.1. The PEPs Policy defines PEPs as ‘Natural persons who are or have been
entrusted with prominent public functions by a domestic or foreign country,
their family member, relatives, persons known to be close associates of such
persons, or trusts and other juristic persons over which they practice control.’43

14.2. The definition list setting out who is regarded as PEPs by the PIC, casts the net
wider than Schedule 3A of FICA. By way of illustration, it is not only confined
to leaders of political parties, but to members of parliament and of provincial
legislatures, senior government officials, including local government officials.
In relation to the judiciary, it extends its reach beyond just high court judges,
to include Magistrates and even State prosecutors. It further includes labour
group officials (i.e. trade union officials) and executives of State-Owned
Enterprises.44

42
At page 105 of the Transcript for day 51 of the hearings held on 9 July 2019.
43
See ‘Definitions’ at page 7 of the PEPs Policy.
44
Ibid. See definition of ‘domestic PEPs’ at pages 7-8.

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14.3. The PEPs Policy further adopts, as wide as possible, definitions in respect of
family members and associates of PEPs. This widening of the definitions,
however, is at best precautionary as the aim of the policy is not to exclude, but
to invoke enhanced due diligence investigations into PEPs, their family
members and associates.
14.4. In defining the mischief to which it is directed, namely risk, the PEPs Policy
provides that ‘[r]elationships with PEPs can culminate in increased risks for the
PIC due to the possibility that individuals holding such political positions may
misuse their power and influence for personal gain or advantage of family
and/or close associates.’45 It further sets out the reasons why PEPs are
screened. Its focus is on the PIC’s business relationships where PEPs are
counterparties.46

14.5. It defines the purpose of the policy as the regulation of all investment activities
of the Isibaya Fund and ensuring that they comply with acceptable ethical
norms and standards. ‘It seeks to manage the resultant reputational and
related risks that the PIC and its clients may become exposed to, by virtue of
such relationships.’47

14.6. The objectives of the policy are to combat corruption, ensure that the PIC
adheres to statutory requirements and best practice. The further objectives are
to bring about consistency in the treatment of PEPs and to ensure equity,
fairness and transparency whilst also mitigating the risk for the PIC.48

45
At 15 of the PEPs policy.
46
See the ‘Scope’ of the policy at 5.
47
See ‘Purpose of the policy’ at 5.
48
See ‘Objectives’ of the policy at 5.

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14.7. Although the primary responsibility for the PEPs Policy is that of the CEO, it is
also the joint responsibility of all PIC employees and directors without
exception, and a breach of the policy constitutes misconduct.49

14.8. The PEPs Policy has features similar to an operations manual that sets out
what “markers” to look for in client due diligences to identify PEPs. It, inter alia,
sets out what an enhanced due diligence is and when to do it and provides for
enhanced on-going monitoring of PEPs related transactions and the keeping
of a PEPs database.
14.9. The PEPs Policy sets out ten policy principles on which it is based, such as that
‘Senior management shall decide on the circumstances under which PIC may
reject establishing a business relationship with a PEP’: under which principle,
it is provided that the intention is not to give reasons for declining transactions
involving PEPs, but to ensure that preventive measures are adopted.

15. During Dr Matjila’s testimony, the Commission heard evidence affirming that
there is no blanket exclusion of PEPs in transactions at the PIC. He confirmed
that, in fact, the PEPs Policy prohibits discriminating against PEPs. In part, this
accordingly meets the test under ToR 1.10 for the adequacy of PIC measures,
in that the PEPs Policy does not discriminate against PEPs in investments.

16. Dr Matjila also testified that one of the important purposes of the PEPs Policy is
the scrutiny and transparency it brings concerning the transactions involving
PEPs.50 The Commission further heard evidence on how the pragmatic and
combined use of the PEPs Policy, in tandem with the deal screening committee
and appeals made to the Chairman of the PIC board, Deputy Finance Minister,
Mr Mcebisi Jonas, during meetings, were used to manage some of the pressures
from and interferences of politicians. Dr Matjila testified, in another context,

49
See application of the policy and exclusions at 5-6.
50
At page 201 of the Transcript for day 61 of the hearings held on 12 August 2019.

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 about how he raised the PEPs Policy with the then Chairman of the Board,
Deputy Finance Minister Gungubele, when the latter castigated him about a
certain deal.

17. It should be noted that PEPs were directly involved in a number of the
transactions that came under scrutiny before this Commission.

18. The Commission finds that, as a measure directed at addressing the risks
associated with PEPs, weaknesses in the PEPs Policy creates the opportunity
for abuse and poses a real and on-going risk for the PIC that needs to be
addressed.

19. Moreover, the practice, or implementation, of the PEPs Policy as reflected in the
actions of Dr Matjila, shows a total a disregard for the policy on PEPS. These
are dealt with in the section addressing ToR 1.1 contained in Chapter III.

RECOMMENDATIONS

20. The Board should review, in its entirety, the PEPs policies, taking into account
the information presented to the Commission on the weaknesses in practice
when implementing the PEPS policy.

21. The Commission recommends that the Board, through the proposed Risk
Committee, should ensure oversight and evaluation of the effective
implementation of a revised PEPs Policy on a regular basis.

22. The Lancaster/Steinhoff transaction, the Harith/PAIDF investment, the

Sakumnotho/Kilicap Tosaco and Ascendis transactions are illustrations of the
weaknesses of the PEPs policies in practice.

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TERM OF REFERENCE 1.11

‘Whether there are discriminatory practices with regard to remuneration

and performance awards of PIC employees.’

‘Whether there are discriminatory practices with regard to remuneration

and performance awards of PIC employees.’

1. Consideration of discriminatory remuneration and performance practices in the

PIC needs also to take account of allegations of victimisation, as victimisation
also manifests itself in remuneration practices, bonus payments, balanced
scorecard assessments, bias in promotions and opportunities for advancement
as well as exposure to opportunities that enhance experience and expertise.
Therefore, this term of reference needs to be read in conjunction with ToR 1.12,
below, which addresses the question of victimisation.

2. The evidence given to the Commission was from a range of very senior PIC
employees, many of them having attained positions of leadership, including
being Executive Heads of functions and departments. The issues raised,
including the level of non-participation in the climate survey, reflects deep-
seated discontent, mistrust, a strong sense of grievance and being treated
unfairly.

3. The lack of transparency in the process followed by the moderation committee,

poor communication to employees and the exclusion of executive management
from the various decision-making and evaluation processes has led to a
breakdown of trust between employees and management, as well as between
executive management, the executive directors and the Board.

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4. The responses of those in positions of responsibility for the HR function, both Mr
Pholwane and Ms More, were defensive and dismissive.

5. The actions of Minister Mboweni and National Treasury created confusion and
uncertainty among employees and appear to violate the remuneration policy of
the PIC and its contract with PIC employees.

6. The Commission finds that there are discriminatory practices with regard to the
remuneration and performance awards of PIC employees.

RECOMMENDATIONS

7. In the light of the above and in view of the shareholder instruction to

retrospectively cancel bonuses, it is recommended that Shareholder proposals
should be prospective, not retrospective, and the Shareholder Compact should
be agreed on for a defined period, for example three years, and then reviewed
to reflect proposed changes.

8. Furthermore, Shareholder intervention should be fair, taking account of the

agreed policies and agreements that the PIC has in place with its
employees.Dates for payment of bonuses, short term investments and long term
investments should be communicated at the start of each year to provide the
necessary certainty to all employees.

9. The Commission further recommends that the Board of the PIC should ensure
greater transparency, fairness and inclusiveness with regard to salaries,
grading, performance criteria and balanced score card assessments.

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10. Performance balanced score cards should be relevant to the work performed and
the incentive policies and should not be used as a tool or implicit threat to ensure
a compliant or subservient employee.

11. The Board should take steps to rebuild staff morale through fairness in
performance assessments, remuneration and certainty regarding the bonus
policy.

12. The moderating process needs to be transparent, the principles applied clearly
set out, and the outcome, including any changes, whether positive or negative,
timeously discussed with each employee individually. Similarly, the
remuneration and incentive policies of the PIC should be transparent, clearly
communicated and adhered to.

13. The Board of the PIC should institute a new climate survey to be conducted within
a month of the appointment of the new PIC CEO in order to form a base line
from which to measure progress in the organisation.

14. An independent professional body should be commissioned to review the re-

grading process and its outcomes. It should be appointed by the Board and
finalise its report by the end of April 2020. The Board also needs to urgently
address the level of misinformation and distrust that prevails in the PIC.

15. Mr Pholwane should be the subject of disciplinary action for his alleged improper
conduct in falsifying the results of the second climate survey, thereby misleading
his senior management, as well as the Board. If the above allegations are true,
his conduct was dishonest, misleading and seriously undermined the functioning
of the PIC.

16. It is clear that on Ms More’s watch many of the critical areas so vital to the
functioning of the PIC have developed very serious problems. These include:

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16.1. Remuneration;
16.2. Grading;
16.3. Performance evaluation and incentives; and
16.4. Work culture experienced by the employees.

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TERM OF REFERENCE 1.12:

‘Whether any senior executive of the PIC victimised any PIC employee.’

1. The evidence before the Commission presented by employees and previous

employees was very clear in that employees alleged victimisation by senior
executives of the PIC, in particular the former CEO, Dr Matjila, the CFO,
Matshepo More and to a lesser extent the Executive Head: Human Resources,
Chris Pholwane.

2. The former CEO, Ms More and Mr Pholwane all denied these allegations in their
testimony before the Commission.

3. The fact that there existed a culture of fear and victimisation within the
organisation even before 2015, has been established independently and
objectively by external service providers in what is called a ‘climate survey’.

4. Some of the pertinent findings of the climate survey presented to the PIC Board
were as follows:

4.1. Fear culture and not unified;

4.2. Lack of strategic direction;
4.3. Management by fear and poor people management;
4.4. Management does not have employees’ best interest at heart;
4.5. Blame shifting and poor decision-making abilities;
4.6. Do not address problems; and
4.7. Moving goal post.’51 (sic)

51
Paras 24-25 of Mr Vuyo Jack’s statement signed on 4 March 2019.

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5. Various senior employees testified to being victimised by Dr Matjila, Ms More and
Mr Pholwane.

6. The modus operandi allegedly followed by the perpetrators, in most cases, was
to make use of a so-called whistleblower report accusing the employee of some
or other impropriety. This would inevitably be followed by a disciplinary hearing
and eventual dismissal. The exception was Ms Menye, who was initially charged
with leaking information to third parties that resulted in the infamous James Nogu
emails accusing the former CEO and CFO of impropriety. Ms Menye was
eventually, before the start of the disciplinary hearing, offered a severance
package which she signed under duress.

7. The alleged victimisation was direct and/or indirect. The ‘victim would be told to
his/her face that he/she is not wanted in the organisation’ or indirectly by
excluding him/her from meetings or by way of manipulation of remuneration
and/or exclusion from eligibility for short and/or long-term incentives. The other
method used was to promote a more junior employee over the head of his/her
senior, to whom he/she was reporting. This promotion method was used in the
risk and legal department with devastating effect on the morale in the two
departments.

8. A serious concern is that a number of the Executive and Board members who
testified before the Commission appeared to be totally unaware of the culture of
fear and victimisation in the organisation. The culture of an organisation is set
from the top, yet a number of the Board and executive directors (the CEO and
the CFO) appeared to be totally out of touch with the prevailing climate of fear
and the culture of victimisation in the organisation. The CEO conceded,
however, at least in respect of the CFO, that she was the main role player
accused of victimisation; that he realised this and made an attempt to ’coach’

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 her. It was for this very reason that an employees’ union was established at the
PIC and as at September 2019, the union represented more than 60% of the
workforce at the PIC. In the Commission’s view, the probabilities are
overwhelmingly in favour of the employees’ version that there was a culture of
fear and victimisation in the PIC.

9. The Commission finds that senior executives at the PIC abused their positions of
trust and responsibility and victimised employees, contributing to a culture of
fear that existed, and to some extent still exists, at the PIC.

RECOMMENDATIONS

10. The Commission recommends that the new Board should address the matter
urgently and take corrective measures to rebuild confidence and trust in the PIC
executive, Board and processes. Such measures should include the following:

10.1. Open discussions on the results of a new climate survey that should be
conducted within three months of the appointment of the new PIC CEO;

10.2. An internal communication programme ensuring awareness among all staff

of signs of bullying, abuse of office and misuse of
promotions/incentives/salary increases or performance assessments to
intimidate employees;

10.3. Providing a safe platform for employees at all levels to raise their concerns.

10.4. A leadership and management programme for all incumbents who hold
managerial positions to strengthen their skills.

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10.5. Implementing a mentorship programme, using both internal and external
mentors, to strengthen leadership throughout the organisation.

10.6. Ensuring an appropriate coaching programme is in place, and both

mentorship and coaching must be compulsory for all executives and senior
management.

10.7. Putting in place programmes and activities that will build a core leadership
team effective across the different levels of management.

TERM OF REFERENCE 1.13

‘Whether mutual separation agreements concluded in 2017 and 2018 with

senior executives of the PIC complied with internal policies of the PIC and
whether pay-outs made for this purpose were prudent.’

1. Two cases were specifically dealt with affecting two senior executives, who are
both Executive Heads of the Information Technology (IT) department of the PIC,
namely, Ms Vuyokazi Charity Menye (Ms Menye); and Mr Luyanda Ntuane (Mr
Ntuane).

2. Witnesses alleged that Ms Menye knew, but did not inform the PIC, that Dr Matjila
was under investigation by the police for corruption and also that she gave
super-administration rights –which was in breach of PIC IT policies and access
rights policies - to Mr Mayisela who went on to use them for unauthorised
purposes. As such, Ms Menye was due to face disciplinary action and possible
dismissal.

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3. Given that the ToR specifically mentions the years 2017 and 2018, the
Commission shall inquire into, and make findings and recommendations only in
relation to Ms Menye; and utilize the matter of Mr Ntuane for comparison
purposes.

4. From the inquiry and discussions set out in the Report, it is found that, by entering
into the Mutual Separation Agreement (MSA) with Ms Menye, the PIC did not
comply with its internal policies because there was no written DoA for Mr
Pholwane to sign the MSA and verbal authority was not appropriate. Mr
Pholwane should not have signed the MSA as only the CEO is authorised to do
so.

5. This deviation by management did not receive any ratification from higher bodies
of the PIC, in particular the Information, Communications and Technology
Governance Committee (ICTGC) and Audit and Risk Committee (ARC). Though
the MSA was reported to the Board, it did not specifically seek ratification as per
the minutes of the joint-committee meeting that was held a week following the
conclusion of the MSA between Ms Menye and the PIC. Instead, it was
presented to the Board meeting for information purposes only.

6. In terms of the 29 month guaranteed salary paid to Ms Menye, the amount was
not in accordance with PIC practice as it is significantly above previous amounts
paid. On his own version, Mr Pholwane indicated that the amount was excessive
and out of the ordinary and no evidence to the contrary was offered by others,
including Dr Matjila.

7. Typically, and as confirmed by Mr Pholwane, MSAs signed by corporations

usually do not exceed 6 months’ salary. As such, the MSA between Ms Menye
and the PIC was ‘precedent setting’ and could not be justified.

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8. The MSA is found to be invalid. It should not have been concluded and
accordingly, Ms Menye was still supposed to be an employee of the PIC.

9. Dr Matjila breached PIC policies by authorising Mr Pholwane to sign Ms Menye’s

MSA and Mr Pholwane should not have acted on his instructions as they were
not in writing – contrary to the PIC’s policies

10. It should be noted that, subsequent to the Commission’s hearings, and after
seeking legal advice, the (previous) Board decided to reinstate Ms Menye.
However, the Board’s proposalwas not accepted by Ms Menye.

11. However, the PIC has alleged that Ms Menye knew, but did not inform the PIC,
that Dr Matjila was under investigation by the police for corruption and that she
gave super administration rights, especially without limitations on scope and
duration – not in keeping with the PIC IT policies and access rights policies - to
Mr Mayisela who went on to use them for unauthorised purposes.

12. The extensive use of disciplinary hearings is disturbing and should be cause for
concern to the Board and the HRRC, particularly given the number of very senior
employees that have been ‘disciplined’, suspended and/or dismissed.

13. It is therefore recommended that the PIC should have a policy on MSAs, which
sets out the process to be followed during the negotiation of an MSA and provide
guidelines for settlements in terms of pay-outs to be made.

14. The PIC must also ensure that when an authority to execute a decision is
delegated, such instruction must be in writing and appropriate to the level of
decision-making required. A verbal instruction on significant matters is not
acceptable practice.

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15. DoAs should be respected and adhered to. If, for any reason, they are not
appropriate, inadequate or in conflict with practice, amendments should be
considered.

16. Due to the fact that the MSA of Ms Menye was invalid, the monies paid to Ms
Menye in terms of the MSA must be returned to the PIC within a month of the
publication of this Report.

17. The PIC is to investigate the conduct of Ms Menye in terms of the improper
granting of super-administration rights to Mr Mayisela. The same applies to Mr
Pholwane in relation to his alleged improper conduct in signing Ms Menye’s MSA
without the requisite authority.

18. Mr Pholwane’s conduct and role as EH:HR in relation to the allegations of

victimisation against him must be reviewed and concluded within three months
of the publication of this Report.

19. The Board, through its HRRC, must undertake a comprehensive review of the
use of disciplinary processes in the organisation.

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TERM OF REFERENCE 1.14

‘Whether the PIC followed due and proper process in 2017 and 2018 in the
appointment of senior executive heads, and senior managers, whether on
permanent or fixed-term contracts’

1. The key allegations centred on issues affecting two executives, namely Ms

Rubeena Solomon (Ms Solomon), who was appointed Executive Head (EH) of
Investment Management from 1 September 2017, and is a senior executive
head; and Mr Adrian Lackay (Mr Lackay), who was appointed to the position of
investor relations from 2 April 2018 and is a senior manager.

2. The statement of Executive Head of Risk, Mr Paul Magula, states:

‘58. Appointment of certain staff members done without following a

transparent recruitment process.

58.1. Ms. Rubeena Solomon was appointed as an Executive Head:

Investments Support, without approval of organizational structure
changes, advert and interview process. PIC did not have staff promotion
policy unless if I did not know or was established after I was dismissed.

58.2. Mr. Adriaan Lackay was appointed in the Department of

Communications without an advert and interview process.’ 52(sic)

3. The history of Ms Solomon’s appointment as executive head goes back to 2015

when the PIC engaged in a restructuring process. The 2015 restructuring

52
Paras 58.1-58.3 of Mr Paul Magula’s statement signed on 11 March 2019.

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 process created major changes in the functioning of the PIC, including changes
to executive and other staff positions. From the documentation provided by Mr
Pholwane, the restructuring process was approved by the relevant authorities,
including the Human Resources and Remuneration Committee (HRRC), the
Board and the Minister of Finance as the shareholder representative. Thus, the
assertion by Mr Magula that there was no approval of the restructuring is not
correct.

4. A further review of the structure took place in 2017 and was approved by the
Board and the Shareholder as per the documents provided by Mr Pholwane
during his testimony. This also affected Ms Solomon’s position as Mr Pholwane
indicated:

‘…the position of General Manager: Investment Management was

reviewed and enhanced to Executive Head: Investment Management.
This then meant that the position of GM: Investment Management was
redundant. The incumbent for the GM: Investment Management position
was then absorbed [in]to the position of Executive Head: Investment
Management.’53

5. However, according to PIC policy, positions for new appointments have to be

advertised to afford suitable candidates an opportunity to apply. Mr Pholwane
said that the PIC does at times opt to give internal candidates a chance to fill
positions before seeking external candidates.

6. Typically, the position is advertised, and the subsequent recruitment process

follows as per steps 1-5 of the recruitment and selection process. It entails
shortlisting, interviewing and selection of candidates. Mr Pholwane said Ms

53
Para 2.2.2. of Mr Christopher Pholwane’s statement signed on 22 January 2019; for additional detail, see also ToR
1.13.

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 Solomons was absorbed into the position on a permanent basis, and did not
present any evidence of an advertising process.

7. The issues of company restructuring and redundancies of positions are regulated

by section 189 of the Labour Relations Act, 66 of 1995, where it is suggested,
in subsection (3)(b), that before proposing dismissals on the basis of operational
requirements, an employer must consider alternatives, which would include an
attempt to employ redundant employees in alternative positions.

8. Section 16 of the Recruitment and Selection policy lays out the process for
creating career development and progression for employees. Given that Ms
Solomon appeared to be suitably qualified for the position, this could be
interpreted as a promotion, but without following the agreed processes, the
approach taken is open to interpretations of favouritism and exclusion of an
opportunity for other internal candidates to apply for the position. This is all the
more so given the significant salary increase that accompanied the new position.

9. The increase in remuneration of Ms Solomon of the order of R953 304.21 was

the increase from her previous position to the new one, and as such, reflected
the salary level that any incumbent in that position would have been paid.

10. Ms Petje herself was negatively affected by the restructuring as her position was
rendered redundant. She was offered a position as an Environment, Social and
Governance (ESG) analyst and from evidence presented to the Commission
there is no indication that her managers offered her the position by following PIC
processes of advertising and engaging in a competitive process, either internal
or external.
11. In relation to Mr Lackay, he was appointed on a permanent basis in 2018 in a
position of Investor Relations in the Corporate Affairs Department. According to
the evidence of Ms Petje, Mr Magula and Mr Pholwane.

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12. Ms Petje indicated that, before being appointed permanently in March 2018, Mr
Lackay had been serving on a fixed term contract for 18 months at the PIC,
effectively as a contractor. Section 13.6 of the Recruitment and Selection policy
says these contracts ‘should follow the normal recruitment process’.

13. Regarding Mr Lackay’s permanent appointment, Mr Pholwane stated that PIC

policies and processes were followed: the position was created by the
restructuring and human resources processes; an internal advertisement
process was complied with; there was a shortlist and in terms of the scoring
process Mr Lackay was the best candidate on the list of three.

14. In terms of the increased remuneration for Mr Lackay, in the order of R331
200.00, the approvals from various bodies incorporated changes in
remuneration for new positions that had been created. Various employees,
including Mr Lackay, were awarded substantial increases in remuneration that
accompanied their new positions and roles. Thus, this was within the PIC policy
and process.

15. The Commission finds that the appointment of Ms Solomon as Executive Head:
Investments Support appears not to have followed PIC policies and processes.
She was ‘absorbed’ into the position. The position was not advertised, either
internally or externally, and a competitive process was not conducted. Thus the
Board should investigate if Dr Matjila, Ms More and Mr Pholwane breached PIC
policies in approving her appointment.

16. The approach followed allowed for an interpretation of special treatment of some
employees and unfair treatment or limiting opportunities for others, particularly
given the substantial remuneration increases that accompanied such
appointments.

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17. The first appointment of Mr Lackay on a fixed term contract did not follow PIC
processes. Thus Dr Matjila, Ms More and Mr Pholwane breached PIC policies
in approving the appointment. However, the second appointment of Mr Lackay
on a permanent basis followed PIC processes and all the prescribed procedures
were followed.

RECOMMENDATIONS

18. The PIC has human resources policies and processes in place, and the
Commission recommends that senior executives should follow these policies at
all times.

19. It is further recommended that employees need to be, and be seen to be, treated
fairly and equally. The inconsistent application of the policies has the potential
for employees to feel their careers are limited due to favouritism.

20. Transparency, openness and visible fair employment and promotion processes
and procedures are essential to ensure an environment of trust.

21. PIC HR policies should be reviewed by the Board HRRC on a regular basis and
the Board HRRC should regularly evaluate senior promotions and appointments
to ensure that they comply with policies, procedures and fair practices.

22. In respect of the potential irregular appointment of Ms Solomon and the first
appointment of Mr Lackay, referred to above, it is recommended that Ms More
and Mr Pholwane, who remain in the employment of the PIC, should be further
investigated and, if appropriate, subject to disciplinary charges.

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TERM OF REFERENCE 1.15

‘Whether the current governance and operating model of the PIC,

including the composition of the Board, is the most effective and efficient
model and if not, to make recommendations of the most suitable
governance and operating model for the PIC for the future.’

GOVERNANCE

1. Following the PIC investment in Afrisam (where the total investment by the PIC
was R12,6bn in what, in essence, is a non-performing asset) and the
restructuring that took place in 2013, the GEPF responded to the Afrisam crisis
by ‘imposing a cap of R2bn on the amounts that the PIC could invest in a single
asset in the future. Also, that any investments above that figure had to be
approved by the GEPF’54.

2. Mr Sithole specifically stated that, with regard to the Ayo transaction (dealt with
above), and notwithstanding the limitations imposed on the PIC by the GEPF,
the PIC did not involve or inform the GEPF when it considered and made the
investment in Ayo, nor did it highlight the investment in its subsequent reporting
to the GEPF, but only responded when the GEPF began asking questions. The
PIC contended that they considered the Ayo investment fell under the listed
investment DoA, a view that Mr Sithole strongly disagreed with and said that,
while he could not pronounce on the legality of the action, it was certainly a
breach of faith and trust.

3. Both Dr Matjila and Ms More confirmed that, notwithstanding the DOA

requirement that, in many instances, agreement between them was to be

54
Para 80 of Dr Matjila’s statement signed on 15 July 2019.

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 obtained prior to a decision being made, they did not do so. They stated that this
requirement was, however, met through various committee meetings. When
asked about not contacting Ms More as required prior to the Ayo transaction
approval, Dr Matjila said: ‘Ms More is in a similar situation as I am because we
rely on advice from the technical people as they are the ones who do the work
and make recommendations, so it was not necessary to ask her …’55 However,
he acknowledged that the DOA was not changed to reflect this practice.

4. Dr Matjila’s justification for investing in Ayo is moreover a post facto tailoring of

facts and a dishonest one. He vacillated in relation to what authority he had been
acting on when he signed the Ayo irrevocable subscription form. And there is no
record of any other IPOs subscribed for in the manner he opted for in respect of
the Ayo transaction, ie, without prior PMC approval.

5. Dr Matjila, when asked how he had dealt with the matters raised by the
Investment Committee (IC) regarding the timing of Ayo and whether (the deal)
was in line with the DOA … he replied: ‘I cannot remember … but I remember
quite a number of them were dealt with by the team’. 56

6. Yet there is a conspicuous material non-disclosure in all reporting memoranda

given throughout to the Board, GEPF and SCOPA regarding the process
followed to approve the deal, in respect of his signing the irrevocable subscription
form before PMC approval. Even after ‘ratification’, Dr Matjila failed to give full
and frank disclosures on the process followed to approve the deal.

7. In the Steinhoff/Lancaster investment, the original proposal from Mr Naidoo was

for an investment of R10,4bn, but this was reduced by the PIC to R9,35bn. When
asked about the reasons for this reduction, Mr Vusi Raseroka, the PIC official
dealing with Lancaster/ Steinhoff Project Sierra, responded: ‘I can only speculate

55
At page 86 of the Transcript for day 59 of the hearings held on 24 July 2019.
56
Ibid. page 68.

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 that the reduction was to enable the transaction to fall within the mandate limit of
the IC … which if exceeded would have resulted in the transaction going to the
full PIC Board for approval’.57

8. With regard to the Steinhoff/Lancaster transaction (dealt with in 1.1), Dr Matjila

confirmed that they had reduced the amount from R10,4bn to R9,4bn ‘to be in
line with the Investment Committee mandate, so that they were able to approve
it…’.58

9. A significant number of witnesses raised their concerns about time pressures to

meet deadlines that compromised processes, valuations and the quality of due
diligences being conducted. This is all the more concerning given that the PIC is
the funder and the entity approached to consider whether to invest or not. The
evidence indicated considerable irregularity, overruling of processes and
improper sequencing of decisions including, by way of illustration, signing the
irrevocable subscription prior to due process being followed in respect of the Ayo
transaction59, in the name of making a quick decision. There can never be a
justification for time constraints overruling the merits of investment decision-
making being thoroughly interrogated.

OPERATING MODEL

10. The current operating model, depicted in the diagram below, which was adopted
in 2015 after Dr Matjila became CEO, can best be described as a centralised
operating model:

57
At page 73 of the Transcript for day 26 of the hearings held on 9 April 2019.
58
At pages 103-105 of the Transcript for day 55 of the hearings held on 16 July 2019.
59
For details see the Sekunjalo Case Study in Chapter III of the report.

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11. As depicted in the diagram above:

11.1. The PIC is a massive and complex organisation with more than R2 trillion
in managed assets.

11.2. The scale of the operations of the PIC are akin to managing five large
investment management businesses including equities, fixed income and
private equity. On a standalone basis these would be some of the largest
companies in their field.

11.3. The businesses are aided by departments that support investments such
as Risk, Investment Management and Legal.

11.4. Departments such as finance, Human Resources (HR) and Information

Technology (IT) complete the picture.

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12. Thus, the PIC is an organisation with enormous operations under one roof and
it is highly concentrated at the top (with the CFO and the CEO, who has the
final say on investment related decisions).

13. In relation to governance, the Commission finds that confusion as to the role,
functioning and responsibilities of the Board prevails. Non-executive board
members have responsibilities and functions that blur the distinction between the
role of a board and that of management.

14. Non-executive Board members fulfil decision-making functions by serving on,

and chairing committees that make investment decisions.

15. Non-executive board members also serve on the boards of investee companies,
as do executive members, impacting on fiduciary duties, conflicts of interest and
where accountability lies.

16. In a number of instances, non-executives (and executives), who have been key
figures in making an investment, then serve on that investee company board.

17. The dependency of the earnings of some non-executive board members from
serving not only on the PIC Board and the required sub-committees, but also on
various other boards and executive committees of the PIC, calls into question
their status as ‘independent’.

18. There is ineffective oversight of decision-making and processes by the Board as

they are an integral part of the decisions taken. It is not possible or appropriate
to be part of overseeing decisions and processes that you have been part of.

19. The Board conducts inadequate risk oversight and assessment and approves
inappropriate investee board representatives.

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20. The frequent changes to the Finance Minister, who represents the shareholder
with regard to the PIC, and role of the Chairperson of the PIC, being the Deputy
Minister of Finance, appears to have significantly contributed to ineffective
governance and the deficient functioning of the Board. Moreover, their
appointment to such positions in the PIC was by virtue of the office they held,
whether or not they had the appropriate skills, experience or expertise with
regard to chairing and appreciating the functioning and business of such a critical
organisation.

21. The reliance on Round Robin Resolutions to take major decisions is

inappropriate. This approach completely disregards the benefits derived from
engagement about decisions to be taken, processes to be followed and the rigour
required to thoroughly interrogate investment proposals.

22. The violation of the MOI, with respect to the restructuring in 2015, was
deliberately condoned by the Board, notwithstanding the impact it had on the
composition of the Board and the significant enhancement of the power and
influence of the two non-executive directors.

23. Minutes of formal meetings are kept. However, records of meetings and
interactions of management at various levels are deliberately not kept. The
evidence before the Commission showed repeatedly how who was being met,
by whom and for what purpose was not recorded. This made who met, when and
where, what was discussed and whether any promises or undertakings were
made, impossible to validate.

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FINDINGS AND RECOMMENDATIONS IN RELATION TO THE
OPERATING MODEL AND GOVERNANCE

24. In relation to the operating model, the Commission finds that the PIC is a large
and complex organisation that needs to evolve and, in a way, be “broken up” or
restructured to further enhance efficiency and accountability.

25. The PIC is like running 5 large businesses in one and these need to be delineated
properly and managed for efficiency and effectiveness.

26. The decision-making processes are highly centralised and go all the way to the
top with all the key decisions ultimately residing with the CEO. This clogs the
system and needs to change.

27. The new operating model should consider decentralised decision-making,

changing the structure and having focused management. It should consider the
creation of three large specialist investment business units. This will hopefully
result in better investment performance.

28. Decentralisation does have some drawbacks in terms of duplication and extra
costs, but this can deftly be managed.

29. The investment decision frameworks will have to change, but the PMCs should
stay.

30. It is important to note that the new model it likely to be more costly, thus the PIC
will have to fund this through better investment performance, resulting in
increased revenues over time to recoup the costs.

31. The areas of Risk, Legal and IT; Paper-based and spread-sheet based systems
in PMV, Investment Operations and Unlisted Investments were identified as
weaknesses at the PIC.

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32. It has also been noted that the PIC outsources a lot of key capabilities and this
might need to be brought in-house. This includes non-complex issues in the
Legal department and also derivatives structuring in the SIPS department.

33. The Commission also finds that the old operating model served the PIC well in
the past, but it appears to have run its course now that the PIC manages
approximately R2 trillion in assets.

34. The PIC has been exploring a new model which seems to accord with good local
and international models. It is recommended that the PIC mplements a model in
keeping with its future strategies and culture.

35. The new model could involve major restructuring and the creation of units that in
time could be managed on an autonomous basis with different sub-cultures and
shared services, within a broader HoldCo. It needs to be emphasized that
specialist asset classes will be separated and this is where investment decisions
will be made and concluded.

36. The Commission further recommends that the PIC needs to overhaul the way it
deals with directors that serve on the boards of investee companies and ensure
proper oversight and management of conflicts of interest. The process of
appointment, skills needed and the fees paid need to be examined to safeguard
the interests of the PIC.

37. It is also recommended that round-robin resolutions should be undertaken in rare

circumstances, especially for major decisions.

38. There should also be a limit, on a cumulative basis, on how much funds a
sponsor can access from the PIC, especially when the sponsor’s companies are
underperforming.

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39. There should be more meaningful engagement between the PIC and its clients
such as the GEPF.

40. The PIC should ensure that it effectively manages any subsidiaries and associate
companies, should they be created.

41. Transactions undertaken and fees paid to advisors should be transparent and
made public.

42. The PIC should attend to areas of Risk, Legal and IT, among other functions; it
should also consider establishing a Legal Counsel office, distinct from the legal
department, that advises the Board and Exco.

43. Paper-based processes in Unlisted Investments, PMV and Investment

Operations should also be attended to.

44. The Commission has noted the lack of collaboration with stakeholders and a
need to achieve more in ESG. This needs to be addressed.

45. There are also HR problems, such as acting positions, vacancies and issues with
performance management, bonuses and salary adjustments. In this regard, the
Commission recommends that the Shareholder Compact, signed on 7 July 2017,
should be reviewed. The clause that requires the Minister of Finance to sign off
on the awarding of incentives to all staff has contributed to the uncertainty around
the bonus pool, the timing of bonus payments and the quantum thereof.

46. Furthermore, at present, the Shareholder Compact is an annual agreement

signed between the PIC and the Minister of Finance representing the
shareholder. It is recommended that the Shareholder Compact should be
reviewed every three years, not annually. This would also align the Compact with
the three-year horizon of the Corporate Plan. The role, expectations and
responsibilities of both parties need to be clearly defined in such a compact.

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47. The PIC should in-source key and basic skills, particularly in legal and derivatives
restructuring, and outsource only complex matters where specialist skills are
desired.

48. A cooling off period should be determined for former directors and staff that
prohibits them from conducting business with the PIC or an entity established by
it for a period of time, possibly 12 months.

Board Composition and Functioning

49. The legislative and regulatory framework governing the PIC should be amended
to implement and/ or achieve the following:

49.1. Define the nature and responsibilities of the Board as being one of oversight,
in keeping with best practice.

49.2. Ensure the appropriate Board committees are established with clear terms of
reference and accountability.

49.3. Separate the Audit and Risk Committees, establishing a specific Board risk
committee with clearly defined terms of reference and accountability.

49.4. Formalise requirements for technical skills, personal experience, knowledge

and expertise as well as conflicts of interest.

49.5. Term of office of Board members should be a maximum of 3 terms of three

years each.

50. It is further recommended that the PIC should develop and put in place
appropriate policies for Board and management, regularly monitored and
updated, as they relate to:

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50.1. Compliance, including whistleblowing and procedures for raising concerns;

50.2. Anti-corruption, including polices on political engagement; payments or

assistance to public officials and gifts and entertainment guidelines;

50.3. Intermediaries, including a review of the PEP policy and third-party due
diligence requirements;

50.4. Political or other pressure;

50.5. Conflicts of interest;

50.6. Assessing and monitoring culture to ensure it is aligned with the company’s
purpose, values and strategy;

50.7. Effective engagement with, and encourage participation from, employees;

and

50.8. Overarching governance and board fees

51. In relation to the Chairperson of the Board, the Commission recommends that
the ‘role profile’, expertise and personal qualities required of a Chairperson need
to be formalised. In addition, the Chairperson needs to be independent and non-
executive and he/she needs to have experience and expertise in Pension Funds,
finance, markets as well as governance. It is also recommended that the term of
office of the Chairperson is to be the same as those of other non-executive board
members and the Deputy Minister of Finance should not be the PIC Chairperson.

52. With respect to Board appointees, the Commission recommends that they should
go through an induction process dealing with clarity of fiduciary duties and role
played if they sit on boards of investee companies. There should be a Service
Level Agreement with investee companies as to the role of board members,

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 independence vis-à-vis who is paying board members, clarity of policies and
expectations.

53. The Board should also have the skills that are applicable to the PIC’s corporate
governance, strategic and operational requirements.

Board selection process

54. The Commission recommends that the process of appointing the Board should
reside with the PIC and the Directors Affairs Committee (DAC), and Board
members should then be approved by the Minister, together with Cabinet.

55. The PIC, not National Treasury, should source new directors through various
means including recruitment agencies and placing adverts in media platforms.

56. The PIC should follow a robust process in selecting Board members and should
ensure that the individuals recruited possess the skills needed. Thereafter, this
process and its outcomes, without impinging on confidentiality of individuals,
should be made public.

57. Thus, the selection of the Board should not follow a full public process in
parliament and the appointment of ‘political appointees’ should be avoided.

58. In the event that a full Board, as opposed to rotating members, has to be
appointed, the Minister shall be required to utilise the CEO of the PIC to take the
role of the Directors’ Affairs Committee and the CEO and the Minister shall follow
the process outlined above.

59. Once the Board has been selected, the Board and not the Minister, should
choose its own Chairperson.

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60. The appointment of the CEO should also follow the current process whereby the
Board leads the process and offers the selected name to the Minister to approve.
If the Minister rejects the Board’s selection, the Minister should show good cause
for that rejection.

61. The removal of directors of the PIC should not be at the whim of the Minister.
The MOI says the Minister should offer reasons for removal to the Cabinet. This
is not sufficient for the security of tenure of directors and these reasons should
be immediately made public by the Minister.In the event that the entire Board is
removed, the question of institutional memory arises and needs to be taken
account of.

62. In terms of the Board subcommittees, given the complexity of the PIC, it is
recommended that the Risk and Audit Committees should be separated and
each stand alone.

63. The Information Communication and Technology Governance Committee

(ICTGC) should be given greater weight in deliberations, ensure manual systems
are replaced and keep modernising the technology environment of the PIC. It
should also deal with digital transformation.

64. Given the changes proposed in the operating model, the IC will be the most
affected of the sub-committees as it will have to concentrate on an oversight role
as opposed to participating in investment decisions. Investment operations would
likely be moved to specialist business units.

65. The PIC Board should concentrate on playing a strong oversight role and
extricate itself from operations. The Board should thus strengthen rules on
oversight – it should be a governance and not a management board.

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TERM OF REFERENCE 1.16

‘Whether, considering its findings, it is necessary to make changes to the

PIC Act, the PIC Memorandum of Incorporation and the investment
decision-making framework of the PIC, as well as the delegation of
authority for the framework (if any) and, if so, to advise.’

Shareholders compact

1. It appears that the annual engagement on the Shareholder Compact is onerous

to the PIC and thus it is proposed that it be undertaken every three years. This
will also create greater certainty, enable envisaged changes to be forward
looking and lessen the burden on the PIC.

2. The Commission recommends that the Shareholder Compact needs to be

reviewed to ensure certainty and clarity of roles, responsibilities and
accountability.

Memorandum of Incorporation (MoI)

3. The Commission recommends that the PIC’s MoI should be evaluated afresh in
keeping with GEPF requirements and the roles of CIO and COO should be
reinstated. It is also recommended that the CEO, CFO and CIO should be ex
officio board members.

4. Consideration should be given to both Risk and IT having executive roles at the
same level.

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Mandate

5. Clarity on the primary mandate needs to be obtained – ensuring adequate funds

through investment and contributions to meet both short- and long-term liabilities
in a sustainable manner. This requires that the GEPF thoroughly review its
financial position and the financial progress of the Fund to evaluate the
appropriateness of the investment strategy currently in place, taking account of
the nature and extent of liabilities.

6. There needs to be agreement between the shareholder, the GEPF and the PIC
on what the benchmark return should be to maintain the Fund at a level agreed
between the three parties. This should also help determine the investment
strategy.

7. The secondary mandate – which includes promoting economic development –

should be determined between the shareholder and the GEPF such that the
PIC’s implementation thereof, including through a clearly defined developmental
investment strategy, also meets the requirements of the primary mandate.

8. Effective monitoring and evaluation of investments should include a clear

definition of what success is from the outset.

Delegation of Authority (DoA)

9. The DoA needs to be revised to ensure appropriate oversight and escalation.

10. The reserved powers of the Board, in its totality, need to be reviewed

11. The unintended consequences of the DoA need to be considered.

12. The Board, given changes to governance and the operating model, will have to
revise the Reserved Matters and align them to the new reality.

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13. The DOAs will also change extensively in so far as they cover various actions
and approvals by parties within the PIC.

The Recommendations on the Amendment of Legislation

14. It is the view of the Commission that there needs to be an urgent redrafting of
legislation relating to the PIC. The current PIC Act should remain in force until
new legislation is promulgated.

15. The drafting of such legislation must take account of the PIC Amendment Bill that
has been passed by Parliament, as well as the findings and recommendations
contained in the report of this Commission. Such a process must ensure wide
stakeholder engagement and consultation and should be a priority to be
completed as soon as possible.

16. The Board should not have, as a legal requirement, to include representatives of
labour and depositors such as the GEPF. Every Board member owes a fiduciary
duty to the PIC and does not represent their own interests on the Board. Thus,
proposals in the PIC Amendment Bill on this issue may need reconsideration.

17. To the extent that the Minister might include the above, the representatives of
Labour and/or depositors should be appointed as individuals and contribute their
experience and expertise in keeping with the needs of the PIC Board.

18. The proposal to have PIC clients, such as the GEPF, on its Board will create
conflicts of interest as the GEPF must hold the PIC accountable regarding the
implementation of its mandate and investments the PIC makes.

19. Consideration could be given to a director being appointed from National

Treasury, as this could assist the Board’s understanding of the Government’s
priorities relevant to the PIC. Should such an appointment be made, it should

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 not serve as a substitute for formal meetings between the PIC and the
shareholder. There would also need to be clarity as to where fiduciary duties lie.

20. In terms of Directives issued by the Minister, they could be tabled in Parliament
for debate. Needless to say, the decisions should be rational.

21. In redrafting legislation, the terms of the PIC Amendment Bill should require the
National Assembly to play a stronger role, particularly with regard to reporting
requirements and public accountability. To ensure greater transparency, the PIC
should provide more information to the relevant parliamentary committee and,
where appropriate, the National Assembly, including with regard to strategy,
mandate implementation, and performance on both listed and unlisted
investments.

22. The PIC should ensure that the actuarial valuation report is presented to the
appropriate committee within three months of its conclusion.

23. The PIC Amendment Bill expands and makes explicit the investments the PIC
must make such as in manufacturing and local investments. Though well-
intentioned, this is not appropriate and, if need be, broad parameters could be
included in the GEPF Law or its mandate to the PIC.

24. The re-drafted PIC Act should consider what must be mandatory for the Minister
to table in Parliament, for instance draft regulations, and must take into account
comments arising from members of Parliament.

25. In terms of the FAIS Act, the PIC is required to meet its obligations in terms of
this Act and the mandates it gets from clients.

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General Recommendations

26. The Commission recommends that a Legal Counsel office needs to be

established, which will be responsible to the Executive and the Board, and
separate from the legal department, to ensure that the Board and executive
operate within the law and best practice at all times.

27. Keeping records of meetings, including participants in such meetings, decisions

taken and relevant, material matters should be standard practice and maintained
for both formal and informal meetings.

28. Ensure segregation of roles between Board and management to avoid

interference in operational matters

29. Independence of non-executive directors needs to be ensured and it must be

considered what percentage of their income is earned from Board fees, and
whether their independence could be compromised by a need to remain in the
CEO’s/CFO’s ‘good books’ to ensure continued board and committee
appointment.

30. Shareholder proposals regarding bonus pools or other HR matters, if not

contained in the Shareholder Compact, should only be prospective, and not
applied retrospectively, to ensure that contractual agreements with staff are not
disregarded.

31. The PIC needs to be made future-proof to ensure that it can deliver on its
mandate without undue interference, pressure or attempts at manipulation.

32. It is global best practice that with large asset managers, the CEO does not get
involved in investment decisions. The CEO will then be in a position to hold
investment professionals accountable for investment performance.

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TERM OF REFERENCE 1.17

‘Whether the PIC has given effect to its clients’ mandates as required by the
Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002)
and any applicable legislation.’

1. In considering whether the PIC has given effect to its clients’ mandates, the focus
will only be on the GEPF given that it comprises 87% of the assets under
management by the PIC and it is the client that has appeared before the
Commission.

2. The GEPF approved an investment policy in 2007 and the GEPF Board of
Trustees (BoT) approved an expanded developmental investment strategy in
201060. This recognised that the GEPF had a tremendous opportunity to make
investments with positive economic and social benefits that had not been
leveraged to the extent possible.

The Legal Relationship between the GEPF and the PIC

3. In a memorandum prepared by law firms Cliffe Dekker Hofmeyr and Adonisi

Malapane Moletsane & Moloi Inc (AMMM) for consideration by the GEPF61 (the
Memorandum), the following points are made:

3.1. The GEPF entered into an Investment Management Agreement (IMA) in June
2007 with the PIC, in terms of which the PIC was appointed as an investment

60
A copy of the investment strategy is attached as annexure ‘A2’ to Mr Abel Sithole’s statement.
61
A copy of the memorandum is attached as annexure ‘B4’ to Mr Abel Sithole’s statement.

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 manager of the GEPF and is required to act within the investment policy of the
GEPF.

3.2. The actions of the PIC are explicitly limited to the parameters of the GEPF
investment policy.

3.3. The PIC must ‘manage the investment portfolio as a fiduciary in the utmost
good faith, and with the due care, diligence and skill which is to be expected of
any expert investment manager, and generally to act in accordance with the
terms of the IMA at all times’.

3.4. The IMA also sets out the common law duties of the PIC, which includes the
duty to keep the BoT informed of all material matters concerning the
investment portfolio. The PIC is required to disclose information to the BoT and
not conceal any material information62 relating to the investment portfolio.

3.5. The PIC is liable to the BoT for breach or damages that arise from non-
compliance with the mandate.

3.6. Where the PIC has acted beyond its mandate, the GEPF is entitled to ratify
such action and where this is not done, the PIC would be liable for the oss or
damages incurred as a result of such action.

4. The FAIS Act states that where a provider is a corporate, that provider must at
all times be satisfied that every director, member, trustee or partner complies
with the requirements in respect of personal character qualities of honesty and
integrity. 63

62
It should be noted that the standard of materiality, especially from an auditing point of view, comprises of issues that
are material by amount and material by nature. Often the latter is not intrinsically considered by people when assessing
‘materiality’. For example, the information about activities within the DoA but not within reasonable fiduciary duty is
equally material to amounts over R2 billion or R10 billion. Thus, information about material activities known by the PIC
but not disclosed to the GEPF would fall foul of this element.
63
Section 8(10)(a)

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5. The Commission finds that Dr Matjila did not meet the fit and proper qualities of
honesty and integrity with regard to providing accurate information to the GEPF,
with particular reference to the Ayo Technology transaction.

6. It is unclear whether the register of representatives has been regularly updated

and if those currently listed (at the time of looking at the website) are all still in
the employ of the PIC.

7. The imperative as set out in the IMA to make ‘prudent’ investments appears to
have been largely disregarded. Too many examples, set out in 1.1 of this report,
reflect this lack of prudence.

8. The attitude of Dr Matjila to investment performance demonstrates an insufficient

commitment to the prudence requirement. An example of this is noted when
during his testimony, he stated:

‘The Commission is dealing with almost 2% of the portfolio (in unlisted

investments) … If you add up all the problem transactions you are not
going to exceed R30bn at best … the total figure could be R40bn’.64

9. At this point, when evaluating materiality and prudence, it is important to note

that the use of percentages obfuscates the numerical size of the funds in
question. R40 billion exceeds a full year’s state contribution by National Treasury
to the pension fund which has averaged R37,7 billion a year and comes in at
around 64% of total contributions. All of this makes the ability to absorb write offs
and losses precarious which, by definition, is the opposite of prudence. Any 2%
capital loss, when the fund is potentially not fully solvent (in terms of the actuarial
valuation reflecting the funding level of long-term liabilities), is a significant loss
to what should be capital reserves or a buffer.

64
At pages 78 and 80 of the Transcript for day 58 of the hearings held on 23 July 2019.

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10. Moreover, given that the losses primarily occurred in the investments made
through the Isibaya Fund, the R40bn should be measured against the R123
billion that the PIC has invested through the Isibaya Fund, 41% of which is at
risk, on watch, under-performing or non-performing.

11. Using percentages masks the size of the monies involved. While it is recognised
that even with the best processes and due diligence, losses and bad investments
will occur, the issue at stake here is the failure to follow due process and making
investments without the required rigour and authorisation.

12. Improving investment returns is critical to ensure that there is no future

requirement to increase government contributions, especially as the government
is borrowing to fund total expenditure, including that contributed to the GEPF.

13. The repeat investments that have been made with particular individuals or
companies – single name risk - indicates a tolerance of cumulative risk that raises
the question as to whether the PIC has deliberately structured the internal risk
management function and process to be ineffective. At present, each deal is
considered in isolation, irrespective of how many other deals have been applied
for by the same individual or entity, approved/not approved or how they are
performing, so that there is little assessment or consideration given to the total
risk profile or exposure on a cumulative basis. This ‘deliberate structuring’
approach also enabled the favouring and repeated enriching of or providing
opportunities to, the same people via different investments and also often
ignored the imperative for ‘broad based’ investments, contained in the GEPF
mandate.

14. The review of the IMA by an independent consulting firm, expected to be

completed in two years, reflects a lack of urgency on the part of the GEPF to
ensure the PIC/GEPF agreement takes account of the changing economic and
asset management environment or the challenges of governance that the GEPF

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 and the PIC are facing. Such a review should produce an interim report by no
later than end June 2020, following which the next steps should be determined.

15. The principal terms regarding investment limits of the Private Placement
Memorandums (PPMs) which were approved in 2016, that there should be a
maximum of 30% of aggregate Capital Commitments (for each sub-fund) in any
single investment, bears deep consideration for future detailed review. A
statistically anecdotal review (i.e. the transactions that have been reviewed by
the Commission) shows multiple breaches of this resolution of a maximum
capital commitment as defined as the sum of debt and equity. Further work
should be undertaken to ascertain whether there was intentional subversion of
this requirement.

16. Should the stakeholders in this complex relationship between GEPF and PIC
wish to consider a change in approach, whereby the GEPF is called on to take
direct responsibility and accountability for activities within the PIC, then a new
conversation should be started to evaluate if the GEPF should have a material
shareholding in the PIC.

17. The Commission recommends that the PIC Board and the GEPF BoT need to
jointly determine their purpose, role, relationships, nature and frequency of
meetings to rebuild trust and confidence, and then ensure that appropriate
interaction at the required level actually takes place. As an example, this could
be achieved via a neutral third party facilitation process whereby each side’s
requirements and expectations are gathered and consolidated. Then a
collaborative session should be held to formalise roles and responsibilities (“the
what”) as well as defining new ways of work (“the how”). The facilitator would
combine the outcome for final approval on both sides that would then become a
foundational operating model between asset managers and clients. It is
recommended that this be initiated as soon as possible.

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18. It is further recommended that the IMA between the GEPF and the PIC of 2007,
as well as the Addendums of 2013 and 2016, should be reviewed in their entirety
with a focus on returns expected, management and governance. Particular
attention should be paid to the effectiveness or otherwise of the GEPF
Investment Committee’s functioning as the Advisory Board of the various sub-
funds and its primary function of reviewing the PIC’s compliance to investment
objectives and mandate as well as to monitor and review performance. This
should inform the mandate given to the independent consulting firm currently
undertaking a review, and the timeline for completion should be significantly
shortened without compromising quality.

19. The GEPF should ensure it has the required skills, resources and expertise to
check and challenge the PIC. The ability of the GEPF to deeply understand the
various portfolios will ensure that they have the capacity to fully challenge and
review investments, including losses incurred.

20. Consideration should be given by the PIC to removing ‘annual total value of
approved transactions’ as a balanced-scorecard key performance indicator (KPI)
as it prioritises deal flow over risk/returns.

21. The Commission recommends that the PIC should establish a compliance
coordinator and develop a compliance charter by no later than June 2020. There
needs to be demonstrable consequences for individuals and teams, and steps
taken if there is a lack or breach of compliance. The specifying of the role
requirements and creation of this function within the PIC second line of defense
should be completed within 6 months of the publication of this report.

22. There is a need to better understand the interplay between investment returns,
net contributions or withdrawals and, crucially, consideration of the cost to the
country of on-going and historic funding for the clients out of debt, not savings.

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23. Adequate benchmark and returns hurdles set by the GEPF (and other clients) for
the PIC must take into account the actuarial net present liability. Benchmarks
should be set at a level to ensure actuarial solvency and aim to not have to
increase government/employer annual contributions. This approach is important
so as to remove any non-balance sheet liabilities in the national accounts which
are, in reality, a tax on future generations.

24. The setting of investment hurdles must robustly take into account risk appetite,
loss capital buffers and the ability to absorb major capital losses, net
contributions and actuarial liabilities.

25. The BoT resolution of October 2017 which requires the PIC to seek approval
from the GEPF’s Investment Committee for any single investment above the R2
billion for unlisted and property investments should be reviewed to take account
of cumulative investments that are made. Such investments may in total exceed
the R2 billion cut off, but individually fall within the limit set.

26. The Commission recommends that the role of advisors and the approach to
financial engagement thereof must be reviewed and strict commercial
boundaries must be codified. This is an essential and immediate requirement.
The new approach must be transparent; competitive; have mechanisms for
public check and challenge; limit fees paid to value received and, most
importantly, must recognise that the PIC, as the largest role-player in the private
sector capital markets, should take advantage, in the right way, of its sectoral
importance to drive value creation from its advisors for its clients.

27. In addition to the above recommendations, consideration should also be given

to–

27.1. developing formalised sub-strategies, for example, an Offshore Strategy and

a B-BBEE Strategy.

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27.2. conducting a review of the overall scope of all investment strategies and limits
that could unlock value by setting boundaries and narrowing focus. The current
wide-ranging objectives allow for different investment cases to underpin
investments which reduces comparability and the connection to strategy.

27.3. There should be a strict discipline to put in place formal house views that are
tracked with a matrix of measures for objectives.

27.4. using a separate entity/dedicated fund involved with B-BBEE and a

transformation mandate.

27.5. The use of a separate entity/dedicated fund involved with B-BBEE and
transformation mandate.

27.6. including a service level agreement in the Shareholder Compact that sets
timelines within which the Minister of Finance is required to deal with matters
as they affect the PIC, for instance the asset and liability management
assessment finalisation.

27.7. putting formal arrangements in place to regularise meetings between the three
key role players, namely the Minister of Finance as Shareholder
Representative, the GEPF and the PIC.

27.8. having transparency within the PIC, which would eliminate room for impropriety
by removing the GEPF’s and the PIC’s ability to be less than forthcoming with
investment decisions and losses. On the other side of the ledger, it would make
plain any market outperformance and that should enable solid fund
management returns to be rewarded at a level comparable to the private
sector.

27.9. daily publishing of the market value of the listed portfolio at that day’s close of
business. This should be broken down per each investment. Unlisted

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 investments should be valued regularly, and the valuation updated online
approximately every six months, three months in arrears. The timelines need
to ensure that publishing such information does not create investor panic in the
investee which is imperative in an unlisted investment. The full suite of internal
daily risk reporting could be published.

27.10. full disclosure of the ultimate beneficial owners of investments in which the PIC
participates. The ultimate beneficial owner would in every instance need to be
a natural person or listed entity. This would make any potential financial crime
significantly more difficult and would ensure transparent exposure of which
individuals are benefiting from PIC support; and

27.11. improving discipline in respect of always creating clarity about the true
participants in any investment or activity. Specifically, clarity of the role/s of the
clients, for example the GEPF and the PIC legal entity. Much of the time, the
specific legal entities are not clear in both documentation and discussion,
leading to potential confusion as to what the PIC means.

CHAPTER IV RESPONSIBILITY AND ACCOUNTABILITY

RESPONSIBILITY AND ACCOUNTABILITY – DR DAN MATJILA

1. The transactions relating to Ayo and Sagarmatha, amongst other things, have
been relied on in reaching the findings set out below.

2. Dr Matjila stated the following in relation to the AYO transaction:

‘In my position as the CEO I was not involved with the analysis of the
investment potential of opportunities presented to the PIC. I therefore
requested Executive Head: Listed Investments, Mr Madavo, to look into

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 the opportunity … He led the Ayo investment process from the PIC side
… My understanding was that the draft PLS was shared with the PIC
even before it was finalised to allow the PIC to begin its internal
investment processes. The postponement of the PMC meetings
scheduled for 6 and 13 December 2017 added to the pressure of
meeting the deadline for the subscription which was by 17h00 on 15
December 2017.’ 65

3. In his testimony before the Commission, Dr Matjila stated that by 14 and 15

December 2017 all due diligence processes and reports had been prepared and
submitted as per the appraisal report and annexures.

4. He stated that the subscription form was already signed by Mr Molebatsi for 20%
(twenty percent) of the shares, and that he decided that this should be changed
to 29% (twenty-nine percent), taking up the full share offer. The subscription form
they signed on 14 December 2017 reflected the price of R43.00 (forty-three
Rand) per share for 29% (twenty-nine percent) of Ayo. The impact of this is to
immediately discredit Dr Matjila’s assertion that Mr Madavo ‘led the Ayo
investment process from the PIC side’.66

5. Dr Matjila stated that the final Pre-Listing Statement (PLS) did not contain any
differences from the draft PLS and therefore the information upon which the
share purchase was made did not differ from the information contained in the
final PLS.

6. The final PLS was received by the PIC at 14:42 on 14 December 2017, after the
irrevocable subscription form was signed earlier the same day. The final PLS
was received 10 days after the irrevocable letter of undertaking had been
provided to the Board of Directors of AEEI. Throughout his testimony, Dr Matjila
referred to the signing of the irrevocable subscription form on 14 December 2017,
and stated that he had made his decision based on the final PLS. There are no

65
Paras 416-417 of Dr Matjila’s statement.
66
Ibid.

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 indications that a reconciliation was considered on the draft versus the final PLS,
although it was repeatedly stated that there was no material difference between
the two.

Concerns related to circumvention of the required investment

process

7. Neither the CEO nor CFO advised the PMC meeting that the irrevocable
subscription form had been signed prior to approval.

8. The information that has come to light during the Commission hearings indicates
that an improper process, outside of legal mandate, was followed by Dr Matjila
in respect of this transaction.

9. It has now emerged that the evidence and testimony submitted by Dr Matjila
regarding the Ayo investment is untrue. This finding is based on the letter dated
4 December 2017 to the Board of Directors of AEEI, headed IRREVOCABLE
LETTER OF UNDERTAKING, which Dr Matjila signed as CEO on behalf of the
PIC.

10. By signing the above letter to the Board of Directors of AEEI on 4 December
2017, prior to a PMC meeting to approve the transaction, Dr Matjila acted
improperly and in breach of the PIC’s processes for transactions under listed
investments. In approving this transaction, Dr Matjila also acted beyond the
scope of his Delegation of Authority which does not provide for CEO discretion
for a R4,3 billion ‘investment’.

11. This letter was not provided to the Commission by Dr Matjila or his legal team,
nor was any reference made to its existence. This is evidence of his broader
unreliability as a witness whose failure to mention crucial points fundamentally
changes the narrative. Throughout his testimony, Dr Matjila stated that he relied
on the PIC deal team to do the work and is guided by their expertise and

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 recommendations, yet he decided to make a significant investment prior to team
input or the completion of PIC processes.

12. It is our view further, regarding whether the PMC meeting of 20 December 2017
was to ratify or approve the Ayo transaction, that Dr Matjila’s response was
disingenuous. When asked by the Commission why ‘there should have been an
attempted ratification if ratification and approval mean the same thing’, Dr Matjila
replied: ‘I mean the effect is the same’.67 While Dr Matjila stated that the 20
December 2017 meeting was to ratify a decision that had already been taken –
a meeting at which he was present and was chaired by Ms More – the meeting
in fact approved the transaction. In his written submission, Dr Matjila states that
‘the intention of the meeting of 20 December was always to approve …’,68 yet
when asked why he did not clarify to the meeting that the deal had already been
done and it was not approval post event, but ratification, Dr Matjila said ‘I did not
see any need at the time …’.

13. The evidence placed before the Commission supports the finding that the
meeting of 20 December 2017 could only have been to ratify a decision already
taken, that decision being the approval of the transaction. Such conduct is not in
accordance with the PIC’s processes with respect to transactions under listed
investments.

14. The information that has come to light during the Commission hearings indicates
that due process was not followed. Firstly, by sending the letter of 4 December
2017 to the Board of Directors of AEEI undertaking that the PIC would subscribe
for 29% (twenty nine percent) of the share capital of AYO and confirming the
price that would be paid per share, prior to PMC2 approving the transaction, Dr
Matjila circumvented the prescribed process for authorising a listed transaction.

67
At page 37 of the Transcript for day 60 of the hearings held on 25 July 2019.
68
Para 484 of Dr Matjila’s written statement signed on 17 July 2019.

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15. Secondly, although Dr Matjila undermines the importance of this step in his
testimony, the reports compiled by ESG, Risk and Legal were not finalised when
Dr Matjila signed the irrevocable subscription form on 14 December 2017, let
alone when he signed the 4 December 2017 letter. As such, a substantial
component of the necessary due diligence was overlooked. Moreover, whatever
Dr Matjila’s actual regard for the importance or otherwise of specific elements of
the process like ESG, Risk and Legal, the process is clearly set out and
obligatory, and he did not have the authority to override, bypass or ignore the
process. In bypassing processes secretly, he acted improperly.

16. Furthermore, as Dr Matjila dealt with this transaction as ‘listed’, and therefore did
not obtain GEPF approval in keeping with the R2 billion limit (discussed in further
detail in ToR 1.17), the forecasts contained in the draft PLS were subject to
Limited Assurance, which was only provided in the final PLS. As there was no
reconciliation between the draft PLS and the final PLS, no reliance could be
placed on the assurance work performed. It was also too late as the share
purchase commitment made by Dr Matjila, ten days earlier, was irrevocable.

17. With regard to the Sagarmatha transaction, which was running parallel with the
Ayo investment decision-making process in the PIC, Dr Matjila said that ‘one of
the suspensive conditions of the agreement was the successful listing of
Sagarmatha which ultimately never happened and therefore the agreement
never became operational and lapsed’.69

18. The listing price of Sagarmatha was set at R39,62 (thirty-nine Rand and sixty-
two cents) per share, though the PIC internal valuation was R7,06 (seven Rand
and six cents) per share. This valuation discrepancy is of great concern.

19. The differentiated pricing proposed at the listing of Sagarmatha is clearly market
manipulation and would not have been tolerated by the Johannesburg Stock

69
Para 407 of Dr Matjila’s statement.

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 Exchange (JSE) if they were aware that this was happening. When questioned
during his testimony, Dr Matjila clearly recognised this was not acceptable
behaviour.

20. In this regard, Mr Molebatsi said: ‘The CEO wanted this transaction [Sagarmatha]
to be presented to PMC…and so in that…particular situation it was an
instruction.’.70

21. This is another example that contradicts Dr Matjila’s evidence that he relied on
the PIC deal team when making investment decisions. Mr Molebatsi’s statement
indicates that the deal team itself had the view that Dr Matjila negotiated parallel
to their work, dealing directly with Sekunjalo Chairperson, Dr Iqbal Survé (Dr
Survé).

22. Mr Tatenda Makuti stated that when he had finished his draft legal report he was
informed that a share purchase agreement between Dr Matjila and Sagarmatha
had already been concluded in December 2017. Furthermore, he established
that the firm of attorneys whose name appeared on the agreement actually acted
for Sagarmatha and not the PIC and testified that, ‘We still do not know if the
document was reviewed by external legal counsel as is normally the process
before an agreement was signed’.71

Dr Matjila’s disregard for established PIC approval, decision-

making and other internal processes

23. Dr Matjila’s testimony, in respect of the Tosaco Energy transaction, illustrates a

complete disregard for transparency, formal process and proper governance. It
also illustrates the implicit understanding of Dr Matjila that his influence, status
and power enable him to direct activity without having to detail specifics. It is not

70
At page 24 of the Transcript for day 14 of the hearings held on 12 March 2019.
71
Para 33 of Mr Makuti’s statement signed on 18 March 2019.

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 reasonable or acceptable business behaviour for a CEO to leave a meeting and
be followed by the participant in that meeting into the next meeting without some
implicit or unspoken understanding. Dr Matjila also testified that he was thinking
that the two (Mr Mseleku and Mr Mulaudzi) should combine forces even if he did
not say so, and it is incredulous that his thinking can manifest into reality by
accident, ‘and within a brief moment of time’. Simply put, real decision making
was effected outside of the PIC governance processes despite a surfeit of those
processes bordering on democracy.

24. Dr Matjila was aware that the Investment Committee always led the Board’s
investment decision-making process. He was also aware of the role he played in
the Investment Committee. It is difficult to believe that the CEO who is also CIO
and one of only two executive directors is just a voice at the table. As leader of
the organisation, Dr Matjila was clearly the source of authority in the PIC. He was
not simply ‘just a member of the Investment Committee’. Dr Matjila underplayed
his true role in his evidence to the Commission.

25. Linked to this observation, is a consistent pattern in Dr Matjila’s testimony where

he takes no individual accountability for material errors, mistakes or failures.

Dr Matjila highlighting political pressure as a serious concern and

his misconduct in relation thereto

26. When asked whether it was improper or unethical for a Minister of State, in
particular the Minister of Intelligence, Minister Mahlobo, to call the CEO of the
PIC to a meeting at an airport without any indication of the purpose of the meeting
or who would be present, Dr Matjila said he saw no problem with this conduct.72

27. His response is disingenuous at best. The issue at hand is not a meeting with a
cabinet minister per se, but the circumstances, demands, discussions, records

72
At page 29 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 and outcomes of such meetings as they relate to the responsibilities of the PIC
and any impropriety or undue pressure that might have occurred.

28. Dr Matjila appeared oblivious of the ramifications regarding reputational risk for
himself and the PIC, notwithstanding the damage the allegations in the
anonymous emails did to him personally and to the PIC as a whole.

29. This is further illustrated by Dr Matjila forwarding requests for financial assistance
to, inter alia, recipients of PIC investments to consider.

30. A reasonable person would not give any credence to the assertion that the CEO
of the PIC, who enables funding and fee payments in the ordinary course of
running a +R2 trillion asset manager, is merely sharing the information of the
ruling party and its tripartite partner looking for funding. This logic is borne out in
that Mr Mseleku made a R1 000 000. 00 (one million Rand) contribution shortly
thereafter. The “quid pro quo” in action shows that the implicit message was both
clear and understood. Similarly, with the R300 000.00 (three hundred thousand
Rand) donated by Mr Muluadzi to a beneficiary, unknown to him.

31. Those who gave evidence before the Commission stated that they advised Dr
Matjila of donations made or assistance provided, in particular both Mr Mseleku
and Mr Mulaudzi. Furthermore, Dr Matjila did not simply pass on requests from
political parties and other influential entities for funding, he actually followed up
on such requests.

32. The CEO of any organisation should never excuse behaviour – mistaken,
unintentional or intentional – on the basis of whether there is a policy in place or
not. It is also the responsibility of both the CEO and the Board to ensure that
appropriate policies are in place. Furthermore, if the CEO does not take
ownership and responsibility for judgement calls and defers to compliance, then
that CEO is setting a tone that says anything is allowed if it is not expressly illegal
or barred via policy.

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33. In these particular instances, the question that arises is, why would anyone follow
up on a ‘relayed request’ if it was just a process of information sharing? The act
of “following up” strongly implies that there is an expectation that the request
would be complied with and that Dr Matjila would want to know that this was the
case.

Whistle Blower Concerns

34. Several testimonies from staff alluded to the deep perception that the
whistleblowing process was not to be trusted. With some staff taking issues
directly to the Police and other insiders using the James Nogu email route, it
seems clear that there was no faith in this mandatory process.

FINDINGS

35. The following findings are made:

35.1. Evasiveness as a witness;

35.2. A selective view of accountability, a disregard for the legislative and regulatory
framework which the PIC is required to operate within, including the
Companies Act 71 of 2008 (Companies Act), the PIC’s Memorandum of
Incorporation (MOI) and the GEPF mandate;

35.3. A tendency to ride roughshod over the established approval and decision-
making processes;

35.4. Perceived breach of the Protected Disclosures Act 26 of 2000;

35.5. Doing repeat deals with individuals and/or their entities, even where no value
has been proven from the first deals.

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35.6. A disregard for established rather than hypothetical enhanced value. An
apparent insensitivity to the risk profile required to build/maintain actuarial
solvency of the GEPF where shortfalls must eventually be financed by the
taxpayer.

35.7. A consistent behaviour, when interacting with potential investees, or meeting

without anyone else present, of not keeping records or minutes or any written
audit trail of such interactions. This constitutes a breach of Dr Matjila’s fiduciary
duties in that he failed to do the following while adopting a consistent practice
of accepting and hosting meetings without anyone else from the PIC being
present:

35.8. keep records or minutes of material conversations and decisions; and

35.9. as CEO and Executive Director, ensure that the appropriate control
environment for record keeping is maintained throughout the organisation
when interacting with potential investees.

35.10. Highlighting political pressure as a serious concern but defending his practice
of meeting such parties without anyone else from the PIC in attendance,
keeping no record of these meetings, and holding such meetings outside of
the PIC premises. This is further compounded by the finding that Dr Matjila
directly solicited donations for COSATU and the ANC from individuals whose
companies the PIC has invested in.

35.11. Distancing himself from significant fee payments to financial service advisors,
notwithstanding the need for both actual and optical propriety in both
substance and form. He also claimed no knowledge of fees paid to such
parties. However, in reality the benefit was for a few people only, but those
who were ‘chosen often reaped significant financial rewards. In building this

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 transformed professional cohort, there is no indication of a structural evaluation
metric that was put in place to pre-determine what a measure of success would
look like. This gives rise to the perception (and reality) of access to the PIC
and significant fee income for privileged insiders, who were, in a number of
instances, previous employees of the PIC.

35.12. Taking a decision to keep a transaction below the level that would require
reference to a higher decision-making body. This constitutes a subversion of
governance.

35.13. Disregarding the advice of experts when such advice did not align with his
desired outcome.

35.14. Failure to adequately exercise his CEO responsibilities with regard to the
organisational, legal, regulatory, human resource and operational frameworks
relevant to good governance and client mandates.

35.15. Failure to ensure that risk was managed at an appropriate level, raising the
question of whether this was the result of a deliberate structural and capacity
weakness by design, while maintaining the perception of an operational risk
management system (when in fact it was unfit for purpose).

Recommendations

36. The Commission recommends that, in relation to the conduct set out above, the
GEPF/PIC/Government as shareholder should institute an appropriate
investigation as to whether Dr Matjila violated the FAIS Act requirements of
honesty and integrity as well as of “fit and proper” given that he was a Key
Individual in the PIC.

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37. In ToR 1.1, the Commission made findings regarding whether Dr Matjila violated
any other legislation applicable to the PIC, including the PFMA, any rules, listing
procedures or other requirements of the JSE. The Commission recommends that
the PIC gives effect to its findings in this regard.

38. The Commission further recommends that the PIC must give consideration to
whether any personal liability is attached to the conduct of Dr Matjila, including
with regard to any fruitless and wasteful expenditure which, if found to be the
case, would make Dr Matjila liable for the loss to the PIC.

39. Where money has been lost or investments made where the funds provided have
not been used for the intended purpose, this must be identified, quantified and
recovered.

40. Demonstrating a lack of due diligence and care, Dr Matjila breached his fiduciary
duties when approving investments into insolvent and technically insolvent
companies, for example Erin. Consequently, the appropriate steps need to be
taken.

41. The Commission further recommends that the Independent Regulatory Board for
Auditors (IRBA) should open an investigation into the Limited Assurance work
performed on the Ayo Prelisting Statement given that the extreme revenue
forecasts were clearly very aggressive. For example, the 2018 actual
comprehensive income achieved R148 million compared to what was forecast
(R764 million), which reflects a significant under performance.

42. Responsibility and Accountability of Mr Rajdhar: the Commission has noted

with concern the financial losses and breach of processes that have emanated
from the unlisted investments arena, including in the Developmental
Investments. Numerous investments that resulted in undue losses for the PIC
occurred during the time when Mr Rajdhar was the EH: Developmental
Investments. As the head, Mr Rajdhar needs to be held responsible and

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 accountable for this problematic division - not only Dr Matjila. Thus, it is
recommended that the PIC Board should thoroughly investigate Mr Rajdhar
for any impropriety and negligence arising from the transactions dealt with at
the Commission that did not follow processes and/or resulted in financial loss.

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CHAPTER V – RECOMMENDATIONS AND REMEDIES

Recommendations For Next Steps Regarding Investment Losses

And Those At Risk

1. 41% of the R123 billion of Unlisted Investments are on watch, under-

performing or not servicing loans (non-performing loans). Elsewhere in the
portfolio, there are assets where there is scope for enhancing value as well as
capital sitting in insolvent entities. For the purposes of this report, these
investments will be called Investment Capital at Risk (ICAR). From a Finance
lens, much of this ICAR would be termed “Distressed Assets”.

2. The total ICAR is a significant portion of the portfolio, both in quantum and
relative to the AuM. This observation is important because Dr Matjila
repeatedly stated that the losses and write-downs are not significant relative
to the fund size. Additionally, it is important to note that on-going employer
annual contributions are financed not by a profit source, but rather from the
fiscus.

3. An element of the current model is that investments are grouped and managed
in various portfolios. A recommendation for a more efficient model for the PIC
in the future is to create a bifurcated fund to house the Investment Capital at
Risk and manage this portfolio to achieve the best financial outcome for the
PIC’s clients.

4. A current model for this is the “good bank/bad bank” or “Non-Core Operations
Model”. What takes place is that the asset manager looks at the funds being
managed and divides the assets into two categories. Into the “bad” column go
the investments at risk, the investments on the watch list and all troubled

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 assets as well as illiquid investments where an exit strategy is regarded as
challenged. The remaining assets are the “good” assets which represent the
on-going investment profile at the core of the fund, optimised for solvency
regarding the pension obligations.

5. In the course of the Commission’s investigative work, multiple individual

transactions, loans and investments were noted where there were apparent
signs of financial stress leading to the various clients having to absorb capital
losses.

6. It is proposed that the Board and the Exco determine a set of conditions that
defines non-core investments. Then, an exercise should be conducted to
scrutinise the entire portfolio of assets against this set of conditions. All assets
that are found to be “non-core” should be identified as potential ‘non-core’.
Given the subjective nature of the exercise and fluid circumstance specific to
each asset, it would be ideal for the PIC Board and the Exco to work through
this list to agree on assets that are on the margins of the set criteria to be
either excluded or included. These assets should be proposed to be ring-
fenced as non-core and managed separately.

7. Management and the Board should agree a high-level approach to be taken

to realise optimal value through time and should also define up-front what time
horizon the non-core portfolio has before it is liquidated. This step is essential
so that timeline and end for the working out of non-core investments should
be stipulated. Reasonable performance that clearly determines what success
looks like should also be defined.

8. Given that the purpose of the “bad bank” is to focus on optimal ways to de-risk
and free up time and energy for the sustainable future-focussed funds, it is
essential to ensure the non-core portfolio work out is time-limited. It is

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 suggested that the categorisation and approach be aligned to the perspectives
of the clients.

9. At this point, the non-core investments should be hived off to the managers of
non-core. This team should be dedicated to the work-down of this fund and
should report separately to the governance and executive structures with a
direct line to the Board.

10. Given the history, the high-visibility and sensitivity of some of these
investments there should also be specific scrutiny on material divestments/exit
strategies to ensure the interests of the clients are held paramount and other
impacts are managed delicately and thoughtfully.

11. Part of the solution looking to the future is to reconsider the existing
organisational approach so that it will now take into account the historic vested
interests and ensure the funds’ members’ needs are held paramount. It is
essential, in the process of realising maximum value of the “non-core” assets,
that focus for the ICAR is placed on, but not limited to, the following:

11.1 Stabilising and strengthening of balance sheets.

11.2 Installing appropriate skilled and incentivised management.

11.3 Enshrining transparency and dedication to good conduct at all times.

11.4 Fostering a culture of constant and consistent reputational risk

management.

11.5 Ensuring that value is restored where possible to maximise returns when
exiting the investment is imperative.

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11.6 Focusing on appropriate due diligence for partners and acquirers to guard
against any accusations of preferential treatment for connected parties.

12. It is also essential that all of these actions remain transparent in the public
sphere to ensure past mistakes are not repeated.

13. Many investments are not performing at their maximum valuation due to
insufficient active management, operational involvement and oversight. Thus,
the teams in the non-core fund would need to have the appropriate resources
to realise optimal value. The information provided to the Commission has
shown a pattern for assets to underperform, and sub-optimal management
approaches that are not ideal to turn around the investment with the end result
of the investee requiring some form of bail-out, often via an additional capital
injection.

14. There needs to be a detailed analysis comparing investment returns with the
actual losses written-off, impaired or potentially impaired. This analysis should
also take into account the inherent riskiness of the original investment to
consider what legal implications there are relative to considerations such as
fiduciary duty to pensioners/taxpayers.

15. A comprehensive review of the PIC approach to Risk Measurement and

Management as an Investment Manager is urgent and imperative. This needs
to consider, at the least, risk measurement pre-deal and portfolio; Model Risk;
Credit Risk; Country Risk; Currency Risk if applicable to the investment;
Concentration Risk and Client Risk Appetite setting; Risk Reporting for PIC
itself e.g. Regulatory and Operational Risk; Breaches, Condonation and Pre-
approved Deviations (waivers); Reputational Risk as well as the management
of short term volatility versus a 10-year investment approach.

16. As an advance-funded scheme, the GEPF should hold sufficient assets to

cover the estimated liabilities it will have to meet future and current retirees,

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 estimates being actuarially calculated based on various assumptions. When
comparing previous actuarial reports with the most recent one, the funded
position of the GEPF has deteriorated in recent years, primarily because of
the growth of benefits and lower than expected investment returns.

17. In terms of the GEPF mandate, employer contributions should be sufficient to

ensure that the Fund is able to meet its obligations at all times, subject to a
minimum funding level of 90%. The pre-funding level of the Fund remains well
above the critical minimum funding level of 90%. The Funding Policy of the
Fund also stipulates that the Board of Trustees should strive to maintain the
long-term funding level at or above 100%. The long-term funding level
equalled 75,5%.

NEXT STEPS: FIT AND PROPER / VIOLATIONS OF FAIS

18. Due to the fact that this section is dealt with in Chapter II of the Report, we
have not summarised these findings here.

THE PIC AND TRANSACTION ADVISORS

19. On 6 December 2018, the Standing Committee on Public Accounts met with
the Deputy Minister of Finance, Mr Mondli Gungubele, in his role as
Chairperson of the PIC, as well as a number of the Directors and Executive
team of the PIC. Mr David Maynier, a DA Member of Parliament, asked at the
Standing Committee on Public Accounts about Mr Nana Sao’s advisory fees.
Mr Maynier asked specifically about the transaction costs in the Vodacom
transaction, arguing that the fees the advisors received didn’t equate to the
work they undertook and, at the same time, questioned the PIC’s selection
process and transparency thereof.

20. The Commission undertook an investigation into the matter.

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Mr Nana Sao

21. Mr Sao was paid directly by the PIC for three transactions where his fees
averaged 1.10%, which is an industry norm.

22. In 2015, the South African government sold 13.91% of its stake in Vodacom
to the PIC and in 2016, Mr Sao approached Dr Matjila with a suggestion to
purchase Vodacom shares. Dr Matjila responded by advising him of a
consortium called Inkanyezi that was interested in buying shares on behalf of
the GEPF. Mr Sao was asked by Mr Koketso Mabe, an employee of the PIC,
to work with Inkanyezi given his experience in deal structuring and raising
capital. He agreed and led the execution of the deal on behalf of Inkanyezi.

23. After the selection process, Mr Sao heard rumours that people connected to
the Inkanyezi Consortium were fronts for politicians. This prompted the
commission of an external company to perform a Due Diligence on Inkanyezi.

24. The Control Risk report flowing from the Due Diligence revealed that politically
connected people were behind the deal, but there was no conclusive link
between them and members of the consortium. The Control Risk report was
sent to Mr Koketso and Dr Matjila, and all agreed that the transaction should
be cancelled.

Findings

25. The Commission finds there is no evidence that the PIC’s process of
appointing professional advisors was followed in respect of the appointment
of Mr Sao.

26. Furthermore, outsourcing the running of an RFP process is questionable and

this should be done directly by the PIC.

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27. Sao Capital was apparently not paid for their work, despite incurring over R5
million in costs associated with the transaction. They had expected to be paid
once the deal was concluded.

Recommendations

28. In respect of the findings relating to Mr Sao, the Commission recommends

that the DoA should ensure that the PIC CEO is not authorised to simply
appoint an advisor.

29. Policy and approved due process must be clear and followed at all times to
ensure a fair selection process of an advisor in a transaction.

30. The allegations and findings in the Control Risk Report must be further
investigated by the PIC.

31. If there are substantive allegations of corruption involving an investee

company, the PIC should immediately investigate and, where applicable, take
legal action.

32. The PIC should ensure that funds allocated are used for their agreed purpose,
in this instance payment of transaction fees that were provided for in the
agreement.

Sakhumnotho

33. Around mid-2015, Mr Sao was approached by Mr Sipho Mseleku, the CEO of
Sakhumnotho. Sao Capital was appointed by Sakhumnotho to prepare an
independent valuation report in relation to a potential transaction where

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 Sakhumnotho, as one of the bidders, was contemplating acquiring shares in
Total South Africa Consortium (Pty) Ltd (Tosaco).73

34. Even though Sakhumnotho did not sign an advisory mandate, it was verbally
agreed that Sao Capital would be paid a transaction fee equal to 1% of the
gross value of all shares or other similar securities acquired pursuant to the
transaction. The other competing bidder for the aforementioned 91.8% stake
in Tosaco was an entity called Kilimanjaro Capital (Pty) Ltd (KiliCap).

35. In August 2015, Mr Mseleku informed Mr Sao that Sakhumnotho was merging
its bid with that of KiliCap, creating a new consortium called Kilimanjaro
Sakhumnotho Consortium (Kisaco). Once Kisaco was selected as the
preferred bidder, Sao Capital was side-lined and had no further involvement.
Mr Mseleku told Mr Sao that Sakhumnotho no longer had funds to pay for the
advisory services Sao Capital rendered, and reneged on the verbally agreed
upon 1% of the transaction value.

36. In October 2015, Sao Capital became aware that the PIC had made available
R100 million for the purpose of settling transaction costs relating to the Tosaco
transaction. Sakhumnotho received R50 million (half) of the amount paid by
the PIC. However, Sao Capital was only paid R5 million by Sakhumnotho.

Findings

37. The Commission finds that the role of advisors in determining the valuation of
the transaction has a direct bearing on the fee they ultimately earn. The PIC
therefore needs to ensure there is a thorough and appropriately skilled
process, followed with absolute integrity, in the valuation process to ensure it
does not overpay.

73
See the TOSACO case study in Chapter III.

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38. Sao Capital settled for R5 million even after learning that the PIC had paid
Sakhumnotho R50 million to cover their alleged transaction fee.

39. The PIC funds, allocated ostensibly to cover transaction costs, appear to have
not been used for the stipulated purpose.

40. There was no signed contract between Sakhumnotho and Sao Capital,

41. There was no evidence presented to the Commission of an invoice from

Sakhumnotho to the PIC setting out all transaction costs, as should normally
be provided prior to any payment of such costs.

Recommendations

42. In relation to Sakhumnotho, the Commission recommends that the PIC must
ensure that greater attention is paid to the valuation of an entity and that such
a determination is made with the essential skills, independence and
thoroughness.

43. Valuation determinations must be a key feature of all approval processes and
thoroughly interrogated.

44. Proper, detailed documentation on transaction costs incurred must be

presented to the relevant authority in the PIC, and be validated prior to any
payment of such claims.

45. Given the information provided by Mr Sao, appropriate legal steps must be
taken by the PIC to recover the monies paid in transaction fees that were not
used for the intended and approved process.

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Mr Dan Mahlangu (Mr Mahlangu)

46. Mr Mahlangu is the CEO of BNP Capital (Pty) Ltd, which changed its name to
Pholisani Mahlangu.

47. Mr Mahlangu was appointed by KiliCap as its financial advisor after BNP
Capital was specifically nominated by the PIC. Mr Mahlangu is a former
employee of the PIC.

48. The mandate letter BNP signed with KiliCap required BNP to run with the
entire management of the share purchase for a fee of 2%, excluding VAT, of
the capital raised, i.e. R1,7 billion. In turn, BNP engaged other service
providers to assist with both legal and financial due diligences.

49. In his affidavit, Mr Mahlangu states that ‘the introduction of the new consortium
[Kilicap] and advisor meant that BNP Capital fees were reduced…’.74 After the
successful fund raising, Mr Mulaudzi advised BNP to send an invoice for R1
million, VAT inclusive, to a company named AVACAP.

50. BNP has since been unsuccessful in its efforts to get the balance of the fees
owed, being paid only around 6% of the expected fee as per the mandate
letter.75

Nedbank

51. Nedbank was the transaction advisor for the Tosaco transaction as Calulo, the
main shareholder of Tosaco1, appointed Nedbank Capital to act as its
exclusive investment bank and corporate advisor.

74
Para 4.1.11 – 4.1.12 of Mr Mahlangu’s statement signed on 1 October 2019.
75
Ibid. para 4.1.18.

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52. The Commission issued a subpoena to Nedbank after receiving unsolicited
WhatsApp messages between Mr Tapiwa Shamu, a Nedbank employee
responsible for the Tosaco transaction, and Mr Lawrence Mulaudzi. In the
messages, Mr Shamu requests a R400 000 loan from Mr Mulaudzi. There is
also evidence of Mr Shamu passing on various other transactions that were
presented for consideration to Nedbank to Mr Mulaudzi, and that the R400
000 was transferred from Mr Mulaudzi’s account to Mr Shamu’s wife.

53. This appears to be a highly irregular relationship given that KiliCap was a
bidder for the purchase of the shares in Tosaco.

54. Circumstantial evidence shows that Mr Shamu played a significant role in

ensuring that Mr Mulaudzi and the KiliCap/Sakhumnotho Consortium won the
Tosaco bid. He had a personal and professional relationship with Mr Mulaudzi,
Mr Mseleku and others. Mr Shamu also participated in the bidding process as
a member of the selection team and would have been in a position to influence
the decisions taken by the team.

Kingdom Mugadza

55. Kingdom Mugadza’s started Tirisano in 2011.

56. Tirisano was in discussion with the PIC about a supply chain empowerment
fund and was well placed to facilitate the acquisition of Distell shares from AB
Inbev by the PIC, where it originated, structured and executed the sale of
Distell to the PIC in a closed bidding process.

57. Before the Distell deal went public, Mr Mulaudzi requested an urgent meeting
with Mr Mugadzi. Mr Mulaudzi wanted information regarding the Distell deal,
the situation deteriorated, Mr Sello Motau became involved and Mr Mugadzi
felt his life was in danger.

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58. One of the conditions set by the Competition Commission before its approval
of the acquisition of Distell was that the PIC would sell at least 10% of its
acquired Distell shares to a BEE entity. Tirisano, however, recommended that
the PIC delay the said BEE deal.

59. At the beginning of September 2015, Mr Sello Motau, an Executive Director

of Theko Capital, discussed with Dr Matjila a possible investment in the Export
Trading Group (ETG).

60. The local ETG team requested that Mr Motau provide them with a letter of
support for the funding proposal from the PIC. Mr Motau advised the
Commission that, in the second half of 2015 he was considering an equity
investment in Profert Holdings76, and that ETG was also interested in an
investment in Profert.

61. Mr Motau submitted a proposal to Dr Matjila on 7 September 2015 regarding

ETG. On 10 September 2015, Mr Motau received a non-binding Expression
of Interest signed by Dr Matjila. The potential investment in ETG was
presented to the Portfolio Management Committee (PMC1) for approval to
commence with the due diligence review processes.

62. In October 2015, the PIC deal team introduced Theko Capital to Tirisano
Partners as a transaction advisor to work with the teams from the PIC in order
to coordinate the investment process on behalf of all parties. On 19 October
2015 they received an Engagement Letter from the PIC.

63. According to Tirisano, they are not on the PIC database, and no transactional
advisor internal process as per the PIC policy was followed.

76
Para 50 of Mr Motau’s statement signed on 21 May 2019.

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64. Mr Motau states that, ‘the PIC team stopped responding to Theko’s
correspondence … …[I was told] that the deal had been approved …with the
condition from PMC2 to remove Theko from the deal…’.77

65. Mr Motau concludes that ‘It is concerning that the PIC can express an interest
in a transaction, go as far as conducting FICA processes and getting the
necessary internal approvals, and then at a later stage at their own discretion
decide to remove a sponsor to include their preferred sponsor … this opens
the door to favouritism and gate keeping’.78

66. However, there were conflicting reports of what actually took place.

Findings

67. The Commission finds that the PIC processes to appoint advisors were not
followed in respect of Kingdom Mugadza.

68. The PIC reportedly introduced a specific transaction advisor, namely Tirisano
Partners, to the parties involved.

69. Conflicting accounts of events and commitments prevail, without a clear

record of meetings held and decisions taken.

70. There is a consistent pattern of a lack of clarity of the terms of engagement

and non-compliance with PIC procurement processes.

71. Imposing/recommending specific advisors for potential investees to use is

highly questionable and inappropriate.

77
At pages 101-102 of the Transcript for day 38 held on 21 May 2019.
78
Para 118 of Mr Motau’s statement signed on 21 May 2019.

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72. The PIC recommending and/or appointing certain advisors for multiple
transactions is improper and inappropriate.

Recommendations

73. The Commission recommends that a detailed investigation should be initiated

by PIC management (potentially with the support of appropriate governmental
prosecuting bodies) to create an exhaustive list of all fees paid over R5 million
since 2014. This list must then be interrogated to aggressively initiate legal
processes of recovery where appropriate.

74. The PIC Board must ensure transparent processes are in place that prevent
arbitrary changes and decisions that can lead to perceptions, real or
otherwise, of abuse, gate keeping and favouritism.

75. The Board must ensure that there is a comprehensive, inclusive and fair
process to appoint advisors for different transactions according to their
relevant skills and expertise.

76. The Board must ensure that an effective monitoring and reporting system is in
place with regard to the appointment, role, fees and accountability of advisors.

77. Where advisors are appointed or recommended by the PIC, an appropriate

assessment should be made of the work performed prior to any
subsequent/repeat appointment.

Dividend Policy

78. In the 2018 financial year, the PIC paid R80 million to government in the form
of dividends. The Government Employees Pension Fund (the GEPF / the
Fund) Statutory Actuarial Valuation, conducted by Alexander Forbes, as at 31

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 March 2018, shows that the minimum funding level and the long-term funding
level declined.

79. The primary funding objective of the GEPF is to ensure that employer
contributions should be sufficient to ensure that the Fund is able to meet its
obligations at all times, subject to a minimum funding level of 90%, at which
point government would be obliged to increase its contributions to the Fund.
At present, this is well funded and the minimum funding level stands at
108,3%. However, the Funding Policy of the GEPF also stipulates that the
Board of Trustees should strive to maintain the long-term funding level at or
above 100%. Thus, standing as it does at present at 75,5% means that the
GEPF does not meet its long-term funding objective as at the valuation date
of 31 March 2018.

80. Paragraph 5 of the Dividend Policy considers the Companies Act and sets out
the process required for payment of a dividend and for the requirements of the
Companies Act to be met. In essence, the PIC “…must pass the Solvency and
Liquidity test, as set out in section 4 of the Companies Act, before a dividend
can be declared.”

81. The Board of the PIC proceeded to pay dividends to the Shareholder in
keeping with the Dividend Policy (other relevant provisions of the Dividend
Policy can be seen in the Main Report) and as approved on an annual basis
by resolution of the Board. In May 2017, the Board Resolution of 29 May 2017
confirms that the PIC paid an interim dividend of R20 million for the financial
year ended 31 March 2017, and declared a final dividend of R60 million to the
Shareholder for the financial year 2016/17. The resolution authorising the
payment of a R20 million interim dividend was approved at a shareholder
meeting on 10 March 2017, in terms of Section 60 of the Companies Act, and
signed by the Shareholder representative, Minister of Finance, Mr Pravin
Gordhan.

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82. The final dividend of R60 million was approved by the Board of Directors, at a
meeting held on 29 May 2017, and signed by Deputy Minister Sifiso Buthelezi
as Chairman of the Board of Directors.

83. The Commission finds that the PIC has a Dividend Policy in place and has
paid dividends in keeping with the requirements of the Companies Act.
However, noting the continued decline in the short term funding level, and
taking account of the Funding Policy of GEPF, which also stipulates that the
Board of Trustees should strive to maintain the long term funding level at or
above 100%, and that this currently stands at 75,5% which means that this
does not meet its long term funding objective of the PIC as at the valuation
date.

84. In view of the above, the quantum of dividend payments in March 2017 and
May 2017 by the PIC to the Shareholder is questionable.

85. The mandate of the PIC is to act in the best interests of its clients; it is not to
maximise profits. Essentially, by paying dividends from management fees
charged to the GEPF and other clients, an indirect tax is imposed on the PIC’s
clients.

86. The payment of a dividend raises the question as to whether this is being done
to convey to the Shareholder that the PIC is in fact functioning extremely well
and is thus able to afford to pay a dividend?

87. The Commission therefore recommends that the Board of Directors of the PIC
should review the Dividend Policy, which has not been reviewed since it was
adopted in 2016.

88. The Board of Directors of the PIC should also review the budget, including the
required capital expenditure and the staff complement and remuneration, to
ensure the funding requirements are adequate.

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89. The Commission further recommends that the Board of Directors should
discuss an appropriate policy to comply with Section 46 of the Companies Act
with the Shareholder, taking into account that the PIC mandate is not driven
by profitability as an objective, but the imperative to maintain funding levels of
the GEPF and other Funds under management of the PIC.

90. If the fees charged to PIC clients, particularly the GEPF which has the
responsibility of managing civil service pension funds, result in profits such
that a dividend can be paid to the Shareholder, then the Commission
recommends that the budget of the PIC is reviewed to see that the PIC is
functioning optimally with adequate funding. Alternatively, the management
fees charged to clients should be the subject of assessment and review.

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LIFESTYLE AUDITS

91. As a result of the allegations of corrupt activities made in the James Nogu
emails, the Commission engaged PwC to conduct lifestyle audits and
background checks on the following Directors of the PIC:

91.1 Mr Mondli Gungubele Non-executive and Chairman;

91.2 Ms Sibusisiwe Zulu Non-executive;

91.3 Ms Dudu Hlatshwayo Non-executive;

91.4 Dr Dan Matjila Executive; and

91.5 Ms Matshepo More Executive.

92. The findings and conclusions of the lifestyle audits are contained in the
individual reports on the five Directors, which are annexed to the affidavit of
Mr Lionel van Tonder, a director of PwC.

93. The Evidence Leader, Adv. Jannie Lubbe SC, placed the following on record
in relation to the findings of the lifestyle audit:

‘In general Mr Commissioner and members the finding was that there was
no indication of any criminal conduct regarding any of these individuals and
he [Mr van Tonder] couldn’t find any substance and you will recall that one
of the main reasons for… requesting these lifestyle audits was the
allegations contained in the Nogu emails implicating some of these people
[as] receiving exorbitant amounts of money from transactions within the PIC.
So what he can state and what I can place on record is there is no evidence

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Investment Corporation Page 177 of 794
 of any criminal conduct and there’s no evidence of any substantiating the
implications in the emails by Nogu.’79

94. Although the Commissioners had sight of the contents of the reports of the
lifestyle audits, the reports remain confidential. The reports, therefore, do not
form part of the Commission’s final report.

95. With regard to the report on Ms Zulu, PwC noted what appears to the
Commission to be some serious discrepancies, particularly relating to the
purchase of certain fixed property. After she had testified before the
Commission, Ms Zulu was invited to the Commissioners’ chambers where she
was requested to explain the discrepancies. She undertook to provide the
Commission with a written explanation but failed to submit the explanation.
The legal team, according to a verbal report to the Commissioner,
subsequently invited her on more than one occasion to provide the
Commission with the explanation, but she still failed to do so.

96. In this respect, it also needs to be placed on record that R100 000 was paid
by Mr Mulaudzi into the account of Ms Zulu on a monthly basis between 30
August and 5 December 2018. This emerged as a result of subsequent
investigations by the Commission.

97. In view of the serious nature of the discrepancies alluded to above, coupled
with the results of further investigations conducted by the Commission’s legal
team, the Commission feels obliged to recommend that the discrepancies
indicated in Ms Zulu’s lifestyle audit be further investigated.

79
At page 5 of the Transcript for day 62 of the hearings held on 13 August 2019.

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CONCLUSION

1. The government, as the guarantor of last resort for the obligations to the
GEPF, recognises that a failure of the PIC or any significant investments for
the GEPF exposes it to substantial financial vulnerability.

2. The Commission has concluded that, among other things, there has been
substantial impropriety at the PIC, poor and ineffective governance,
inadequate oversight, confusion regarding the role and function of the Board
and its various sub-committees, victimisation of employees and a disregard
for due process..

3. The report outlines the above through the 17 terms of reference addressed in
this report as well as specific illustrative case studies. The findings show that:

4. While the PIC has, in many instances, sound policies, processes and
frameworks, in many instances these were not adhered to, deliberately by-
passed and/or manipulated to achieve certain outcomes. There is a need to
review existing policies.

5. Legislation, mandates and standard operating procedures were repeatedly

violated.

6. The GEPF mandate relating to addressing economic developmental goals

was not always adhered to. There must be a clear definition of what success
looks like when investing in unlisted entities.

7. The Board was found to be divided and conflicted. The involvement of non-
executive directors in transaction/investment decision making structures of the
PIC rendered their oversight responsibilities ineffective, if not absent. Their
independence is questionable.

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8. The Commission found that there was both impropriety and ineffective
governance in a number of investments.

9. The lack of diligence to ensure that conditions precedent (and post) were
enforced or adhered to has resulted in considerable losses for the PIC.

10. There are clear instances where the Commission found that directors and/or
employees benefited unduly from the positions of trust that they held.

11. Repeat investments with a small number of entities, frequently represented by

a single individual, (for instance the Lancaster/Steinhoff transactions), reflects
poor risk assessments, particularly with regard to cumulative exposure, and
the repeat opportunity for enrichment of single individuals.

12. Fees reportedly paid to advisors, who, in a number of instances were

recommended to investee companies by the PIC, were on a number of
instances found to be well above the industry norm.

13. There were discrepancies in a number of instances where committed

investment amounts were increased during the approval process, and where
conditions for the investment were altered to weaken or subordinate the
interests of the PIC.

14. The lifestyle audits conducted by PWC at the request of the Commission
found, in the instance of Ms Zulu, questionable behaviour and a significant
flow of funds to her account. This should be the subject of further investigation.

15. Dr Matjila’s requests to provide financial assistance or make contributions to

individuals, organisations and political parties reflects his abuse of office and
the ability to exert undue influence over investee companies.

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16. The role of the Shareholder, coupled with the frequent changes to the Minister,
Deputy Minister and consequently the Chairperson of the PIC, created
instability and a vacuum of leadership at the helm of the PIC.

17. The Commission found that the CFO and the Executive Head: HR used
various means to give effect to victimisation of staff, many of whom were in
very senior positions

18. Of critical importance for remedial action is the urgent requirement to ensure
that the IT systems covering all unlisted investments are automated.

19. The Commission expresses its sincere appreciation to the Evidence Leader,
Advocate Jannie Lubbe (SA), for his sterling work in enabling the Commission
conduct its investigations fairly in a particularly challenging environment. We
extend our thanks to the investigators, legal team and support staff for their
tireless efforts, professionalism and diligence. Special mention must be made
of two members of staff, namely Ms Lizzy Sibi and Ms Gcobisa Mdlatu, A big
thank you goes to Mr Daniel Buntman, who was released by Absa at no cost
to the Commission, for his sterling work and contribution in the preparation of
this report.

20. We also extend our appreciation to all those who bore witness and gave
testimony at the hearings of the Commission.

21. We also express our appreciation to the management of Armscor and to the
Tshwane Metropolitan Municipality. Our appreciation also goes to the media
houses who ensured that their journalists attended the hearings of the
Commission and thereby keeping the nation informed about the process.

22. It is with all humility that we present this Report, and trust that the work we
have done will contribute to resolution of what has been an extremely difficult

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Investment Corporation Page 181 of 794
 period not only for PIC staff, but also for the members and pensioners of the
GEPF and other clients of the PIC, whose assets they manage.

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Investment Corporation Page 182 of 794
CHAPTER I – INTRODUCTORY REMARKS

INTRODUCTION

1. On 4 October 2018 the President of the Republic of South Africa, President

Cyril Ramaphosa (the President), acting in terms of section 84(2)(f) of the
Constitution of the Republic of South Africa, appointed a Commission of
Inquiry into allegations of impropriety regarding the Public Investment
Corporation (the PIC/ the Corporation), a State-owned company established
in terms of section 2 of the Public Investment Corporation Act 23 of 2004 (the
PIC Act). The appointment of the Commission of Inquiry (the Commission)
was published in the Government Gazette, No. 41979 of 17 October 2018,
under Proclamation No. 30 of 2018 (“the Proclamation”).

2. This report covers numerous extremely complex areas, which areas include
governance issues, investment transactions, information technology, human
resources and a range of other niche areas. In view of the above, the
Commission had to rely on a range of experts with experience and expertise
pertaining to these complex matters.

3. In so doing, the work of the Commission was divided into certain areas. This
is reflected in the various sections and chapters of the report, some of which
were drawn from a range of contributions from experts.

4. In compiling the report, the Commission has attempted to establish uniformity

in the sections and chapters. Where this has not been possible, we request
the President’s indulgence.

5. While there are areas of repetition in the report in certain chapters, such
repetition is necessary as the topics and terms of reference (ToR) overlap

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Investment Corporation Page 183 of 794
 considerably. Use is made of cross referencing to minimise this as far as
possible.

6. This report is voluminous, but necessarily so, if the Commission is to

comprehensively address the task that was set by the President.

7. It should be noted that due to the extensive ToRs, as well as the deep
complexity of certain of the transactions and governance processes at the
PIC, as well as the time pressures stipulated for delivery of this report, this
report was compiled under significant constraints.

THE PUBLIC INVESTMENT CORPORATION

8. The PIC is a financial services provider (FSP) in terms of the Financial

Advisory and Intermediary Services Act, No 37 of 2002 (the FAIS Act)80, which
is defined as any person, natural or juristic, who, as a regular feature of the
business of such person, furnishes advice and/or an intermediary service. An
‘intermediary service’ is defined as ‘any act other than the furnishing of advice,
performed by a person for and on behalf of a client or product supplier’ – in
the case of the PIC – ‘with a view to buying, selling or otherwise dealing in
(whether on a discretionary or non-discretionary basis), managing,
administering, keeping in safe custody, etc. a financial product purchased by
a client from a product supplier or in which the client has invested’.

9. The PIC is thus an asset management company that manages assets for
clients for a fee, its business address being: Menlyn Maine Central Square,
Corner Aramist and Corobay Avenues, Waterkfoof Glen Extension 2, Pretoria,
Republic of South Africa, 0181. As a company, it is subject to the provisions
of the Companies Act, No. 71 of 2008 (Companies Act) and, it being a State

80Section 4 of the Public Investment Corporation Act provides that the main object of the
Corporation is to be a financial services provider in terms of the FAIS Act.

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Investment Corporation Page 184 of 794
 Owned company, it is also subject to the provisions of the Public Finance
Management Act, No. 1 of 1999 (PFMA).

10. The PIC’s main clients are:

10.1 The Government Employees Pension Fund (GEPF), whose contribution,

according to the PIC’s 2018 Integrated Annual Report, makes up
87.12% of the funds managed by the Corporation;

10.2 The Unemployment Insurance Fund (UIF);

10.3 The Compensation Commissioner Fund;

10.4 The Compensation Commissioner Pension Fund;

10.5 The Skills Fund

10.6 The Department of Justice Guardian Fund; and

10.7 Various other public sector clients with smaller portfolios.

11. The assets managed by the PIC on behalf of its clients amounted to R2.08
trillion as of March 2018. In his contribution to the 2018 Integrated Annual
Report, the then Chief Executive Officer (CEO) of the PIC, Dr Daniel Matjila
(Dr Matjila), recorded that despite a challenging investment environment,
assets under the management of the PIC grew from R1.928 trillion in 2017 to
R2.08 trillion in 2018.81 Its mandate is to generate returns and to contribute to
the developmental goals of South Africa.

81
At page 15, PIC Integrated Annual Report, 2018.

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12. In order for it to qualify as a FSP in terms of the FAIS Act, the PIC has to
satisfy the registrar of financial services providers that it complies with the
requirements for ‘fit and proper financial services providers’ in respect of:

12.1 personal character qualities of honesty and integrity;

12.2 its competence and operational ability to fulfil the responsibilities

imposed by the FAIS Act and

12.3 its financial soundness.

13. In addition, as a FSP, the PIC would have to satisfy the registrar that any ‘key
individual’ in respect of it (PIC) complied with the requirements of personal
character qualities of honesty and integrity, as well as competence and
operational ability, to the extent required, in order to fulfill the responsibilities
imposed on key individuals by the FAIS Act.82 We were informed at the
Commission hearings during January 2019 that the PIC had 69 investment
professionals or key individuals registered with the Financial Service Conduct
Authority (FSCA) that had been approved to make recommendations or take
decisions in respect of investments in various asset classes on behalf of
clients.

BACKGROUND TO THE APPOINTMENT OF THE COMMISSION

14. It is stated in what may be referred to as the ‘preamble’ to the Commission’s

ToRs, inter alia, that ‘there are persistent and continued negative reports
about alleged improprieties regarding investments by the PIC and the conduct
of certain former and current office bearers and employees of the PIC, as well

82
See section 6A of the FAIS Act. A ‘key individual’ is defined, in relation to an authorised financial services provider
(licenced in terms of section 7 of the FAIS Act), or a representative, carrying on business as a corporate body, as ‘any
natural person responsible for managing or overseeing, either alone or together with other so responsible persons, the
activities of the corporate body relating to the rendering of any financial service.’

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 as about the effective functioning of its Board which have given rise to
negative perceptions of the PIC’. In this regard, the Commission elaborated
as follows in paragraphs 10, 11, 12 and 14 of its Interim Report83:

‘[10] The allegations of impropriety regarding the PIC first

surfaced through an email dated 5 September 2017, from a person with
the pseudonym ‘James Nogu’. The email was distributed to several staff
members, as well as to members of the Board of Directors of the PIC.
The subject of the email was ‘PIC CEO funds girlfriend’. It was alleged
in the email that a corrupt relationship had been uncovered between the
CEO, Dr Matjila, ‘and his girlfriend, Ms Pretty Louw’; that Dr Matjila
funded Ms Louw to the tune of R21 million and that in doing so he failed
to follow the PIC’s policy and procedures. The funding was allegedly
done through Ms Louw’s company, Maisons Holdings. Furthermore, it
was alleged that Dr Matjila had instructed a director of a company that
had been funded by the PIC to assist in settling Ms Louw’s financial
obligations when her business was facing closure and the assets about
to be attached. Following the surfacing of the ‘James Nogu’ email, it
appears, from documentation made available to us, that Dr Matjila had
instructed one of the employees of the PIC, Mr Simphiwe Mayisela, who
was the Senior Manager: Information Security, to investigate and
establish the source of the email and the identity of its author. Mr
Mayisela’s efforts were unsuccessful and the identity of ‘James Nogu’ is
yet to be established.

[11] During August 2018 the Board, on the recommendation of the

then Minister of Finance, Mr N Nene, commissioned a forensic
investigation into the allegations levelled against Dr Matjila in the email,
including the alleged relationship between him and Ms Louw. The Board

83
Submitted to the President on 15 February 2019.

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 appointed Adv. Budlender (SC) to lead the investigation. In his
conclusion on the alleged relationship between Dr Matjila and Ms Louw,
Adv. Budlender (SC) found, on the basis of their denial and the absence
of evidence to the contrary, that Dr Matjila and Ms Louw ‘did not and do
not have a romantic relationship’.

[12] With regard to the allegation that Dr Matjila funded Ms Louw to

the tune of R21 million, Adv. Budlender (SC) found that the PIC had
advanced a loan to an entity, Mobile Satellite Technologies (MST), in
that amount. MST, which operates, staffs and maintains mobile units
used to provide medical and educational services in rural areas, had
sought and obtained the loan as an investment in its business. It had
also sought and obtained a Corporate Social Investment contribution
from the PIC. Adv. Budlender (SC) did not find any impropriety in the
R21 million loan made by PIC to MST.

[14] Also forming part of the documentation made available to the

Commissioners to prepare for the work of the Commission, were
application papers in a matter between the United Democratic
Movement (UDM) (as applicant) and Dr Matjila, the PIC, the Minister of
Finance and the Chairperson of the Board as first, second, third and
fourth respondents, respectively. The UDM sought, inter alia, an order
compelling the Board to suspend Dr Matjila pending the finalisation of an
independent investigation into allegations of gross misconduct levelled
against him. Paragraph 7.3 of the founding affidavit, deposed to by Mr
Bantubonke Harrington Holomisa, reads:
‘As a matter of fact, the CEO has instigated suspensions of
several employees whom he suspects of being involved in leaking
information and co-operating with the police. One of these
employees has been dismissed in a dismissal which…is unfair

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 and will be challenged through the appropriate labour structures.
Another employee accepted a generous financial settlement.’

The two employees referred to in the excerpt above are Mr Mayisela,

who was charged and dismissed for failing to disclose that a criminal
case of corruption had been opened against Dr Matjila by the South
African Police Service, based on the contents of the ‘James Nogu’ email
and Ms V Menye, who was Mr Mayisela’s immediate superior and who
faced a similar charge. Mr Mayisela indicated to the Evidence Leader of
the Commission that he wanted to testify before the Commission. The
disciplinary inquiry against Ms Menye was withdrawn when she
accepted payment of a substantial amount in settlement of the dispute.’

15. Mr Mayisela, Ms Menye and Dr Matjila testified before the Commission and
reference will be made to their evidence later in this report.

16. The ‘James Nogu’ email of 5 September 2017, referred to above, was
preceded by one dated 31 August 2017 from a person with the same name
(James Nogu) and addressed to Mr Roy Rajdhar (Mr Rajdhar), a senior PIC
employee. The following questions were posed to Mr Rajdhar in the email:

‘1. What was the motivation for loaning a privately run, profit making company
money through the CSI [Corporate Social Investment] fun Day? (sic)

2. Are you aware that Pretty Louw who is a beneficiary of the project you
approved is the girlfriend of the CEO?

3. What is your relationship with Ranjay Harripersad the director of PAISA

Capital?

4. Are you a silent partner or associated with PAISA?

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Investment Corporation Page 189 of 794
 5. Have you ever instructed any person/company funded through the PIC to
warehouse commission/facilitation for yourself through? (sic)

6. Have you ever received or invited PAISA to pay any of your financial
demands?

7. Did you solicit an amount of R20m from any of the client[s] who was funded
by the PIC?’84

17. A third email dated 13 September 2017, from one Leihlola Leihlola -
presumably a pseudonym - was addressed to members of the Board and
National Treasury officials and copied to certain senior officials in the employ
of the Corporation. The third paragraph of the email reads:

‘There are matters that we would like to formally bring to your attention as the
Board members of the PIC. The reason we are writing is because we believe
PIC is a reputable company however it has been trusted to be administered by
corrupt leaders i.e. PIC CEO (Dr. Daniel Matjila) and CFO (Ms. Matshepo
More).’ 85

18. The author/s of the email raised the following matters of concern within the
PIC:

18.1 Remunerations and Bonus Incentives

It was alleged, among other things, that for the past three years salary
adjustments have been processed without proper governance approval
structures (i.e. Human Resources and Remuneration Committee) having
been followed and that these adjustments evidently favour those who are
in the good books of the CFO and CEO.

84
A typed copy is annexure ‘DD 36’ to Dr Matjila’s statement.
85
A typed copy is annexure ‘DD 39’ to Dr Matjila’s statement.

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18.2 Corrupt Deals/ Investments
In addition to the allegation of a corrupt relationship between the CEO and
his alleged girlfriend, referred to above, it was alleged that further deals had
been awarded to companies founded by former employees of the PIC, who
are closely linked to the CEO. Most of the alleged corrupt deals ‘are pushed
through the Isibaya Fund’.

18.3 Victimisation and ill-treatment of staff

It was alleged that the CFO makes the PIC work environment very difficult
and ill-treats all employees that are not favoured by her. Among other
things, she has killed staff morale and ‘manages by fear and intimidation’.
Names of certain former employees are mentioned who left the PIC,
allegedly as a result of ill-treatment, insults and intimidation.

18.4 Nepotism
The author/s asked the question whether the Board was aware that the
CEO’s son, (Mr Katleho Lebata) was employed by the PIC.
The author/s depict a PIC that ‘is not run by the CEO’, but by ‘the mean and
vindictive CFO’ for at least the past three years.86

19. A fourth email surfaced on 28 January 2019 from one ‘James Noko’ addressed
to the current Minister of Finance (Minister), Minister Tito Mboweni, with the
subject: ‘Another PIC scandal’. The third and fourth paragraphs read:

‘PIC board member Sibusisiwe Zulu who is a niece of ex ANC TG politician

Minister Zweli Mkhize, and acting Judge in KZN High Court, has approved
transactions for her live in partner Mr Lawrence Mulaudzi to the tune of R6
billion. These include the controversial TOTAL deal where Mr Lawrence

86
A copy of the email is attached as annexure ‘DD 39’ to Dr Matjila’s statement.

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Investment Corporation Page 191 of 794
 Mulaudzi was paid R100m for facilitation of which R40m was paid to
Sibusisiwe and her uncle, former TG Zweli Mkhize. Mr Mulaudzi is the well-
known PIC benefactor who was used by Dr Dan Matjila to pay R300k to the
ex CEO’s girlfriend.

...

The proceed of this deal was the start of Ms Zulu[‘s] lavish lifestyle where she
splurge[d] her ill-gotten PIC money on a multi-million rand mansion in the
coastal Umhlanga Ridge suburb in Durban, including luxury vehicles.’ (sic)

20. There were other serious allegations made in the email against Ms Zulu, a
member of the PIC Board of Directors and the Chairman, former Deputy
Minister Mondli Gungubele, which allegations will be referred to later in this
report, if necessary.

21. A fifth email, sent this time by ‘James Noko’ dated 30 January 2019, was
addressed to Minister Mboweni. The contents of the email indicate that it had
probably been authored by someone who had communicated with the PIC
during 2018 about corruption in which a non-executive Board member, Ms
Dudu Hlatshwayo (Ms Hlatshwayo), had allegedly been involved. It was
alleged, inter alia, that Ms Hlatshwayo, as chairman of the Fund Investment
Panel, ‘approved Karan Beef’, a transaction in which a high-ranking politician
and Treasurer-General of the African National Congress (ANC), Mr Paul
Mashatile (Mr Mashatile), has a financial interest which he holds through
another individual. The Karan Beef transaction will be discussed in Chapter
III: ToR 1.1, below.

22. These allegations, albeit anonymous, brought into question the reputation of
the PIC and were considered to be sufficiently serious to warrant investigation.

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TERMS OF REFERENCE

The Initial Terms of Reference

23. The Commission’s initial terms of reference, which are set out in the schedule
to the Proclamation, read as follows:

‘1. The Commission must enquire into, make findings, report on and make
recommendations on the following:

1.1 Whether any alleged impropriety regarding investment decisions by

the PIC in media reports in 2017 and 2018 contravened any
legislation, PIC policy or contractual obligations and resulted in any
undue benefit for any PIC director, or employee or any associate or
family member of any PIC director or employee at the time;

1.2 Whether any findings of impropriety following the investigation in

terms of paragraph 1.1 resulted from ineffective governance and /or
functioning by the PIC Board;

1.3 Whether any PIC director or employee used his or her position or
privileges or confidential information for personal gain or to improperly
benefit another person;

1.4 Whether any legislation or PIC policies concerning the reporting of

alleged corrupt activities and the protection of whistle-blowers were
not complied with in respect of any alleged impropriety referred to in
paragraph 1.1;

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 1.5 Whether the approved minutes of the PIC Board regarding
discussions of any alleged impropriety referred to in paragraph 1.1
are an accurate reflection of the discussions and the Board’s
resolution regarding the matters and whether the minutes were
altered to unduly protect persons implicated and, if so, to make a
finding on the person/s responsible for the alterations;

1.6 Whether the investigations into the leakage of information and the
source of emails containing allegations against senior executives
of the PIC in media reports in 2017 and 2018, while not thoroughly
investigating the substance of these allegations, were justified;

1.7 Whether any employees of the PIC obtained access to emails and
other information of the PIC, contrary to the internal policies of the
PIC or legislation;

1.8 Whether any confidential information of the PIC was disclosed to

third parties without the requisite authority or in accordance with the
Protected Disclosures Act, 2000, and, if so, to advise whether such
disclosure impacted negatively on the integrity and effective
functioning of the PIC;

1.9 Whether the PIC has adequate measures in place to ensure that
confidential information is not disclosed and, if not, to advise on
measures that should be introduced;

1.10 Whether measures that the PIC has in place are adequate to
ensure that investments do not unduly favour or discriminate
against -

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 1.10.1 a domestic prominent influential person (as defined in section
1 of the Financial Intelligence Centre Act, 2001);

1.10.2 an immediate family member (as contemplated in section

21H(2)of the Financial Intelligent Centre Act, 2001) of a
domestic prominent influential person; and

1.10.3 known close associates of a domestic prominent influential

person;

1.11 Whether there are discriminatory practices with regard to

remuneration and performance awards of PIC employee;

1.12 Whether any senior executive of the PIC victimised any PIC
employees;

1.13 Whether mutual separation agreements concluded in 2017 and

2018 with senior executives of the PIC complied with internal
policies of the PIC and whether pay-outs made for this purpose
were prudent;

1.14 Whether the PIC followed due and proper process in 2017 and
2018 in the appointment of senior executive heads, and senior
managers, whether on permanent or fixed- term contracts;

1.15 Whether the current governance and operating model of the PIC,
including the composition of the Board, is the most effective and
efficient model and, if not, to make recommendations on the most
suitable governance and operational model for the PIC for the
future;

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 1.16 Whether, considering its findings, it is necessary to make changes
to the PIC Act, the PIC Memorandum of Incorporation in terms of
the Companies Act, 2008 and the investment decision – making
framework of the PIC, as well as the delegation of authority for the
framework (if any) and, if so, to advise on the possible changes.’

24. The ToRs provide as follows in relation to the temporal scope of the enquiry:

‘2. The Commission must, in its enquiry for the purpose of its findings,
report and recommendations, consider the period 1 January 2015 to
31 August 2018.

3. The commission must submit -

3.1. an interim report to the President by not later than 15 February

2019; and

3.2. a final report by not later than 15 April 2019.

4. The commission may, if necessary, investigate and make findings and

recommendations on, any other matter regarding the PIC, regardless
of when it is alleged to have occurred, on condition that such other
investigations, findings and recommendations do not cause any delay
in the submission of the reports on the applicable dates referred to in
paragraph 3.’

25. To empower the Commission in its fact-finding function, the ToRs further
provided that:

‘5. The Commission may request the advice or views of any organ of State
or any other person or organisation that the Commission is of the opinion
may be able assist.

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 6. In order to -

6.1 enable the Commission to conduct its work meaningfully and

effectively; and

6.2 facilitate the gathering of evidence, by conferring on the

Commission such powers as are necessary to secure the
attendance of witnesses and to compel the production of
documents and any other required information, including the
power to enter and search premises, regulations must be made
under the Commissions Act, 1947, which will apply to the
Commission.’

Amendment to the Terms of Reference

26. As was required in terms of paragraph 3.1 of the ToRs, the Commission
submitted its interim report to the President on 15 February 2019. On 19 March
2019 and at the request of the Commission, the date of submission of the final
report to the President, namely 15 April 2019, was extended by the President
to 31 July 2019, by Proclamation No. 21 of 2019.87 The ToRs were also
amended, under the same Proclamation, by the insertion of ToR 1.17, which
reads:

‘1.17 Whether the PIC has given effect to its clients’ mandates as
required by the Financial and Intermediary Services Act, 2002 (Act no.
37 of 2002) and any applicable legislation.’

87
Published in Government Gazette No. 42384 of 4 April 2019.

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27. The insertion came about as a result of allegations made before the
Commission that the PIC, in certain instances, might not have acted in
accordance with clients’ mandates.

28. On 18 July 2019, again at the request of the Commission, and by Proclamation
No. 47 of 2019, the date of submission of the final report to the President,
namely 31 July 2019, was extended by the President to 31 October 201988
and thereafter to 15 December 2019.

29. The Regulations envisaged in paragraph 6 of the ToRs were made by the
President under Proclamation 33 of 2018 (Proclamation 33)89 and signed by
him on 28 November 2018 (the Regulations). The Regulations are contained
in a schedule to Proclamation 33. In terms of regulation 14(1), the
Commissioner was directed ‘to determine the seat of the Commission by
Notice in the Gazette’. In accordance with the regulation the seat of the
Commission was determined to be: Armscor, Corner Delmas Drive and
Nossob Street, Erasmuskloof Extension 4, Pretoria 0001.90 Regulation 17
provides that the Commission ‘may, by means of rules determine its own
procedures’. The Commission accordingly issued the ‘Rules Governing
Proceedings of the Judicial Commission of Inquiry into Allegations of
Impropriety Regarding the Public Investment Corporation (PIC)’
(Commission’s Rules).91

Interpretation of the Terms of Reference

30. It is important to declare how the Commission interpreted its ToRs:

88
Published in Government Gazette No. 42596 of 26 July 2019.
89
Published in Government Gazette No. 42076 of 3 December 2018.
90
Published under ‘General Notices’ as Notice No 849 in Government Gazette No 42506 of 4 June 2019.
91
Published under ‘General Notices’ in Government Gazette No. 42157 of 15 January 2019.

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31. The issue to be addressed in ToR 1.1. is -

‘Whether any alleged impropriety regarding investment decisions by the

PIC in media reports in 2017 and 2018 contravened any legislation, PIC
policy or contractual obligations and resulted in any undue benefits for
any PIC director, or employee or any associate or family member of any
PIC director or employees at the time.’

32. In 2018 the media reported that certain political parties had called for
transparency in the PIC regarding investments in its ‘unlisted portfolio’. It was
also reported that calls had been made for the PIC to provide detailed
information about R70 billion worth of investments made by it in its unlisted
investment portfolio in 2017/2018. Mention was made of particular
transactions, of which some were also in the listed investment portfolio. The
transactions that formed the subject of media reports included Ayo
Technology Solutions, Independent News and Media South Africa (Pty) Ltd
(INMSA), which was concluded on 16 August 2013, as well as those
pertaining to Sagarmatha, Tosaco, Steinhoff, Lancaster, VBS Mutual Bank,
Erin Energy, S & S Refinery, Ascendis, Mobile Satellite Technologies and
Karan Beef.

33. Paragraph 1.1 of the ToRs appears to have limited the scope of investigations
or inquiry into allegations of impropriety regarding investment decisions by the
PIC to transactions that featured in media reports during 2017 and 2018. In
terms of paragraph 4, however, the scope of the Commission’s inquiry seems,
at first glance, to have been enlarged to the extent that the Commission is
authorised, where necessary, to investigate and make findings and
recommendations ‘in any other matter regarding the PIC regardless of when
it is alleged to have occurred’. The only condition in this regard is that other
investigations, findings and recommendations do not cause any delay in
meeting the dates by which reports (interim and final) should be submitted to

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 the President. The question, therefore, is whether the expression ‘any other
matter’ includes investment decisions that fall outside the period mentioned in
ToR 1.1. This question requires to be answered before the Commission
embarks on a discussion of the individual transactions.

34. The Commission expresses its appreciation to the Evidence Leader, Adv. J
Lubbe SC, for providing it with an opinion on the proper interpretation of
paragraph 4 of the ToRs.

35. Paragraph 4 reads:

‘The Commission may, if necessary, investigate and make findings and

recommendations on any other matter regarding the PIC, regardless of
when it is alleged to have occurred, on condition that such other
investigations, findings and recommendations do not cause any delay in
the submission of the reports on the applicable dates referred to in
paragraph 3.’ (Emphasis added.)

36. Paragraph 2 provides thus:

‘The Commission must, in its inquiry for the purposes of its findings,
report and recommendations, consider the period 1 January 2015 to 31
August 2018’. (Emphasis added.)

37. The present state of the law relating to the interpretation of a document has
been expressed as follows in Natal Joint Municipal Pension Fund v Endumeni
Municipality,

‘Interpretation is the process of attributing meaning to the words used in a

document, be it legislation, some other statutory instrument, or contract,
having regard to the context provided by reading the particular provision or
provisions in the light of the document as a whole and the circumstances

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 attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of
the ordinary rules of grammar and syntax; the context in which the provision
appears; the apparent purpose to which it is directed and the material
known to those responsible for its production.

Where more than one meaning is possible each possibility must be weighed
in the light of all these factors. The process is objective not subjective. A
sensible meaning is to be preferred to one that leads to insensible or
unbusiness-like results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or business-like for the
words actually used. To do so in regard to a statute or statutory instrument
is to cross the divide between interpretation and legislation. In a contractual
context it is to make a contract for the parties other than the one they in fact
made. The inevitable point of departure is the language of the provision
itself, read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document.’ 92

38. To interpret the provisions of the Proclamation properly one should first have
regard to the time frames given in the relevant paragraphs quoted above.
Paragraph 2 makes it clear that the period 1 January 2015 to 31 August 2018
must be considered (compulsory) but that the Commission may (discretionary)
look at any other matter also outside the period, on certain conditions. The
investment decisions that should be considered, under ToR 1.1, are those
reported in the media during 2017 and 2018. This must and can only be
interpreted to refer to investments or transactions reported in the media and
not necessarily all investment decisions made during 2017/2018.

92
2012 (4) SA 593 (SCA) para 18.

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39. The Commission must, therefore, consider the period 1 January 2015 to
August 2018. During that period the Commission must look at investments
reported in the media during 2017 and 2018, but the Commission may also
look at any other matter on condition that there is no delay in the time frames
stated in section 3 of the Proclamation.

40. A question that further arises is whether the expression ‘any other matter’
includes or excludes ‘investment decisions’ referred to in paragraph 1.1 of the
ToR. The maxim generalia specialibus non derogant comes into play. The
matter is put thus in R v Gwantshu:

’When the Legislature has given attention to a separate subject

and made provision for it the presumption is that a subsequent
general enactment is not intended to interfere with the special
provision, unless it manifests that intention very clearly. Each
enactment must be construed in that respect according to its own
subject-matter and its own terms. This case is a peculiarly strong
one for the application of the general maxim’ (per Lord Hobhouse
delivering the judgment of the Privy Council in Barker v Edger
([1898] A.C. at p. 754). ‘Where general words in a later Act are
capable of reasonable and sensible application without
extending them to subjects specially dealt with by earlier
legislation, that earlier and special legislation is not to be held
indirectly . . . altered . . . merely by force of such general words,
without any indication of a particular intention to do so.’93

41. Having already given its attention to the particular subject and provided for it,
the Legislature is reasonably presumed not to alter that special provision by a

93
1931 EDL 29 at 31.

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 subsequent general enactment unless that be manifested in explicit
language.94

42. The maxim is part of South African Law and has been referred to with approval
by the Constitutional Court in Ruta v Minister of Home Affairs.95 In
Consolidated Employers’ Medical Aid Society & others v Leveton,96 Schutz
JA, writing for a unanimous court, agreed with the views expressed by the
learned author Christie in Christie the Law of Contract in SA,97 that ‘there is
no reason why the maxim should not be used in interpreting contracts’. There
can certainly be no reason for it not to be used in interpreting a Presidential
Proclamation.

43. Applying the maxim to the Proclamation, it is clear, in the Commission’s view,
that ‘any other matter’ does not refer to ‘investment decisions’ as
contemplated in paragraph 1.1 of the ToR. If the President or drafter of the
ToRs had intended the expression ‘any other matter’ to include ‘investment
decisions’ they could easily have done so by substituting ‘investment
decisions’ for the word ‘matter’, or by adding the words ‘or investment decision’
after the word ‘matter’. ‘Any other matter’, in the Commission’s view, refers to
any matter, bar investment decisions, that may have been of concern in the
operations of the PIC.

94
Maxwell, Interpretation of Statutes, 7ed at 153.
95
2019 (2) SA 329 (CC) para 42.
96
1999 (2) SA 32 (SCA) 1998 at 41B-C.
97
3ed at 345.

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THE PROCESS FOLLOWED BY THE COMMISSION

Administrative and logistical challenges

44. The Commissioner was formally advised of his appointment by way of a

telephone call received by him a few days prior to 19 October 2018, the date
upon which he received an email from Adv Jacob Skosana (Adv Skosana),
Deputy–Director General: Court Services, Department of Justice &
Constitutional Development (DOJCD), confirming the appointment. Adv
Skosana proposed, in the email, that a meeting be held on 2 November 2018.
On Friday, 26 October 2018, Adv Skosana delivered to the Commissioner, in
Pretoria, a file containing several documents, amongst which was a copy of
the Proclamation establishing the Commission, together with the
Commission’s ToRs, set out in a schedule to the Proclamation, and draft
regulations.

45. Given that the Commission had no office from which to operate, the meeting
proposed in Adv Skosana’s email of 19 October 2018 was held at the
Southern Sun International Hotel, OR Tambo International Airport,
Johannesburg, on 2 November 2018. In addition to the Commissioner and his
two Assistants, Ms Gill Marcus (Ms Marcus) and Mr Emmanuel Lediga (Mr
Lediga), the following Departments were represented: the DOJCD,
Department of Public Works (DPW), National Treasury and the Office of the
President. At the meeting, a file containing media reports and related
documents concerning the Commission’s ToRs was handed to both
Assistants to the Commissioner (the Commissioner and Assistants will
henceforth collectively be referred to as ‘the Commissioners’).

46. The following recommendations were made at the meeting:

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46.1 that the investigative team should be identified urgently by the
Commissioners to enable them to commence with the perusal of
documentation that would be made available to them;

46.2 that the Commission would need the services of persons who were well-
versed in financial matters; with knowledge of how investment deals are
structured and how proposals are evaluated and assessed; and

46.3 that it would be important for the Commission to tap into the experiences
of similar investigations, conducted internationally, in respect of entities
such as the Oil Fund, which is the sovereign wealth fund of Norway, the
Ontario Teachers’ Pension Plan Board and the California Public
Employees’ Retirement System (CalPERS).

47. The Commissioners were also informed at the meeting that no budget had
been allocated for the Commission because the Commission was established
after the adjustment estimates of the National Expenditure submissions to
National Treasury. This meant that for the 2018/19 financial year, the DOJCD
would cover the Commission’s expenditure. A budget for the Commission
would be submitted to National Treasury once key appointments had been
made. In the meantime, the Department would provide administrative
personnel to deal with procurement and logistical arrangements to support the
Commission.

48. The absence of a budget for the Commission contributed substantially to the
slow pace at which the Commission commenced its work. For example,
laptops and data cards were to be provided to the Commissioners during the
week of 17 – 21 December 2018. However, laptops were made available,
without data cards, in the last week of January 2019. As reported to the
Commission, this was because procurement officials had to comply with
departmental prescripts. The legal team received their laptops from the

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 Department during the week 21-25 January 2019, but the Commission still
had no office. Delays in procurement, often in matters considered by the
Commission to be urgent, including unacceptably long delays in payment of
remuneration to certain staff members, plagued the Commission for the better
part of its life. Moreover, bureaucratic processes and red tape, coupled with a
seeming lack of urgency, severely impacted on the efficient and effective
working of the Commission. It is strongly recommended that an appropriate
governance and operational framework be created to enable entities such as
Commissions of Inquiry to operate efficiently, independently and without
undue interference.

Appointing the Team and commencing work

49. The work of the Commission could commence in earnest only after the
Evidence Leader, Adv Jannie Lubbe SC (Evidence Leader/ Adv Lubbe SC),
had been contracted by the State Attorney on 12 November 2018. As was
mentioned in the Commission’s Interim Report,98 the Evidence Leader has
vast experience in the practice of law, which includes 18 years of forensic
investigation. He commenced with investigations immediately after he was
engaged by the State Attorney. The Secretary of the Commission, Adv Phuti
Setati (Adv Setati), was appointed or designated, in terms of regulation 4 of
the Commission’s regulations, on 3 December 2018 and the rest of the staff
were appointed, in terms of regulation 5(2), on 28 December 2018. The
Evidence Leader was assisted by three junior advocates, contracted by the
State Attorney on 29 November 2018, namely Adv N Khooe, Adv I Monnahela
and Adv S Mohapi. The Evidence Leader and his assistants were further
assisted by a forensic investigation team, consisting of leading forensic
investigator, Mr M Rheeder and Ms H Mukomana, a qualified attorney. They
were appointed on 1 January 2019 and 14 January 2019, respectively. Ms N

98
At para 9.

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 Ford-Hoon, a financial specialist and Chartered Accountant, who was
appointed on 1 January 2019, also assisted the forensic investigation team. A
fourth member, Ms Heleen Scorrano, also a financial specialist and forensic
Chartered Accountant, joined the team on 20 May 2019.

50. Ms Thabi Leoka, an economist, who later also assisted the forensic
investigation team, and Ms Bomikazi Molapo occupied the positions of
spokesperson for the Commission and communications manager
respectively. Mr Victor Radebe held the position of Stakeholder and
Information Senior Manager. In addition, 14 other individuals, holding various
junior positions, formed part of the administrative and documentation staff of
the Commission. Thus, in total, the Commission employed eight legal/forensic
experts, two communications professionals and 16
administrative/documentation/IT personnel. Further support was obtained
from a number of experts relating to specific areas of expertise on a pro bono
basis, all of whom signed a confidentiality agreement. In accordance with
regulation 12(1) of the Regulations, all persons who assisted the Commission
took an oath, administered by the Commissioner, to preserve secrecy ‘with
regard to any matter or information that may come to [his/her] knowledge in
the performance of [his/her] duties relating to the functions of the
Commission’.

51. From January 2019, the investigation teams (legal and forensic) enjoyed
unimpeded access to the facilities and staff of the PIC. This was after the
Evidence Leader had obtained the assurance from the Chairperson of the
Board of the PIC, Deputy Minister Mondli Gungubele that the PIC would co-
operate fully with the Commission in its investigations. The PIC made
available to the legal team, at the latter’s request, a list of the names of former
employees of the PIC, who had either resigned or had been dismissed during
the period January 2015 to September 2018. The legal team also prepared a
written invitation to all the employees of the PIC to come forward voluntarily to

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 assist the Commission in its investigations, which was distributed by the acting
company secretary, Ms Wilhelmina Louw (Ms W Louw).

52. A website, http://www.justice.gov.za/commissions/pic/, was created where

information relating to the Commission could be accessed by members of the
public. Invitations calling on all persons who might have information relevant
to the Commission’s Terms of Reference to come forward were posted onto
the website. Announcements were also made on certain radio stations,
extending the same invitation. Another invitation was extended to a variety of
other stakeholders, including political parties represented in Parliament.

The Hearings

53. At its meeting held on 4 December 2018, the Commission resolved that
hearings would commence on 21 January 2019. This resolution was taken
due to pressure on the Commission having to submit its interim report to the
President on 15 February 2019 as was required in terms of paragraph 3.1 of
the ToR. Nevertheless, the target date was met and, indeed, the hearings
commenced on 21 January 2019. The Evidence Leader and his team are to
be commended for ensuring, under extreme pressure of time, that the
hearings commenced as scheduled.

54. The hearings were held in the Council Chamber at Sammy Marks Building in
Central Pretoria, over a period of 63 days, from 21 January 2019 until 14
August 2019. It had been anticipated that the hearings would be finalised by
end July 2019, but due to unforeseen circumstances, such as strike action by
the Tshwane municipal workers, approximately five days of hearing time was
lost.

55. The Commission’s hearings were widely publicised through both print and
electronic media, which, together with the testimonies of particular witnesses

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 given in public, we believe, encouraged a number of people, particularly
employees of the PIC, to come forward to testify. Rule 2.1 of the Commission’s
Rules provides that the Commission ‘must regularly inform the public of the
matters to be covered at its hearings by publishing relevant information on its
website’. For the first two weeks of the hearings, statements of witnesses
scheduled to testify were published on the Commission’s website a day before
such witnesses’ testimonies were to be given. But, following reports of alleged
threats made against the lives of certain potential witnesses, which the
Commission considered to be serious and thus not to be ignored, the posting
of statements on the website the day before a witness was due to testify was
abandoned at the direction of the Commissioner. Statements of witnesses
were from then on posted on the website during the morning of the day on
which they were scheduled to testify.

56. Rule 3.1 of the Commission’s Rules provides that ‘[s]ubject to anything to the
contrary contained in these Rules or to the Chairperson’s directions in regard
to any specific witness, the Commission’s Legal Team bears the overall
responsibility to present the evidence of witnesses to the Commission’. In this
regard the process adopted by the Commission was the following: The legal
team obtained, from a potential witness, a statement which, if relevant to the
Commission’s Terms of Reference, would be repeated at the hearing under
oath or affirmation, administered by the Commissioner in accordance with
regulation 8 of the Regulations.

57. Rule 3.2 of the Commission’s Rules reads:

‘A member of the Commission’s Legal Team may put questions to a

witness whose evidence is presented to the Commission by the
Commission’s Legal Team, including questions aimed at assisting the
Commission in assessing the truthfulness of the evidence of the witness
. . . .’

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58. The legal team were afforded an opportunity to question every witness who
gave evidence before the Commission, in compliance with this rule.

59. Where the legal team intended to present a witness to the Commission whose
evidence would, or might, implicate another person, it was required in terms
of Rule 3.3, through the Secretary of the Commission, to notify that person in
writing within a reasonable time before the witness gave evidence. The legal
team by and large complied with the provisions of this rule, but where a person
was implicated whilst not having been notified beforehand, they would be
informed after the fact and advised to lodge a statement or an affidavit in
response should they so wish, or apply, in terms of regulation 9(3) of the
Regulations or rule 3.3.6 of the Commission Rules, to cross-examine the
witness concerned and to give evidence.

60. Two witnesses who testified before the Commission were cross-examined
under these provisions; leave having been obtained from the Commissioner.
Two instances require to be mentioned in this regard.

61. During August 2019, the former Minister of Finance, Mr Malusi Gigaba (former
Minister Gigaba), indicated, through his legal representatives, that he intended
to apply for leave to cross-examine Dr Matjila. Following some discussion and
an indication from the Commissioner that in his view, prima facie, it was not
necessary to cross-examine Dr Matjila due to the nature of the evidence,
former Minister Gigaba’s legal representatives indicated by email, on 22
August 2019, that the former Minister would not be proceeding with his
application for leave to cross-examine Dr Matjila.

62. The next matter to deal with, briefly, was raised by Mr Kholofelo Maponya (Mr
Maponya), who describes himself as an adult businessman and director of
companies, with a controlling interest in Matome Maponya Investment
Holdings (MMI). On 14 August 2019, which was the last day of the hearings,

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 Mr Maponya issued a media statement in which he maintained that the
Evidence Leader had neglected ‘the basic rules of natural justice’, presumably
by not calling him to testify before the Commission. He stated that his name
had been mentioned several times during the hearings and, in many cases, in
a manner that has the potential to irreparably damage his reputation and
business interests. Mr Maponya had apparently deposed to an affidavit on 8
July 2019 and subsequently delivered it, or caused it to be delivered, together
with a number of annexures, to the Secretary of the Commission.

63. Mr Maponya claimed in his affidavit that his company, MMI, was owed an
amount of R45 million by the PIC. The amount allegedly due, relates to fees
for facilitating a transaction concluded between the PIC and SA Home Loans
(SAHL), an entity set up to provide affordable housing to members of the
GEPF.

64. It is clear that the issues raised by Mr Maponya in his affidavit have no
relevance whatsoever to the Commission’s terms of reference. The
Commission has no authority to decide on whether or not Mr Maponya or MMI
is, or is not, owed any money by the PIC. In any event, Mr Maponya avers in
his affidavit that on 11 April 2019 a summons was issued by his attorneys out
of the Gauteng Division of the High Court, claiming payment of the amount
allegedly due to MMI. The defendants cited in the summons are the PIC,
GEPF and SAHL. The matter is being defended. Clearly, therefore, Mr
Maponya’s claim is not covered by the Commission’s terms of reference and
the Commission is not empowered to consider it.99

99
Matome Maponya Investment Holdings is addressed in a case study in Chapter III: ToR 1.1 of the report, to the
extent that the transactions discussed are relevant to the Commission’s terms of reference.

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65. 77 witnesses gave oral testimony before the Commission over the 63 days of
hearings. At the end of the hearings on 14 August 2019, the Commission
issued a statement in which, amongst others, the following was clearly stated:

‘Today marks the end of the scheduled public hearings on allegations of

impropriety as it is outlined in the terms of reference that guide the work
of the Commission. It is now our task to review, assess, make findings,
propose recommendations and prepare our final report in keeping with
these terms of reference. In addition to the investigations and
testimonies that have been presented to the Commission over the past
eight months, further possible questionable transactions have come to
the attention of the investigation team. The team will continue with their
investigations and, if deemed appropriate, further limited public hearings
may be held.

Furthermore, anyone with evidence, or who has been mentioned in

evidence to date and wishes to place their version of events on record,
are welcome to submit their testimony to the Commission by way of
sworn affidavits. All such submissions will form part of the testimonies
that will be considered when writing our report.

In the period between now and 30 September 2019, Advocate Lubbe SC

and his team remain available as the point of contact with the
Commission. Our communications team will alert the media if or when
any new documents are posted on the website.’

66. In addition to the statement, the Commission directed the Evidence Leader to
invite, in writing, certain individuals who had been mentioned during the
testimonies of one or more witnesses, to respond to allegations made against
them by way of affidavit, should they wish to do so.

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Evaluation of the evidence

67. It has been said that the proper function of a commission of inquiry is -

‘. . . to find the answers to certain questions put by the President in the

terms of reference. A commission is itself responsible for the collection
of evidence, for taking statements from witnesses and for testing the
accuracy of such evidence by inquisitorial examination – inquisitorial in
the Canonical, not the Spanish sense.’100

68. In Bell v Van Rensburg N.O. it was held that a commission of inquiry is not a
court of record (oorkondehof), nor is it analogous to it.101 A court of law ‘is
bound by the rules of evidence and the pleadings, but a Commission is not. It
may inform itself of facts in any way it pleases – by hearsay evidence and from
newspaper reports or even through submissions or representations on
submissions without sworn evidence’.102 In Bongoza v Minister of Correctional
Services & others, Jafta AJP said that the commission of inquiry in that case
–

‘. . . was not bound by the rules regulating the admission of evidence or

evidentiary material in a court of law. Its regulations indicated that it
would be improper for it to act as if it was a court of law when it was not.
For example, cross-examination was subject to its chairperson’s
permission, which could be granted only if he was convinced that such
cross-examination would be in the interests of its functions.’ 103

100
Van den Heever JA: U G 36 – 49: Report of the Commission of Inquiry into Riots in Durban, quoted in the Report of
the Marikana Inquiry at page 22, para 1.2.
101
1971 (3) SA 693 (C) at 719.
102
S v Sparks & others 1980 (3) SA 952 (T) at 961B-C.
103
2002 (6) SA 330 (TkH), para 25.

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69. There has been some dispute of fact on certain issues dealt with in the
evidence placed before the Commission. It is the Commission’s task to make
findings on the matters that are in dispute.

70. In a civil trial the approach of our courts when dealing with disputes of fact was
set out as follows by the Supreme Court of Appeal (per Nienaber JA, writing
for a unanimous Court):

‘To come to a conclusion on the disputed issues a court must make

findings on (a) the credibility of the various factual witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court's finding on the
credibility of a particular witness will depend on its impression about the
veracity of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the witness'
candour and demeanour in the witness-box, (ii) his bias, latent and
blatant, (iii) internal contradictions in his evidence, (iv) external
contradictions with what was pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, (vi) the
calibre and cogency of his performance compared to that of other
witnesses testifying about the same incident or events. As to (b), a
witness' reliability will depend, apart from the factors mentioned under
(a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or
observe the event in question and (ii) the quality, integrity and
independence of his recall thereof. As to (c), this necessitates an
analysis and evaluation of the probability or improbability of each party's
version on each of the disputed issues. In the light of its assessment of
(a), (b) and (c) the court will then, as a final step, determine whether the
party burdened with the onus of proof has succeeded in discharging it.
The hard case, which will doubtless be the rare one, occurs when a
court's credibility findings compel it in one direction and its evaluation of

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 the general probabilities in another. The more convincing the former, the
less convincing will be the latter. But when all factors are equipoised
probabilities prevail.’104

71. But the Commission is not dealing with a civil trial where there is normally a
lis between the parties and thus an onus resting on one or the other.
Considering the evidence that the Commission could admit, which could
include hearsay, documentary and on affidavit without the deponent testifying,
we think the proper approach is to evaluate all the evidence and come to a
view based on the probabilities. No onus can be said to lie on any of the parties
to prove or disprove any allegations made by or against them. But those
implicated in alleged wrongdoing had an obligation to place all relevant
information before the Commission.

THE STRUCTURE AND FUNCTIONING OF THE PIC

72. The structure and functioning of the PIC is set out in considerable detail so
that the Commission would be in a position to assess and explain whether any
findings of impropriety could be located in structural deficits or organisational
pathologies impeding the proper functioning of the PIC. As the testimony and
explanation of the structure indicates, sound structures and operating
procedures were largely in place but these cannot act as a complete check on
the malfeasance of public officials.

73. A comprehensive description of the structure and functioning of the PIC was
given by Ms W Louw, the acting Company Secretary at the time of her
testimony, before the Commission on 23 January 2019. She joined the PIC on
1 September 1996 as a Personal Assistant to the then Chief Director Mr

104
Stellenbosch Farmers’ Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA) para 5.

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 Badenhorst, and has since served in several positions at the PIC. She,
therefore, has an intimate knowledge of the structure and functioning of the
PIC.

74. In terms of section 8 of the PIC Act, the business of the PIC is controlled by a
Board of directors (the Board) which, in terms of section 6, must be determined
and appointed by the Minister, in consultation with Cabinet. The Minister is
enjoined to appoint the members of the Board ‘on the grounds of their
knowledge and experience, with due regard to the FAIS Act, which, when
considered collectively, should enable the Board to attain the objects of the
corporation’105, the main object being that of a financial services provider in
terms of the FAIS Act.

The Memorandum of Incorporation

75. There was some confusion during the testimony of Dr Matjila relating to the
memorandum of incorporation (MOI) under which the PIC is currently
operating. The Commissioners had been provided with a copy of a MOI that
had been signed by the then Minister of Finance, Mr Pravin Gordhan (Minister
Gordhan), on 26 April 2013 (2013 MOI). Clause 7.1.11 of that MOI provided
that the Board ‘shall, with prior approval of the Minister, appoint the nominees
for chief investment officer (CIO), chief financial officer (CFO) and chief
operations officer (COO) to those positions as employees, in accordance with
applicable labour legislation’. It was common cause that the PIC has been
operating without a CIO and COO. Dr Matjila was appointed to the position of
CEO in December 2014.

76. It appears that the vacancy in the position of CIO, a position Dr Matjila had
held before his appointment as CEO, was never filled. Similarly, the position
of COO was never filled after Ms Petronella Dekker (Ms Dekker), who had

105
Section 6(3) of the PIC Act.

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 held that position from 2012 until 2015, vacated the position when she was
appointed Executive Head: Corporate Services. The evidence has revealed
that on 24 March 2017, Minister Gordhan wrote to his deputy, Mr Mcebisi
Jonas (Mr Jonas), in his capacity as chairman of the Board, advising that he
(Minister Gordhan) had identified three sub-clauses in the 2013 MOI which
needed to be amended, namely, sub-clauses 7.1.12, 7.3.1 and 7.3.6.

77. One of the proposed amendments (sub-clause 7.1.12) would make provision
for the CEO and CFO becoming ex-officio directors of the Corporation.
Minister Gordhan also requested that the PIC call a shareholders’ meeting
within two days of the date of his letter.106 However, on 29 March 2017 the
Board, in addition to approving the Minister’s proposed amendments, resolved
to approve further amendments, including the deletion of sub-clause 7.1.11.
The effect of the deletion would be the elimination of the positions of CIO107
and COO in the PIC. Section 16(1) of the Companies Act provides:

‘A company’s Memorandum of Incorporation may be amended-

(a) . . . ;

(b) . . .; or

(c) at any other time if a special resolution to amend it-

is proposed by-

(aa) the board of the company; or

106
A copy of the letter is annexure ‘DD 30’ of Dr Matjila’s statement.
107
The abolition of the position of CIO was in line with an organisational restructuring that took place, according to Dr
Matjila’s testimony (para 102 of his statement signed on 17 July 2019) in 2014 and 2015, resulting in the CIO position
being split into four Executive Heads of investments, namely of Listed Investments, Private Equity & Structured
Investments, Developmental Investments, and Properties.

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 (bb) shareholders entitled to exercise at least 10% of the voting
rights that may be exercised on such a resolution; and

is adopted at a shareholders meeting, or in accordance with

section 60, subject to subsection (3).’

78. At a shareholders meeting held on 29 March 2017 a special resolution was

passed in terms of which ‘the existing Memorandum of Incorporation of the
Public Investment Corporation . . . is hereby amended’. All the proposed
amendments were accordingly approved and Minister Gordhan signed the
amended version of the MOI on 30 March 2017 (amended MOI/MOI).108 The
amended MOI was accepted and filed by the Commissioner of the Companies
and Intellectual Property Commission (CIPC) on or about 19 April 2017.109

79. We are therefore satisfied that the statutory procedures to amend the PIC’s
2013 MOI were followed and that the amendments were, consequently, valid.
It is, however, common cause that subsequent to Mr Gigaba succeeding
Minister Gordhan as Minister of Finance in March 2017 he requested the
Board, in a letter dated 19 April 2017, to not implement the amended MOI and
that the 2013 MOI remain in existence until he had familiarised himself with
the PIC. Although the CIPC accepted Minister Gigaba’s request on 15 May
2017, it needs no emphasising that the attempted substitution of the amended
MOI was not in accordance with statutory requirements. Section 16(5) of the
Companies Act states:

‘(5) An amendment contemplated in subsection (1)(c) may take the form of-

108
Copies of the resolution passed at a shareholders meeting on 29 March 2017 and of the amended MOI are attached
as ‘Appendix 4’ and ‘Appendix 5’ respectively.
109
A copy of letter dated 19 April 2017 attached as ‘Appendix 6’.

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 (a) a new Memorandum of Incorporation in substitution for the existing
Memorandum; or

(b) one or more alterations to the existing Memorandum of Incorporation by-

(i) . . .;

(ii) deleting, altering or replacing any of its provisions;

(iii) inserting any new provisions into the Memorandum of Incorporation;

or

(iv) making any combination of alterations contemplated in this

paragraph.’

80. A valid substitution of the 2013 MOI for the amended MOI required a special
resolution to do so, proposed by the Board or the shareholders, through
Minister Gigaba. There was no evidence before the Commission of any such
resolution.

81. In an affidavit deposed to on 24 July 2019 in support of an application for leave

to cross-examine Dr Matjila, former Minister Gigaba states that as far as he
was aware, at the time that he requested that the 2013 MOI be reinstated, the
amended MOI ‘was not yet operational at the PIC’110. That may well be so. But
what matters, in our view, is the date upon which the Notice of Amendment
was filed with the CIPC. Section 16(9)(b) of the Companies Act decrees that
in a case other than where an amendment to a company’s MOI changes the
name of the company, the amendment takes effect on the later of ‘(i) the date
on, and time at, which the Notice of Amendment is filed; or (ii) the date, if any,
set out in the Notice of Amendment’. According to Ms Mathebula, the company

110
Para 41 of Mr Gigaba’s statement signed on 24 July 2019.

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 secretary at the relevant time, the 2013 MOI, ‘was refiled with CIPC thereby
withdrawing the new MOI [amended version]. The 2013 MOI was accepted by
CIPC on 15 May 2017’.111 By that time the amended MOI had already been
accepted and filed, at the latest, on 19 April 2017.

82. Dr Matjila stated the following during his testimony:

‘The MOI [amended version] was amended and the notice of

amendment filed with CIPC on 30 March 2017.’112

83. This evidence was not contradicted. In any event, it is not in dispute that the
actual amended MOI was filed on 30 March 2017. It therefore came into effect
on 30 March 2017 or at the latest on 19 April 2017 (s 16(5) of the Companies
Act). In the absence of any evidence to the contrary, we conclude that the
PIC’s current MOI is the amended MOI, which was signed by former Minister
Gordhan on 30 March 2017 and accepted by CIPC on 19 April 2017, on which
date a ‘Certificate of Confirmation’ was issued.

The Composition of the Board

84. Clause 7.1.1 of the Corporation’s MOI provides that the Board ‘shall comprise
of no less than 10 and no more than 15 directors . . .’. The shareholder, defined
in the MOI as the State acting through the Minister, is required, in terms of
clause 7.1.2.1 to ensure that the Board consists of executive and non-
executive directors. Thus, at the time of appointment of the Commission, the
following individuals served as members of the Board:

Non-Executive Directors:

111
Para 176 of Ms Mathebula’s statement signed on 24 April 2019.
112
Para 199 of Dr Matjila’s statement signed on 17 July 2019.

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 1. Deputy Minister Mondli Gungubele - Chairperson

2. Dr Xolani Mkhwanazi - Deputy Chairperson

3. Ms Sandra Beswick

4. Mr Trueman Goba

5. Ms Dudu Hlatshwayo

6. Mr Pitsi Moloto

7. Ms Mathukana Mokoko

8. Ms Lindiwe Toyi

9. Ms Sibusisiwe Zulu

Executive Directors

1. Dr Daniel Matjila - Chief Executive Officer

2. Ms Matshepo More - Chief Financial Officer

85. Two former non-executive directors, Dr Claudia Manning (Dr Manning), who
testified before the Commission and Ms Tantaswa Fubu (Ms Fubu) had
resigned from the Board on 22 July 2018 and 31 July 2018, respectively.

86. Ms Sandra Beswick (Ms Beswick), former non-executive Board member, gave
evidence on 27 February 2019. In paragraph 9 of her statement, dealing with
the resignation of the Board, she states that the Board was informed by the
Chairperson, Mr Gungubele, that he had received a call from the Minister of
Finance, Mr Tito Mboweni (Minister Mboweni). They were told that Minister

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 Mboweni said, ‘the Board should consider resigning immediately, failing
which, he will fire us and appoint an interim Board within the next week.’ Her
statement continues, stating that, ‘This demand was highly irregular because
the repercussions could be disastrous for the PIC as it could lose its FAIS
licence and was in contravention of the Companies Act. All nine members of
the Board agreed to resign’ and issued a letter to the Minister of Finance.

87. They advised the Minister, in their letter of resignation, that they were prepared
to continue as Board members until an interim Board had been appointed. 113
The Minister accepted the Board members’ resignation on 15 February 2019
and an interim Board was later appointed to serve for the period 12 July 2019
to 31 July 2020, consisting of the following non-executive directors (NEDs):

1. Dr Reuel Khoza - Chairman

2. Dr Xolani Mkhwanazi - re-appointed: Deputy Chairman

3. Ms Sindi Mabaso-Koyana

4. Ms Irene Charnley

5. Ms Tshepiso Moahloli

6. Ms Maria Ramos

7. Ms Barbara Watson

8. Mr Ivan Fredericks

113
Para 9 of the statement of Ms Sandra Beswick signed on 27 February 2019 and para 24 of the statement of Ms
Dudu Hlatshwayo signed on 26 February 2019.

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 9. Mr Zola Saphetha

10. Mr Bhekithemba Gamedze

11. Dr Angelo De Bruin

12. Professor Bonke Dumisa

13. Advocate Makhubalo Ndaba

14. Mr Pitsi Moloto (re-appointed) and

15. Mr Mugwena Maluleke.

88. It should be noted that the current MOI makes provision for a Board of ten and
no more than fifteen people. Appointing fifteen NEDs plus the CEO and the
CFO as ex officio membrs means that the Board is operating in breach of its
MOI with seventeen directors.

89. According to Ms W Louw, the Board retains control over the operations of the
PIC through well-developed structures such as various Board committees and
comprehensive delegations of authority (DoA), in terms of which
responsibilities for different kinds of transactions are delegated to a variety of
role players in the PIC investment divisions. The following Board committees
have been established:

1. Audit and Risk Committee (ARC), a statutory committee in terms of

section 94 of the Companies Act, which provides oversight in respect of
audit, compliance and risk management.

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 2. Social and Ethics Committee (SEC), established in terms of regulation
43 of the Regulations promulgated under the Companies Act. (All State
– owned entities are required to have a SEC in place).

3. Directors Affairs Committee (DAC), which serves as a nomination

committee focusing on evaluations and nominations for appointments of
persons to the Board of PIC investing companies.

4. Human Resources and Remuneration Committee (HRRC), which

ensures that formal and transparent procedures are followed in respect
of remuneration policy and labour relations matters.

5. Information, Communications and Technology Governance Committee

(ICTGC), constituted in terms of Principle 12 of the King IV Report
focussing on, amongst others, information and technology governance
and cyber security. According to Principle 12 of King IV, the purpose of
IT governance is to support the organisation to set and achieve its
objectives.

6. Investment Committee (IC), provides oversight and decision making on

investment activities.

90. Three Fund Investment Panels (FIPs) have been established as sub-
committees of the Investment Committee (IC). These FIPs have been
authorised to deliberate and make investment decisions on unlisted
investments, including properties in accordance with the relevant DoAs. The
sub-committees are:

1. Property Fund Investment Panel (Prop FIP), which assists the IC with
oversight in respect of direct and indirect property investments;

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 2. Social and Economic Infrastructure and Environmental Sustainability
Fund Investment Panel (SEIES FIP), which assists the IC with oversight
in respect of unlisted social and economic infrastructure investments.

3. Private Equity, Priority Sector and Small Medium Enterprise Fund

Investment Panel (PEPSS FIP), which assists the IC with oversight of
private equity, Priority Sector and Small Medium Enterprise Investments.

91. The structure described above is contained in the following diagram114:

114
At page 26 of Ms Wilhelmina Louw’s statement signed on 16 January 2019.

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The individuals who serve on these Board committees are all members of the Board
as envisaged in section 7(1) of the PIC Act.

11 The Board has issued DoAs in respect of the following:

1. Corporate Governance/Affairs;

2. Unlisted Investments;

3. Listed Investments; and

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 4. Property Investments.

92. The powers of the Board and management committees are set out in the
DoAs. In addition, policies and procedures have been developed, which are
designed to influence, determine and guide all major investment decisions and
actions.

The Executive Committee

93. The responsibility of the day to day management of the PIC rests with the CEO
in line with the approved DoA framework and the strategic direction set by the
Board. The CEO is assisted in the discharge of further responsibilities by an
Executive Committee (EXCO), comprising the CEO as Chairman, the Chief
Financial Officer (CFO) and the Executive Heads of the ten PIC divisions,
namely:

1. Research and Project Development;

2. Impact investing;

3. Private Equity and Structured Investment Products (SIPS);

4. Property Investments;

5. Listed Investments;

6. Investments Management;

7. Human Resources;

8. Risk;

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 9. Legal Counsel, Governance and Compliance; and, lastly

10. Information Technology.

94. The heads of internal audit and corporate affairs, the general manager of
finance, executive assistant to the CEO and the Company Secretary are
permanent invitees to the EXCO meetings.

95. The EXCO has established six sub-committees, three of which relate to
corporate affairs and the other three to assets under management. These sub-
committees are in line with the PIC investment strategy to instil a culture of
compliance and good governance, so as to ensure that the Corporation’s
governance processes and affairs are conducted in a transparent, fair and
prudent manner and that accountability becomes a certainty. The sub-
committees are:

1. Information Technology and Risk Committee, which provides oversight

of IT related activities within the PIC and ensures that an appropriate
Enterprise Risk Management Framework is in place and operates
effectively.

2. Finance and Valuations Committee, which reviews inputs, assumptions,

valuations and methodology and calculations, fair values of listed and
unlisted investments for reporting to clients;

3. Employer Equity Committee, which is responsible for ensuring

compliance in the workplace with all the requirements of the Employment
Equity Act;

4. Portfolio Management Committee (Unlisted investments) (PMC-Ul),

which is responsible for oversight of implementation of the PIC’s
investment strategy in respect of unlisted investments and for the

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 approval or otherwise of unlisted investments, including property
investments, in line with the relevant DoAs and approved policies.

5. Portfolio Management Committee (Listed Investment) (PMC-LI), which

is responsible for oversight of implementation of the Corporations
investment strategy for listed investments and approval of listed
investment transactions in line with the relevant DoA and approved
policies.

6. Asset Allocation Committee (AAC), established in 2012 and whose

responsibility includes the screening of unlisted investment proposals
received by the PIC through a deal screening task team before they are
submitted to the PMC-UI for considering whether or not the proposal
should proceed to the next stage, namely, Due Diligence (DD).

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 The Executive Committee and its Sub-committee structures are depicted below115:

Client mandates

96. The PIC’s clients have provided the PIC with investment mandates, which set
out, among others, their investment objectives, risk appetite, investment
parameters as well as the asset class allocations. In order to ensure
compliance with client mandates, the PIC utilises a special system, which
enables it to capture the mandates for monitoring purposes. According to Ms
W Louw, the PIC reports to clients on a monthly and quarterly basis, detailing,
among other things, portfolio performance. Clients are thus able to engage
with the PIC during these presentations and to seek clarity, if they so wish. For
illustrative purposes we refer to the GEPF’s mandate, as the Corporation’s
largest client.

115
At page 29 of Ms Wilhelmina Louw’s statement signed on 16 January 2019.

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97. The relationship between the PIC and the GEPF is governed by an Investment
Management Agreement (IMA) concluded on 12 June 2007.116 In terms of the
IMA, the GEPF granted the PIC a power of attorney and appointed it as an
investment manager with the authority to act as its agent ‘in managing and
administering the portfolio within the constraints specified in the IMA . . . and
subject to any policies of the GEPF which are appended to the IMA’.117
Annexure ‘A’ to the statement of Mr Abel Sithole (Mr Sithole), the principal
executive officer of the GEPF, is a policy document that sets out the strategic
asset allocation percentages and the strategic limits to be applied in a
diversified portfolio. It should be noted that in a letter addressed to the former
CEO of the PIC, Dr Matjila, dated 26 October 2017, the principal executive
officer of the GEPF stated that the Fund had resolved that the PIC ‘is required
to seek approval from the GEPF for any single investment above R2 billion for
unlisted and property investments’.

98. This will be dealt with in more detail in the section addressing ToR 1.17, below.

Investment process

99. In the main, two senior officials of the PIC gave uncontested testimony on the
investment processes followed when dealing with a proposed transaction,
namely, Mr Fidelis Madavo (Mr Madavo), Executive Head of Listed
Investments and Mr Roy Rajdhar, Executive Head of Impact Investing, which
lies under the unlisted investments division. Both report directly to the CEO.
We deal with the listed and unlisted divisions separately.

116
A copy of the agreement is annexed to the statement of Mr Abel Sithole, signed on 15 July 2019, the principal
executive officer of the GEPF. The document appears in the confidential section of the annexures to that statement,
marked as ‘Bundle B’ and thus does not form part of the record.
117
Para 7.4.3 of Mr Sithole’s statement signed on 15 July 2019.

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Listed Investments

100. The Listed Investments division covers listed equities, listed property, listed
fixed income securities, cash and money markets portion of the client
mandate. Transactions concluded by the Listed Investments division are dealt
with through three governance committees, in line with the PIC’s DoA, namely,
the Portfolio Management Committee: Listed Investments (PMC-LI), the
Investment Committee and, where appropriate, the PIC Board.

101. The members of the PMC - LI are:

1. The CEO (Chairman)

2. The CFO

3. Executive Head: Listed Investments

4. Executive Head: Risk

5. Executive Head: Legal Counsel, Governance and Compliance

Executive Head: Research and Project Development

6. Executive Head: Investment Management

7. General Manager: Listed Equities

8. General Manager: Fixed Income and

9. General Manager: Externally Managed Funds.

102. Transactions under the Listed Investments division go through the following
process:

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 The Public Investment Corporation (PIC) receives
applications for funding through unsolicited
applications from clients or advisors, referrals by
other funding institutions or strategic partners,
Initial Public Offerings and Book Builds and Rights
Issues

Upon receipt of an application, the Investment

Team prepares a scoping report requesting
approval for the application to be referred for due
diligence. Scoping Report contains in effect the
initial Due Dilligence of the Transaction Team

The scoping report is submitted to the Executive

Head for review and approval to be submitted, via
the Company Secretary, to the Portfolio
Management Committee of Listed Investments
(PMC1)

PMC1 will either approve or decline the request for

the referral of the inestement opportunity for due
diligence

If PMC1 approves the request, the Investment Team

will request the Executive Heads of Risk, Legal and
Environmental, Social and Governance (ESG)
divisions for resources to perform their own due
diligence for the proposed transaction

Each team prepares independent reports focused on

their area of expertise. The reports broadly cover
commercial, financial, technical and operational,
legal and regulatory, and ESG areas

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 Investment Team also prepares an appraisal
report recommending either an approval or
rejection of the investment. The report is
prepared while/concurrently with ESG, Risk
and Legal are preparing thie reports.

The appraisal report is reviewed and signed off

by the Executive Head: Listed Investments
before it is submitted to the Portfolio
Management Committee (PMC2)

The appraisal report will be accompanied by

independent reports from ESG and Risk and
Legal (signed off by their Executive Heads) and
incorporate the due diligence findings and the
controls to be implemented to mitigate any
risk identified during the due diligence.

PMC2 will consider the four reports and

deliberate on the matter. PMC will either
approve or decline it or refer it back to be
reworked

If the proposed transaction does not fall within

PMC2's Delegation of Authority, it will be
approved for onward transmission to a higher
Committee (either the Investment Committee
or the Board)

If the transaction is approved, the Company

Secretariat will prepare a resolution to be
signed off by the Chairperson, who will be the
CEO or another designated person. The
contracting phase will then begin. This phase
varies depending on the nature of the
investment.

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103. There are differences in the processes followed for Book Builds and Rights
Issues due to the real time nature of listed market events. Because of the type
of transactions that will be discussed below, which do not include Book Builds
or Rights Issues, nothing more will be said about these two types of
investments.

Unlisted Investments

104. The process of transactions under the unlisted investments division:

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 The PIC receives funding applications by various means which could
include the following: Unsolicated applications from clients or their
advisors; Deal origiation by PIC investment prfessionals; Referrals by
other funding institutions; From strategic partners; Delisting from PIC
listed investment portfolio.

Upon receiving an application, a letter of acknowledgment will be prepared and sent to

the potential client. An initial desktop review of the application will be conducted by the
investment team to ascertain whether it complies with PIC investment mandate
requirements, particularly in relation to meeting financial return requirements and the
level of developmental impact and nature of the project.

If the application, based on desktop evaluation, meets the mandate

requirements, the investment team will prepare a deal screening report for
submission to the Executive Head for review and approval for onward
submission to the Deal Screening Task Team ("DSTT"), a structure within
the Asset Allocation Committee

The investment team will make a presentation to DSTT requesting approval to submit the scoping
report to the Portfolio Management Committee: Unlisted Investments ("PMC-Ul"). The purpose of this
Scoping Report is to obtain approval to proceed to due diligence and, where necessary, incur costs in
appointing consutlants to assist in certain parts due diligence.

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 In preparing the scoping report, inputs will be obtained
from the Portfolio Management and Valuation,
Environmental, Social and Governance, Legal and Risk
divisions. The scoping report, once complete and signed by
the Executive Head will be submitted to PMC. The scoping
report will be to request the PMC for approval to go to due
diligence.

Having considered the submissions, PMC-UI will either

approve, decline or refer the submission back to the
investment team for further work to be done

Upon receiving approval from PMC:UI, the investment team

will request from the various EH's from Risk, Legal and ESG
divisions for resources to asist on the due diligence on the
proposed transaction. The investment team will prepare the
engagement letter and indicative term sheet which is
reviewed by Legal before forwarding it to the potential
client for review and sign-off in line with the DOA.

The due diligence can be conducted using internal or external

resources depending on a number of factors including but not
limited to complexity of the transaciton and availability of
internal capacity. Appointment of external resources will be
done in line with the unlisted procurement policy.

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 Once the due diligence is completed, the investment team will
prepare an Appraisal Report for submission to PMC-UI. The
appraisal document will be reviewed and signed off by the EH of
the relevant division prior to submission to PMC-UI. The appraisal
report will be accompanied by independent reports from ESG, Risk,
and Legal divisions and these reports will incorporate the due
diligence findings and the controls to be implemented to mitigate
any risks identified during the respecetive due diligence
investigations.

PMC-UI will consider the submissions and either approva or

decline same or refer the submission back to the investment team
for rework. if the submission is declined by the PMC:UI, the
investment team will prepare a decline letter to be signed in line
with the DOA. If it does not fall withint the PMC:UI DOA, the
transcaction will be referred for onward submission to a different
committee for consideration. The relevant committee would
typically be the Board, IC or its sub-commitees.

If the proposed transaction falls within PMC:UI DOA, the PMC:UI

will approve the transaction and the investment team will
accordingly prepare an approval letter which will be signed in
line with the DOA. This letter will be submitted to the potential
client. The Company Secretary will prepare a resolution which is
signed by the approving committee chairperson. If referred back
for rework, the investment team will rework and resubmit to
PMC:UI.

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DEVELOPMENTS AT THE PIC SINCE THE JAMES
NOGU/NOKO/LEIHLOLA EMAILS

105. The James Nogu/Noko and Leihlola emails led to an atmosphere that was not
conducive to good, healthy and effective working relations between members
of the Board and between the Board and certain senior executives, particularly
the CEO and CFO. (For convenience we shall refer to the emails collectively
as the ‘James Nogu emails’.)118 Six witnesses testified before the Commission
in this regard, namely Dr Manning, Ms Hlatshwayo, Mr Gungubele, Ms
Beswick, Ms Zulu (all non-executive directors) and Dr Matjila. Although the
names of the non-executive directors have been mentioned in the sequence
in which they testified, we will not necessarily refer to their evidence in the
same sequence.

106. Ms Hlatshwayo was appointed as non-executive director of the PIC Board on

1 December 2013. She is a member of the Institute of Business Advisors of
Southern Africa and has held, among others, positions of General Manager at
the Absa Retail Bank and Group Executive at Transnet (SOC) Ltd. She
presented evidence on the period before the James Nogu anonymous emails
of August 2017 and the period thereafter. She depicted the PIC as stable,
peaceful and productive, where Board members could debate, argue and
disagree with each other professionally. There had never been any
resignations from the Board before terms had ended. In essence, the Board
was uni-directional and focused on carrying out its fiduciary duties, meetings
were scheduled and not cancelled at short notice, and Board packs properly
prepared.

107. After the emergence of the emails, the PIC environment became fearful,
stressful, suspicious, disgruntled and very unproductive. Low staff morale and

118
The dates of the emails are: 31 August 2017, 5 September 2017, 13 September 2017, 28 January 2019 and 30
January 2019.

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 lower levels of productivity could be felt throughout the organisation. Board
meetings were fractious and focused on the allegations and how to deal with
the emails.

108. The situation deteriorated significantly with Minister Gigaba and Deputy
Minister Buthelezi becoming shareholder representative and chairman of the
PIC respectively, after their appointment on 30 March 2017. With regard to an
urgent Board meeting held on 26 September 2017, at the instance of Minister
Gigaba, Ms Hlatshwayo testified that the meeting was tense, aggressive and
unpleasant, with the Minister demanding answers from the Board on ‘why the
media had dragged his name into the PIC issues and wanted to know what
the PIC Board was going to do to cleanse his name’119 He allowed only certain
Board members to speak, but later relented and allowed others to express
their views. Once all had spoken, including Dr Matjila, Minister Gigaba’s tone
changed and he became reconciliatory and indicated his support and
confidence in the Board and Dr Matjila. After the Minister had issued a media
statement on 9 October 2017, the Board sought an engagement with him, but
no meetings materialised.

109. Minister Gigaba and Deputy Minister Buthelezi were replaced by Minister
Nhlanhla Nene as Minister of Finance, with Mr Gungubele his deputy. On 14
May 2018, Minister Nene requested the Board to report on the James Nogu
email allegations against the CEO and CFO. He proposed a meeting with the
Board that did not materialise. However, as chairman, Deputy Minister
Gungubele convened an urgent Board meeting on 18 May 2018, which was
confrontational and accusatory, in tone and content. He accused the Board of
not having followed due process, and having exonerated the CEO based on
incomplete evidence. Ms Hlatshwayo’s observation was that Deputy Minister
Gungubele, as Chairman of the Board, did not have an enquiring approach

119
Para 14.2.1.2 of Ms Hlatshwayo’s statement signed on 26 February 2019.

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 and already had strong views on the events that had occurred. The meeting
did not reach any conclusion on the way forward. Board members found the
engagement belittling and felt ambushed and attacked by his allegations.
Board members also found Deputy Minister Gungubele’s approach to the
UDM application120, brought in the Pretoria High Court, unacceptable. He had
participated in a meeting at which the Board resolved, with his support, to
oppose the UDM application, yet, contrary to that resolution, he deposed to
an affidavit, in his personal capacity, in which he made it known that he was
not opposing the application. There had been no consultation with the Board
regarding this approach and members wanted to resign due to this untenable
situation. Both Dr Manning and Ms Fubu tendered their resignation, reflecting
the increasing divisions in the Board. On the other hand Minister Nene filed
an affidavit opposing the application.

110. An extraordinary general meeting was convened by Minister Nene on 25 July

2018, where the Board was instructed to conduct a forensic investigation on
the Nogu/MST allegations and to develop a plan of action by 17 August 2018.
Subsequently, after some consultation with counsel, the Board appointed
Advocate Geoff Budlender SC (Adv Budlender SC) to conduct the
investigation.

111. The evidence of Ms Hlatshwayo on these developments, including the disunity

within the Board is, to a large extent supported by that of Dr Matjila, among
others. His evidence is to the effect that after the Board had investigated the
allegations made in the James Nogu emails concerning him, the Board
cleared him at its meeting held on 29 September 2017, with one non-executive
director dissenting. Despite Dr Matjila’s name having been cleared, negative
media reports about the PIC continued, hence Minister Nene’s instruction to
the Board that an independent forensic investigation be conducted into the

120
United Democratic Movement v Dr Dan Matjila and others, case no: 41772/18.

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 James Nogu allegations. In his report121, Advocate Budlender SC found that
there was no evidence of a romantic relationship between Dr Matjila and Ms
Pretty Louw (Ms P Louw) and that no impropriety could be found in the MST
transaction.

112. Dr Matjila was aggrieved by the action of the chairman of the Board, Deputy
Minister Gungubele, of failing to oppose the UDM application to have him
suspended for the very allegations of which he had been cleared. Dr Matjila
met the chairman at his office in Cape Town at the former’s instance and
advised him that he had decided to exit the PIC in due course, but only once
the Budlender Report had been released. Apparently, the chairman had not,
as yet, shared the report with the other non-executive directors.

113. The Board then put together a task team consisting of Dr Mkhwanazi, Ms Toyi
and Dr Goba to negotiate the CEO’s exit. When Dr Matjila subsequently met
the task team, Dr Mkhwanazi was not in attendance, apparently because he
wanted the CEO to first present a letter of resignation. Dr Matjila reluctantly
delivered a letter on 7 November 2018 in which he made certain exit proposals
to the Board.

114. On 23 November 2018, Dr Matjila was called to a Board meeting at 18:00. His
letter was tabled at this meeting for the first time, although already in public
circulation. At this meeting, the chairman informed him that the Board had
accepted his resignation with immediate effect. His protestations that he had
not resigned but had merely given an exit proposal containing, amongst
others, an intention to give notice to resign in keeping with his contract, fell on
deaf ears. The chairman’s response was that his employment contract had
been terminated.

121
The Budlender Report, Appendix Three to the report.

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115. According to Ms Hlatshwayo, it appeared to her that there were members of
the Board who went to the meeting already knowing what was going to
happen. It was at that meeting where the CFO, Ms Matshepo More (Ms More),
was appointed as acting CEO, ‘with [the chairman] using his casting vote . . .
to secure this as the Board was split down the middle’. A little over two months
thereafter, at a Board meeting on 1 February 2019, the Chairman, having
taken a call from the current Minister of Finance, Minister Mboweni, informed
the rest of the members of the Board that the Minister wanted the whole Board
to resign immediately, failing which they would be dismissed by Monday, 4
February 2019. Ms Hlatshwayo said the mood became one of indignation and
the Board members decided to resign en masse. A letter to that effect was
dispatched to Minister Mboweni. However, they continued with their function
until the interim Board was appointed as mentioned above.

116. Dr Manning, who was appointed to the Board on 1 December 2015 and served
on the IC, the DAC, the ICTGC and the SEC, confirmed that the period
between September and December 2017 ‘can best be described as a
tumultuous one, characterised by fierce divisions in the Board creating a tense
and polarised environment’.122 Both Board and management, she said, were
devoting considerable time to managing the crisis, rather than the core
business of the PIC. The Board remained divided on the need for an
independent investigation, particularly given the urgent application launched
by the UDM in June 2018, seeking an order directing the Minister to suspend
the CEO and to conduct an independent inquiry into the MST transaction and
the allegations of a corrupt relationship between the CEO and a woman
alleged to be his girlfriend.

117. Deputy Minister Gungubele was appointed as Chairman of the Board of the
PIC in May 2018. He confirmed that the Board ‘found itself divided on issues

122
At page 18 of the Transcript for day 5 of the hearings held on 29 January 2019.

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 relating to the former CEO, Dr Matjila’123 and that when the Board members
disagreed ‘there would [be] so much tension’124. He also confirmed taking a
stance in the UDM application that was contrary to that of the Board, which he
had earlier supported. He did this to indicate that the Board ‘was not fulfilling
its fiduciary duties’.

118. Ms Beswick was appointed as non-executive director of the PIC in 2015 and
served on several Board committees. Her evidence corroborates the versions
of Ms Hlatshwayo and Dr Manning in all material respects. She added,
however, that when Minister Gigaba suspended the Board and committee
meetings, crisis management became the order of the day with innumerable
special meetings called to deal mainly with media statements and anonymous
emails. Highly confidential documents, including Board papers, transaction
reports and correspondence were leaked to the media and other external
parties. Board meetings became highly contentious resulting in strong
divisions and mistrust between Board members. Ms Beswick’s view was that
Deputy Minister Gungubele’s action of not opposing the UDM application
amounted to ‘undermining his own Board in public which further fuelled the
divisions among Board members, leading to the resignation of Dr Manning
and Ms Tantaswa Fubu’, which weakened the Board.

119. Ms Zulu became a member of the Board of the PIC in October 2015 and
served as such until the Board was replaced with the Interim Board on 12 July
2019. She served on various Board committees, including the IC. Ms Zulu did
not dispute the allegations about a divided Board, but stated that the division
was caused by two issues: firstly, the Board’s handling of the allegations
against Dr Matjila and exonerating him without allowing for an independent
process of investigation. The second issue was whether disciplinary actions
taken against certain employees based on the James Nogu emails were

123
Para 4 of Deputy Minister Mondli Gungubele’s statement signed on 25 February 2019.
124
Ibid.

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 reasonable, justified, fair and independent. Ms Zulu maintained, though, that
the differing views and positions taken on matters were ‘a clear illustration of
independence and activeness of directors … [acting] without any fear or
favour’.125

120. With regard to Ms Beswick’s evidence that she wrote letters of suspension in
respect of Messrs Madavo and Seanie, Ms Zulu, disputing the allegations,
said it is in her nature to make her own notes on deliberations at Board
meetings, which she will read out when it is her turn to take the floor to make
a contribution. At the special Board meeting convened on 21 January 2019,
which ran from 4pm to 2am, Ms Zulu said the company secretary took her
notes and typed the letters of suspension. Ms Zulu also denied the allegation
that when the Board was dealing with the CEO’s letter, expressing his
intention to resign, she appeared to have been fully prepared and to have read
documents of which no other member had had sight. She asserted that she
only expressed her views that the letter contained a resignation, with the only
issue being the date on which it would come into effect.

121. The James Nogu emails and media reports about the PIC not only affected
the Board but also senior employees of the PIC. On 5 December 2017, Ms
Vuyokazi Menye (Ms Menye), who was the Executive Head: Information
Technology, and Mr Simphiwe Mayisela (Mr Mayisela), who was the Senior
Manager: Information Security were charged with ‘accessing unauthorised
documentation during an investigation commissioned to unearth the
penetration of the PICs mailing list’ and intercepting emails of Executive
Directors without obtaining the necessary approval. They were also alleged,
inter alia, to have withheld information in a case opened against the CEO
under the pretext that it was erroneously done and for obtaining draft Board
minutes without prior approval, for the sole purpose of advancing their case,

125
At page 18 of the Transcript for day 62 of the hearings held on 13 August 2019.

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 while purporting to be assisting the investigation regarding the identity of
James Nogu. Ms Menye left the PIC, having reluctantly accepted a settlement
figure of approximately R7.5 million on 11 April 2018. This is dealt with in detail
in Chapter III: ToR 1.13.

122. Mr Mayisela was dismissed following a full disciplinary process. Both cases
will be dealt with more fully below during discussions on allegations of
victimisation (ToR 1.12) and mutual separation agreements under ToR 1.13.

123. Ms Bongani Mathebula (Ms Mathebula), the Company Secretary, who was
placed on suspension on 11 April 2018, was charged with, inter alia, breaching
her duty of good faith and confidentiality as an employee in her position as
Company Secretary, in that she caused the distribution and/or copying of
confidential PIC information. The chairman of the disciplinary committee
found her guilty and recommended that she be dismissed with immediate
effect. However, having been recommended for dismissal, Ms Mathebula
returned to occupy her position of Company Secretary on 27 March 2019 after
the Board resolved to not implement the recommended sanction of dismissal.

124. Ms More, and Mr Fidelis Madavo (Mr Madavo): Executive Head: Listed
Investments are currently under suspension and face disciplinary charges
relating to their conduct in handling a particular transaction, namely AYO,
which will be discussed in ToR 1.1 below. Mr Victor Seanie (Mr Seanie), the
Assistant Portfolio Manager: Non-Consumer Industrials, faced disciplinary
charges over the same transaction. His disciplinary hearing was concluded,
finding him guilty and he was dismissed on 22 October 2019 with one month’s
pay in lieu of notice.

125. A further indication of how the turmoil affected the PIC is the fact that of the
12-person executive, plus Cosec, at least eight have faced
dismissal/disciplinary charges or resigned.

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Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 247 of 794
CHAPTER II – LEGISLATIVE AND REGULATORY FRAMEWORK

THE FINANCIAL ADVISORY AND INTERMEDIARY SERVICES ACT

37 of 2002 (FAIS Act)

1. Section 6A(1) states as follows:

‘The registrar, for purposes of this Act, by notice in the Gazette –

(a) must-

(i) classify financial services providers into different categories;

(ii) determine fit and proper requirements for each category of providers;
and

(iii) in each category of providers determine fit and proper requirements

for –

(aa) key individuals or providers;

(bb) representatives of providers;

(cc) key individuals of representatives of providers; and

(dd) compliance officers; and

(aA) may classify representatives into different categories; and

(b) may determine fit and proper requirements for providers, key individuals,
representatives, key individuals of representatives and compliance officers
in general.’

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2. Section 7(1) states that:

‘With effect from a date determined by the Minister by notice in the Gazette, a
person may not act or offer to act as a-

(a) financial services provider, unless such person has been issued with a
licence under section 8; or

(b) a representative, unless such person has been appointed as a

representative of an authorised financial services provider under section 13.’

3. Section 8 of the FAIS Act details the process of application for authorisation
as a FSP:

‘Application for authorisation

(1) An application for an authorisation referred to in section 7(1), including an
application by an applicant not domiciled in the Republic, must be submitted to
the Authority in the form and manner determined by the Authority by notice on
the Authority’s web site, and be accompanied by information to satisfy the
Authority that the applicant complies with the fit and proper requirements.
(1A) If the applicant is a partnership, trust or corporate or unincorporated body,
the application must be accompanied by additional information to satisfy the
Authority that every person who acts as a key individual of the applicant
complies with the fit and proper requirements for key individuals in the category
of financial services providers applied for to the extent required in order for such
key individual to fulfill the responsibilities imposed by this Act.
(2) The registrar may -
(a) require an applicant to furnish such additional information, or
require such information to be verified, as the registrar may deem
necessary; and
(b) take into consideration any other information regarding the
applicant or proposed key individual of the applicant, derived from

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 whatever source, including the Ombud and any other regulatory or
supervisory authority, if such information is disclosed to the applicant
and the latter is given a reasonable opportunity to respond thereto.
(3) The registrar must after consideration of an application -
(a) grant the application if the registrar-
(i) is satisfied that the applicant and its key individual or key
individuals comply with the requirements of this Act; and
(ii) approves the key individual or key individuals of the
applicant, in the case of a partnership, trust or corporate or
unincorporated body; or
(b) refuse the application if the registrar-
(i) is not satisfied that the applicant and its key individual or key
individuals comply with the requirements of this Act; or
(ii) does not approve the key individual or key individuals of
the applicant in the case of a partnership, trust or corporate or
unincorporated body.

(4)
(a) Where an application is granted, the registrar may impose such
conditions and restrictions on the exercise of the authority granted by
the licence, and to be included in the licence, as are necessary,
having regard to -
(i) all facts and information available to the registrar pertaining
to the applicant and any key individual of the applicant;
(ii) the category of financial services which the applicant could
appropriately render or wishes to render;
(iii) the category of financial services providers in which the
applicant is classified for the purposes of this Act; and
(iv) the category or subcategory of financial products in respect
of which the applicant could appropriately render or wishes to
render financial services.

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 (b) Conditions and restrictions contemplated in paragraph (a), may
include a condition that where after the date of granting of the licence
-
(i) any key individual in respect of the licensee’s business is
replaced by a new key individual; or
(ii) any new key individual is appointed or assumes office; or
(iii) any change occurs in the personal circumstances of a key
individual which renders or may render such person to be no
longer compliant with the fit and proper requirements for key
individuals, no such person may be permitted to take part in
the conduct, management or oversight of the licensee's
business in relation to the rendering of financial services,
unless such person has on application been approved by the
registrar as compliant with the fit and proper requirements for
key individuals, in the manner and in accordance with a
procedure determined by the registrar by notice on the official
web site.
(5)
(a) Where an application for authorisation is granted, the registrar
must issue to the applicant-
(i) a licence authorising the applicant to act as a financial
services provider, in the form determined by the registrar by
notice in the Gazette; and
(ii) such number of certified copies of the licence as may be
requested by the applicant.
(b) The registrar may at any time after the issue of a licence -
(i) on application by the licensee or on own initiative withdraw
or amend any condition or restriction in respect of the licence,
after having given the licensee a reasonable opportunity to
make submissions on the proposed withdrawal or amendment
and having considered those submissions, if the registrar is

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Investment Corporation Page 251 of 794
 satisfied that any such withdrawal or amendment is justified
and will not prejudice the interests of clients of the licensee; or
(ii) pursuant to an evaluation of a new key individual, or a
change in the personal circumstances of a key individual,
referred to in subsection (4)(b), impose new conditions on the
licensee after having given the licensee a reasonable
opportunity to be heard and having furnished the licensee with
reasons, and must in every such case issue an appropriately
amended licence to the licensee, and such number of certified
copies of the amended licence as may be requested by the
licensee.
(6) Where an application referred to in subsection (1) is refused, the registrar
must-
(a) notify the applicant thereof; and
(b) furnish reasons for the refusal.
(7)
(a) Despite any other provision of this section, a person granted
accreditation under section 65(3) of the Medical Schemes Act, 1998
(Act No. 131 of 1998), must, subject to this subsection, be granted
authority to render as a financial services provider the specific
financial service for which the person was accredited, and must be
issued with a licence in terms of subsection (5).
(b) The registrar must be satisfied that a person to be granted
authority under paragraph (a), and any key individual of such person,
comply with the fit and proper requirements.

(c) A person granted authority and licensed as contemplated in

paragraph (a), together with any key individual, are thereafter subject
to the provisions of this Act.
(d) If a licence -
(i) is refused in terms of this section;

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 (ii) is suspended in terms of section 9;
(iii) is withdrawn in terms of section 10; or
(iv) lapses in terms of section 11, the accreditation referred to
in paragraph (a) is deemed to have lapsed in terms of the
Medical Schemes Act, 1998, or to have been suspended or
withdrawn, as the case may be.

(e) If an accreditation referred to in paragraph (a) is suspended or

withdrawn or lapses in terms of the Medical Schemes Act, 1998, the
licence issued in terms of that paragraph is deemed to have been
suspended or withdrawn or to have lapsed in terms of sections 9, 10
and 11, respectively, of this Act.

(8) A licensee must -

(a) display a certified copy of the licence in a prominent and durable
manner within every business premises of the licensee;
(b) ensure that a reference to the fact that such a licence is held is
contained in all business documentation, advertisements and other
promotional material; and

(c) ensure that the licence is at all times immediately or within a

reasonable time available for production to any person requesting
proof of licensed status under authority of a law or for the purpose of
entering into a business relationship with the licensee.

(9) No person may-

(a) in any manner make use of any licence or copy thereof for
business purposes where the licence has lapsed, has been withdrawn
or provisionally withdrawn or during any time when the licensee is
under provisional or final suspension;

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 (b) perform any act which indicates that the person renders or is
authorised to render financial services or is appointed as a
representative to render financial services, unless the person is so
authorised or appointed; and

(c) perform any act, make or publish any statement, advertisement,

brochure or similar communication which-

(i) relates to the rendering of a financial service, the business

of a provider or a financial product; and

(ii) the person knows, or ought reasonably to know, is

misleading, false, deceptive, contrary to the public interest or
contains an incorrect statement of fact.

(10)
(a) Where a provider is a corporate or unincorporated body, a trust or
a partnership, the provider must-
(i) at all times be satisfied that every director, member, trustee
or partner of the provider, who is not a key individual in the
provider's business, complies with the requirements in respect
of personal character qualities of honesty and integrity as
contemplated in paragraph (a) of subsection (1A); and

(ii) within 15 days of the appointment of a new director,

member, trustee or partner, inform the registrar of the
appointment and furnish the registrar with such information on
the matter as the registrar may reasonably require.

(b) If the registrar is satisfied that a director, member, trustee or

partner does not comply with the requirements as contemplated in

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 paragraph (a) of subsection (1A), the registrar may suspend or
withdraw the licence of the provider as contemplated in section 9.

4. Section 8A of the FAIS Act governs compliance with the fit and proper
requirement after authorisation and states as follows:

‘An authorised financial services provider, key individual, representative of

the provider and key individual of the representative must-

(a) continue to comply with the fit and proper requirements; and

(b) comply with the fit and proper requirements relating to continuous
professional development’

5. Section 9 of the FAIS Act governs the suspension and withdrawal of

authorisation. Section 9(2) states that:

‘(a) Before suspending or withdrawing any licence, the registrar-

(i) may consult any regulatory authority; and

(ii) must inform the licensee of the intention to suspend or withdraw and the
grounds therefor and must give the licensee a reasonable opportunity to
make a submission in response thereto.

(b) Where the registrar contemplates the suspension or withdrawal of any

licence, the registrar must also inform the licensee of-

(i) the intended period of the suspension; and

(ii) any terms to be attached to the suspension or withdrawal, including-

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 (aa) a prohibition on concluding any new business by the licensee as from
the effective date of the suspension or withdrawal and, in relation to
unconcluded business, such measures as the registrar may determine for
the protection of the interests of clients of the licensee; and

(bb) terms designed to facilitate the lifting of the suspension.

(c) The registrar must consider any response received, and may thereafter
decide to suspend or withdraw, or not to suspend or withdraw, the licence,
and must notify the licensee of the decision.

(d) Where the licence is suspended or withdrawn, the registrar must make
known the reasons for the suspension or withdrawal and any terms attached
thereto by notice on the official web site and may make known such
information by means of any other appropriate public media.’

6. Section 14 of the FAIS Act governs the debarment of representatives if he or

she no longer meets the fit and proper requirements or has failed to comply with
any provision of the FAIS Act. It states as follows:

‘(1)

(a) An authorised financial services provider must debar a person from

rendering financial services who is or was, as the case may be-

(i) a representative of the financial services provider; or

(ii) a key individual of such representative,

if the financial services provider is satisfied on the basis of available facts

and information that the person-

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 (iii) does not meet, or no longer complies with, the requirements referred to
in section 13(2)(a); or

(iv) has contravened or failed to comply with any provision of this Act in a
material manner;

(b) The reasons for a debarment in terms of paragraph (a) must have occurred
and become known to the financial services provider while the person was a
representative of the provider.

(2)
(a) Before effecting a debarment in terms of subsection (1), the provider must
ensure that the debarment process is lawful, reasonable and procedurally
fair.
(b) If a provider is unable to locate a person in order to deliver a document
or information under subsection (3), after taking all reasonable steps to do
so, including dissemination through electronic means where possible,
delivering the document or information to the person’s last known e-mail or
physical business or residential address will be sufficient.
(3) A financial services provider must-
(a) before debarring a person-
(i) give adequate notice in writing to the person stating its intention to
debar the person, the grounds and reasons for the debarment, and
any terms attached to the debarment, including, in relation to
unconcluded business, any measures stipulated for the protection of
the interests of clients;
(ii) provide the person with a copy of the financial services provider’s
written policy and procedure governing the debarment process; and
(iii) give the person a reasonable opportunity to make a submission in
response;

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 (b) consider any response provided in terms of paragraph (a)(iii), and then
take a decision in terms of subsection (1); and
(c) immediately notify the person in writing of-
(i) the financial services provider’s decision;
(ii) the persons’ rights in terms of Chapter 15 of the Financial Sector
Regulation Act; and
(iii) any formal requirements in respect of proceedings for the
reconsideration of the decision by the Tribunal.
(4) Where the debarment has been effected as contemplated in subsection (1),
the financial services provider must-
(a) immediately withdraw any authority which may still exist for the person to
act on behalf of the financial services provider;
(b) where applicable, remove the name of the debarred person from the
register referred to in section 13(3);
(c) immediately take steps to ensure that the debarment does not prejudice
the interest of clients of the debarred person, and that any unconcluded
business of the debarred person is properly attended to;
(d) in the form and manner determined by the Authority, notify the Authority
within five days of the debarment; and
(e) provide the Authority with the grounds and reasons for the debarment in
the format that the Authority may require within 15 days of the debarment.
(5) A debarment in terms of subsection (1) that is undertaken in respect of a
person who no longer is a representative of the financial services provider must
be commenced not longer than six months from the date that the person ceased
to be a representative of the financial services provider.
(6) For the purposes of debarring a person as contemplated in subsection (1),
the financial services provider must have regard to information regarding the
conduct of the person that is furnished by the Authority, the Ombud or any other
interested person.
(7) The Authority may, for the purposes of record keeping, require any
information, including the information referred to in subsection (4)(d) and (e), to

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 enable the Authority to maintain and continuously update a central register of
all persons debarred in terms of subsection (1), and that register must be
published on the web site of the Authority, or by means of any other appropriate
public media.
(8) A debarment effected in terms of this section must be dealt with by the
Authority as contemplated by this section.
(9) A person debarred in terms of subsection (1) may not render financial
services or act as a representative or key individual of a representative of any
financial services provider, unless the person has complied with the
requirements referred to in section 13(1)(b)(ii) for the reappointment of a
debarred person as a representative or key individual of a representative.’
7. Section 17 of the FAIS Act governs compliance officers and compliance
arrangements. Section 17(1) and (3) state as follows:

‘(1)
(a) Any authorised financial services provider with more than one key
individual or one or more representatives must, subject to section 35(1) (c)
and subsections (1) (b) and (2)(a)(i), appoint one or more compliance officers
to oversee the provider's compliance function and to monitor compliance with
this Act by the provider and such representative or representatives,
particularly in accordance with the procedures contemplated in subsection
(3), and to take responsibility for liaison with the registrar.
(b) Such person must comply with the fit and proper requirements.

(bA) The provisions of section 8A apply with the necessary changes to a

compliance officer.

(c) The provisions of section 19(4), (5) and (6), relating to an auditor of an
authorised financial services provider, apply with the necessary changes to
a compliance officer.’

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8. Section 19 of the FAIS Act imposes accounting and audit requirements.
Subsections (1) and (2) state as follows:

‘(1) Except to the extent exempted by the registrar, an authorised financial

services provider must, in respect of the business carried on by the provider
as authorised under the provider’s licence –

(a) maintain full and proper accounting records on a continual basis,

brought up to date monthly; and

(b) annually prepare, in respect of the relevant financial year of the

provider, financial statements reflecting –

(i) the financial position of the entity at its financial year end;

(ii) the results of operations, the receipt and payment of cash

and cash equivalent balances;

(iii) all changes in equity for the period then ended, and any
additional components required in terms of South African
Generally Accepted Accounting Practices issued by the
Accounting Practices Board or International Financial
Reporting Standards issued by the International Accounting
Standards Board or a successor body; and

(iv) a summary of significant accounting policies and

explanatory notes on the matters referred to in paragraphs (i)
to (iii)

(2)
(a) An authorised financial services provider must cause the
statements referred to in subsection (1)(b) to be audited and reported

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 on in accordance with auditing pronouncements as defined in section
1 of the Auditing Professions Act, 2005 (Act No. 26 of 2005) by an
external auditor approved by the registrar.
(b) The financial statements must-

(i) fairly represent the state of affairs of the provider’s business;

(ii) refer to any material matter which has affected or is likely to

affect the financial affairs of the provider; and

(iii) be submitted by the authorised financial services provider

to the registrar not later than four months after the end of the
provider’s financial year or such longer period as may be
allowed by the registrar.’

9. Section 44(1) and (2) of the FAIS Act state as follows:

‘(1) The registrar may on or after the commencement of this Act, but prior to the
date determined by the Minister in terms of section 7(1), exempt any person or
category of persons from the provisions of that section if the registrar is satisfied
that –

(a) the rendering of any financial service by the applicant is already partially
or wholly regulated by any other law; or

(b) the application of the said section to the applicant will cause the applicant
or clients of the applicant financial or other hardship or prejudice; and

(c) the granting of the exemption will not –

(i) conflict with the public interest;

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 (ii) prejudice the interests of clients; and

(iii) frustrate the achievement of the objects of this Act.

(2) The registrar –

(a) having regard to the factors mentioned in subsection (1), may attach to
any exemption so granted reasonable requirements or impose reasonable
conditions with which the applicant must comply either before or after the
effective date of the exemption in the manner and during the period specified
by the registrar; and

(b) must determine the period for which the exemption will be valid.’

FAIS Act: Codes of Conduct for Administrative and Discretionary

FSPs, BN 79 of 8 August 2003

10. Paragraph 5 of the Code of Conduct states as follows:

‘5. Dealing with clients—

‘(1) An administrative FSP must obtain a signed mandate from a client, before
rendering any intermediary service to that client: Provided that the parties may
agree to complete an electronic mandate in respect of which appropriate
controls and personal identification procedures have been put in place that
ensures security of information.

(2) The mandate must comply with the following minimum requirements:

(a) State whether the client will deal with the administrative FSP
through another person or in a personal capacity;

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 (b) if the client will deal with the administrative FSP through another
person —

(i) state the name of the person;

(ii) state whether that person is an authorised FSP;

(iii) state whether that FSP is appointed with full or limited discretion
and where the discretion is limited, indicate those limits;

(iv) authorise the administrative FSP to accept from that FSP

instructions given on behalf of the client;

(c) record the names, telephone and fax numbers, and postal and e-
mail addresses of the client and the other FSP;

(d) indicate that the financial products will be registered in the name of
the independent nominee of the administrative FSP;

(e) provide in bold font an indication of the time period involved with
regard to the following administrative processes:

(i) The cut-off times within which an instruction must be received by

the administrative FSP to enable it to render an intermediary service
on that particular day;

(ii) once an instruction has been received, the maximum number of

working days it will take to render that intermediary service and an
indication of the day that will determine the price that the client
eventually receives;

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 (iii) maximum number of working days that it will take to process a
switch or withdrawal instruction and an indication of the day that will
determine the price that the client eventually receives;

(f) stipulate separately in respect of the administrative FSP and the other
FSP (if any), the total fees and benefits to be received by each in
respect of a client’s financial products, whether by way of a deduction
from the financial product or not, including—

(i) the initial fees or costs;

(ii) ongoing fees or costs;

(iii) any other benefit, fees or costs, whether in cash or kind;

(iv) costs (if any) to have the financial products registered in the name
of the client or in the name of the nominee company of another
administrative FSP at the request of the client or at termination;

(v) any fees or costs that will be levied on additional investment in or

purchase of the same financial product; and

(g) the signatures of the client, as well as the other FSP, where applicable.

(3) Further to paragraph 5.2 above, an administrative FSP may, subject to the
approval of the registrar, provide the said information either in the mandate or
in a combination of the mandate and the administrative FSP’s written terms or
guides of business.

(4) The registrar must initially approve a specimen of the mandate and where
relevant, the administrative FSP’s terms of business, and may grant approval
subject to the conditions that the registrar may determine. The registrar may

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Investment Corporation Page 264 of 794
 subsequent to approval require that any other information that is deemed
necessary, be disclosed in the interest of the client. An administrative FSP
may not substantially amend the documents approved by the registrar, without
the prior written approval of the registrar.

(5) The administrative FSP must ensure that it has, in relation to the financial
products offered by it, appropriate forms available to enable the client or the
other FSP to conduct business with it. These forms include application,
instruction, transfer, switch, withdrawal or additional investment forms.

(6) An administrative FSP must—

(a) within 14 days of receipt of a notice from a product supplier of an

increase in costs, notify the client or the other FSP (if any) in writing of
such increase, who in turn must inform the client in writing within 14
days;

(b) if it wishes to increase costs unrelated to the costs referred to above,

give the client or such other FSP three months prior written notice
thereof, who in turn must notify the clients of the other FSP in writing
within 14 days, provided that the cost of the increase may not become
effective during the notice period.

(7) If a client notifies an administrative FSP in writing that the client has
terminated the client’s relationship with a particular FSP and wishes to
continue with the relationship with an administrative FSP through another
FSP, such notification must be sent by the administrative FSP to the
terminating FSP.

(8) An administrative FSP may accept telephonic or electronic instructions

without written confirmation, provided that appropriate controls and personal
identification procedures have been put in place to ensure security of

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Investment Corporation Page 265 of 794
 information and transactions, and that records of such telephonic or electronic
instructions must be made and stored for a period of five years from the date
when the instruction was received.

(9) Where another FSP intends to provide, through an administrative FSP, a

client with its own personalised range of financial products, such other FSP
and the administrative FSP must first enter into a written agreement which
must provide for termination of the agreement by either party on written notice
of not less than 30 days.

(10) An administrative FSP must enter into an appropriate written agreement

with each product supplier from or to whom it buys or sells financial products
on behalf of clients, which agreement records their particular arrangements
and makes provision for termination of the agreement by either party on
written notice of not less than 30 days.

(11) In relation to new investments placed with an administrative FSP, no

interest shall be payable to a client until the expiry of the first completed day
after receipt of the funds. After the expiry of the first completed day, interest
earned shall be payable to the client.

(12) No interest shall be payable to clients in relation to funds held in bulk

during the execution of a switching instruction, provided that the administrative
FSP adheres to the time standards which are stipulated as part of the service
levels to clients. In the event of non-adherence, the client shall be entitled to
interest for the period in excess of the stipulated time period.

(13) If an administrative FSP has made a mistake in executing an instruction

or allocating client funds in such a manner that a client is entitled, in law, to be
placed in the position that the client would have been in had the administrative
FSP not made the mistake, the client shall only be entitled to compensation to

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Investment Corporation Page 266 of 794
 the extent that the client is placed in said position. The administrative FSP
shall not be required to pay interest to the client in addition to restoration.

(14) Where an administrative FSP effects payment of an investment to a

client, whether in whole or in part, no interest shall be payable to that client on
funds that are paid within the first complete day after the receipt of the funds
from the liquidation of the underlying investment by the administrative FSP:
Provided that should the administrative FSP issue a cheque for the amount
received within the abovementioned time period, the issuing of the cheque
shall be deemed to be payment and no interest liability shall accrue to the
administrative FSP in respect of the time period between the issuing of the
cheque and the actual payment of the cheque by the drawee bank.’

THE COMPANIES ACT 71 of 2008

11. The relevant subsections of section 16 of the Companies Act state as follows:

‘(1) A company’s Memorandum of Incorporation may be amended-

(a) . . . ;

(b) . . .; or

(c) at any other time if a special resolution to amend it-

(i) is proposed by-

(aa) the board of the company; or

(bb) shareholders entitled to exercise at least 10% of the voting

rights that may be exercised on such a resolution;

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 (ii) and is adopted at a shareholders meeting, or in accordance
with section 60, subject to subsection (3).

(5) An amendment contemplated in subsection (1)(c) may take the form of-

(a) a new Memorandum of Incorporation in substitution for the existing

Memorandum; or

(b) one or more alterations to the existing Memorandum of Incorporation by-

(i) …;

(ii) deleting, altering or replacing any of its provisions;

(iii) inserting any new provisions into the Memorandum of

Incorporation; or

(iv) making any combination of alterations contemplated in this

paragraph.

(9) An amendment to a Company’s Memorandum of Incorporation takes

effect –

(a) …

(b) in any other case, on the later of –

(i) the date on, and time at, which the Notice of Amendment is
filed; or

(ii) the date, if any, set out in the Notice of Amendment.’

12. Section 60 of the Companies Act states that:

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‘(1) A resolution that could be voted on at a shareholders meeting may instead
be—

(a) submitted for consideration to the shareholders entitled to exercise voting

rights in relation to the resolution; and

(b) voted on in writing by shareholders entitled to exercise voting rights in

relation to the resolution within 20 business days after the resolution was
submitted to them.

(2) A resolution contemplated in subsection (1)—

(a) will have been adopted if it is supported by persons entitled to exercise

sufficient voting rights for it to have been adopted as an ordinary or special
resolution, as the case may be, at a properly constituted shareholders
meeting; and

(b) if adopted, has the same effect as if it had been approved by voting at a
meeting.

(3) An election of a director that could be conducted at a shareholders meeting

may instead be conducted by written polling of all of the shareholders entitled
to exercise voting rights in relation to the election of that director.

(4) Within 10 business days after adopting a resolution, or conducting an

election of directors, in terms of this section, the company must deliver a
statement describing the results of the vote, consent process, or election to
every shareholder who was entitled to vote on or consent to the resolution, or
vote in the election of the director, as the case may be.

(5) For greater certainty, any business of a company that is required by this Act
or the company’s Memorandum of Incorporation to be conducted at an annual

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Investment Corporation Page 269 of 794
 general meeting of the company, may not be conducted in the manner
contemplated in this section.’

13. Section 76 of the Companies Act states as follows:

‘(1) In this section, “director” includes an alternate director, and —

(a) a prescribed officer; or

(b) a person who is a member of a committee of a board of a company, or of

the audit committee of a company,

irrespective of whether or not the person is also a member of the company’s

board.

(2) A director of a company must —

(a) not use the position of director, or any information obtained while acting
in the capacity of a director—

(i) to gain an advantage for the director, or for another person other
than the company or a wholly-owned subsidiary of the company; or

(ii) to knowingly cause harm to the company or a subsidiary of the

company; and

(b) communicate to the board at the earliest practicable opportunity any

information that comes to the director’s attention, unless the director —

(i) reasonably believes that the information is —

(aa) immaterial to the company; or

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Investment Corporation Page 270 of 794
 (bb) generally available to the public, or known to the other
directors; or

(ii) is bound not to disclose that information by a legal or ethical

obligation of confidentiality.

(3) Subject to subsections (4) and (5), a director of a company, when acting in
that capacity, must exercise the powers and perform the functions of director
—

(a) in good faith and for a proper purpose;

(b) in the best interests of the company; and

(c) with the degree of care, skill and diligence that may reasonably be
expected of a person —

(i) carrying out the same functions in relation to the company as those
carried out by that director; and

(ii) having the general knowledge, skill and experience of that director.

(4) In respect of any particular matter arising in the exercise of the powers or
the performance of the functions of director, a particular director of a company
—

(a) will have satisfied the obligations of subsection (3) (b) and (c) if —

(i) the director has taken reasonably diligent steps to become

informed about the matter;

(ii) either —

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 (aa) the director had no material personal financial interest in
the subject matter of the decision, and had no reasonable basis
to know that any related person had a personal financial
interest in the matter; or

(bb) the director complied with the requirements of section

75 with respect to any interest contemplated in subparagraph
(aa); and

(iii) the director made a decision, or supported the decision of a

committee or the board, with regard to that matter, and the director
had a rational basis for believing, and did believe, that the decision
was in the best interests of the company; and

(b) is entitled to rely on —

(i) the performance by any of the persons —

(aa) referred to in subsection (5); or

(bb) to whom the board may reasonably have delegated, formally or

informally by course of conduct, the authority or duty to perform one
or more of the board’s functions that are delegable under applicable
law; and

(ii) any information, opinions, recommendations, reports or

statements, including financial statements and other financial data,
prepared or presented by any of the persons specified in subsection
(5).

(5) To the extent contemplated in subsection (4) (b), a director is entitled to rely
on —

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 (a) one or more employees of the company whom the director reasonably
believes to be reliable and competent in the functions performed or the
information, opinions, reports or statements provided;

(b) legal counsel, accountants, or other professional persons retained by the

company, the board or a committee as to matters involving skills or expertise
that the director reasonably believes are matters —

(i) within the particular person’s professional or expert competence;

or

(ii) as to which the particular person merits confidence; or

(c) a committee of the board of which the director is not a member, unless
the director has reason to believe that the actions of the committee do not
merit confidence.’

14. Section 77 of the Companies Act imposes liability on directors and states that:

‘(1) In this section, “director” includes an alternate director, and —

(a) a prescribed officer; or

(b) a person who is a member of a committee of a board of a company, or of

the audit committee of a company,

irrespective of whether or not the person is also a member of the company’s

board.

(2) A director of a company may be held liable —

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 (a) in accordance with the principles of the common law relating to breach of
a fiduciary duty, for any loss, damages or costs sustained by the company
as a consequence of any breach by the director of a duty contemplated in
section 75, 76 (2) or 76 (3) (a) or (b); or

(b) in accordance with the principles of the common law relating to delict for
any loss, damages or costs sustained by the company as a consequence of
any breach by the director of —

(i) a duty contemplated in section 76 (3) (c);

(ii) any provision of this Act not otherwise mentioned in this section; or

(iii) any provision of the company’s Memorandum of Incorporation.

(3) A director of a company is liable for any loss, damages or costs sustained
by the company as a direct or indirect consequence of the director having —

(a) acted in the name of the company, signed anything on behalf of the
company, or purported to bind the company or authorise the taking of
any action by or on behalf of the company, despite knowing that the
director lacked the authority to do so;

(b) acquiesced in the carrying on of the company’s business despite

knowing that it was being conducted in a manner prohibited by section
22 (1);

(c) been a party to an act or omission by the company despite knowing

that the act or omission was calculated to defraud a creditor,
employee or shareholder of the company, or had another fraudulent
purpose;

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 (d) signed, consented to, or authorised, the publication of —

(i) any financial statements that were false or misleading in a

material respect; or

(ii) a prospectus, or a written statement contemplated in section

101, that contained —

(aa) an “untrue statement” as defined and described in

section 95; or

(bb) a statement to the effect that a person had consented

to be a director of the company, when no such consent had
been given,

despite knowing that the statement was false, misleading or untrue,

as the case may be, but the provisions of section 104 (3), read with
the changes required by the context, apply to limit the liability of a
director in terms of this paragraph; or

(e) been present at a meeting, or participated in the making of a decision in

terms of section 74, and failed to vote against —

(i) the issuing of any unauthorised shares, despite knowing that

those shares had not been authorised in accordance with
section 36;

(ii) the issuing of any authorised securities, despite knowing that

the issue of those securities was inconsistent with section 41;

(iii) the granting of options to any person contemplated in section

42 (4), despite knowing that any shares —

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 (aa) for which the options could be exercised; or

(bb) into which any securities could be converted,

had not been authorised in terms of section 36;

(iv) the provision of financial assistance to any person contemplated

in section 44 for the acquisition of securities of the company,
despite knowing that the provision of financial assistance was
inconsistent with section 44 or the company’s Memorandum of
Incorporation;

(v) the provision of financial assistance to a director for a purpose

contemplated in section 45, despite knowing that the provision of
financial assistance was inconsistent with that section or the
company’s Memorandum of Incorporation;

(vi) a resolution approving a distribution, despite knowing that the

distribution was contrary to section 46, subject to subsection (4);

(vii) the acquisition by the company of any of its shares, or the shares
of its holding company, despite knowing that the acquisition was
contrary to section 46 or 48; or

(viii) an allotment by the company, despite knowing that the allotment

was contrary to any provision of Chapter 4.

(4) The liability of a director in terms of subsection (3) (e) (vi) as a consequence
of the director having failed to vote against a distribution in contravention of
section 46 —

(a) arises only if —

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 (i) immediately after making all of the distribution contemplated
in a resolution in terms of section 46, the company does not
satisfy the solvency and liquidity test; and

(ii) it was unreasonable at the time of the decision to conclude

that the company would satisfy the solvency and liquidity test
after making the relevant distribution; and

(b) does not exceed, in aggregate, the difference between —

(i) the amount by which the value of the distribution exceeded

the amount that could have been distributed without causing
the company to fail to satisfy the solvency and liquidity test;
and

(ii) the amount, if any, recovered by the company from persons

to whom the distribution was made.

(5) If the board of a company has made a decision in a manner that contravened
this Act, as contemplated in subsection (3) (e)—

(a) the company, or any director who has been or may be held liable in
terms of subsection (3) (e), may apply to a court for an order setting
aside the decision of the board; and

(b) the court may make—

(i) an order setting aside the decision in whole or in part,

absolutely or conditionally; and

(ii) any further order that is just and equitable in the

circumstances, including an order —

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 (aa) to rectify the decision, reverse any transaction, or
restore any consideration paid or benefit received by any
person in terms of the decision of the board; and

(bb) requiring the company to indemnify any director

who has been or may be held liable in terms of this
section, including indemnification for the costs of the
proceedings under this subsection.

(6) The liability of a person in terms of this section is joint and several with any
other person who is or may be held liable for the same act.

(7) Proceedings to recover any loss, damages or costs for which a person is
or may be held liable in terms of this section may not be commenced more than
three years after the act or omission that gave rise to that liability.

(8) In addition to the liability set out elsewhere in this section, any person who
would be so liable is jointly and severally liable with all other such persons —

(a) to pay the costs of all parties in the court in a proceeding contemplated
in this section unless the proceedings are abandoned, or exculpate that
person; and

(b) to restore to the company any amount improperly paid by the company
as a consequence of the impugned act, and not recoverable in terms
of this Act.

(9) In any proceedings against a director, other than for wilful misconduct or
wilful breach of trust, the court may relieve the director, either wholly or partly,
from any liability set out in this section, on any terms the court considers just if
it appears to the court that —

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 (a) the director is or may be liable, but has acted honestly and reasonably;
or

(b) having regard to all the circumstances of the case, including those
connected with the appointment of the director, it would be fair to excuse
the director.

(10) A director who has reason to apprehend that a claim may be made alleging
that the director is liable, other than for wilful misconduct or wilful breach of trust,
may apply to a court for relief, and the court may grant relief to the director on
the same grounds as if the matter had come before the court in terms of
subsection (9).’

15. Section 94 of the Companies Act regulates the appointment of audit

committees, section 94(1) and (2) state the following:

‘(1) This section —

(a) applies concurrently with section 64 of the Banks Act, to any company
that is subject to that section of that Act, but subsections (2), (3) and (4) of
this section do not apply to the appointment of an audit committee by any
such company; and

(b) does not apply to a company that has been granted an exemption in
terms of section 64 (4) of the Banks Act.

(2) At each annual general meeting, a public company, state-owned

company or other company that is required only by its Memorandum of
Incorporation to have an audit committee as contemplated in sections
34 (2) and 84 (1) (c) (ii), must elect an audit committee comprising at least
three members, unless —

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 (a) the company is a subsidiary of another company that has an audit
committee; and

(b) the audit committee of that other company will perform the functions
required under this section on behalf of that subsidiary company.’

THE GOVERNMENT EMPLOYEE PENSION LAW, 1996 (GEP Law)

16. Section 6(7) of the GEP Law states that:

‘6 Management of Fund by Board of Trustees

(7) The Board, acting in consultation with the Minister, shall determine the
investment policy of the Fund.’

17. Rule 4.1.19 of the Rules of the Government Employees Pension Fund,
Schedule I to the GEP Law states that:

‘4. Management of the Fund

4.1.19 Each trustee or a substitute referred to in rule 4.1.6 shall,

notwithstanding the duties as may be determined by the Board –

(a) take all reasonable steps to ensure that the interests of

members in terms of the rules of the Fund and the provisions
of the Law are protected at all times, especially in the event of
an amalgamation or splitting of the Fund, termination or
reduction of contributions by the employer, increase of
contributions by members and withdrawal of an employer;

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 (b) act at all times with due care and diligence and in good faith;

(c) avoid conflicts of interest;

(d) act with impartiality in respect of all members and beneficiaries;

(e) ensure that proper registers, books and records are kept,
inclusive of proper minutes of all resolutions passed by the
Board;

(f) ensure that proper control systems are employed by or on

behalf of the Board;

(g) take all reasonable steps to ensure that the rules of the Fund
comply with the Law, and all other applicable laws;

(h) ensure that adequate and appropriate information is

communicated to the members informing them of their rights,
benefits and duties in terms of the rules of the Fund;

(i) take all reasonable steps to ensure that contributions are paid
timeously to the Fund in accordance with the provisions of the
Law;

(j) obtain expert advice on matters where Board members may

lack expertise;

(k) ensure that the operation and administration of the Fund

comply with the Law, and all other applicable laws; and

(l) adhere to the principles of privileged information and

confidentiality.’

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THE PROTECTED DISCLOSURES ACT 26 of 2000 (PDA)

18. Employee is defined in section 1 of the PDA as follows:

‘Employee means –

(a) any person, excluding an independent contractor, who works or worked

for another person or for the State, and who receives or received, or is
entitled to receive, any remuneration; and

(b) any other person who in any manner assists or assisted in carrying on or
conducting or conducted the business of an employer;’

19. Section 9B of the PDA, inserted by the Amendment Act, 2017, states the
following:

‘Disclosure of false information

9B. (1) An employee or worker who intentionally discloses false Information -

(a) knowing that information to be false or who ought reasonably to

have known that the information is false; and

(b) with the intention to cause harm to the affected party and where
the affected party has suffered harm as a result of such disclosure,

is guilty of an offence and is liable on conviction to a fine or to

imprisonment for a period not exceeding two years or to both a fine
and such imprisonment.

(2)

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 (a) The institution of a prosecution for an offence referred to in
subsection (1) must be authorised in writing by the Director of Public
Prosecutions.
(b) The Director of Public Prosecutions concerned may delegate his
or her power to decide whether a prosecution in terms of this section
should be instituted or not.’

THE FINANCIAL INTELLIGENCE CENTRE ACT, 38 of 2001 (FICA)

20. Section 1 of FICA defines ‘domestic prominent influential person’ as a person

‘referred to in Schedule 3A’.

21. Schedule 3A states the following:

‘A domestic prominent influential person is an individual who holds,

including in an acting position for a period exceeding six months, or
has held at any time in the preceding 12 months, in the Republic —

(a) a prominent public function including that of —

(i) the President or Deputy President;

(ii) a government minister or deputy minister;

(iii) the Premier of a province;

(iv) a member of the Executive Council of a province;

(v) an executive mayor of a municipality elected in terms of the

Local Government: Municipal Structures Act, 1998 (Act No.
117 of 1998);

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 (vi) a leader of a political party registered in terms of the
Electoral Commission Act, 1996 (Act No. 51 of 1996);

(vii) a member of a royal family or senior traditional leader as

defined in the Traditional Leadership and Governance
Framework Act, 2003 (Act No. 41 of 2003);

(viii) the head, accounting officer or chief financial officer of a

national or provincial department or government component,
as defined in section 1 of the Public Service Act, 1994
(Proclamation No. 103 of 1994);

(ix) the municipal manager of a municipality appointed in terms

of section 54A of the Local Government: Municipal Systems
Act, 2000 (Act No. 32 of 2000), or a chief financial officer
designated in terms of section 80 (2) of the Municipal Finance
Management Act, 2003 (Act No. 56 of 2003);

(x) the chairperson of the controlling body, the chief executive

officer, or a natural person who is the accounting authority, the
chief financial officer or the chief investment officer of a public
entity listed in Schedule 2 or 3 to the Public Finance
Management Act, 1999 (Act No. 1 of 1999);

(xi) the chairperson of the controlling body, chief executive

officer, chief financial officer or chief investment officer of a
municipal entity as defined in section 1 of the Local
Government: Municipal Systems Act, 2000 (Act No. 32 of
2000);

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 (xii) a constitutional court judge or any other judge as defined
in section 1 of the Judges’ Remuneration and Conditions of
Employment Act, 2001 (Act No. 47 of 2001);

(xiii) an ambassador or high commissioner or other senior

representative of a foreign government based in the Republic;
or

(xiv) an officer of the South African National Defence Force

above the rank of major-general;

(b) the position of —

(i) chairperson of the board of directors;

(ii) chairperson of the audit committee;

(iii) executive officer; or

(iv) chief financial officer,

of a company, as defined in the Companies Act, 2008 (Act No. 71 of

2008), if the company provides goods or services to an organ of state
and the annual transactional value of the goods or services or both
exceeds an amount determined by the Minister by notice in
the Gazette; or

(c) the position of head, or other executive directly accountable to that head,
of an international organisation based in the Republic.’

22. Section 21H(2) of the FICA defines ‘immediate family member’ as follows:

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 ‘immediate family member includes –

(a) the spouse, civil partner or life partner;

(b) the previous spouse, civil partner or life partner, if applicable;

(c) children and stepchildren and their spouse, civil partner or life partner;

(d) parents; and

(e) sibling and step siblings and their spouse, civil partner or life partner.’

THE ELECTRONIC COMMUNICATIONS AND TRANSACTIONS

ACT, 25 of 2002

23. Section 81 of ECTA defines the powers of cyber inspectors. Section 81(1)
states that:

‘(1) A cyber inspector may

(a) monitor and inspect any web site or activity on an information system in
the public domain and report any unlawful activity to the appropriate
authority;

(b) in respect of a cryptography service provider –

(i) investigate the activities of a cryptography service provider in relation

to its compliance or non-compliance with the provisions of this Act;
and

(ii) issue an order in writing to a cryptography service provider to comply

with the provisions of this Act;

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 (c) in respect of an authentication service provider –

(i) investigate the activities of an authentication service provider in

relation to its compliance or non-compliance with the provisions of this
Act;

(ii) investigate the activities of an authentication service provider falsely

holding itself, its products or services out as having been accredited
by the Authority or recognised by the Minister as provided for in
Chapter VI;

(iii) issue an order in writing to an authentication service provider to

comply with the provisions of this Act; and

(d) in respect of a critical database administrator, perform an audit as

provided for in section 57.’

24. Section 86(1) of the ECTA states as follows:

‘Subject to the Interception and Monitoring Prohibition Act, 27 of 1992, a

person who intentionally accesses or intercepts any data without authority or
permission to do so is guilty of an offence.’

25. Section 88(1) provides that:

‘A person who attempts to commit any of the offences referred to in sections

86 and 87 is guilty of an offence and is liable on conviction to the penalties
set out in section 89(1) or (2), as the case may be’.

THE PUBLIC FINANCE MANAGEMENT ACT 1 of 1999 (PFMA)

26. Section 49 of the PFMA states that:

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 ‘Accounting authorities—

‘(1) Every public entity must have an authority which must be accountable
for the purposes of this Act.

(2) If the public entity—

(a) has a board or other controlling body, that board or controlling

body is the accounting authority for that entity; or

(b) does not have a controlling body, the chief executive officer or the
other person in charge of the public entity is the accounting authority
for that public entity unless specific legislation applicable to that public
entity designates another person as the accounting authority.

(3) The relevant treasury, in exceptional circumstances, may approve or

instruct that another functionary of a public entity must be the accounting
authority for that public entity.

(4) The relevant treasury may at any time withdraw an approval or

instruction in terms of subsection (3).

(5) A public entity must inform the Auditor-General promptly and in writing
of any approval or instruction in terms of subsection (3) and any withdrawal
of an approval or instruction in terms of subsection (4).’

27. Section 50 of the PFMA sets out the Fiduciary Duties of the Accounting
Authority as follows:

‘(1) The accounting authority for a public entity must —

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 (a) exercise the duty of utmost care to ensure reasonable protection of the
assets and records of the public entity;

(b) act with fidelity, honesty, integrity and in the best interests of the public
entity in managing the financial affairs of the public entity;

(c) on request, disclose to the executive authority responsible for that

public entity or the legislature to which the public entity is accountable,
all material facts, including those reasonably discoverable, which in
any way may influence the decisions or actions of the executive
authority or that legislature; and

(d) seek, within the sphere of influence of that accounting authority, to

prevent any prejudice to the financial interests of the state.

(2) A member of an accounting authority or, if the accounting authority is not

a board or other body, the individual who is the accounting authority, may
not —

(a) act in a way that is inconsistent with the responsibilities assigned to

an accounting authority in terms of this Act; or

(b) use the position or privileges of, or confidential information obtained

as, accounting authority or a member of an accounting authority, for
personal gain or to improperly benefit another person.

(3) A member of an accounting authority must —

(a) disclose to the accounting authority any direct or indirect personal or

private business interest that that member or any spouse, partner or
close family member may have in any matter before the accounting
authority; and

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 (b) withdraw from the proceedings of the accounting authority when that
matter is considered, unless the accounting authority decides that
the member’s direct or indirect interest in the matter is trivial or
irrelevant.’

THE PUBLIC INVESTMENT CORPORATION ACT 23 of 2004 (PIC

Act)

28. Section 2 of the PIC Act establishes the Corporation:

‘Establishment of corporation—

‘(1) There is hereby established a juristic person, an institution outside the

public service, to be known as the Public Investment Corporation Limited.

(2) The Registrar of Companies must enter the name of the corporation in
the register kept in terms of the Companies Act and must issue to the
corporation a certificate to that effect.

(3) Despite the Companies Act, the Minister, on behalf of the State, must
sign the memorandum of association and the articles of association of the
corporation.

(4) On signature of the memorandum of association and the articles of

association in terms of subsection (3), such memorandum and articles must
be regarded as complying with the requirements of the Companies Act for
registration in terms of the said Act.

(5) On receipt of the signed memorandum and articles, the Registrar of

Companies must register the said memorandum and articles as
contemplated in section 63 of the Companies Act and endorse thereon a
certificate to the effect that the corporation is incorporated.

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 (6) No fees are payable in terms of the Companies Act in respect of the
checking of documents, the reservation of name, the registration of the said
memorandum and articles and the issue of a certificate to commence
business.

(7) Sections 32, 54 (2), 66, 92, 190 and 344 (d) of the Companies Act do
not apply to the corporation.’

29. Section 4 contains the Object of the PIC:

‘The main object of the corporation is to be a financial services provider in

terms of the FAIS Act.’

30. Section 6 of the PIC Act provides for the appointment of the board of directors:

‘(1) The Minister must, in consultation with Cabinet, determine and appoint
the members of the board.

(2) The Minister must, when appointing the board, have due regard to the
nominations submitted to him or her by the depositors.

(3) The members of the board must be appointed on the grounds of their
knowledge and experience, with due regard to the FAIS Act, which, when
considered collectively, should enable the board to attain the objects of the
corporation.

(4) The Minister may issue directives to the board regarding the
management of the corporation if —

(a) it is in the public interest; or

(b) it is reasonably necessary to do so.’

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31. Section 8 of the PIC Act states that the Management of the corporation is:

‘Subject to the provisions of this Act, the board must control the business of the
corporation, direct the operations of the corporation and exercise all such
powers of the corporation that are not required to be exercised by the
shareholders of the corporation.’

32. Section 9 of the PIC Act states that:

‘Authorisation as financial services provider —

(1) The corporation must, in terms of the FAIS Act, obtain authorisation from
the Registrar as a financial services provider.

(2) Neither the registrar nor the corporation may terminate the authorisation
referred to in subsection (1) without the consent of the Minister.’

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CHAPTER III – EVIDENCE, FINDINGS AND RECOMMENDATIONS
PER TERM OF REFERENCE

TERM OF REFERENCE1.1

1. In 2018 the media reported on certain political parties that had called for
transparency in the PIC regarding investments in its ‘unlisted portfolio’. It was
also reported that calls had been made for the PIC to provide detailed
information of approximately R70 billion worth of investments made by it in its
unlisted investment portfolio in 2017/2018. Mention was also made of
particular transactions, of which some were in the listed investment portfolio.
The scope of this ToR is interpreted and laid out in Chapter I: Terms of
Reference.

2. The transactions that formed the subject of media reports during this period
included the following:

2.1 Ascendis;

2.2 Ayo Technology Solutions (part of the Sekunjalo Group);

2.3 Erin Energy;

2.4 Harith and Lebashe;

2.5 Independent News and Media South Africa (Pty) Ltd (INMSA) (which
was concluded on 16 August 2013) (part of the Sekunjalo Group);

2.6 Lancaster Steinhoff;

2.7 Matome Maponya Investments (MMI);

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2.8 Mobile Satellite Technologies.

2.9 S & S Refinery;

2.10 Sagarmatha (part of the Sekunjalo Group);

2.11 TOSACO;

2.12 Venda Building Society Mutual Bank (VBS);

3. In order to address this ToR comprehensively, case studies of the transactions

cited in paragraph 2 above, are relied on.

4. The transactions which were considered in the form of case studies were
those highlighted in the media for the period under consideration and are for
illustrative purposes. These transactions and/or case studies do not constitute
a comprehensive list of improprieties identified by the Commission.

5. During the course of the Commission’s investigations, a substantial number

of additional transactions and allegations of impropriety were brought to the
attention of the Commission. However, due to time constraints, further
investigation could not be carried out.

6. A list of all the additional transactions which warrant further investigation will
be conveyed to the PIC for that purpose.

7. The case studies prepared by the Commission appear in this ToR, with the
exception of the VBS and Harith case studies, which are contained in ToR 1.3,
below.

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Case Study: Maponya Matome Investment Holdings (MMI)

Background to the Isibaya Fund

8. The Isibaya Fund started in the mid-1990s when the PIC allocated 3.5% of
total assets under management towards investment in Black Economic
Empowerment (BEE) transactions. This amount was later increased to 5% of
assets under management and, in terms of the existing GEPF mandate, it
currently stands at 10%, split equally between Private Equity and Impact
Investing (formerly Developmental Investments).

9. The Isibaya Fund’s mandate, as executed by the PIC, focuses its investments
on B-BBEE initiatives, investors and entrepreneurs – there has been no
Isibaya Fund investment outside of this framework.

10. Over the years, many significant B-BBEE transactions have been concluded
resulting in several large investments being made, notably Afrisam, where the
PIC’s exposure was approximately R12 billion.

11. The Isibaya Fund’s investment in MMI is an example of multiple investments

with a single counterparty.

12. While prior exposure to any single counterparty would be raised as part of
deliberations at approval committees, there was previously no firm
counterparty limit. In other words, there was neither a limit to the cumulative
monetary amount of exposure to a single counterparty nor a limit to the
number of distinct investments made with the same counterparty. However,
recently counterparty limits have been established, and they are contained in
the Private Placement Memorandums (PPMs). The total Funds equate to R70
billion, which is broken down as follows:

12.1. Economic Infrastructure Fund II – R4 billion

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12.2. Environmental Infrastructure Fund I – R2 billion

12.3. Energy Infrastructure Fund I – R23 billion

12.4. Social Infrastructure Fund I – R10 billion

12.5. Africa Developmental Investments Fund I – R10 billion

12.6. Private Equity Africa Fund I – R5 billion

12.7. Private Equity (Domestic) Fund II – R10 billion

12.8. SME Fund I – R2 billion

12.9. Priority Sectors Fund II – R4 billion

13. In each of the above nine Funds, no single counterparty may receive more
than 30% of the Fund size. By way of example, in the case of Priority Sectors
Fund II, the maximum limit that may be received by a single counterparty
would be R1.2 billion. However, nothing prevents a counterparty from
obtaining funding of up to 30% in other Funds. Theoretically, funding for a
single counterparty could be R21 billion (being 30% of R70 billion).

Exposure to a Single Counterparty (MMI/Maponya)

14. Mr Roy Rajdhar (Mr Rajdhar), Executive Head, Impact Investing, testified that
Mr Maponya had received funding from the PIC that included:

14.1. R648 million of a R1,2 billion commitment, (plus R200 million thereafter)
for Daybreak;

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14.2. R367 million for a stake in AFGRI;126

14.3. R480 million for the SA Home Loans transaction;127

14.4. R79 million that had been drawn down of a R275 million facility that had
been granted by the PIC for affordable housing developments; and

14.5. Magae Makhaya (Proprietary) Limited. The facility with Magae Makhaya
was cancelled because of default.128

15. These investments are summarised in the table below:

Investment Name Total Project Maponya’s

Amount (R) Exposure (R)
Afgri 880m 360m
Daybreak 1.127b 648m
SA Home Loans 9.37b 468m
Magae Makhaya 11.00b 375m
Total R22.377b R1.851b

16. Save for establishing counterparty limits, as indicated above, the PIC has, to
date, had no formal policy dealing with single obligor/counterparty limits.

17. The total PIC exposure to Mr Maponya amounted to R1.85 billion and with
accrued interest to R2.2 billion. The exposure to Mr Maponya in the
investments of Magae Makhaya and Daybreak alone amounted to R1.023
billion. Therefore, one could say the PIC was overexposed.

126
At page 38 of the Transcript for day 36 of the hearings held on 15 May 2019 and para 55 of Mr Roy Rajdhar’s
statement signed on 15 April 2019.
127
Para 55 of Mr Roy Rajdhar’s statement signed on 15 April 2019.
128
Ibid.

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18. Should a counterparty default and the PIC is over-exposed to that party, it can
severely impact the PIC’s portfolio. In the case of actively managed
companies, the counterparty risk may be significant if the investee company
has to manage more than one investment.

SA Home Loans (SAHL) Investment

19. With regard to the investment in SAHL, Dr Matjila confirmed the statement by
Mr Kevin Penwarden (Mr Penwarden) of SAHL, made to the Commission, that
a combination of SAHL and JP Morgan were the first to present the equity
opportunity and a proposal for housing finance for GEPF members to the PIC.
SAHL approached the PIC for a credit line of R9 billion for end user finance
for GEPF members, affordable housing and the development of housing
stock. Consequently, Dr Matjila’s statement that, ‘I was under the impression
that this R9bn funding application was a joint plan of the SAHL and MMI
partnership’129, is extremely concerning. The question must be asked how
thorough the processes were before a transaction of R9 billion was approved
that the CIO/CEO did not know, or did not endeavour to find out, what the
actual situation was.

20. Mr Wellington Masekesa, Executive Assistant to the former CEO Dr Matjila

and reporting directly to him130, was appointed by the PIC to represent it as a
non-executive director on the board of SAHL, together with Mr Rajdhar.131
Following allegations contained in the statement made by Mr Penwarden,
CEO of SAHL, that Mr Masekesa and Mr Maponya had approached a
colleague, Mr Dlamini, and said that SAHL should ‘regularise’ what were
called ‘arranging fees’ of R95 million, Mr Masekesa confirmed the substance

129
Para 520 of Dr Matjila’s statement signed on 17 July 2019.
130
Para 2 of Mr Masekesa’s statement signed on 11 March 2019.
131
Para 13.2 of Mr Sinton’s statement signed on 21 May 2019.

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 of the above to Mr Penwarden.132 The PIC has since instituted an investigation
into the aforementioned allegations.

Findings

21. The PIC’s decision to make cumulative investments in various transactions

with a single individual has resulted in significant exposure to reputational risk
and financial losses. For instance, as at the time of the hearings, the Daybreak
investment had not been serviced, although proactive measures had been
taken by the PIC and it was recovering well.

22. The MMI investments call into question the PIC’s thoroughness in conducting
its due diligence as well as its assessment of cumulative and reputational
risks. It should also be noted that, at the time of the hearings, the PIC was in
litigation with Mr Maponya.

23. With regard to the SAHL investment, the evidence before the Commission
revealed a difference of understanding of the investment and obligations that
arose between the PIC team members involved.

24. The different positions taken by Dr Matjila, reflected in his statement and
correspondence, as set out in paragraph 12 above, are of grave concern and
are indicative of decision-making without adequate information or legal
considerations.

25. The role played by Mr Masekesa, as indicated in paragraph 20 above, is found

to be an irregularity as envisaged in Section 45 of the Auditing Profession Act,
being, in the SAHL auditors’ (Deloitte) opinion, a prima facie contravention of
Section 3 of the Prevention and Combatting of Corrupt Activities.

132
Para 59-70 of Mr Penwarden’s statement signed on 28 May 2019.

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Recommendations

26. The Commission recommends that the Board should develop clear policies to
guide the involvement of PIC employees and non-executive directors in
investee companies.

27. The appointment of PIC employees and/or non-executive directors of the PIC
to serve on the boards of investee companies must be reconsidered given the
potential for conflict of interest, breach of fiduciary duties, and over-reliance
on such a person protecting the PIC’s interests by virtue of them being on the
investee company’s board. The practice of appointing a person to the board
where that person has had a role or been responsible for approval of the
investment is highly questionable.

28. The Board should ensure that there is a full inquiry into the role played by Mr
Masekesa in the SAHL matter.

29. The Board should engage with the GEPF to ensure that there has been no
undue influence exerted by any party on the SAHL application for R10 billion
further funding.

30. In order to ensure that PIC funds are available to as many South Africans as
possible, and to not be exposed to risks associated with any single party,
single counterparty limits should be determined and adhered to by the PIC.

31. The PIC must also restrict funding to operational B-BBEE partners or unlisted
investments to a maximum of two projects (businesses) but only until capacity
and servicing of loans has been established, and limit the cumulative
monetary amount of exposure to a single B-BBEE party or unlisted
investment.

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32. It is further recommended that the PIC must strengthen the capacity and role
of post investment monitoring and evaluation.

Case Study: Sekunjalo Group

High Level Overview of the Transactions that were considered by

the PIC Relating to Companies that form part of the Sekunjalo
Group

33. The following companies, within the Sekunjalo Group, were part of the
evidence brought before the Commission and are dealt with below:

33.1. Sekunjalo Independent Media (Pty) Ltd (SIM) and Independent News
and Media South Africa (Pty) Ltd (INMSA) which was later renamed
Independent Media (Pty) Ltd (IM);

33.2. Premier Food & Fishing Limited, later renamed Premier Fishing and
Brands Limited (Premier Fishing).

33.3. Ayo Technology Solutions Limited (Ayo), and

33.4. Sagarmatha Technologies Limited (Sagarmatha).

34. These are the companies in the Sekunjalo Group that featured at various PIC
governance committee meetings, where investment proposals were tabled.
Premier Fishing and Ayo were listed on the Johannesburg Stock Exchange
(JSE) in 2017 and the investment in IM was an unlisted investment that took
place in 2013. While the PIC had signed an irrevocable undertaking and
committed to the transaction, the investment into Sagarmatha did not take
place because the JSE did not approve their listing.

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Case Study: Independent News and Media South Africa (Pty) Ltd

35. During 2013, the PIC advanced a number of loans to SIM and INMSA. The
PIC also bought a 25% equity stake in INMSA. The loans were for a period of
five years and, together with interest thereon, were repayable in August 2018.

36. The deal was structured as follows:

36.1. The PIC Board meeting of 11 March 2013, resolved to participate in the
100% acquisition of INMSA to the maximum amount of R1,44 billion split
up as follows:

36.1.1. A direct equity payment of R167 million for a minimum of 25%

equity stake in INMSA;

36.1.2. A Shareholder loan of R773 million at an Internal Rate of Return

(IRR) of 15% on INMSA’s balance sheet;

36.1.3. An Equity loan to the Sekunjalo Consortium of R500 million to

purchase 75% equity in INMSA.

36.2. These were, inter alia, to be secured by a R150 million corporate

guarantee by Sekunjalo Investment Holdings (Pty) Ltd.

36.3. Repayments totaling R325.75 million were received the same day as a
result of the equity restructuring and the Interacom Investment Holdings
(a Chinese investment company) purchase of 20% equity.

37. However, in 2017 it became clear that INMSA and SIM would not be able to
repay the loans when they fell due. Sekunjalo Investment Holdings (Pty) Ltd
(SIH), the holding company of both INMSA and SIM, made an offer to the PIC
in a letter dated 14 September 2017 proposing that the PIC exit its investment

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 in INMSA and SIM. SIH and/or its nominee would acquire PIC’s shares in and
loan claim(s) against INMSA as well as its loan claim(s) against SIM. The letter
stated that SIH intended to list one of its subsidiaries, namely Sagarmatha,
with a primary listing on the JSE and secondary listings on the New York and
Hong Kong Stock Exchanges.

38. The letter further stated that SIH would not make any cash payment for its
acquisition of PIC’s shares and loan claims, and that ‘all of the above equity
will be settled by the issue of shares [to PIC] in Sagarmatha prior to its listing
on the [JSE]’. The price for the Sagarmatha shares would be ‘the price per
share as per the final prelisting statement of Sagarmatha, approved by the
JSE’ (emphasis added).

39. The letter, from Dr Survé and addressed to Dr Matjila, claimed that a similar
offer had been extended to the PIC’s co-shareholders in INMSA. Dr Matjila
was requested to countersign the offer, if it was acceptable to the PIC,
resulting in the conclusion of a binding agreement between the PIC and SIH.

40. The PIC teams (deal, risk, legal and ESG) prepared reports for submission to
the relevant authorising committees that would consider the proposal.
Paragraph 2 of the appraisal report, prepared by the deal team and dated 14
November 2017, stated that:

‘In terms of section 15.6 of the Delegation of Authority for Unlisted

Investments, the first approval committee for the Proposed
Transaction is the Portfolio Management Committee and the final
approving committee for the Proposed Transaction is the PEPPS
FIP.’

41. Dr Matjila signed/approved the appraisal report on 15 November 2017. In their

credit risk report signed on 9 and 10 November 2017, the risk team assessed
the risks relating to the proposed transaction as ‘HIGH’. Some of the issues of

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Investment Corporation Page 303 of 794
 concern were the non-valuation of Sagarmatha by PIC’s Listed Equities team
at the relevant time – the exit opportunity had to be considered in conjunction
with the valuation of Sagarmatha – and inter-related party transactions.

42. The Private Equity, Priority Sector and Small Medium Enterprise Fund
Investment Panel (PEPPS FIP) considered SIH’s offer at its meeting of 6
December 2017. It resolved to approve the offer subject to conditions different
from those proposed by SIH, two of which are relevant for the purpose of this
submission: namely that:

‘[t]he offer to exit INMSA and SIM investment should be

separate from the offer to acquire a stake in Sagarmatha;

the PIC’ exit from INMSA should not be conditional upon the
PIC’s participation in the listing of Sagarmatha; and

PIC should be provided with the information pertaining to how

SIM would fund the proposed offer prior to accepting same.’

43. It is apparent from these conditions that the PEPPS FIP required SIH to make
cash payment for the proposed acquisition of the PIC’s shares and loan
claims. It appears, from the evidence placed before the Commission, that the
PEPPS FIP, which was the final approving committee in connection with this
transaction, never changed its resolution. This is important to note because
agreeing to the proposal would essentially have meant that the exit of the PIC
from IM would have been funded by the PIC itself. No evidence was placed
before the Commission that shows any impropriety in the resolution by the
PEPPS FIP. It is clear from the conditions that were imposed that the
resolution was in the best interests of the PIC.

44. Despite the resolution taken by the PEPPS FIP, on 13 December 2017, Dr
Matjila signed what appears to be a sale of shares and claims agreement

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Investment Corporation Page 304 of 794
 between the GEPF represented by the PIC and Sagarmatha. The agreement
was signed on behalf of Sagarmatha a day later. In terms of clause 5 of the
agreement, the debt of approximately R1.5 billion due to the PIC would be
discharged through the issuing of shares to the PIC in Sagarmatha. The
agreement stated that the price per share was R39.62.

45. Testifying before the Commission, when questioned by the evidence leader,
Adv Jannie Lubbe (SC), Dr Matjila confirmed that he had signed the ‘share
swap agreement’ on 13 December 2017, but said that he had signed it on the
‘recommendation’ of Mr Mervin Muller (Mr Muller). However, Dr Matjila
eventually conceded that there was no resolution that authorised him to sign
what was an irrevocable commitment, claiming instead that ‘there was an
agreement within the PIC’ that swapping INMSA and SIM’s debt to PIC for
shares in Sagarmatha was ‘something that [could] be done …’.133

46. However, Mr Lebogang Molebatsi (Mr Molebatsi) testified that Dr Matjila

wanted the Sagarmatha deal to go to the PMC and be approved, irrespective
of the facts, stating that it was an instruction that the transaction be presented
to the PMC.

47. In her evidence relating to the transaction, Ms Mathebula, the company

secretary, stated that she had sent the PEPPS FIP’s resolution to
management, including Dr Matjila. When questioned why he had signed the
share swap agreement which clearly violated the resolution, Dr Matjila claimed
that he had not seen, nor was he aware of, the resolution.

48. Dr Matjila signed/approved the appraisal report on 15 November 2017,

approximately one month prior to signing the share swap agreement. That
report was for the attention of the PEPPS FIP and made it clear that its
purpose was ‘to request approval from PEPPS FIP for the PIC to accept the

133
At page 10 of the Transcript for day 59 of the hearings held on 24 July 2019.

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Investment Corporation Page 305 of 794
 offer from SIM to acquire all the shares and loan claims that the PIC has in
and against INMSA and SIM, (the ‘Offer’), thereby exiting its investment in
INMSA’. As someone who knew the operations of the PIC, Dr Matjila was
aware, or ought to have been aware, that the risk, legal and ESG teams would
also have to submit their reports for consideration by the PEPPS FIP. He could
not have expected a resolution to be taken on the basis of one report. The
minutes of the meeting of 6 December 2017 recorded an apology from Dr
Matjila stating that he would not be able to attend the meeting. It is highly
unlikely that he would have sent the apology if he did not know that the
meeting would be held. It is also unlikely that he could not have been aware
of the agenda of the meeting and that the offer would be considered by the
PEPPS FIP, at the meeting.

49. Moreover, even if he had not seen the resolution, one would have expected
him to enquire what resolution had been taken before signing the share swap
agreement. He claimed that he ‘needed to be at the forefront so as to influence
decisions which will be in the best interest[s] of the PIC’134 and that not doing
so would have been reckless. It is difficult to understand how he could have
been in the forefront to protect the interests of the PIC but at the same time
claim he did not find out what the resolution taken by the PEPPS FIP was.

50. SIH’s offer letter, dated 14 September 2017, stated that the price for the
Sagarmatha shares would be the price in the approved PLS. Since the letter
was addressed to him, Dr Matjila must have been aware of the contents
thereof, including the pricing. The evidence before the Commission showed
that the PLS was approved months after Dr Matjila signed the share swap
agreement. He was aware, or ought to have been aware, that the Listed
Investments team had not yet done a valuation of Sagarmatha when he signed

134
At page 26 of the Transcript for day 59 of the hearings held on 24 July 2019.

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 that agreement. In any event, the PIC team valued Sagarmatha at R7.06 per
share, not at the R39.62 per share as per the PLS.

51. Dr Matjila’s conduct in relation to SIH’s offer must be considered together with
his conduct in respect of other transactions relating to the Sekunjalo Group of
companies. He signed the irrevocable subscription offer/form/agreement (ISF)
relating to the Ayo transaction before the relevant committee(s) had made a
decision on the transaction. He wanted the Sagarmatha transaction to
proceed despite the deal team’s apparent opposition thereto. He sought to
influence the decision of the IC when he reportedly asked Ms Mathebula to
arrange a meeting between Sagarmatha officials and members of the IC, and
to forward letters/emails from political organisations to members of the IC on
the eve of its meeting to consider the transaction. According to the testimony
of Mr Molebatsi, Dr Matjila went to the extent of directly negotiating the
proposal he referred to in an email of 10 April 2018, namely that Sagarmatha
would issue additional shares to the PIC to bring the average share price paid
by the PIC down to R8.50. He did this without the knowledge of the deal team,
and notwithstanding that this undisclosed side agreement would have resulted
in the PIC paying R8.50 per share while any other investor would pay the
R39.62 on the same day, a highly questionable proposal for the PIC to even
consider.

52. In his statement, Dr Matjila referred to the resolution by the PEPPS FIP and
some of the conditions imposed therein, saying that he had reduced it to an
‘agreement’.135 He did not claim lack of knowledge of the existence of the
resolution. When questioned about the share swap agreement and that the
terms thereof violated the PIC resolution, he claimed to have not been aware
of the resolution. Prior to this, Dr Matjila had made no mention of the share
swap agreement in his statement or evidence at all.

135
A copy of the agreement is attached as annexure ‘DD60’ to Dr Matjila’s statement.

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53. Dr Matjila claimed that by signing the ‘agreement’, he was giving effect to the
resolution. This was disingenuous, at best. The PEPPS FIP made it clear that
SIH should provide the PIC with information on how it would ‘fund the
proposed offer’ before it could be accepted. Since the PEPPS FIP is the final
approving committee, the information sought should have been submitted to
it. There is no evidence that such information was ever provided or that the
PEPPS FIP finally approved the offer before the ‘agreement’ was signed.

54. Essentially, if the Sagarmatha listing had proceeded and the share swap
agreement signed by Dr Matjila executed, the PIC would have invested in
Sagarmatha at a price of R39.62 and not the R7.06 valuation of the PIC team.
Moreover, PIC funds would have been used to settle INMSA debt to the PIC,
with the full knowledge by Dr Matjila that this was effectively what was going
to happen.

Case Study: Premier Fishing

Note: Premier Fishing was not one of the listed transactions that needed to be
investigated, however for the sake of completeness of the transactions that the PIC
undertook within the Sekunjalo Group, the facts concerning this transaction are
relevant.

55. PMC: LI ratified a maximum amount of R339.3 million at R4.50 per share in a
private placement for a 29% shareholding in Premier Fishing, ahead of its
listing on the JSE on 2 March 2017. Premier Fishing was a subsidiary of
African Empowerment Equity Investment (AEEI).

56. The deal team was interested in this opportunity as it was a black owned and
managed fishing company that could easily obtain and renew fishing rights.
Its growth potential was high due to the demand for abalone farming which

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Investment Corporation Page 308 of 794
 produces 70% gross profit margins and 30% net profit margins. China is a
huge market and they had 100 tonnes pre-ordered from South Africa.

57. The ESG team had identified that there were governance issues around the
fact that the chairman and majority of directors of Premier Fishing were also
AEEI directors and therefore were not independent. The PIC ESG team had
identified, in their due diligence report, that Mr Arthur William Johnson (Mr
Johnson) from 3 Laws Capital, a related party company to the Sekunjalo
Group, was listed as an independent non-executive director and a member of
the Premier Fishing audit committee. Mr Johnson was appointed as a director
of 3 Laws Capital in April 2008 which makes him a non-independent non-
executive director of Premier Fishing. Ms Rosemary Mosia (Ms Mosia) had
also been identified as an independent non-executive director on the audit
committee. Subsequently, on the 10 October 2017, Ms Mosia was appointed
as a non-executive director to the Sagarmatha Board and on 22 August 2018
she was appointed to the Ayo Board. She resigned from the Sagarmatha
Board on 26 September 2019.

58. On 30 August 2019, her daughter, Ms Moleboheng Gabriella Mosia, was

appointed as a non-executive director on the AEEI Board.

59. Other issues identified by ESG were around the need for a remuneration
policy aligned to the business strategy and performance indicators linked to
both short and long term incentives. The company also did not provide details
on its health and safety programmes, labour practices or working conditions.
There was no disclosure on effluent discharge, total energy and water
consumed or their reduction targets.

60. The PIC’s Risk due diligence report had foreign exchange risk as its only high
risk, but overall did not raise any objection to continuing with the transaction.
The PMC:LI also requested that at least two board seats be allocated to the

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Investment Corporation Page 309 of 794
 PIC, one being that of the lead independent director, or that they have the
opportunity to participate in the appointment of the lead independent director.

Case Study: Sagarmatha (to be read with the INMSA Section

above)

61. Sagarmatha, which is a subsidiary of SIH, intended to have a primary listing

on the JSE and secondary listings on the New York and Hong Kong Stock
Exchanges. In late 2017, Sagarmatha approached PIC with an offer for PIC
to subscribe for shares worth between R3 billion and R7.5 billion. The price
for the shares was R39.62 per share.

62. The transaction was considered internally by the relevant teams who raised
certain concerns regarding the transaction. The deal team valued the shares
at R7.06 per share. It is clear from the evidence of the members of that team
that they did not support the transaction, with Mr Seanie testifying that he
thought Sagarmatha would abandon its listing based on their valuation. The
transaction was eventually abandoned after the JSE cancelled the listing due
to Sagarmatha’s alleged failure to file its financial statements with the CIPC.
Although the PIC ultimately did not invest in the transaction, there are serious
concerns that arise from what transpired.

63. Dr Matjila, who was not a member of the deal team, was actively involved in
the transaction. He wanted PIC to subscribe for Sagarmatha shares at R39.62
per share or at another price higher than that recommended by the deal team.
Dr Matjila had already signed the share swap agreement and irrevocably
bound the PIC to a share price of R39.62 prior to Sagarmatha being valued
by the deal team. Email correspondence placed before the Commission
showed that Dr Matjila held negotiations with Dr Survé such that the PIC would
pay R8.50 per share – essentially the PIC would subscribe for shares at

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 R39.62 and be issued additional shares at R1.00 per share to bring the
average price per share down to R8.50.

64. It appears from the evidence of Mr Molebatsi that these negotiations were held
without the knowledge of the members of the deal team. The deal team
members, in particular Mr Molebatsi and Mr Seanie, made it clear that they
were opposed to the PIC investing in Sagarmatha. When Dr Matjila sent Mr
Molebatsi the email outlining the R8.50 per share proposal, the deal team had
already made a submission to the IC. This is clear from an email Dr Manning
sent to Dr Matjila at 17h03 on 10 April 2018, in which she stated that the deal
team had advised that subscribing at R7.06 per share would be a good deal
for the PIC’s clients. Importantly, it appears from Dr Manning’s email, that the
submission to the IC was made on the same day (10 April 2018).

65. Dr Matjila did not only negotiate the share price without the knowledge of the
deal team, but also requested Ms Mathebula to arrange a telephone
conference and a meeting between members of the IC and Sagarmatha
officials shortly before the IC was to consider the transaction. This was an
improper proposal made by the CEO, going against standard practice
whereby presentations by potential investee companies should be made to
the due diligence teams, and not to PIC committees. The due diligence teams
are then meant to advise the committees on whether a transaction should be
approved or not. Dr Matjila’s support of the transaction went to the extent of
asking Ms Mathebula to forward letters or emails in support of the transaction
from various trade unions and other organisations – which were going to be
part of the B-BBEE component of the deal - to members of the IC. Dr Matjila,
in his evidence before the Commission, raised the challenges he faced due to
political pressures, yet he aided such interference in support of the
Sagarmatha transaction by distributing the correspondence addressed to him,
thereby enabling political interference.

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66. When considering the best interests of the PIC, it is difficult to understand why
Dr Matjila thought investing at a price significantly higher than that
recommended by the very experts he claimed throughout his testimony to rely
on, and ignoring the fact that the company already had liquidity problems and
was part of a group that was not servicing debt due to the PIC, was in the best
interests of the PIC.

67. The conduct of the IC, in referring the transaction back to the PMC despite
serious concerns raised by some of its members, calls into question its
professionalism and whether, at all times, it was acting in the best interests of
the PIC.

Case Study: AYO

68. Established in 1996 and alleged to have clients both in the private and public
sector within South Africa and abroad, Ayo’s ‘big’ selling points for listing were,
firstly, its strategic relationship with BTSA (British Telecom - South Africa) and,
secondly, its B-BBEE credentials which supposedly positioned it optimally to
capture part of the growing expenditure on information and communications
technology (ICT) in the South African market.

69. Given its empowerment credentials and strategic alliance with BT, Ayo
allegedly identified an opportunity to aggressively grow its business and
approached the PIC to participate in a private placement in which it initially
indicated that it planned to raise R5.7 billion.

70. When it officially approached the PIC on 16 November 2017, Ayo planned to
list on the JSE on 15 December 2017. It requested the PIC to invest R4.3
billion through subscribing for 104.7 million shares offered at R43.00 per
share. This had initially been proposed to be 78% of the total Initial Public
Offering (IPO) which constituted 134 million shares for a total capital raise of

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 R5.7 billion (and a 30,2% stake in Ayo). However, when Dr Matjila signed the
ISF on 14 December 2017, Ayo’s final PLS significantly changed in that the
total shares on offer became the 99.8 million shares which the PIC subscribed
for entirely, giving it 29% ownership of Ayo.

71. The proceeds of the capital raised in the IPO were proposed to be used for:

71.1. acquiring a 30% stake in BTSA for approximately R1 billion;

71.2. funding the rollout of the BTSA strategic relationship; and

71.3. funding Ayo’s acquisitions pipeline.

72. The ostensible purpose for the capital raise sought through Ayo’s listing (IPO)
was stated in Ayo’s pre-listing statement (PLS) as:

‘the rationale for the listing is to:

• raise capital in order to fund the rollout of the BTSA strategic

relationship;

• raise capital in order to fund the BTSA Subscription;

• raise capital in order to fund AYO Technology’s acquisition pipeline;

• allow AYO Technology to use listed scrip to fund future acquisitions;

• provide AYO Technology’s management and employees an

opportunity to acquire an equity stake in AYO Technology post the
listing through the AYO Technology Incentive Scheme, which will also
serve as a valuable retention and incentivisation tool;

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 • provide Invited Investors with an opportunity to participate in the
Private Placement; and

• provide Shareholders with a liquid, tradable asset within a regulated

environment and with a market-determined share price.’

73. The PLS further stated that:

‘The net proceeds of the Private Placement received by AYO

Technology (after deducting the expenses of the Private Placement,
which are expected to amount to approximately R77.3 million) will be
employed, inter alia, to:

• provide the Company with the capital to fund the rollout of the BTSA
strategic relationship;

• provide the Company with the capital to fund organic growth;

• provide the Company with the capital to fund the BTSA Subscription;
and

• provide the Company with capital in order to fund AYO Technology’s

acquisition pipeline.’

74. Ayo would be buying the 30% stake in BTSA from a related company within
the Sekunjalo Group, Kilomix (Pty) Ltd, though there was no justification of
how the value of R1 billion was arrived at, nor did the CFO, Ms More, query
the number.

75. AEEI is 61.17% owned by SIH. Post the listing, AEEI’s shareholding in Ayo
diluted from 80.03% to 49%.

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76. AEEI also undertook a B-BBEE consortium share issue to ensure that Ayo’s
ownership remained above 51% black owned and 30% black female owned
post the listing. Shares were issued to the B-BBEE Consortium136 at a
significant discount of R1.50 per share.

77. A circular to shareholders was issued on 27 November 2017, prior to the Ayo
proposed listing date of 21 December 2017. The circular indicated that pricing
was based on precedent pricing set by Ayo’s most recent corporate actions
(those concluded within the past 12 months).

78. The valuation of Ayo was based on a forward price earnings multiple (PE) of
16 times based on Ayo’s estimated normalised earnings. The premium paid
by PIC represents the additional value in the listed space and was based on
the present value of future cash flows based on growth opportunities identified.

79. There was an amount paid to AEEI Corporate Finance (related party) as
corporate advisor and book runner of R57.7 million and not R78.8 million,
which was the total expense for the listing.

80. An amount of R16 million in total was also paid to PSG Capital as transaction
advisor and sponsor. Mention is made by the PIC that normal market
placement fees are between 1-2% of total equity raised. R73.7/R4300 =
1.71%. These expenses are also listed in the PLS.

81. This transaction drew most of Dr Matjila’s attention in his statement before the
Commission, and it also took the greatest number of days during which Dr
Matjila was questioned on the transaction.

136
The B-BBEE Consortium was made up of: Police and Prisons Civil Rights Union (POPCRU), South African Cloothing
and Textile Workers Union (SACTWU), the Black Business Council, Federation of Unions of South Africa (FEDUSA)
nominess, the National Education, Health and Allied Workers’ Union (NEHAWU) and the Social Entrepreneurship
Foundation (Dr Survé’s foundation).

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Investment Corporation Page 315 of 794
82. The outright manipulation by Dr Survé of the valuation numbers to increase
the Ayo valuation from its own initial staff assessment (by former CIO, Mr
Malick Salie) of R2.3 billion to range between R10 billion and R15 billion,
ultimately determining a value of R13 billion, which translated to the R43 per
share or R4.3 billion paid by the PIC for its 29% investment in Ayo, was
defended by Dr Matjila, who acknowledged that the value of the Ayo assets
were estimated at R292 million at the time. He stated that the value was based
on future deals that could be expected so ‘I was satisfied that this valuation
was reasonable’.

Areas of Concern Arising from the Above Transactions

General concerns pertaining to the deals

83. The PIC appraisal documents never assessed cumulative group exposure in
any of the applications to invest. Moreover, even when these proposals were
tabled at the required approving structures, the question of overall exposure
to a group seemed to not be an issue, nor was the fact that IM was not
servicing their loan. Dr Matjila, in his appearance before the Commission,
justified the PIC’s failure to take steps to ensure the loan was serviced, stating
that:

‘the asset has performed very poorly in terms of financial returns in

line with other print media companies … I strongly believe that the
investment facilitated transformation and is contributing to democracy
by keeping the citizenry informed … INMSA has not been able to meet
its obligations due to a tough operating environment (and) SIH has
funded most of the working capital so far’.137

137
At page 121 of the Transcript for day 58 of the hearings held on 23 July 2019.

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84. Regardless of this non-servicing of the debt, which amounts to around R1.5
billion, the PIC continued to invest in Premier Fishing, Ayo and almost in
Sagarmatha.

85. The Sekunjalo investments showed a marked disregard for PIC policy and
standard operating procedures.

86. Proper governance was absent or poor, and risk identification processes were
downplayed by looking for risk mitigants to make sure the deals were
approved.

87. DD reports highlighting issues around independence of Board members,

policies to be implemented etcetera, were not followed up by the PIC to ensure
implementation post the deal approval and monies having flowed.

88. The close relationship between Dr Matjila and Dr Survé created top down
pressures that the deal teams experienced to get the requisite approvals.

89. In addition to the concerns raised above, pertaining to the IM and Sagarmatha
deals, the following concerns need to be raised:

90. The IC meeting of 6 February 2013 raised concerns that the IM business was
overvalued – the income statement and profitability trends were declining.
They approved the transaction on condition, inter alia, that personal surety
needed to be provided by the 40% lead consortium member (Sekunjalo) for
the PIC’s loans. The Commission has established that this precondition was
never met.138

91. As at 30 June 2016, the directors of IM were Dr Survé, Trueman Goba,

Koketso Mabe, Salim Young, Takudzwa Hove, Lu Zhengyi, David Liang,

138
Email to Gill Marcus from Ford-Hoon Naidene dated 03 December 2019

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Investment Corporation Page 317 of 794
 Saarah Survé (daughter of Dr Survé), Aziza Begum Amod (sister of Dr Survé),
Fatima Survé (sister of Dr Survé), Ismet Amod (brother-in-law of Dr Survé),
and Cherie Hendricks. Only Dr Survé is listed as a Director of SIM.

Ayo

92. In Dr Matjila’s statement he indicated that the opportunity to invest in Ayo was
introduced to him by Dr Survé around October 2017. He stated that he ‘saw
the deal as very strategic for the PIC as it gave the PIC exposure to the
growing ICT, information, communication and technology sectors which is part
of the developmental investments.’139 What this shows is that the transaction
had Dr Matjila’s stamp of approval even before it was officially proposed to or
evaluated by the PIC. This lends credence to the top-down pressures that the
deal team said they were exposed to.

93. The ISF was signed on 14 December 2017, before any PMC meeting to
approve the transaction. In fact, subsequent evidence that surfaced indicated
that Dr Matjila signed an irrevocable letter of undertaking to AEEI on 4
December 2019. This clearly demonstrates that the transaction had Dr
Matjila’s approval prior to even the ISF being signed and indicates that it was
already a fait accompli by the time Dr Matjila and Mr Molebatsi (Acting
Executive Head: Listed Investments) signed the ISF on 14 December 2017.

94. No proper valuation to back the investment was done, and therefore the
question remains as to whether the PIC subscribed for the shares at a fair and
reasonable value. At the listing date, the shares were R43 per share, while as
at 23 October 2019 the share price was R5.60 per share, a decrease in value
per share of 87%.

139
At page 53 of the Transcript for day 59 of the hearings held on 24 July 2019.

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95. The PIC relied on a draft Ayo PLS and should have used the final PLS to
ensure the accuracy and adequacy of information in its analysis of the
company. Key to its evaluation of Ayo was the BTSA historical annual financial
statements which the PIC did not have in its possession, nor was it included
in the draft or final PLS. Furthermore, a letter from BTSA to Mr Kevin Hardy
(Mr Hardy), former CEO of Ayo, dated 23 August 2018 and tabled at the
Commission, clearly showed that BTSA did not agree with the assumptions
made in the PLS about BTSA. Paragraph 6 of the letter states:

‘Not only was the information relating to BTSA’s existing customers,

its revenues and the anticipated transition of BTSA’s existing
customers to Ayo not provided to Ayo, such information and
disclosures are not factually correct. BTSA’s consent was never
sought nor obtained for any such disclosures’.

96. In Paragraph 7 the letter states that:

‘It is undeniable that the PLS creates a distinct impression that its
relationship with BTSA is closer than actually contemplated and
agreed in the Alliance Agreement. This is not only misleading but
damaging to BTSA’s reputation … at no time did BTSA together with
Ayo identify target companies to increase Ayo’s offering’.

97. But BTSA formed a critical part of the valuation of Ayo as it was considered a
key strategic relationship that would aggressively grow its business. Revenue
was projected to increase by 825% premised on the assumptions that existing
BTSA customers would transition across to Ayo and Ayo would be targeting
an increase in market share between 1-2% for the periods forecasted owing
to its superior B-BBEE credentials. It was also envisaged that the existing Ayo
subsidiaries would achieve organic growth due to working capital funding
which Ayo would provide.

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98. An 825% increase in revenue in one year (from 2017 to 2018) based on
assumptions should call into question whether this significant percentage
increase was actually achievable, reasonable and realistic. The PIC relied on
the fact that the forecast was signed off by Grant Thornton, Mr Imtiaaz Hassim
was the partner, who provided a limited assurance report on the forecast
information for the purpose of complying with JSE listing requirements.

99. The PIC was pressed to evaluate the transaction and perform DDs in a short
space of time to meet the JSE listing date of 21 December 2017. The PIC deal
team were only introduced to the prospect of investing in Ayo on 16 November
2017, nearly a month after Dr Survé had introduced the Ayo deal to Dr Matjila
and, furthermore, after both Ayo and Sagarmatha had been pitched to Mr
Madavo in Cape Town. This fact was excluded from Mr Madavo’s evidence at
the Commission.

100. Ayo/Sekunjalo was essentially driving the timelines for PIC approval, and not
the PIC. Many PIC executives were already on leave and had staff acting in
their positions, including Mr Madavo, EH: LI.

101. The PIC had insufficient liquidity to fund the subscription of Ayo, such that a
letter was sent to the JSE, signed by Dr Matjila, indicating that payment for the
shares would be made in two tranches. The PIC had to liquidate certain assets
in order to make funds available.

102. The PIC was the only subscriber to the private placement and took up the
entire subscription, although Dr Survé tried to create the impression that there
was an over subscription for the shares (which turned out later to be related
parties to Dr Survé/Sekunjalo).

103. The GEPF had imposed a limit, in October 2017, such that any single
investment above R2 billion on the unlisted and property investment portfolios
required its prior approval. In his evidence, GEPF’s Principal Executive

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 320 of 794
 Officer, Dr Abel Sithole, found the explanatory letter of 16 April 2018 sent by
the PIC about the Ayo transaction to be a material misrepresentation and said
that there should be legal consequences.

104. The PIC’s investment process in relation to IPOs as set out in the Standard
Operating Procedures: Listed Investments (SOPs) was flouted - there was no
PMC 1 process to assess the mandate fit of the prospective investment as
well as to approve proceeding with detailed due diligence investigations.
Secondly, there was no PMC 2 approval before subscribing for the shares in
the Ayo IPO.

105. Post Dr Matjila signing the ISF on 14 December 2017, which then committed
the PIC to the R4.3 billion Ayo share subscription, the next PMC meeting
needed to ratify the transaction, in order to regularise the decision taken by Dr
Matjila. This was not done. The due diligence reports from Legal, ESG and
Risk had not been finalised until after the ISF had been signed, even though
Dr Matjila, in his statement, indicated that he had received verbal feedback
from the Heads or Acting Heads of those departments at the time, prior to
signing the ISF. No evidence could be provided on this.

106. There is concentration risk in one group, the Sekunjalo Group, and one man,
Dr Survé, with no evaluation of group exposure in any scoping or appraisal
document pertaining to the above four transactions, having taken place.

107. In relation to governance matters - board members within the boards of the
Sekunjalo Group of companies are not independent. It was a PIC requirement
that the Ayo board be strengthened with independent non-executive directors.
The following tables explain how board members are related to Dr Survé, are
long-serving employees, long-time friends or are non-executive directors on
other Sekunjalo Group company boards and dominate the board seats in
those companies. Independent non-executive directors are in the minority on

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 321 of 794
 the boards and this point is illustrated using two examples, namely on the
AEEI and Ayo boards.

AEEI Board (as provided by Mr Salie, ex-employee of AEEI who also

appeared at the Commission)

Name Role Qualificati Relationsh Other Boards

on ip with Dr in the SIH
Iqbal Survé Group
Khalid Executive MBA, B Brother in- Numerous
Abdulla CEO Com Hons law of boards of
Dr Survé AEEI and
major
shareholder
Including
Deputy Chair
of Premier
Fishing Ltd
Chantelle Executive CA (SA) Long Numerous
Ah Sign FD serving boards of
employee AEEI
since 2007
Ismet Non- None Brother-in- Numerous
Amod Executive law of Dr boards of SIH,
Director Survé, Independent
married to Media and
Aziza below AEEI

Including
Premier and
AYO Ltd

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 322 of 794
Aziza Non- None Eldest sister Numerous
Begum Executive of Dr Survé boards of
Amod Director SIH,
Independe
nt Media,
AEEI and 3
laws
Capital

Including
Premier
Fishing
and AYO
Ltd
Advocate Non- Long Numerous
Ngoako Executive standing boards of
Abel Director relationship AEEI
Ramatlhod with Dr
i Survé Including
Premier
Fishing Ltd
and AYO
Ltd
Gaamiem Non- None Bookkeeper Numerous
Colbie Executive of SIH boards

Molebohe Non- Law degree Her mother Unknown

ng Executive is on the
Gabriella Premier
Mosia Fishing and
(Rosemary Ayo Boards
Mosia’s – Rosemary
daughter) Mosia

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 323 of 794
Jowayne Non- CA(SA) Unknown Unknown
van Wyk Executiv
e

Ayo Board

Name Role Qualification Relationship Other

with Dr Iqbal Boards in
Survé the SIH
Group
Howard Executive B Com Ex Independent AYO and
Plaatjies CEO Media Executive subsidiary
director boards
Tatenda Executive CA (SA) Long serving AYO and
Bundo FD employee subsidiary
boards
Vanessa Non- Unknown Long serving AYO
Govender Executive employee subsidiary
previously boards
worked for IM
Wallace Chairman B.A Soc. Long standing AYO
Mqoqi – Non Science, LLB, relationship with
Executive degrees, Post Dr Survé
Director –graduate
qualifications
from Harvard
University,
USA, and the
Development
Lawyers
Course at the

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 324 of 794
 International
Development
Law Institute in
Rome, Italy
Ismet Amod Non- None Brother in-law to Numerous
Executive Dr Survé, boards of
Director married to Aziza SIH,
below Independent
Media and
AEEI

Including
Premier and
AYO Ltd
Aziza Non- None Eldest sister of Numerous
Begum Executive Dr Survé boards of
Amod Director SIH,
Independent
Media, AEEI
and 3 laws
Capital

Including
Premier and
AYO Ltd
Advocate Non- Long standing Numerous
Ngoako Executive relationship with boards of
Abel Director Dr Survé AEEI
Ramatlhodi
Including
Premier
Fishing Ltd
and AYO Ltd

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 325 of 794
Takudzwa Non- None CEO/FD Numerous
Hove Executive Independent boards of
(Resigned Media SIH,
19 August Independent
2019) Media, AEEI
and 3 laws
Capital

Rosemary Non- B Com Hons Long standing Numerous

Mosia Executive relationship with boards of
Dr Survé AEEI

Including
Premier
Fishing Ltd
and AYO Ltd
Dennis Non- Phd Shareholder AYO
George Executive linked to
controversial B-
BBEE
consortium
shares on AYO
listing
Sello Non- BA Degree Black Business AYO
Rasateba Executive and Masters Council Chair,
organisation with
long history and
transactions with
Dr Survé

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 326 of 794
PSG Capital received a bonus from Dr Survé post the successful
listing of Ayo

108. Emails provided to the Commission indicated that PSG Capital received a
bonus from Dr Survé for successfully listing Ayo. PSG Capital was the
transaction advisor and sponsor for the listing. An email from Mr David Tosi
(Mr Tosi) thanked Khalid Abdulla for the ‘generous bonus’.

109. The invoice from PSG Capital to AEEI was R20.6 million excluding VAT. Their
fee specified in the PLS was R14.5 million as transaction advisor and R1.5m
as sponsor, which totals R16 million. The ‘bonus’ was therefore in the region
of R4 million. When the question was posed in an email sent by the
Commission to Mr Tosi of PSG Capital, as to what services were rendered for
the placement fee of R16 million, as the PIC was the only company taking up
the private placement of shares, his response was:

‘As is normal for transactions of this nature, our mandate comprised

of a fixed and variable portion. Without the variable portion, our fixed
fee would have been much higher (clients generally prefer a lower
fixed fee with a higher success based variable fee). The variable
portion was based on a percentage of the capital raised and was
effectively dependent on a successful transaction (if capital was not
raised then it would not have been due and payable). The variable
portion is in line with what we have charged in other non-related
transactions.’

110. An analysis of the following bank accounts has been conducted:

110.1. 3 Laws Capital (Period: January 2017 to June 2019, current account with
Nedbank).

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Investment Corporation Page 327 of 794
110.2. Ayo (Period: December 2017 to July 2019 (May 2019 missing), current
account with Absa)

110.3. African News Agency (Pty) Ltd (ANA) (Period: March 2015 to June 2019,
current account with Nedbank)

111. The analysis illustrates and gives examples of transactions that seem strange
for that particular company’s business and also indicates that monies are
transferred to fund other group companies and then transferred back when it
is time to reflect that company’s interim or year-end results. This occurs
particularly in the case of Ayo, as it is listed on the JSE and its results are
available publicly.

112. Dr Survé and Dr Matjila had both indicated to the Commission that the monies
received from the PIC are still in Ayo’s bank accounts. This is partly correct
due to the fact that the results are published at a point in time, and the monies
are transferred back to Ayo just before the interim and year end cut-off periods
i.e. 28 February and 31 August, respectively.

113. See the below table for the analysis of 3 Laws Capital Nedbank current
account indicating the movement of monies between Ayo, Sekunjalo Capital
and 3 Laws Capital:

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 328 of 794
3 Laws Capital 10888 03911 Nedbank current account

Date Amount Comment

04/06/2019 R26 700 515.92 Inflow from AYO which is then
transferred to the 3 Laws
Capital call account
18/3/2019 R20 561 536 Payment to Ayo
15/3/2019 R23 000 000 Transfer to 3 Laws Capital from
SBG (R23m inflow and on
18/3/2019 and amount of
R20 561 536 was paid to Ayo)
22/2/2019 R400 000 000 3 Laws Capital then transfers
22/2/2019 R70 000 000 R470m back to Ayo on
22/2/2019 just before their
financial year end 28/2/2019
22/2/2019 R370 000 000 R370m transferred out of call
R35 000 000 account to current account.
R35 000 000 Two additional transfers into 3
R30 000 000 Laws Capital current account
(one of the R35m transfers
comes from ANA (validated by
their bank statement))
R30m from SBG Securities
Total of R470m received on
22/2/2019
11/12/2018 R50 000 000 R50m transferred from 3 Laws
Capital call account to SBG
Securities on 12/12/2018
29/11/2018 R400 000 000 AYO investment again in 3
Laws Capital post the financial
year end date 31/8/2018 and

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Investment Corporation Page 329 of 794
 R300m transferred to the call
account on 30/11/2018 and a
further R100m on the
4/12/2018
No large transfers back to 3
Laws Capital between April
2018 and October 2018 from
any Sekunjalo Group company
in this account.
The assumption then is that
another group company
transferred the R400m back to
Ayo on 20/8/2018 even though
in the Ayo bank statement it
says 3 Laws Capital. There is
not a similar entry in 3 Laws
Capital’s bank account on the
same day
9/4/2018 R50 000 000 R50m is transferred from 3
Laws Capital call account and
then transferred to Sekunjalo
Capital (another company in
the Sekunjalo Group) -
29/3/2018 R160 000 000 R210m is transferred out of the
R50 000 000 3 Laws Capital call account and
transferred on 29/3/2018 to
Sekunjalo Capital
27/3/2018 R160 000 000 3 Laws Capital takes R160m
out of call account and on
28/3/2018 transfers R160m to

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 330 of 794
 Sekunjalo Capital. Total
transferred R160m + R210m +
R50m = R420m.
5/3/2018 R400 000 000 AYO investment into 3 Laws
Capital just post the half year
end 28/2/2018 and it is
transferred to 3 Laws Capital
call account
10/3/2017 R25 000 000 R25m is transferred out of 3
Laws Capital call account and
then transferred to Independent
Newspapers Holding on
14/3/2017

AYO Bank account 407 232 1896 Absa current account

Date Amount Comment

6/6/2019 R600 000 Payment made to Dr VI
Ramlakan (Reverend)
4/6/2019 R26 700 515.92 Payment to 3 Laws Capital
(validated by 3 Laws Capital
Nedbank current account)
29/4/2019 R98 477 892.80 Not sure what this is but it is a
large payment. Both Naahied
Gamieldien and Malick Salie do
not know
26/3/2019 R15 000 000 Payment to Loot Online (Pty)
Ltd (subsidiary of Sagarmatha)
26/3/2019 R15 000 000 Transfer from Ayo money
market to current account

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 331 of 794
 22/3/2019 R100 000 000 Payment to Tamlalor (Pty) Ltd.
Per Malick Salie this was a
Fintech Fund set up to acquire
IT assets. He is not sure of the
status of it now. Per CIPC
records, the directors of this
company are Khalid Abdulla,
Neil Mark Anderson and Ethan
Dube (both are Vunani
Corporate Finance directors).
There was a press article that
was found on this JV between
Vunani Corporate Finance
(Vunani) and Ayo
22/3/2019 R106 000 000 Transfer from Ayo money
market to current account
20/3/2019 R26 000 000 Transfer from Ayo money
market to current account
18/3/2019 R20 561 536 Deposit from 3 Laws Capital
(validated by 3 Laws Capital
Nedbank current account)
6/3/2019 R32 000 000 Transfer from Ayo money
market to current account
26/2/2019 R465 000 000 Transfer to Ayo money market
account
22/2/2019 R400 000 000 Deposits from 3 Laws Capital
R70 000 000 (validated by 3 Laws Capital
Nedbank current account)
20/2/2019 R25 000 000 Payment to Abrahams Kiewitz
Attorneys (Dr Survé’s personal

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 332 of 794
 lawyer per Naahied
Gamieldien)
25/1/2019 R18 000 000 Transfer from Ayo money
(R12 305 000) market to current account and
then an amount of R12.305m
was paid to ANA. The
integrated reporting function
was to be under ANA, yet they
had no experience. When the
ANA people met with Naahied
Gamieldien the original quote
was R36m excl. VAT
21/12/2018 R300 000 000 Payments made to Oasis Asset
R100 000 000 Managers (Oasis)
21/12/2018 R420 000 000 Transfer from Ayo money
market to current account to
facilitate investment in Oasis
18/12/2018 R3 896 220.17 Amount paid to Vunani for
Sizwe deal per Naahied
Gamieldien
18/12/2018 R20 000 000 Transfer from Ayo money
market to current account
03/12/2018 R84 360 639.90 Ayo dividend paid to
shareholders
30/11/2018 R64 000 000 Transfer from Ayo money
market to current account
29/11/2018 R400 000 000 Transfer to 3 Laws Capital
(Validated by 3 Laws Capital
Nedbank current account bank
statement)

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 333 of 794
 29/11/2018 R400 000 000 Transfer from Ayo money
market to current account
28/9/2018 R153 000 000 Transfer from Ayo money
(R145 000 000) market to current account and
then, on the same day, there
was a transfer made to Investec
Employee Benefits for R145m.
Speaking to Naahied
Gamieldien and Malick Salie,
they recall this being a term
loan from Ayo to Vunani in
order to settle their debt with
Investec. In exchange, Ayo
would acquire 32% of Vunani.
In addition, the R100m fintech
fund was set up and is a JV
between Ayo and Vunani. See
above 22/3/2019
14/9/2019 R35 000 000 Transfer from Ayo money
market to current account
31/8/2018 R93 967.50 Payment made to Dr MI Survé
for travel allowance for him, W
Mgoqi and Z Qwebu. They
were going to the UK to visit BT
29/8/2018 R13 463 Payment made to Wallace
Mgoqi
24/8/2018 R380 000 000 Transfer made to Ayo money
market
20/8/2018 R400 000 000 3 Laws Capital returning the
funds to Ayo but no entry in

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 334 of 794
 their Nedbank bank statement
on this date. In Ayo’s bank
statement it says 3 Laws
Capital. Naahied Gamieldien
checked 3 Laws Capital
Standard Bank account and
there was no such transfer on
this date.
The assumption is then that it
came from elsewhere in the
Sekunjalo Group.
10/8/2018 R29 000 000 Transfer from Ayo money
market to current account
5/3/2018 R400 000 000 Transferred to 3 Laws Capital
(Validated by 3 Laws Capital
Nedbank account)
28/2/2018 R400 000 000 Transferred out of Ayo money
market to Ayo current account
18/1/2018 R70 000 000 Transferred out of Ayo money
market and on same day
R64.578m was transferred to
AEEI
22/12/2017 R35 000 000 Transferred to Sekunjalo
Capital
22/12/2017 R3.7 billion Transferred to Ayo money
market account
22/12/2017 R35 000 000 Transferred to 3 Laws Capital.
This was received in a
Standard Bank account for 3
Laws Capital 072092335(the

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Investment Corporation Page 335 of 794
 Commission has not had sight
of the bank statements for this
account). Naahied Gamieldien
confirmed that she did the
transfer into this account.
22/12/2017 R3.79 billion Received from the PIC
21/12/2017 R499 999 958 Received from the PIC

African News Agency 1096 778 106 Nedbank current account

Date Amount Comment

22/2/2019 R35 000 000 Transfer to 3 Laws Capital
(validated by their bank statement)
25/1/2019 R12 305 000 Funds received from AYO for
marketing services etc. ANA has
no experience in doing any of the
services offered and no
comparative quote or references
were received by AYO for this work
per Naahied Gamieldien
31/8/2018 R41 340 000 ANA paid Premier Fishing.
(Premier Fishing bank statements
reflect this payment as an AEEI
deposit)
23/7/2018 R166 667 Payment to R Mosia – AYO
22/11/2018 R100 000 Director appointed in August 2018,
also a director on Sagarmatha
board (resigned 26 September
2019). She remains a director of

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 336 of 794
 Premier Fishing and Ayo. Yet Dr
Survé said she was independent at
the Commission. She is not a
director of ANA but receives
monies from ANA
16/8/2016 R25 000 000 Transfer from ANA call account to
18/8/2016 R25 000 000 current account
Transfer out to Dr Survé
27/5/2015 R357 000 Received funds from the China-
000 Africa Development Fund
(CADFUND) for an investment into
ANA and monies transferred same
day into the call account.

114. Family members such as Dr Survé’s sister, Ms Aziza Amod (Ms Amod),
transact in the ANA Nedbank accounts under his instruction. Ms Amod and Dr
Survé are directors of ANA. Both the Nedbank call and current accounts of
ANA have 3 authorised signatories:

114.1. Cherie Felicity Hendricks

114.2. Dr Survé; and

114.3. Ms Amod

115. According to Mr Grant Fredericks (Mr Fredricks) and Ms Lisa-Marie de Villiers

(Ms de Villiers), the previous CFO and Financial Manager of ANA, executive
management does not have access to these bank accounts. According to

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 337 of 794
 them, copies of bank statements are requested from Ms Amod on a monthly
basis and then captured into ANA’s accounting records.

116. A Standard Bank current account for ANA was opened in September 2016.
Ms de Villiers and two others were made authorised signatories of this
account. She explained that the way it worked was that a detailed cost
schedule was prepared on a monthly basis and sent to Ms Amod and she
would then transfer the amount required into the account. This account
effectively paid for all operating expenses of ANA. Strict control over the funds
in this account is maintained by Ms Amod.

117. Ms Amod was a director of 3 Laws Capital, but the latest publicly available
information indicates that Dr Survé and Mr Arthur Johnson are the only two
directors. The Commission had asked Dr Survé to provide a list of his
directorships that are active and inactive. He disclosed that he was an active
director of ANA but did not disclose that he was an active director of 3 Laws
Capital. He listed that he had resigned from Sagarmatha and Ayo.

Increased dividend flows to AEEI and ultimately the Haraas Trust

118. The Haraas Trust owns 100% of SIH, which owns 61.17% of AEEI. Ayo is
49.39% owned by AEEI. The Haraas Trust trustee is Dr Survé and the
beneficiaries of the trust are his two children Rayhaan Survé and Saarah
Survé.

119. The table below was prepared by Mr Malick Salie. What it illustrates is the
increase in dividend flow to AEEI post the listings of Premier Fishing and Ayo.
The dividend numbers could not be validated by the forensic team as the AEEI
website was not available.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 338 of 794
 Dividends
AEEI Ltd Year Executive Director Shareholder % Increase
R'000 R'000
1996 - 2013 0 0
Maiden Dividend declaration took place at
the time Dr Surve decided to move from
being an executive to a Shareholder 2014 9 827 0
2015 0 12 283 25%
2016 0 16 203 32%
The operational cashflows did not
justfy this increase and interest from
AYO used fund Div 2017 0 25 804 59% Listing of Premier and AYO
2018 0 43 238 68%

Dividends
50000
Year Dividends
40000
1996 - 2013 0
30000 2014 9 827
2015 12 283
20000 2016 16 203
2017 25 804
10000
2018 43 238
0
1 2 3 4 5 6

Dividends

120. As stated above, Grant Thornton Cape Incorporated signed off on the limited
assurance report on forecast financial information contained in the PLS. BDO
and Grant Thornton merged July 2018. BDO Cape Incorporated has been the
auditor of Ayo for 21 years, as reflected in the annual financial statements of
AYO 2018 (independent auditor’s report page 8). This indicates a long-
standing relationship between the audit firm and Ayo and brings into question
its independence.

Concluding remarks

121. From the outset it appears that the PIC’s interactions with and investments in
the Sekunjalo Group were questionable. The different investment proposals
emanated from direct discussions between Dr Survé and Dr Matjila.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 339 of 794
122. The PIC presented the original INMSA proposal to the GEPF, which
expressed its discomfort with the exposure even though it was within the limits
prescribed by the PIC. The GEPF did not support the deal and expressed the
view that this was an investment in a sector that ‘had a bleak future’. However,
their view was that the PIC should make the decision provided that the
exposure did not exceed R 2 billion.

123. The Board of the PIC met in 2013 to consider the recommendation of the IC.
The Board did not support the investment proposal and decided that the
transaction team should pursue a revised proposal. It finally agreed to an
investment of R1.44 billion in INMSA with a number of preconditions, including
that the 40% lead consortium member, Sekunjalo, provide personal surety of
R500 million.

124. At the time of finalising this report, the outstanding balance owed to the PIC is
R1.5 billion. The Commission has established that the surety of R500 million
was never registered.140 However, it should be noted that the PIC has recently
taken steps to recover the full amount owed, including applying for the
liquidation of Sekunjalo Independent Media (SIM).

125. Dr Matjila, notwithstanding all the information that was disclosed at the
Commission, not only continued to try to defend the decisions taken at the
time, but made a concerted effort to justify his actions. With regard to INMSA,
Dr Matjila stated that ‘the asset has performed very poorly … in line with other
print media’141, going on to give performance figures of other media houses.
He further stated that the investment was contributing to democracy. However,
he was not able to show a broad media investment strategy to address the
need for transformation and a contribution to democracy. He went further to
say that ‘I understand that Sekunjalo Investment Holdings has funded most of

140
Email to Gill Marcus from Ford-Hoon Naidene dated 03 December 2019
141
At page 121 of the Transcript for day 58 of the hearings held on 23 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 340 of 794
 the working capital so far’.142 At no point in his testimony did he indicate that
it was his concern, let alone a priority, that the outstanding debt to the PIC
owed by INMSA, be serviced, particularly given the further investments that
had been made.

126. The proposed Sagarmatha transaction epitomises the lengths to which Dr

Matjila and Dr Survé were willing to go to get the deal done. In considering the
transaction, the Commission was informed of the processes and proposals,
and the decisions taken by Dr Matjila and the PIC. That the transaction did not
go ahead was a result of the action taken by the JSE, and notwithstanding
protestations by Dr Matjila that he had decided against the investment around
the same time that the JSE withdrew the listing, if it had been left to the PIC,
the transaction would in all likelihood, have proceeded. Dr Matjila did not, or
was unable to, provide any evidence that he communicated in writing to Dr
Survé, on behalf of the PIC, that it had decided not to proceed with the
transaction.

127. The Ayo transaction demonstrates the malfeasance of the Sekunjalo Group,
the impropriety of the process and practice of the PIC as well as the gross
negligence of both the CEO and CFO. By both omission and commission, the
two most senior executive directors of the PIC demonstrated not only their
lack of credibility as witnesses, but their readiness to distance themselves
from decisions taken and blame others, including the most junior staff
members involved in the transaction. At no point did either acknowledge
deficiencies in the process or accept either responsibility or accountability for
the investment.

128. Dr Matjila stated that ‘I have not put any pressure on anyone to make specific
recommendations, including the valuations, to ensure that the deal worked’.143

142
At page 121 of the Transcript for day 58 of the hearings held on 23 July 2019.
143
At page 81 of the Transcript for day 59 of the hearings held on 24 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 341 of 794
 However, there was no valuation done at all this time. The valuation was only
done in May 2018, when the IC started asking questions about the Ayo
transaction after extensive media comments. Dr Matjila’s deliberate
misleading, inaccurate disclosure and material non-disclosure in his testimony
to the Commission was most evident in his evidence around the signing of the
ISF to invest in Ayo.

129. In his statement, Dr Matjila asserted that the PIC funds invested in Ayo (R4.3
billion) was in the bank. However, as the evidence gleaned from various bank
statements show, there has been significant movement of the funds between
different related parties. This created the impression of funds in bank accounts
but, in reality, this was only the case at specific moments in time.

Recommendations

130. The PIC Board should:

130.1. Conduct a forensic review of all the processes involved in all transactions
entered into with the Sekunjalo Group;

130.2. Ensure that the PIC obtains all company registration numbers of every
entity in the Sekunjalo Group to be able to conduct a forensic
investigation as to the flow of monies out of and into the Group;

130.3. Ensure that all pre- and post-conditions for all investments made, not just
those in the Sekunjalo Group, have been fully met and implemented, and
that effective processes and systems are in place to properly monitor the
investment post disbursement;

130.4. Take the necessary steps to recover all monies with interest due to the
PIC, especially where personal or other surety was a precondition to
approval of the investment;

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130.5. Take appropriate action to recover the funds, with interest, invested in
Ayo, taking into account the precondition set as to what the PIC funds
could be spent on and the money movements between the Sekunjalo
related companies;

130.6. Determine the future role, if any, of the PIC in all of the transactions done
with the Sekunjalo Group, to protect the interests of the PIC and its
clients;

130.7. Review all aspects of the transactions entered into with the Sekunjalo
Group to determine whether any laws or regulations have been broken;

130.8. Review the internal processes including standard operating procedures

followed by the PIC, together with the delegation of authority, to
determine responsibility and culpability, and to consider whether there
are grounds for disciplinary, criminal and/or civil legal action against any
PIC employees or Board members, current or previous.

131. The Regulatory and other authorities should:

131.1. Consider whether any laws and/or regulations have been broken by
either the PIC and/or the Sekunjalo Group;

131.2. Determine what legal steps, if any, should be taken to address any such
violations; and

131.3. Assess whether the movement of funds between accounts, as indicated

above, was intended to mislead/defraud investors and/or regulators.

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CASE STUDY: S & S REFINERY

132. S&S Refinery (S&S) is a palm oil refinery and saponification plant based in
Nacala, Nampula Province, Mozambique. The PIC decided, in October 2014,
to invest in S&S. The legal agreements relating to the investment decision
were concluded on 14 November 2014.

133. Although the investment decision was made in 2014 and therefore falls
outside the period 1 January 2015 and 31 August 2018, as stipulated in
paragraph 2 of the ToRs, which states that ‘the Commission must, in its
enquiry for the purpose of its findings, report and recommendations, consider
the period 1 January 2015 to 31 August 2018’, the transaction is among those
mentioned in media reports in 2017 and /or 2018 as per ToR 1.1.

134. The allegations in the media reports were that Dr Matjila had authorised an
investment to the tune of nearly R1 billion in a dilapidated Mozambican palm
oil refinery plant (S&S) that was not operational, ‘years after a massive cash
injection’. It was also alleged that, apart from injecting US$ 63 million
(approximately R812 million) for a 50% stake in S&S, the PIC also paid
millions in facilitation fees to a company named Indiafrec Trade & Investment
(Pty) Ltd, whose directors were listed as Indian-born Mr Ameer Mirza (Mr
Mirza) and Mr Siyabonga Nene (Mr S Nene) whose father, Mr Nhlanhla Nene
(Mr Nene/Deputy Minister Nene), was allegedly the Finance Minister at the
time of the investment.144

135. A reading of the evidence of the four witnesses who testified before the
Commission on the S&S transaction, namely, Dr Matjila, Messrs Rajdhar and
Wellington Masekesa (Mr Masekesa) and Ms Constance Sharon Madzikanda
(Ms Madzikanda), does not show any impropriety in the investment decision.
However, given the evidence presented before the Commission and the fact

144
https://mg.co.za/article/2018-10-12-00-dangerous-liaisons-pic-rassul-and-the-port-of-nacala

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 that a further investment was made by the PIC in the same project, the
information, in particular matters presented in the Risk report, will be
considered.

136. The S&S deal was introduced to the PIC by Mr S Nene and Mr Mirza, through
Dr Matjila who was the CIO at the time. Dr Matjila testified that Mr S Nene had
previously been introduced to him by his father, Deputy Minister Nene, who
was the Deputy Minister of Finance at the time and who, by virtue of that
position, was also chairman of the PIC. Dr Matjila further testified that Deputy
Minister Nene requested him ‘to coach’ his son,145 which he agreed to do,
claiming that this practice was very common in the private sector. Dr Matjila
confirmed that he had assisted Mr S Nene and his partner, Mr Mirza, with
‘advice on the small business they had in cement‘ and in resolving their
business issues with Afrisam.146 He said that, in February 2014, he passed
on the proposed S&S deal to Mr Rajdhar, who subsequently oversaw the
process of it going through the various stages of the PIC’s investment
procedures, until disbursement.147

137. The proposal put to the PIC by Messrs Mirza and S Nene was that their
company, Indiafrec, jointly participate with the PIC in acquiring 50% of the
ownership in S&S and that the PIC fund Indiafrec’s portion of the acquisition.
At the end of the first meeting, Mr Rajdhar and his team agreed to undertake
a site visit at S&S in Mozambique. According to Mr Rajdhar, the site visit was
undertaken in February or March 2014, the visiting team consisting of himself,
Mr Paul Magula (Mr Magula) and Mr Masekesa, accompanied by Messrs
Mirza and S Nene.148

145
At page 56 of the Transcript for day 55 of the hearings held on 16 July 2019.
146
At page 56 of the Transcript for day 55 of the hearings held on 16 July 2019.
147
Para 10 of Mr Rajdhar’s statement signed on 25 March 2019.
148
Paras 14-15 of Mr Rajdhar’s statement signed on 25 March 2019

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138. Contrary to the media reports referred to above, Mr Masekesa testified that he
was impressed by the plant, which he said was well built with the equipment
used in the plant being of high quality, sourced from a reputable supplier in
Belgium.149 The plant was at that stage, about 80% to 90% complete. Mr
Masekesa said they were met at S&S by a team of enthusiastic experts and
specialist engineers from India. He said the project promoter was a Mr
Momade Rassul Rahim (Mr Rassul).150

139. Back in South Africa, a transaction team was assembled and instructed to look
deeper into the proposed transaction. Mr Masekesa, who worked in the office
of the CIO where his role was to assist in the development of the Africa
strategy, was invited by Mr Rajdhar to be part of the team considering the
proposed transaction.

140. After PMC1 had approved the referral of the proposal for due diligence, a
second site visit was undertaken by a larger team which, among other things,
also visited the surrounding areas to assess potential demand and supply of
cooking oil.151 Subsequent to the due diligence, the proposed transaction was
tabled before PMC2 on 7 August 2014 for recommendation to the PEPSSME
FIP. The PEPSSME FIP subsequently approved the total investment of US$
62.5 million, made up of US$ 44 million of senior debt (loan) and US$ 18.5
million equity funding, plus an additional US$ 5 million being working
capital.152

141. At PMC1, the issue of the relationship between Mr S Nene and his father,
Deputy Minister Nene, and the former’s participation in the transaction was
raised and discussed. The PMC ordered that the matter be investigated. The

149
At page 93 of the Transcript for day 17 of the hearings held on 19 March 2019.
150
Ibid. pages 88-89.
151
At page 98 of the Transcript for day 17 of the hearings held on 19 March 2019.
152
Ibid. page 99.

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 deal team’s report at the next PMC was that nothing prevented the PIC from
funding related parties. There was no policy in terms of which the funding of
politically exposed persons (PEPs) was prohibited. A policy relating to PEPs
was approved only in December 2014.153

142. It appears that at some stage during the process of considering the transaction
proposal, Indiafrec fell by the wayside and so did Mr S Nene. Mr Rassul, as
the sponsor, dealt only with Mr Mirza as the deal initiator.154 When the referral
fee of US$ 1.725 million was paid on 8 September 2014, it was paid, upon the
instruction of Mr Mirza, into the account of a company named Zaid
International, domiciled in Dubai. Mr Rajdhar said that the PIC only became
aware of Zaid International at the time of payment of referral fees.155 It cannot
be established, on the evidence, that Mr S Nene received part of the referral
fee paid to Mr Mirza, but Mr Masekesa stated that Mr S Nene was not paid
any fee by the PIC.156 However, in his testimony Dr Matjila stated that ‘what
the PIC did was to pay Mr Nene (junior) and his partner a facilitation fee
(US$1,7 million) which is common and standard practice to do in the
investment industry upon the successful conclusion of the deal’.157

143. On 21 January 2016, the PIC, through the PEPSS Fund Investment Panel,
resolved to increase its investment in S&S from 45% to 70% by acquiring a
further 25% shareholding for a consideration of US$10 million.158 The
motivation for the resolution reads:

‘WHEREAS the PIC (company) has received an opportunity to

increase its shareholding in S & S Refinery LDA (S & S Refineries)

153
Paras 20-21 of Mr Rajdhar’s statement, 25 March 2019.
154
Ibid. Para 36.
155
Paras 44-45 of Mr Rajdhar’s statement, 25 March 2019.
156
Para 31.5.5 of Mr Masekesa’s statement, 13 March 2019.
157
Para 367 of Dr Matjila’s statement signed on 17 July 2019.
158The PEPSSME FIP of 20 October 2014 reflects a reduced investment from the original US$
62,5 million to US$ 53 million because of the participation of Mozambican banks.

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 from 45% to 70% by acquiring an additional 25% equity from Mr
Momade Rassul for an amount of US$10 000 000 (ten million dollars).
The rationale for this proposal is for the PIC to warehouse the
additional equity for strategic partners who will be appointed as the
management company (ManCo) during the operationalization of the
plant.

AND WHEREAS S & S Refinery is a palm oil refinery and

saponification plant in Nacala, Nampula Province in Mozambique. The
plant will refine and saponify crude oil to produce 252 tons of refined
palm oil, 80 tons of soap and 48 tons stearin annually (the Project).’159

144. The above resolution of the PEPSSME FIP further indicates that the PIC
would exit from S&S within a period of ten years.

145. In the result, the PIC’s total exposure in S&S stood at US$ 63 million, made
up of US$28 million equity and US$35 million of senior debt. The senior debt
was reduced as a result of certain Mozambican banks having decided to
participate in the project. At this stage, the plant was operational, allegedly
producing more than two million litres of palm oil and 30 000 kilograms of
laundry soap from 3000 tons of crude oil. The downside was that there was
no local supplier and the crude oil was sourced from places such as Indonesia
and Malaysia at high cost. With the aim of increasing production volumes, the
PIC facilitated a US$10 million facility for S&S from Ecobank, secured by
assets in Ecobank, Nigeria.

146. Ms Madzikanda, the PIC’s portfolio manager in the Portfolio Management and
Valuation Department, whose department’s responsibility is to monitor
investments for compliance with legal agreements and financial performance,

159
A copy of the resolution, signed by the CFO, Ms More, is annexure ‘F’ to Mr Rajdhar’s statement on S & S Refinery.

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 painted a bleak picture about the performance of S&S. She took over the
monitoring from another portfolio manager in 2016.

147. Ms Madzikanda received management accounts in respect of the refinery in

October 2016. They reflected operating losses and showed that more than
two-thirds of what had been invoiced by S&S to the off-taker, S&N Trading,
between April and June 2016 was outstanding. S&N Trading is a business
undertaking owned by Mr Rassul and his family.160

148. Between July and September 2016, production was suspended due to
working capital challenges which affected procurement of production inputs,
but were not due to any technical issues with the plant.161

149. Ms Madzikanda said, on one of a number of visits to the refinery by herself

and her team, they were informed that all salaries and wages and other
operating costs were being paid by Mr Rassul from his trading business. 162
From February 2017 until the date upon which she gave evidence before the
Commission on 25 March 2019, Ms Madzikanda and her team had not
received management accounts from S&S despite having requested for them
and visiting the plant. She sums up the position as follows:

‘Due to the client’s lack of cooperation with information undertakings the

PMV’s role in assessing this company was greatly constrained and this was
reported to all committee meetings relevant.’163 (sic)

150. Mr Rajdhar testified that, as at the date of his testimony, the debt was not
being serviced, nor was the amount for the working capital.164 There are other

160
At pages 62-63 of the Transcript for day 19 of the hearings held on 25 March 2019.
161
Ibid.
162
At page 64 of the Transcript for day 19 of the hearings held on 25 March 2019.
163
Page 79 of the Transcript for day 19 of the hearings held on 25 March 2019.
164
Ibid. Page 48.

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 developments that took place, such as the PIC being drawn into a dispute
between Messrs Mirza and Rassul, etcetera which are, in the view of the
Commission, not relevant for purposes of this ToR.

1. According to Dr Matjila, poor governance, exacerbated by a

collapse of the Mozambican currency (Metical) against the US
dollar, caused great harm to this investment, mainly because the
cost of raw materials more than doubled in a short space of time
resulting in the refinery’s inability to purchase sufficient stock. He
believed, however, that the plant is a world class facility. Dr Matjila
testified that a strategic partner has been roped in to operate the
facility which will lead to production being restored and profitability
realised.165

2. It is worth mentioning, in particular since Dr Matjila cited poor

governance and the collapse of the Mozambican currency as
having caused ‘great harm’ to the investment, that Mr Magula’s risk
report dealt with these issues. The transaction was recommended
subject to the following conditions precedent:

2.1. The establishment of proper governance structures, which entails

a Board of Directors, with (i) an audit and risk sub-committee and
(ii) a human resource and remuneration sub-committee; etc, and

2.2. The establishment of an Executive Management Committee and

that a CEO and CFO be seconded by the PIC to S&S for a period
of three years, with a mandate to establish proper controls,
systems, policies and processes.

165
At page 57 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 3. Mr Magula’s risk report also suggested the PIC consider putting a
hedging strategy in place. All these recommendations seem to
have been ignored or overlooked. This gives credence to the
evidence of Mr Seanie, the Assistant Portfolio Manager: Non-
Consumer Industrials, who testified that sound investment
recommendations by investment professionals were often ignored
at the PIC and that management would proceed with investments
despite incomplete processes and notwithstanding concerns and
risk factors raised. He said that he observed at least one instance
of a deal being pushed through, that fulfilled neither of the PIC’s
dual mandate, namely, to generate returns on behalf of clients and
to contribute to the developmental goals of South Africa.

4. Mr Masekesa also testified that the risks that were identified in

respect of this transaction were not heeded when the investment
decision was made. He stated that, ‘the above challenges… were
considered during due diligence and at the time of concluding the
transaction, however, our assumption did not factor in the effects
of such steep interest rates and sudden changes in the economy
growth factors and significant currency devaluations’.166

5. In his testimony, Mr Rajdhar averred that the present status (as at

March 2019) of the S&S Refinery investment was the following:

5.1. instructions had been given to lawyers to initiate a process for the
PIC to exercise its rights as pledge creditor in respect of pledged
shares;

166
At page 129 of the Transcript for day 17 of the hearings held on 19 March 2019.

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 5.2. discussions would be opened between the PIC, Vamara and the
Mozambican banks on the aspect of Vamara moving from being
only an operator to a strategic equity partner and operator; and

5.3. the capital structure will have to be restructured concurrently.167

Findings

151. Clearly, there was no substance in the media reports that the PIC invested in
a dilapidated refinery that was not operational.

152. No finding can be made, on the available evidence, of impropriety in the

investment transaction when either the first or the second investment for
US$10 million was made.

153. Notwithstanding the above, it is found that the Risk assessment and
investment decisions relating to the S&S investment did not take sufficient
account of, the following issues:

153.1. the fact that raw materials essential for the business were imported and
paid for in US dollars, while earnings were in the local currency, namely
the Mozambican metical;

153.2. the purchase by the PIC of its equity shares in S&S was in US dollars,
while repayment would be in meticals;

153.3. the reliability and sustainability of supplies of the imported raw material,
as well as the transport costs thereof, would also have to be paid for in
US dollars;

167
At page 47 of the Transcript for day 19 of the hearings held on 25 March 2019.

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153.4. the economic outlook in Mozambique, where deteriorating economic
conditions affected the financial viability of the enterprise, and interest
rates on local borrowing escalated rapidly;

153.5. the dependency on imported raw materials; and

153.6. the assumptions used for the assessment of risks were not rigorous
enough.

Recommendations

154. In the light of the above findings, it is recommended that greater focus and
interrogation must be given post an investment decision to the management
and the performance of existing investments, prior to such investments
becoming distressed.

155. The IT infrastructure for unlisted investments must be addressed as a priority,

as at the time of giving evidence, there were no automated portfolio
management systems in place. This would make the process of monitoring
compliance more efficient and effective.

156. A separate workout and restructuring department that would focus on

resolving and reconfiguring distressed assets should be established.

157. Consideration should be given to the establishment of a stand-alone division

within the PIC that looks at investment proposals to be made outside South
Africa.

158. The role of risk in investment decisions needs to be strengthened, ensuring

greater rigour, realistic assumptions and thorough scenario alternatives be
examined so as to take more informed decisions fully understanding the
downside risks and worst case scenarios.

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159. The conditions precedent which applied to the transaction were not
implemented. The failure to implement the conditions precedent set out above
is a serious management oversight and those responsible should be held to
account.

160. When investing abroad, a careful analysis of local partners, who should be
established corporates and not individuals or family run businesses, must be
undertaken.

161. The documentation submitted to the various committees for decisions must
reflect the original amount of funding requested and indicate any changes to
such investment amounts, and ensure that shareholding reflects names,
ownership percentages, and dates.

Case Study: Lancaster Steinhoff

The Lancaster Steinhoff case study is separated into two parts, namely Project
Sierra and Project Blue Buck.

Brief Background to the transaction (Project Sierra)

162. Dr Matjila, in his statement submitted to the Commission, dated 17 July 2019,
stated that the reason for making an additional investment in Steinhoff
International was a strategic one, driven by ‘our desire to influence better
governance at Steinhoff … When Mr Jayendra Naidoo approached us with an
opportunity to buy up to 3,5% of shares in Steinhoff that carried special voting
rights and a seat on the Board, we thought we had found a solution …’168

163. The investment proposal was prepared by Symphony Capital on behalf of the
Lancaster Group, whose sole shareholder is Mr Jayendra Naidoo (Mr Naidoo),

168
Paras 373 -374 of Dr Matjila’s statement signed on 17 July 2019.

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 for the acquisition of 2.75% of the shares in Steinhoff International Holdings
N.V. (SNH) amounting to R9.35 billion. Symphony Capital was paid R76.95
million for this work, and an amount of R22.85 million was paid to Lancaster
Group, and to Project Sierra, also known as L101, a subsidiary of the
Lancaster Group for other costs incurred.

164. Paragraph 20 of the PIC’s appraisal report dated 20 July 2016, states that Mr
Naidoo has a long and established relationship with major shareholders of
SNH, particularly Mr Christo Wiese. This was confirmed by Mr Naidoo in his
testimony before the Commission.

165. Steinhoff had a voting pool arrangement in place, which pool controlled 33%
of the company and as a result exercised significant influence over all matters
that required shareholder approval. Through this transaction, Mr Naidoo,
being the sole Shareholder of Lancaster Group, had been invited to join the
voting pool, and Dr Matjila claimed that the Lancaster Group would therefore
be able to influence the strategic direction of the business of Steinhoff. The
PIC at the time owned 9% of Steinhoff. At no point was the PIC going to get a
seat on the Board, and Mr Naidoo in testimony before the Commission stated
that the shares were ordinary shares and did not have any special voting
rights.169

166. The proposal further provided for the PIC to acquire a 50% equity stake in
L101 for R50 million, while the Lancaster Group and a still to be established
B-BBEE Trust (the Trust) was to own the balance of 50% (25% for each entity)
for R50 million. The Trust was later converted to a non-profit company which
was approved by the PIC.

167. The total funding provided by the PIC amounted to R9.4 billion (loan + equity).
This was reduced from the initial request for R10.4 billion, according to Dr

169
At page 23 of the Transcript for day 63 of the hearings held on 14 August 2019.

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 Matjila, so that the investment decision would fall within his delegated authority
and would not have to be referred to a higher committee or the Board for
consideration.

168. An equity derivative backed financing structure was put in place by L101(ratio
collar structure), with the PIC’s capital guaranteed by an international bank
(Citibank) through a primary cession and pledge of L101’s put option proceeds
as security for its loan obligations. The security package initially put in place
by the PIC ensured that it would not lose its capital. However, the security
arrangements were altered with 100% of the primary cession being granted to
Citibank for it to provide R6.5 billion to fund the transaction as part of a second
phase of the transaction, known as Project Blue Buck (L102), which is dealt
with in further detail below. The re-ranking of the security package was a
condition by Citibank for making the loan to L102 for it to purchase a 5,9%
equity interest in Steinhoff’s JSE-listed subsidiary, Steinhoff African Retail
Limited (Star).

169. The diagram below summarises the transaction that took place in respect of
Project Sierra:

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 Symphony Capital prepared a proposal on behalf of
the Lancaster Group for the acquisition of 2.75% of the
shares in Steinhoff International Holdings (SNH)
amounting to R9.35bn

Lancaster Group's sole shareholder, Mr Jayendra

Naidoo, has a longstanding relationship with SNH,
particularly Mr Christo Wiese

Symphony Capital was paid R76.95m for its work, and

an amount of R22.85m was paid to Lancaster 101,
Project Sierra (L101), which is a subsidiary of the
Lancaster Group for other costs incurred

Through this transaction, Mr Naidoo was invited to join

the Steinhoff voting pool, which controlled 33% of the
company. This, according to Dr Matjila, meant the
Lancaster Group could control the strategic direction
of SNH's business

Findings and Recommendations

170. The PIC could have purchased any quantum of Steinhoff shares outright in
the market instead of entering into a transaction to do so through Mr Naidoo,
the sole owner of the Lancaster Group. The ‘joining’ of the ‘voting pool’ by Mr
Naidoo did not materialise and later became what was then known as a ‘Retail
Forum’, which, according to Mr Naidoo, is less formal than a voting pool.

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171. The IC of the PIC approved the transaction on 5 August 2016, consisting of a
term loan to and equity subscription in L101 of R9.4 billion. The chair of the IC
was Mr Roshan Morar (Mr Morar), a PIC non-executive director, who signed
off on the IC resolution for this investment. At the same meeting, he was also
appointed as a board member to L101 representing PIC’s interests which
clearly indicates a conflict of interest. He continues to be a director of the
Lancaster Foundation which is a non-profit company.

172. As at the end of February 2019, the amount outstanding on this loan was
approximately R11.6 billion with interest accrued. The loan has not been
serviced by L101 to date. The dividends from the non-delta shares (shares not
used for the ratio collar) would be used to service the loan and any accrued
interest not serviced would be capitalised to the loan.

173. On 26 September 2016, a Stock Exchanged News Service (SENS) was put
out by Steinhoff stating that a 2.5% underwriting commission was paid to the
Lancaster Group (this was not reflected in L101’s financials) when the shares
were subscribed for in Steinhoff – 303 million (60 million shares at share price
€ 5.055) per the SENS x 2.5% = € 7.58 million x 15.03 (€/ZAR FX rate in
SENS) = R114 million was paid to the Lancaster Group, and not to L101.

174. The Commission finds that it would not have been possible for these shares
to have been subscribed for by L101 had it not been for the funding advanced
by the PIC. Yet the underwriting commission was paid to the Lancaster Group,
whose sole shareholder is Mr Naidoo. When queried about this during his
evidence before the Commission, Mr Naidoo said that he had informed the
PIC of this payment, confirming that he had mentioned this to Dr Matjila. The
deal team had been notified, and they had not raised any concerns about it.170
This has not been substantiated in the correspondence and the emails
provided to the Commission. These show that Dr Matjila was copied in on Mr

170
At page 36 of the Transcript for day 63 of the hearings held on 14 August 2019.

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 Naidoo’s correspondence with Mr Deon Botha (Mr Botha) from the PIC
concerning the wording of the SENS release as mentioned above, but there
is no written response from him. No deal team member was copied in as per
the emails provided to the Commission.

175. It is questionable whether the Lancaster Group or L101 should have received
an underwriting commission at all, and whether this should have gone to the
PIC itself. In his testimony, Mr Naidoo said this was never discussed. When
Dr Matjila was questioned by the Commission about whether he was aware of
the underwriting commission earned by the Lancaster Group, he denied
knowing anything about it.

176. Therefore, Dr Matjila denied knowing about the underwriting commission,

despite Mr Naidoo stating that he had informed Dr Matjila about it and there is
no evidence indicating that the deal team was notified about the payment of
the underwriting commission to the Lancaster Group. Based on the evidence
of Mr Naidoo, it also appears that no discussion took place in relation to
whether the commission should have been paid to L101, instead of the
Lancaster Group.

177. The Commission recommends that the PIC must obtain a legal opinion as to
whether the R114 million underwriting commission that was paid to the
Lancaster Group, should have been paid to L101, or if it was in fact due to the
PIC, and if the latter is shown to be the case, appropriate steps should be
taken to recover the money.

178. It should further be noted that a total of R100 million in equity contributions
were made by both the PIC and Mr Naidoo, which funds were to be used for
working capital purposes. Mr Naidoo has yet to provide the December 2016
signed annual financial statements to prove that these monies were still in the
bank account. He provided signed December 2017 annual financial

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 statements, but these included the Blue Buck transaction, therefore the cash
amount reflected would be skewed. Mr Naidoo in his statement claimed that
the cash is all there, but in different bank accounts.

179. The Commission has noted that the PIC did not use any transaction advisors,
notwithstanding the complexity of the proposed structure and deal. The PIC
team indicated that the Lancaster Group then dictated the terms through their
advisors, Symphony Capital, essentially setting out the approach, complexity
of instruments, the derivative modelling calculations and scenario payoffs.
This is found to have placed the PIC team at a significant disadvantage.

180. As indicated in paragraph 167 above, the Commission has also noted that the
original proposal to the PIC was for an amount of R10.4 billion, which was
subsequently reduced down to R9.4 billion to fall within Dr Matjila’s delegated
authority of R10 billion so that the Board’s approval would not be required.

181. The Commission finds that the conduct of Dr Matjila was wholly improper in
that he admitted to the investment amount being reduced in order to enable
the decision to fall within his delegated authority. This might be taken to
indicate collusion between Dr Matjila and Lancaster, given that the value of
the investment amount was reduced in order to secure Dr Matjila’s approval,
which was granted. Due process would have required the proposal to be
referred for Board approval since, in its original form, it did not fall within the
CEO’s delegated authority.

182. The Commission recommends that the PIC’s MOI and all DoAs regarding the
PIC’s investment decision making framework be amended to require the
Board to approve any amendments to proposals which require the Board’s
approval when they are submitted to the PIC.

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Investment Corporation Page 360 of 794
Brief background to the L102 transaction (Project Blue Buck)

183. L101 was to subscribe for shares in STAR for R6.2 billion (5.9%). This was to
be funded from raising new bank finance against the put option proceeds
under the ratio collar (this was PIC’s guarantee of its capital for the term loan
to L101 - Project Sierra). The amount raised in total was R6.5 billion with the
balance of R300 million funding general corporate purposes, value enhancing
strategies and transaction costs.

184. The PIC loan and security package was re-negotiated in favour of L101 and
essentially was diluted with an addition in security over the shares that L101
would acquire in STAR through a primary cession and pledge over these
shares.

185. Steinhoff agreed to match the R6.2 billion of funding being invested by L101
in STAR in order to ultimately buy additional shares in STAR, after the
acquisition of Shoprite held by Thibault. Due to free float issues, the funding
was later reduced to R4 billion in the form of a preference share to STAR by
L102 (100% subsidiary of L101). Steinhoff committed to provide the additional
R2.2 billion to L101 for future investments, which did not materialise.

186. The diagram below summarises the transaction that took place in respect of
Project Blue Buck:

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Investment Corporation Page 361 of 794
 In the second phase of the transaction, L101 was
to subscribe for 5.9% of the shares in STAR, which
were valued at R6.2bn. Funding was to be
obtained by raising new bank finance against the
put option proceeds under the ratio collar

The total amount raised was R6.5bn, with the

R300m balance funding general corporate
purposes

The PIC renegotiated the terms of its loan and

security in favour of L101, and in the process
diluted its security.

Steinhoff agreed to match the R6.2bn investment

by L101 in STAR in order to ultimately buy
additional shares in STAR, after the acquisition of
Shoprite held by Thibault. The funding was later
reduced to R4bn in the form of a preference share
to STAR by L102

Steinhoff committed to provide the additional R2.2

billion to L101 for future investments, but these did
not materialise.

Findings

187. A significant amount of money had already been loaned to one individual, Mr
Naidoo was ready to entertain a second transaction, notwithstanding that the
terms of their loan and security package were diluted in favour of L101.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 362 of 794
188. The reasons provided by Dr Matjila for his decision to invest in Steinhoff
through Mr Naidoo reflect a disregard for the interests of the clients of the PIC
in pursuit of an ostensible ability to secure influence over a JSE listed
company. Given that Mr Naidoo is also a PEP, the PIC was obliged to ensure
a thorough due diligence was undertaken. Yet the PIC IC, and Dr Matjila,
approved a transaction that would significantly enrich a single individual, and
at the same time took decisions that removed the safeguards that were in
place to protect the interests of the PIC.

189. The PIC renegotiated the terms of its loan and security and in the process
diluted its security as the loan capital was no longer guaranteed. The proceeds
from the ratio collar put option proceeds of L101 were then ceded in favour of
an international bank, which would then fund the R6.2 billion acquisition of
STAR shares by L101. PIC agreed to a reversionary cession and pledge on
these proceeds (their loan capital no longer guaranteed) whereas previously
it had a primary cession and pledge over these proceeds (their loan capital
was guaranteed).

190. As at 30 September 2019, the loan amount outstanding on Project Sierra, plus
accrued interest, was R11.9 billion. The dividends from the non-delta shares
(shares not used for the ratio collar) had not been sufficient to service the loan
and accrued interest had been capitalised to the loan.

191. The only security the PIC has that has any value today, is the primary cession
and pledge over the STAR shares (known as Pepkor today) which could be
sold in order to set-off the debt owed under Project Sierra. As at 28 October
2019, Pepkor was trading at R16.84 a share. If the PIC was to insist on such
a sale, the proceeds would be R5.1 billion (302 439 024 shares x R16.84),
which would be offset against the total amount owed to the PIC of R11.9
billion, realising a loss of R 6.8 billion.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 363 of 794
192. It is concerning that the PIC approved the first and second transactions and
transferred the funds, notwithstanding that the Lancaster Group had not
established the B-BBEE Trust, which the PIC had insisted that L101 create
and was part of the proposal submitted to, and approved by, the PIC, and
which was to own 25% of L101 (with the PIC owning 50% and the Lancaster
Group, i.e. Mr Naidoo as the sole owner of Lancaster Group, owning 25%).
The PIC’s decision to proceed with the transaction despite the Lancaster
Group not having complied with the terms of the proposal, specifically the
establishment of the Trust that was to own a 25% stake in L101, was an
inexplicable waiver of the PIC’s right to defer the transaction as a result of the
Lancaster Group’s failure to adhere to the conditions upon which its proposal
to the PIC was approved. Those responsible for this very material oversight
must be the subject of disciplinary action within the PIC.

193. It would have also been appropriate for the PIC to ensure that conditions
precedent were expressly agreed to as part of the approval of the transaction,
particularly with regard to the date for the establishment of the Trust, prior to
any transfer of funds. This would have enabled the PIC to monitor and enforce
such conditions and to cancel the transaction if such conditions precedent
were not adhered to by the Lancaster Group.

194. It should also be noted that, although the initial approval by the PIC was for
the establishment of a Trust; there was a subsequent request for the Trust to
be converted into a non-profit company, which the PIC approved. The non-
profit company was only established in 2017, a year after the transaction was
finalised.

195. The PIC agreed to a second transaction with the same individual, Mr Naidoo,
ignoring both cumulative and counterparty risk, at great cost to the PIC/GEPF.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 364 of 794
196. A B-BBEE transaction with one individual cannot be construed as a broad-
based empowerment transaction and does not comply with the Structured
Investment Products mandate to facilitate B-BBEE given by the GEPF. The
PIC essentially imposed the creation of an empowerment trust on the
Lancaster Group, but provided the funding without it being in place.

197. The PIC did not adhere to its criteria for funding B-BBEE as these two
transactions had a single individual as a counterpart. The transaction also
enabled significant enrichment to accrue to a single individual.

198. Refer to the findings and recommendations made in the Matome Maponya
Investment case study in Chapter III, for a detailed review of single
counterparty limits.

199. Reference must also be made to the findings contained in Chapter IV:
Responsibility and Accountability.

Case Study: Erin Energy Limited

200. Erin Energy Corporation (Erin), previously known as Camac Energy

Incorporated (Camac), is an oil and gas exploration company that sought, in
February 2014, a secondary listing on the Johannesburg Stock Exchange
(JSE). Camac was a company based in the United States of America, with
primary listing on the New York Stock Exchange (NYSE). It operated in certain
African countries, including Nigeria, Kenya and the Gambia. Although the
Commission was advised by the Evidence Leader that the PIC had no
documentation or minutes of the investment, it seems common cause that in
2014 it (PIC) acquired an equity interest in Erin. Mr Andries Francois Visser
(Mr Visser), General Manager for Issue Regulation at the JSE, testified about
a letter from the PIC addressed to the JSE, dated 21 February 2014 and
signed by Mr Leon Smit, General Manager for Fixed Income division and Dr

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 365 of 794
 Matjila, when still the CIO, in which the PIC confirmed that on the day of the
secondary listing of Camac an injection of USD135 million would be made. A
further amount of USD135 million would be paid 90 days thereafter. 171
Ultimately, the PIC’s total exposure in Camac stood at USD270 million.

201. The listing on the JSE was granted with effect from 24 February 2014 after
certain conditions precedent were fulfilled, one of which being that an injection
of an amount of USD135 million be made by the date of listing. It is not in
dispute that in 2013 Camac (which shall henceforth be referred to as ‘ERIN’)
declared that it was technically bankrupt. This fact was not disclosed to the
JSE in the pre-listing statement. It appears that the capital injection from the
PIC addressed the liquidity problem.

202. ERIN’s assets comprised two oil mining leases (OML 120 and 121), located
next to each other in the Oyo Field, which is in turn located in deep water off
the coast of Southern Nigeria and certain blocks located in the Gambia and
Kenya. Drilling for oil reserves was expected to commence in September 2013
with the Oyo 7 well.172 By virtue of the cash injections (totaling USD 270million)
made by it, the PIC acquired 30% shareholding in ERIN173.

203. During May 2016, ERIN approached the PIC for a guarantee in the amount of
USD100 million to cover loan funding it had requested from the Mauritius
Commercial Bank. The loan funding was intended to enable ERIN to increase
its production and to support its operations, including the drilling of new wells.
The PIC teams prepared the necessary reports in which they recommended
the approval of the transaction to the Investment Committee . The Investment
Committee considered ERIN’s request at its meeting held on 3 June 2016 and
resolved to approve it. ERIN then obtained a loan facility for the amount of the

171
At pages 39-40 of the Transcript for day 40 of the hearings held on 27 May 2019.
172
See para 29 of memorandum dated 16 September 2013 (annexure ‘3’ in the ERIN file) and referred to by Dr Matjila
at page 28 of the Transcript for day 57 of the hearings held on 22 July 2019.
173
Ibid, para 2.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 366 of 794
 guarantee from the Mauritius Commercial Bank (MCB). There is no evidence
before the Commission to support a finding of impropriety in the PIC’s decision
to approve the provision of a guarantee in favour of the lender, Mauritius
Commercial Bank. It is necessary, however, to make the following
observations.

204. In their report the risk team of Mr Tshifhango Ndadza (Mr Ndadza), a market
and credit risk analyst, as compiler, and Mr Paul Magula (Mr Magula), as
reviewer, had recommended that the approval of the guarantee be subject to
a number of conditions. One of those conditions was a requirement that
ERIN’s management ‘successfully’ reach agreement with its creditors that
they would not enforce their right to place the company under receivership. In
its wisdom, the Investment Committee did not include the recommendation as
a condition precedent to the approval coming into effect. It is interesting to
note that the committee that made the 2013 decision to invest in ERIN had
done likewise: it failed to include, as a condition precedent, a recommendation
that the second tranche of the funds invested should only be released upon
completion of a certain oil well, which must be able to produce 8 000 (eight
thousand) barrels of oil per day. That production rate was never attained.

205. In a document dated 11 May 2018, headed ‘INVESTMENT COMMITTEE –

UPDATE MEMO: ERIN ENERGY CORPORATION’ it is recorded (at para 19)
that –

‘[o]n 25 April 2018, it came to the attention of the PIC that Erin filed for
bankruptcy under Chapter 11 in the United States . . . .’

206. And (at para 29):

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Investment Corporation Page 367 of 794
 ‘The bankruptcy proceedings remain ongoing and the PIC shall
monitor the development therein.’174

207. It is understood, from certain media reports in Nigeria, that in 2019 the
Nigerian government revoked ERIN’s oil mining licence/lease (OML) 120 and
121. The reason for the revocation was stated as ERIN’s ‘legacy debt’. ERIN
had not paid taxes and royalties that became due to the government.

208. Erin had drawn down on the MCB loan facility amounts totaling approximately
USD67 million, which the PIC has had to pay as guarantor. On 8 May 2018
the IC of the PIC passed a resolution authorizing the PIC ‘to step in and take
MBC’s position as a lender to Erin Energy on the facility of USD100 million,
and settle the outstanding facility capital and interest amount to MBC and
make every effort to have this facility repaid.’

209. A disturbing feature about the decision to provide the guarantee is that it
seems that no proper due diligence was done before the decision was made.
Indeed, Mr Ndadza testified that he did not go on the due diligence exercise
because Mr Magula was uncomfortable with the transaction.175 Mr Jeff
Tshikhudo (Mr Tshikhudo) said that oil is a very specialized field and that the
PIC needed highly qualified people to do the due diligence.176 Dr Matjila also
weighed in, saying that legal risk had not been done properly and that deeper
legal assessment should have been undertaken.177

210. Mr Tshikhudo also testified that he was sent to attend a workshop at Erin’s
headquarters in Houston, Texas in March 2017 and thereafter to review the
investment thesis and the probability of the PIC earning a return from the

174
Annexure ‘2’ in the Erin file referred to in footnote 1.
175
At page 57 of the Transcript for day 37 of the hearings held on 20 May 2019.
176
Ibid. page 82.
177
At page 90 of the Transcript for day 57 of the hearings held on 22 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 368 of 794
 investment, and to advise on the next step the PIC should take.178 It is
reasonable to infer from this exercise that the PIC was not convinced about
the investment and still needed to know more about the entity and its
operations. Mr Tshikhudo did conduct a review of the investment case in April
2017 and prior to the drilling of Oyo 9 and 10 wells, he said, and submitted a
report to the PIC in which he stated that Erin was insolvent and required capital
injections to remain a going concern.

211. According to Dr Matjila, the reason why Erin did not survive was a dramatic
drop in the oil price and a dispute surrounding what was believed to be its
assets, namely, ownership of the oil mining leases or licenses (OML 120 and
121).179 At the time of the initial investment Erin was not a 100% owner of the
interest in the oil mining leases. As Camac, it only owned 12.5 %, with the
hope of acquiring the other 87.5% interest from the entity that owned it.
Litigation between this entity and a third party culminated in the third party
closing off Erin’s operations. Dr Matjila testified that the ownership dispute was
not known to the PIC and had not featured in Erin’s prelisting statement.180

212. The other contributing factor to Erin’s failure to survive was the oil rig that was
used on site which developed mechanical problems and had to be removed,
with the result that production was interrupted. By the time another rig was
secured the oil price had dropped dramatically. Dr Matjila conceded that the
Erin transaction was a ‘very poor’ investment and that the PIC has lost the
money it invested in Erin.181 In the Commission’s view, there was substance
in the media reports in 2017/18 that the PIC stood to lose its R4 billion

178
At page 87 of the Transcript for day 37 of the hearings held on 20 May 2019.
179
At pages 79-80 of the Transcript for day 57 of the hearings held on 22 July 2019.
180
Ibid. page 48.
181
Ibid. page 57.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 369 of 794
 investment in the Houston-based oil company, Camac Energy, as it files for
bankruptcy.

Findings:

213. In approving the transaction to provide a guarantee of USD100 million while

disregarding the recommendation of the market and credit risk analyst, Mr
Ndadza, and the reviewer, Mr Magula, to approve the transaction subject to
certain conditions precedent, the Investment Committee acted improperly.

214. In addition, no thorough due diligence and legal risk assessment was done to
enable the Investment Committee of the PIC to give proper consideration to
Erin’s application for funding and for the provision of the guarantee referred to
in (a) above. Mr Ndadza said he did not go to due diligence because Mr
Magula was uncomfortable with the transaction.

215. The impropriety is in contravention of the investment policy of the PIC relating
to investment processes.

216. This investment has resulted in significant losses for the PIC – the original
investment of $270 million and a further $67 million that Erin had already used
of the MCB loan when it filed for bankruptcy. There is no evidence that the
impropriety or contravention resulted in any undue benefit for any PIC director,
or employee or any associate or family member of any PIC director or
employee at the time.

Recommendations

217. The Commission is of the view that if due diligence and legal risk assessment
had been given proper attention by the relevant teams, the difficulties
encountered by the investee company, Erin, would probably have been

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Investment Corporation Page 370 of 794
 highlighted. Their respective roles therefore need to be strengthened so as to
ensure that no investment decisions are made without full and proper due
diligence and risk assessments having been undertaken.

218. The PIC should investigate what measures can be taken to retrieve any
tangible assets of Erin to reduce losses, and engage with the Nigerian
government in this regard if deemed appropriate

Case Study: Ascendis Health Transaction

219. The PIC concluded two transactions that involved the same B-BEEE company
and Mr Lawrence Mulaudzi (Mr Mulaudzi) from Kilimanjaro Capital (KiliCap),
namely Tosaco and Ascendis.182

220. Dr Matjila, in his testimony before the Commission, confirmed Mr Maluadzi’s

testimony that he received the Ascendis proposal from him a few days after
receiving the TOSACO proposal.183 In this instance, Shkhara Health, a
recently incorporated company, was to be the investment vehicle. Shkhara
requested the PIC to provide R1.25 billion to purchase R1 billion worth of
shares in Ascendis Health and R250 million worth of shares in Bounty Brands.

221. Dr Matjila stated that the ‘shareholding of Shkhara was very much similar to
KiliCap but with extra PEPs. The team requested them to clean up the
structure and broaden the shareholder base’.184

182
See the TOSACO case study below and other references to the Ascendis transaction in the report.
183
Paras 359-360 of Dr Matjila’s statement signed on 17 July 2019.
184
Ibid. para 60.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 371 of 794
222. A new entity, Kefolile Health Investments (Pty) Ltd (KHIH) was formed, and
replaced Shkhara. At this stage, the requested investment increased by R500
million to R1.775 billion, without any reason being provided.

223. Addressing the Ascendis Health Transaction (Ascendis), Mr Mulaudzi stated

that ‘In April 2015, KiliCap was introduced to a company called Coast2Coast
Capital (C2C), by their then mandated advisors, Avior Capital Markets. Our
understanding was that Avior was mandated by C2C to find suitable investors
to support the growth strategy and increase B-BBEE participation in Ascendis.
C2C were the founding shareholders in Ascendis and remained the largest
shareholder after their listing on the JSE in 2013’.185

224. The outcome of their discussions was the creation of a special purpose vehicle
(SPV) being a new company called Shkhara Health (Shkhara). The proposed
transaction that was taken to the PIC included a direct investment in Ascendis
through the issue of new shares that would result in a 10%-15% shareholding,
as well as an investment in Bounty Brands, another C2C company, as
indicated in paragraph 220 above.

225. In his statement186, Mr Mulaudzi stated that once the PIC had approved that
due diligence could go ahead, BNP Capital was engaged as their independent
transaction advisors on the advice of the PIC.187 An engagement letter was
also signed with the PIC. During this period, Shkhara’s exclusivity with C2C
expired. C2C indicated that to take the transaction forward, Shkhara’s B-BBEE
had to be more diversified and not mainly limited to directors of KiliCap.
Consequently, KiliCap established a broader B-BBEE consortium – Kefolile
Health Investment Holding (Kefolile).

185
Paragraph 34 of Mr Mulaudzi’s statement signed on 26 March 2019.
186
Para 43 of of Mr Mulaudzi’s statement signed on 26 March 2019.
187Para 346 of Dr Matjila’s statement signed on 17 July 2019 and para 4 of Mr Pholisani Daniel Mahlangu’s statement
signed on 1 October 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 372 of 794
226. The transaction that was then submitted to the PIC for approval included an
investment in Ascendis of R1.369 billion and an investment in Bounty Brands
of R406 million, an increase of R275 million for the same transaction originally
submitted.188 This transaction was approved by the PIC at the end of June
2016.

227. According to the PIC transaction documentation, the funding was to be utilised
as follows:

227.1. R600 million - direct equity into Ascendis

227.2. R100 million - Ascendis Pharma Med (Pty) Ltd

227.3. R650 million - convertible debenture instrument into Coast2Coast

227.4. R19 million – transaction cost

228. During the review of the deal and the legal documentation, the Commission
found that R500 million was used to buy Ascendis shares, and not the R600
million to purchase direct equity as approved by the PIC. The difference of
R100 million seems to have been added to the transaction costs/fees paid to
related parties of Kefolile Health Investments.

229. As indicated in the financial statements of Kefolile Health Investments for the
year ended 30 June 2018, and the Portfolio Monitoring and Valuations (PMV)
report of PIC dated March 2019, transaction fees were paid to the following
related parties:

188
Para 48 of Mr Mulaudzi’s statement signed on 26 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 373 of 794
229.1. Blackgold Oil and Gas (Pty) Ltd – R80 million (an entity of Mr
Mulaudzi)AVACAP (Pty) Ltd – R39 million (an entity of Mr Mulaudzi).

230. The Commission reviewed bank account statements of Blackgold Oil and Gas
(Pty) Ltd and found that an amount of R79.8 million was received on 19 August
2016, with reference ‘Kefolile Health Investments’.

231. The investment was not initially approved but, according to Dr Matjila ‘[a]t
some point Ms Sibusisiwe Zulu [non-executive Board member] asked Mr
Rajdhar to bring back the transaction for consideration by the Social and
Economic Infrastructure and Environmental Sustainability FIP (SEIES -FIP)
which is chaired by Ms Zulu and which is a sub-committee of the Investment
Committee.’189 In June 2016, as chairman of the SEIES FIP, Ms Zulu signed
the resolution passed at the meeting held on 28 June 2016, where it was
resolved by the SEIES FIP that the PIC provide the funding on behalf of the
UIF to Kefolile.

232. In his statement, Mr Mulaudzi states that:

‘A few months after we concluded the Ascendis transaction, I received

a call from Dr Dan Matjila who wanted to introduce me to a lady by
the name of Pretty Louw. He informed me that she was involved in
the beauty sector (she owned a beauty salon and spa) and requested
that I source business opportunities and/or participation for her in
Ascendis as part of the company’s enterprise development… I
informed Dr Matjila that I was not aware of any such opportunities
available in the business but would check … A few months had
passed… I then received a call from Dr Matjila, requesting my urgent
assistance. He advised that the same lady … was in financial trouble
… He asked me to urgently come to her rescue by settling her debts

189
Para 361 of Dr Matjila’s statement signed on 17 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 374 of 794
 … I made an EFT payment of R150 000.00 to the lawyers account.
Ms Louw then contacted me the following day [saying] that the
lawyers required the balance of the arrears before allowing them to
go back to their business. She told me that Dr Matjila had also
informed them that I would settle the debt in full … I made the second
payment to the same lawyers account of R150 000.00 and sent proof
of payment thereof to Ms [W] Louw [of the PIC]. I also confirmed
telephonically with Dr Matjila that I had done the payments as per his
request.’190

233. The Commission’s investigators reviewed the bank statements of Maison

Holdings (the entity of Ms P Louw), that reflected an amount paid into Maison
Holding’s bank account on 6 September 2016 amounting to R40 000 with
reference Blackgold (Blackgold is one of Mr Mulaudzi’s entities). This date is
only a few days after Blackgold received the R79.8 million from Kefolile. This
seems to be a further payment made to Ms P Louw, but which was not
mentioned by Mr Mulaudzi in his testimony.

234. Mr Mulaudzi concluded that ‘at no point did I regard this as a loan. This was
based on the request made by Dr Matjila … there is no way I would have said
no to the CEO of the PIC … as a businessman, you never wanted to be
ostracised by Dr Matjila. It is known in the investment space that his influence
was significant …’191

235. Mr Mulaudzi, in his testimony before the Commission, confirmed his personal
relationship with Ms Zulu, but stated that Ms Zulu had no influence over any
of his investments funded by the PIC. He stated that ‘I can confirm that I have
a love relationship with Ms Zulu. This is, from my perspective, a serious and
committed relationship and I consider Ms Zulu as my partner … I connected

190
Paras 52-58 of Mr Mulaudzi’s statement signed on 26 March 2019.
191
Paras 59-61 pf Mr Mulaudzi’s statement signed on 26 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 375 of 794
 with Ms Zulu in November 2017 … (and) we solidified our relationship later in
2018 … I have not attempted to influence her professional views in any way
and have never expected any undue influence from her through the positions
she holds, including at the PIC’.192

236. Responding to the allegations made in the Nogu emails, Mr Mulaudzi said ‘the
allegation by the unknown source that I gave her R40 million from the R100
million fees KISACO received in the Total deal is false … Having dealt with
the PIC, it is my understanding that it is the deal team that must find an
investment proposal commercially viable in order for it to go through the
approval processes. I therefore find it difficult why anyone would think a non-
executive director could have … influenced such a process...’193

237. The share price of Ascendis Health was around R20 per share at the time the
PIC made the investment, but at the time of the hearings stood at R4,69. A
delay in releasing its annual results in 2019 saw the share price fall to R3.85
on 2 October 2019. Mr Mulaudzi stated that, at the time of the hearings, the
interest received from the investment due to the PIC was being paid.

Findings

238. The Ascendis transaction was presented to the PIC at virtually the same time
as the TOSACO transaction, yet the two appear to have been considered by
the relevant PIC approval committee as two discrete investments,
notwithstanding the comment below.

239. The PIC approval conditions, in this instance how the funding was to be
utilised, were very specific. Yet again the Ascendis investment shows that the
PIC’s weakness, indeed failure, to monitor the implementation of the decision,

192
Paras 65 to 69 of Mr Mulaudzi’s statement signed on 26 March 2019.
193
Paras 70 – 71 of Mr Mulaudzi’s statement signed on 26 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 376 of 794
 and ensure that the funds provided were used as approved, is evident.
Transaction costs were determined as R19 million, yet there is a payment to
Mr Mulaudzi of R79.8 million from Kefolile.

240. Dr Matjila states that ‘we had to buy some time to assess the performance of
Kisaco in the Tosaco transaction before we commit to another entity led by Mr
Mulaudzi’.194 It is highly questionable that the approach to be taken is one of
buying time to assess the previous transaction. This borders on reckless
investing, and timelines should not drive deal decisions.

241. Ms Zulu requested Mr Rajdhar to bring the Ascendis transaction back for
consideration by a committee that she chaired. Mr Mulaudzi asserts that he
has ‘not attempted to influence her professional views in any way and have
never expected any undue influence from her through the positions she holds,
including at the PIC’.195 Yet, the sequence of events and the eventual
outcomes raise significant concerns as to the role of non-executive directors
in investment decision making, as well as undue and inappropriate influence
from the Board. This is a critical matter. Clearly, as chair of the relevant
committee Ms Zulu played a significant role, not only in getting the deal back
onto the table but in the recommendations to make the investment.

242. Dr Matjila’s repeated efforts to have Mr Mulaudzi provide financial assistance

to Ms P Louw reflects the abuse of his office and influence over investee
companies. The investigative work into tracing the money also raises
concerns as to how influence and advisor fees were utilised behind closed
doors, and that fees may have been paid out of client funds, regardless of
value received.

194
Para 360 of Dr Matjila’s statement signed on 17 July 2019.
195
Para 69 of Mr Mulaudzi’s statement signed on 26 March 2019.

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Recommendations

243. The PIC must undertake a forensic audit of the utilisation of the funds provided
to Ascendis to ensure they were utilised as approved, and legal avenues be
pursued to recover any money not utilised in accordance with the PIC approval
stipulations.

244. Parallel investments in different transactions with a common counterparty

should be limited by the PIC both in number and value.

245. Coordination within the PIC between the different approval structures and
processes must be addressed to ensure that investments and exposures to
an entity or counterparty are clearly understood, and that cumulative financial
and reputational risk is integral to risk assessment.

246. The role of non-executive Board members in investment decisions must be

reviewed and the relevant PIC legislation and DoAs reconsidered. The matters
of governance and oversight must be given a higher priority and role. Such a
review should be completed by no later than June 2020.

247. Controls must be put in place to ensure investment decisions as approved in

the governance process are implemented in the actual transaction prior to
funds being dispersed.

248. The PIC should reconsider the use of SPVs and layered legal entities within
investment structures, or ensure there are appropriate mechanisms to enforce
its rights.

Case Study: KARAN BEEF

249. The media report relating to the Karan Beef transaction did not contain any
allegations of impropriety in the investment decision, but rather reported on

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 Karan Beef’s intended merger with another entity and the involvement of the
Competition Commission regarding the merger. Allegations of impropriety
came by way of the email of 30 January 2019, referred to in Chapter I of the
report, from a sender with the name or pseudonym ‘James Noko’. It was
alleged in the email that a non-executive director of the PIC, Ms Hlatshwayo,
as chairman of the IC, approved the Karan Beef transaction, in which a high
ranking politician, Mr Paul Mashatile, Treasurer-General of the ANC, has a
financial interest, held through another individual. It was also alleged that the
construction of the deal was simply to inflate the selling price by R1 billion, and
to pay the amount to Mr Mashatile.

250. In the first paragraph on page 2 of the email, the following is stated:

‘when we queried why the valuation in Karan Beef was inflated by

R1bn to make it R6bn whereas we had on earlier application from a
different group with the same transaction at R4.5bn, we were told by
Dr Dan [Matjila] not to ask questions as this transaction was urgent
and it was for the T.G. [Treasurer-General].’

251. Despite numerous invitations issued by the Evidence Leader and announced
by the Commissioner during hearings, for those with information relevant to
the Commission’s Terms of Reference to come forward, no one came forward
to substantiate the allegations made in the email referred to above. The only
person who submitted a comprehensive statement to the Commission, signed
on 29 May 2019, was Mr Sello Adson Motau (Mr Motau), who was alleged in
the email to be the boyfriend of Ms Hlatshwayo. Mr Motau denied the
allegations made against him and specifically the allegation that he was
intimately involved with Ms Hlatshwayo.196

196
Para 13 of Mr Motau’s statement signed on 21 May 2019.

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252. Mr Motau was involved in the Karan Beef transaction as the transaction
advisor and claimed to have ‘in depth’ knowledge of the transaction. Mr Motau
is a director of Theko Capital (Pty) Ltd (Theko), which provides corporate
advisory services in various sectors. He averred in his statement that his
involvement with the PIC in the Karan Beef transaction was purely advisory.
Mr Motau stated that to the best of his knowledge the selling price of Karan
Beef was not inflated and that an independent and detailed valuation was
done by one of the leading investment banks in the country, namely, Rand
Merchant Bank, which provided a valuation range to the B-BBEE consortium
(Pelo Agricultural Ventures (Pty) Ltd), that sought PIC funding to acquire a
stake in Karan Beef.197

253. Mr Motau sets out, in his statement, the route the transaction proposal took
through the PIC investment process, going through PMC1, PMC2 and
ultimately the Investment Committee, which approved the transaction on 14
August 2018, on certain conditions. One of the conditions was that the selling
price be capped at R5.2 billion, while the sellers’ valuation was R6 billion. That
condition was met together with the others. However, since the resignation of
the whole Board of the PIC on 1 February 2019, the transaction has stalled –
the executive, according to Mr Motau, decided that the deal should be referred
back to PMC2.198

Finding

254. The allegations in the James Noko email of corruption and impropriety in the
Karan Beef transaction have not been substantiated. There is therefore no
substance in them. Consequently, no finding of impropriety in the investment
decision in the Karan Beef transaction can be made.

197
Para 13.4 of Mr Motau’s statement signed on 21 May 2019.
198
Paras 28 – 41 of Mr Motau’s statement signed on 21 May 2019.

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Mobile Satellite Technologies

255. In its interim report, the Commission mentioned, that it was unable to make
findings in relation to the allegations leveled against Dr Matjila in the James
Nogu email of 5 September 2017, since it had not heard any evidence on the
matter.199 The Commission was provided with the report compiled by
Advocate Geoff Budlender SC (the Budlender report), who had dealt with the
matter.200 As a Commission document, the Budlender report consequently
became public. With regard to the allegations that Dr Matjila had funded Ms P
Louw and that she was his girlfriend, Dr Matjila denied that there was ever a
romantic relationship between them and that he funded her in the amount of
R21 million through her company, Maisons Holdings, a health spa co-owned
by Ms P Louw and Ms Annette Dlamini (Ms Dlamini).

256. Dr Matjila conceded, however, that he met the two women for the first time at
the OR Tambo International Airport where they were introduced to him by then
Minister of Intelligence, Mr David Mahlobo.201 He had been invited by the
former Minister to meet him at the airport. He obliged even though he did not
know what would be discussed between them, nor did he enquire as to the
purpose of the meeting. It turned out that it was to request the PIC to help Ms
Louw and Ms Dlamini with their investment proposal. Dr Matjila said the PIC
could not fund their business, Maisons Holdings, which was in financial
difficulty, and referred them to other funders.202

257. Dr Matjila also introduced them to Kefolile Health Investment Holdings

(Kefolile) through Mr Lawrence Mulaudzi (Mr Mulaudzi), the lead promoter.
The PIC had previously funded three entities in which Mr Mulaudzi has an

199
Para 12 of the Commission’s Interim Report dated 15 February 2019.
200
A copy of the Budlender report was handed in and forms part of the record, attached hereto as Appendix Three.
201
At pages 27-28 of the Transcript for day 55 of the hearing held on 16 July 2019.
202
At page 28 of the Transcript for day 55 of the hearing held on 16 July 2019.

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 interest, namely, Kefolile, TOSACO and Ascendis. When Maison Holdings
experienced financial difficulties and the sheriff was about to attach their
business, they again approached Dr Matjila for assistance. He then contacted
Mr Mulaudzi and asked him to help save a women-led, ‘black business’ from
collapse. Mr Mulaudzi agreed to do so in his personal capacity which he did
by donating a sum of R300 000.

258. Throughout these meetings and interactions Dr Matjila kept no record of any
meetings, discussions, agreements or requests that he made to third parties.
Dr Matjila, in his testimony, repeatedly highlighted that one of the challenges
he faced was political pressure and pressure from Politically Exposed Persons
(PEP). To not take basic measures such as notes of a meeting with a Minister,
so that there is some record of the interaction, flouts standard practice and
flies in the face of appropriate behavior. As is evident in the TOSACO case203,
to cite one example, this consistent lack of keeping a record of meetings held
has resulted in disputed versions of what occurred or what was agreed to.

259. In his testimony, Mr Mulaudzi confirmed these facts as they related to him and
said because the PIC had funded an entity in which he is a shareholder,
Kilimanjaro Capital Investment Holdings Company (KiliCap), and that the
request came from Dr Matjila, he felt obliged to assist Ms P Louw and Ms
Dlamini. Dr Matjila denied the allegation that he funded Ms P Louw or that he
and Ms P Louw were romantically involved. There was no other evidence
placed before the Commission (nor in fact before the Budlender Inquiry) on
this issue, despite repeated invitations to the public at large to come forward
with information relevant to the Commission’s ToRs. There is thus no reason
to reject Dr Matjila’s denial.

260. The Commission accordingly finds that there was no substance in the
allegations contained in the James Nogu email that Dr Matjila funded Ms P

203
Refer to the case study below.

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 Louw through Maison Holdings in the amount of R21 million and that there
existed an intimate relationship between him and Ms P Louw. However, the
Commission finds that Dr Matjila acted inappropriately in pressuring Mr
Mulaudzi, as the owner of an investee company, to assist Ms Louw and
Maison Holdings.

261. As to the PIC’s funding of MST, Mr Rajdhar testified that MST applied to the
PIC in June 2015 for a loan of R45 million to procure buses for use to provide
mobile health care and educational services for school children in certain
areas in the Western Cape Province and nationally. MST manufactures and
‘kits out’ buses from corporate social responsibility funds or funds made
available by government departments and public entities to be used to offer
social benefits to society. The application was referred to the division now
known as Impact Investing. A scoping report was done and tabled on 16 July
2015, for consideration by the PMC-UI for approval to proceed to DD. The
approval was granted. After completion of DD, PMC 2 approved the
transaction on 23 November 2015 for a term loan of R50 million plus 25%
equity at a nominal amount of R25. However, MST was not willing to offer
equity to the PIC unless the company value was increased, which meant that
the PIC was to pay for the value created.

262. After further negotiations between the parties had taken place, PMC-UI
granted approval of a revised proposal on 8 June 2016 in the form of a debt
facility of R21 million plus a 5% profit share.204 The amount of R21 million was
for financing seven buses which were to be manufactured at an estimated
price of R3 million each.205 MST had an existing agreement with Mercedes
Benz in terms of which it purchased bus chassis from them and then, with
materials procured from other suppliers, assembled the buses. The PIC

204
A copy of the revised proposal is attached as annexure ‘D’ to Mr Royith Rajdhar’ statement of 18 March 2019. See
para 10.4.
205
Para 10.3. of Mr Royith Rajdhar’ statement of 18 March 2019.

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 funding would enable it to explore other chassis suppliers and not be limited
to Mercedes Benz. The PIC would become the title holder of the new
vehicles.206 The loan facility was to be disbursed upon fulfillment of conditions
precedent set by PMC-UI. Following the fulfillment of the conditions precedent,
so said Mr Rajdhar, legal agreements (term loan agreements) were signed
and the funds disbursed on 6 July 2017.

263. The conditions precedent included, among others, the following:

263.1. That as security for the funding, the PIC would register a Special Notarial
Bond over the bus-units and a General Notarial Bond over moveable
assets acquired from the proceeds of the funding;

263.2. That the borrower (MST) would apply all the funds for the purpose of
designing, constructing, assembling, operating and leasing of bus units;
and

263.3. That MST would submit to the PIC its Audited Financial Statements by
no later than a period of 90 days after its financial year end.

264. Mr Rajdhar asserted in his statement that the conditions precedent ‘were
fulfilled prior to disbursement taking place’.207 It had been impossible,
however, to register a special notarial bond over the units (buses) because
the process required specific identifiable information about the units, which
was not forthcoming from MST. Mr Rajdhar also stated that the PIC provided
audited financial statements as at 30 June 2015, but should have demanded
delivery of the 30 June 2016 audited financial statements prior to
disbursement of the funds.208 He said that in the absence of that set of audited

206
Ibid.
207
Para 22 of Mr Royith Rajdhar’s statement signed on 23 March 2019.
208
At page 11 of the Transcript for day 20 of the hearings held on 26 March 2019.

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 financial statements the team had obtained management accounts and
interrogated the numbers, but there were no audited financial statements as
at 30 June 2016. ‘Technically the provision of 30th June 2015 audited financial
statements would discharge the condition of providing annual financial
statements’.209 He confirmed that the PIC had experienced difficulties in
obtaining further audited financial statements, and those that had been
provided in January 2017 were independently reviewed, not audited.

265. Ms Constance Sharon Madzikanda (Ms Madzikanda), is a Portfolio Manager

in the PMV Department of the PIC. It is a support structure of the Impact
Investment team and is responsible for post-investment monitoring, which
entails monitoring compliance with legal instruments (agreements) and the
financial performance of investee entities. Ms Madzikanda testified that when
PMV requested an update from MST on the number of buses that had been
manufactured and delivered the latter responded, on 7 September 2017, that
six of the seven buses had been delivered and that the 7th would be delivered
in the following week.210 On 24 October 2017, PMV asked for particulars of
the buses for purposes of having them registered under a Special Notarial
Bond as per one of the conditions of the loan. In response, a list of Vehicle
Identification Numbers (VINs) in respect of seven buses was sent to the PIC
on 30 October 2017. A later list of VINs sent to PMV differed from the first,
when the numbers were compared.

266. After some correspondence had passed between the parties the PIC
discovered, from a submission by MST, that only two chassis had been
purchased from the funds advanced by the PIC, while the balance was used
for internal fittings for seven buses.

209
At page 12 of the Transcript for day 20 of the hearings held on 26 March 2019.
210
A copy of the response is annexure ‘4’ to Ms Madzikanda’s statement, signed on 26 March 2019.

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267. The testimony of Ms Madzikanda reveals that after a number of emails were
exchanged between the parties, several meetings held and site visits
conducted, it became clear that not all of the funds advanced to MST by the
PIC were used for the purpose for which they were sought.211 Ms Madzikanda
also testified that their attempt to assess the financial position of the MST were
impeded by the latter’s failure to submit its audited financial statements.212

268. Leave was granted to MST to cross-examine Mr Rajdhar and Ms Madzikanda.

In the end, only Mr Rajdhar was cross-examined, although his cross-
examination was incomplete. It was agreed, at the end of his cross-
examination, on 3 July 2019, that counsel for MST, Adv. Oldwadge KC, and
the Evidence Leader, Adv. Lubbe SC, would arrange a suitable date for the
continuation of the cross-examination. That did not materialise. The
Commissioners were made to understand that the parties were working on
settling their differences. During cross-examination of Mr Rajdhar, counsel for
MST acknowledged that MST was in default in that it was not servicing the
loan and that MST used part of the funds to pay creditors stating that it had to
continue with its operations. In essence, funds provided for a specific purpose
and intended for capital expenditure were used to finance operational costs.
This was in violation of the condition precedent that ‘the borrower (MST) would
apply all the funds for the purpose of designing, constructing, assembling,
operating and leasing of bus units’, as stipulated in paragraph 263.2.

269. The cross-examination centered around whether or not the loan had been
secured in terms of the conditions precedent and whether Mr Rajdhar was
correct in testifying that the funds were advanced for the purpose of acquiring
new buses. As to the question of security, Mr Rajdhar conceded that there
was some security, but said that the Special Notarial Bond has yet to be
registered since MST had not provided the necessary information in respect

211
At page 30 of the Transcript for day 20 of the hearings held on 26 March 2019.
212
At page 37 ibid.

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 of the buses. As to the second issue, it is clear from the evidence of both Ms
Madzikanda and Mr Rajdhar that, at least, on the side of the PIC there is no
confusion that the funding was meant for the acquisition of new buses.
Paragraph 10.3 of the Extract from the minutes of a meeting of the PMC- UI,
held on 8 June 2016, reads as follows:

‘Upon approval of the transaction the PIC will finance 7 buses which
will be manufactured at an estimated price of R3 million each. The
PIC will become the title holder of the new vehicles.’213 (Emphasis
added)

270. And although the Term Loan Agreement does not speak of ‘new’ bus units, it
does say the borrower ‘shall apply all amounts borrowed . . . for purposes of
designing, constructing, assembling, operating and leasing of BUS units’.

271. It is not necessary to say more on this issue. What requires emphasis is that
the legal department, which is responsible for drawing up the agreement
following approval of a transaction, should ensure that the intention of the
approving committee is correctly and properly captured in such agreement.

272. We return to Ms P Louw. Although it has been found above that there is no
substance in the allegation that Dr Matjila directly funded Ms P Louw to the
tune of R21 million, which in fact, is the funding that was provided by the PIC
to MST. The initial funding request for MST, introduced by Ms More, was not
supported for various reasons. It is clear that Ms Louw’s request was
considered by the PIC because it had come through Dr Matjila, and that such
an introduction arose out of a meeting with a Minister.

273. It was held in the Budlender report that Ms P Louw did have a commercial
relationship with MST, from which she derived financial benefit. The facts set

213
A copy of the minutes is annexure “D” to Mr Royith Rajdhar’s statement.

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 out in the Budlender report are these: On 22 July 2016, Maison Holdings and
MST concluded a Joint Venture Agreement in terms of which the former would
act as the latter’s agent in seeking partnerships with State entities or
businesses.214 It appears that there were certain MST proposals in which she
was involved, although the extent of her involvement is not clear.

274. During the presentation of the MST application for loan funding, on 23
November 2015, Dr Matjila requested Corporate Affairs (PIC) to consider the
MST project offering for a CSI investment – CSI falls under Corporate Affairs.
The request did not find favour with the Executive Committee. After several
further unsuccessful attempts, a project proposal submitted by a Mr Mzonyana
of MST for CSI funding of R5 million, was approved and the amount was
allocated on 20 February 2017. Payment of the amount was authorised by Dr
Matjila on 20 March 2017.

275. Mr Rajdhar testified that Ms Louw initiated a number of CSI proposals of

between R23 million and R37 million, that were not approved. ‘[R]ound about
in January or February the following year’ the PIC executive decided to commit
R5 million ‘in anticipation of the 31 March year end …and the PIC having to
contribute to CSI.’ Mr Rajdhar confirmed that he had received a message
from Dr Matjila asking him to assist with the R5 million and said, ‘…that R5
million [CSI donation] was dealt with directly with MST … media articles were
coming out and we were getting queries [as to whether] Maison received any
fee…’.215 Mr Rajdhar was advised by Mr Fernanco of MST that they had paid
Ms Louw R438 000. He said, ‘if you add VAT to it you’ll see that the amount
is going to come to exactly R500 000 … 10% of R5 million’.216 It needs to be

214
Para 35 of the Budlender Report.
215
At page 58 of the Transcript for day 20 of the hearings held on 26 March 2019.
216
At page 59 of the Transcript for day 20 of the hearings held on 26 March 2019.

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 borne in mind that Dr Matjila’s first contact with Ms Louw was in April 2016,
and at that stage had no connection with MST.

276. On 1 April 2017 MST paid an amount of R438 000 plus VAT to Maison
Holdings for ‘work done to date’. It was found in the Budlender report that the
money was paid to Maison Holdings as a reward for Ms P Louw’s efforts and
to encourage her to continue therewith.

Findings

277. In the Commission’s view, no finding of impropriety can be made on the

established facts regarding the investment decision of the PIC in the MST
transaction. What is of concern is the failure, on the part of the PIC, to demand
from MST its 30 July 2016 audited financial statements prior to disbursing the
funds.

278. The R5 million CSI donation made directly to MST, of which approximately
half a million went to Ms P Louw’s company, Maison Holdings, an entity
introduced to the PIC/Dr Matjila by Minister Mahlobo, reflects a misuse of what
the funds were intended for. It brings into question what services were
rendered by Maison Holdings to the value of half a million rand, when the CSI
donation was made directly to MST.

279. MST did not adhere to the conditions precedent for the loan of R21m, which
were very specific, namely:

279.1. That the borrower (MST) would apply all the funds for the purpose of
designing, constructing, assembling, operating and leasing of bus units;
and

279.2. That MST would submit to the PIC its Audited Financial Statements by
no later than a period of 90 days after its financial year end.

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280. It is questionable whether proper due diligence, including viability and risk
assessment, could have been meaningfully conducted without up to date
audited financial statement from MST.

281. Mr Rajdhar, in his evidence before the Commission, stated that MST was in
default in terms of its financial obligations or servicing of the loan.217

282. Moreover, the question arises as to whether there was impropriety in the
conduct of Dr Matjila that arose from his meeting with Minister Mahlobo and
thereafter facilitating access to funding through other PIC investee companies
(Mr Mulaudzi) and the PIC itself.

283. Dr Matjila’s pressurising of Mr Mulaudzi, resulting in him donating R300 000

to Ms P Louw, was wholly improper, an abuse of his position as CEO and a
reputational risk to the PIC.

284. Ms P Louw in fact received R800 000 from her introduction by former Minister
Mahlobo to Dr Matjila. The R500 000 paid to Ms P Louw from the PIC CSI
donation must be repaid by MST to the PIC.

285. The PIC must significantly enhance its capacity to monitor effective
implementation of conditions precedent and the performance of the entity
invested in.

Case Study: Tosaco (Pty) Ltd

Introduction

286. Total South Africa Consortium (Pty) Ltd (‘TOSACO) is a B-BBEE entity which
holds a 25% equity interest in Total South Africa (Pty) Ltd (Total). TOSACO is

217
Para 24 of Mr Rajdhar’s statement signed on 18 March 2019.

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 the holding company, with TOSACO Retail (Pty) Ltd (TOSACO Retail)
operating filling stations branded by Total. During 2015 TOSACO announced
its intention to sell 91.8% of its shares to qualifying buyers. The remaining
8.2% belonged to the ‘TOSACO Staff Trust’ and the owners of those shares
had no intention of disposing of them.

287. In his evidence to the Commission, Mr Mulaudzi said that in 2015 his
investment company, which had been established in January of the same
year, Kilimanjaro Capital Pty Ltd (KiliCap), became aware of a transaction
titled ‘Project Atlas’.218 A B-BBEE shareholder (TOSACO) in Total, wanted to
dispose of their investment that had reached maturity.

288. During February 2015, Calulu Investments (Pty) Ltd (Calulo) engaged
Nedbank Capital, a division of Nedbank, to act as their corporate advisor in
the proposed sale, by tender, of their equity stake in TOSACO. Nedbank was
to assist Calulo in considering proposals, to make recommendations as
required and provide strategic corporate finance advice to the company with
regard to the transaction. Mr Tapiwa Shamu (Mr Shamu), a Nedbank
Corporate Advisor, and Ms Aamena Patel (Ms Patel), his supervisor, were
appointed by Nedbank to conduct the tender sale.

289. Three companies, namely, KiliCap, Sakhumnotho (Pty) Ltd (Sakhumnotho)

and Lereko (Pty) Ltd (‘Lereko’), separately approached the PIC for funding to
purchase the shares. The PIC’s Investment Committee (IC) approved funding
to the Kilimanjaro Sakhumnotho Consortium (Pty) Ltd, a consortium
comprising of KiliCap and Sakhumnotho, in the amount of R1.8 billion to
acquire the shares and R300 million for the expansion of TOSACO Retail, a
total of R2.1 billion. However, the Consortium acquired the shares for R1.7
billion, not the R1.8 billion approved by the IC. The additional R100 million

218 At page 5 of the Transcript for day 21 of the hearings held on 27 March 2019.

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 was allegedly funding for transaction fees, but this was not brought to the
attention of the PIC’s relevant committees for approval.

290. The PIC disbursed R1.8 billion, but not the R300 million because the
transaction relating thereto was abandoned due to the expiry of the period
within which legal agreements should have been concluded. Mr Mulaudzi’s
original proposal included a development facility of R300 million for Tosaco
Retail, intended for the development of 20 service stations, which would in
turn be franchised to young black entrepreneurs. However, the Tosaco Retail
investment component of the deal had not materialised at the time of Mr
Mulaudzi’s testimony before the Commission.

291. There is a significant difference between the versions of the parties regarding
the circumstances that led to the merger between KiliCap and Sakhumnotho.
Mr Mulaudzi, a director of KiliCap and its representative in its dealings with the
PIC, testified that the decision to merge was imposed on KiliCap by Dr Matjila,
the CEO of the PIC at the time. On the other hand, Dr Matjila and Mr Sipho
Mseleku (Mr Mseleku), the chairman of Sakhumnotho, denied the allegation
by Mr Mulaudzi and alleged that the merger was voluntary.

292. KiliCap submitted its application for funding to acquire the TOSACO shares
in May 2015. Mr Mulaudzi testified that they had become aware of TOSACO’s
intention to dispose of the shares through a director of KiliCap who was a
minority shareholder in TOSACO. On 1 June 2015, Mr Mulaudzi sent an email
to Mr Masekesa, Dr Matjila’s Executive Assistant, in which he asked Mr
Masekesa to liaise with Dr Matjila regarding the provision of a non-binding
letter of support in favour of KiliCap. He stated that they were under pressure
to submit an indicative offer as soon as possible.219 Mr Masekesa forwarded
the email to Dr Matjila, who responded to Mr Masekesa that there was another
B-BBEE entity that was interested in the transaction and that they might have

219
Page 5-7 of the Transcript for day 21 of the hearings held on 27 March 2019.

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 ‘to persuade them to work together’. The reference to ‘them’ could only have
been a reference to KiliCap and the B-BBEE entity referred to in the email,
namely, Sakhumnotho. This notwithstanding, Dr Matjila issued a ‘non-binding
expression of interest and funding support’ letter dated 2 June 2015, in favour
of KiliCap.220

293. KiliCap made an unsolicited offer to TOSACO for 100% of its equity and
requested a meeting with Dr Matjila, which took place at the PIC offices. Mr
Mulaudzi stated that:

‘…this was my very first interaction and meeting with Dr Matjila. We

had never met [prior] to this’221

294. KiliCap submitted an investment proposal to Dr Matjila on 22 May 2015, which

covered the acquisition of the empowerment shareholding in Total as well as
a facility for the development of a network of retail service stations. Similar
funding applications were also submitted to both Standard Bank and Nedbank.

295. On 19 April 2015 Mr Shamu scheduled a meeting with Mr Mulaudzi and on 5

May 2015, it appears that Mr Shamu had a meeting with, among others, Mr
Mulaudzi and Mr Kinesh Pather (Mr Pather).

296. During June 2015, Nedbank concluded an agreement with the minority
shareholders of TOSACO, along similar lines as their agreement with Calulo,
to dispose of their shares in TOSACO simultaneously with those of Calulo. Mr
Shamu signed the agreement as the Nedbank Principal: Corporate Finance.
One of the minority shareholders was Amafutha International Company. Mr

220 A copy of this letter is attached as Annexure ‘B’ of Mr Tshepo Rapudi’s statement.
221 At page 6 of the Transcript for day 21 of the hearings held on 27 March 2019.

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Investment Corporation Page 393 of 794
 Pather, one of the Directors of Amafuthu, signed the agreement in that
capacity.

297. KiliCap received an indicative non-binding funding support letter from both
Nedbank and the PIC. This was followed by KiliCap interacting with the PIC
deal team and KiliCap was advised that on 29 June 2015, the relevant PMC
considered the scoping report presented by Mr Tshepo Rapudi’s (Mr Rapudi)
team. The PMC gave approval to proceed to DD. Nedbank Corporate Finance
Division, the bank dealing with the TOSACO transaction, on behalf of Total
had commenced with a competitive bidding process and KiliCap was invited
by Nedbank Corporate Finance, on 19 June 2015, to participate in ‘Project
Atlas II’, which it did, submitting a funding support letter from the PIC.

298. In his testimony, Mr Mulaudzi stated that:

‘During our engagements with the PIC … it was decided that KiliCap
will appoint a transaction advisor nominated by the PIC as this would
allow for better understanding of the PIC funding application process.
BNP Capital was nominated by the PIC and formally engaged by
KiliCap on 24th June 2015.’222

299. KiliCap worked with a PIC official, namely, Mr Rapudi, an Associate Fund
Principal. According to Mr Rapudi, he was first introduced to the TOSACO
deal when Mr Rajdhar assigned the case to him around 29 May 2015. He
stated that he was the team leader and had received emails on the same day
from Mr Mulaudzi regarding their bid.223

222 At page 7 of the Transcript for day 21 of the hearings held on 27 March 2019.
223
At page 86 of the Transcript for day 26 of the hearings held on 9 April 2019.

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Investment Corporation Page 394 of 794
300. The structure of the deal was for the PIC to fund KiliCap to acquire 25%
shareholding in Total, held at the time by TOSACO.

301. KiliCap was required to submit a binding offer on 31 July 2015, so the PIC
funding sought, had to be unconditional. In a meeting with Nedbank, they
discovered that the PIC had issued funding support to other bidders who were
also part of the Project Atlas II process.

302. On 19 June 2015, Nedbank by email, invited Sakhumnotho to submit an

indicative non-binding offer by 12h00 on Friday, 26 June 2015. Mr Mseleku
forwarded the email to Mr Madavo of the PIC on 22 June 2015 requesting him
to advise whether the PIC could ‘do’ the transaction and, if so, to assist
Sakhumnotho. The PIC then issued a non-binding letter of support dated 30
June 2015 in favour of Sakhumnotho, emailed by Mr Nesane, PIC Head:
Legal, to Mr Mseleku and Mr Benedict Mongalo (Mr Mongalo) on the same
day.

303. Lereko, the third interested party, submitted its application for funding to the
PIC, which issued a non-binding letter of support, dated 30 June 2015, in
favour of Lereko – the third such letter. No information was placed before the
Commission to show that anything was done on the Lereko transaction
beyond the issuing of the letter of support.

The parallel PIC processes

304. The KiliCap and Sakhumnotho transactions were allocated to different teams
within the PIC, one for the Kilicap transaction, led by Mr Rapudi and another
for the Sakhumnotho transaction, led by Mr Mongalo.

305. As explained in paragraph 297 above, the team dealing with the KiliCap
transaction had prepared a scoping report and presented it to PMC1 on 29

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Investment Corporation Page 395 of 794
 June 2015, which authorised the transaction to proceed to DD.224 On 30 June
2015 the PIC and KiliCap signed an engagement letter, setting out the terms
of engagement by the PIC as potential investor in the transaction.225

306. The internal teams (deal, legal and risk) performed a due diligence on the
KiliCap transaction, as authorised by PMC1 and presented to PMC2 at its
meeting held on 24 July 2015. PMC2 approved the transaction for onward
submission to the PEPSSME-FIP.

307. According to Mr Rapudi, the transaction was then placed on the agenda of a
meeting the PEPSSME-FIP scheduled for 31 July 2015. However, on 28 July
2015 Dr Matjila and Mr Nesane instructed him to remove the transaction from
the agenda, which Mr Rapudi did. The reason given was that other bidders
who had also been shortlisted for phase 2 of the bidding process had
approached the PIC for funding. Dr Matjila confirmed giving Mr Rapudi the
instruction.226 Mr Rapudi further stated that on 29 July 2015 he had received
copies of the letters of support issued in favour of Sakhumnotho and Lereko
from Mr Mongalo. While Mr Rapudi and his team were working on the KiliCap
transaction, Mr Mongalo was working on the Sakhumnotho transaction.227

308. On 1 July 2015, Nedbank emailed a letter to Sakhumnotho informing them

that they had been shortlisted for the second phase of the bidding process and
that binding offers should be submitted by 12h00 on Friday, 31 July 2015. On
2 July 2015, Mr Mseleku forwarded the Nedbank correspondence to Mr
Nesane, and copied Dr Matjila. He stated that the shortlisting of Sakhumnotho
would require a due diligence to be conducted. Mr Nesane forwarded the
email to Mr Mongalo. On 3 July 2015 Mr Mseleku sent Mr Nesane an email

224 A copy of an extract from the minutes of the PMC1 meeting is attached as Annexure ‘D’ to Mr Rapudi’s statement.
225 A copy of the engagement letter is attached as Annexure ‘E’ to Mr Rapudi’s statement.
226 Para 18 of Mr Rapudi’s statement signed on 8 April 2019.
227 Ibid para 19.

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Investment Corporation Page 396 of 794
 stating that ‘[w]e believe PIC will undertake its own DD [due diligence] …’ 228
He also stated that they (as Sakhumnotho) fully appreciated the conditions of
the letter of support and that there was another bidder. Mr Nesane confirmed
that ‘[t]he PIC will carry [out] its own due diligence’.229

309. On 24 July 2015, Sao Capital (Pty) Ltd, which was the lead transaction advisor
to Sakhumnotho, emailed their valuation report on the TOSACO/Total deal to
Mr Mseleku, who forwarded it to Dr Matjila and copied Mr Nesane and Mr
Mongalo.

310. On the same day, Nedbank sent letters to KiliCap and Sakhumnotho, among
others, changing the date for the submission of binding offers to Friday, 7
August 2015. Mr Mulaudzi testified that in a meeting he had with Dr Matjila,
the latter stated that in order for him to proceed with issuing a final approval
he (Mr Mulaudzi) needed to urgently meet with Mr Mseleku of Sakhumnotho
as the other interested party. Dr Matjila also told him that Mr Mseleku’s
company must merge with theirs to form one consortium, and that they had to
give Mr Mseleku 50% of the transaction and the fees that they would ultimately
receive.230

311. The transaction fees came to a staggering R100 million, being R50 million
each for the two companies. Mr Mulaudzi stated that ‘…the transaction fees
are unfortunately a direct consequence of the merger between KiliCap and
Sakhumnotho’.231

312. Agreement was reached and KiliCap changed its company name to ‘KISACO’
(KiliCap Sakhumnotho Consortium). On 30 July 2015, KiliCap and

228 A copy of this email was obtained by the Commission.

229 A copy of this email was obtained by the Commission.
230
At page 8 of the Transcript for day 21 of the Hearings held on 27 March 2019.
231 At page 25-26 of the Transcript for day 21 of the Hearings held on 27 March 2019.

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Investment Corporation Page 397 of 794
 Sakhumnotho informed Nedbank and the PIC, through letters of the same
date that they had agreed to merge the two companies into one consortium
for the purpose of acquiring the TOSACO shares. The new consortium would
be called Kilimanjaro Sakhumnotho Consortium (Pty) Ltd (‘KISACO’), which
was only registered in August 2015. The letters stated that the consortium
would be owned equally (50/50) by KiliCap and Sakhumnotho and that Mr
Mulaudzi and Mr Mseleku would be its joint chairmen. The letters stated
further that KiliCap and Sakhumnotho would ‘henceforth’ make ‘joint and
unified submissions’ for the transaction.232

313. Mr Mulaudzi stated that he asked Dr Matjila whether Sakhumnotho had

undergone a due diligence process. The basis for this question was that
KiliCap had concluded its due diligence process and ‘been informed that [the]
transaction had been approved by the management committee to go to the
board approval committee’.233 According to Mr Rapudi, PMC2 had
recommended the transaction for approval by the PEPSSME-FIP (a sub-
committee of the Investment Committee) on 24 July 2015.234

314. Mr Mongalo, Fund Principal, Impact Investing at the PIC, stated in his
testimony to the Commission that on or about 3 July 2015, he had been
assigned by Mr Ernest Nesane, Head of Legal, to work with Sakhumontho in
their bid to secure a stake in TOSACO. He also stated that because
Sakhumontho was not a preferred bidder, he had not participated in the due
diligence that was being conducted by Sao Capital on behalf of Sakhumontho.
He further stated that the PMC1 had not granted approval for Sakhumnotho
to participate in the due diligence process.235 Mr Mongalo claimed that he was
advised by Mr Nesane on 30 July 2015 that Sakhumontho and KiliCap had

232 Copies of the letters to Nedbank and the PIC are attached as annexures ‘I’ to Mr Rapudi’s statement.
233
At page 8 of the Transcript for day 21 of the Hearings held on 27 March 2019.
234 Para 16 of Mr Rapudi’s statement signed on 8 April 2019.
235 At pages 55-56 of the Transcript for day 21 of the hearing held on 27 March 2019.

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Investment Corporation Page 398 of 794
 joined to become a consortium. On 3 August 2015, the PIC held a meeting
with representatives of the consortium, KISACO.

The formation of KISACO

315. According to Mr Mulaudzi, he did not know Mr Mseleku. The latter’s contact
details were provided to him by Dr Matjila. He then ’briefed’ his ‘partners’
(fellow directors) who were devastated by the ‘directive’ from Dr Matjila. Mr
Mulaudzi said they realised that 50% of the transaction was better than the
whole transaction being taken away from them and made the difficult decision
for the two companies to merge.236 Mr Mulaudzi’s fellow directors mandated
him to meet with Mr Mseleku.

316. Dr Matjila testified that on 30 July 2015 Mr Mseleku and Mr Mulaudzi

separately visited the PIC offices to see him.237 He largely confirmed Mr
Mseleku’s version regarding what allegedly happened on that date.

317. Dr Matjila denied the allegation that he imposed the merger on the two
companies. He claimed that the merger was a voluntary exercise, but
conceded that the issue of a merger had been on his mind.238 He accepted
that he had sent an email to Mr Masekesa stating that they might have to
persuade KiliCap and the other B-BBEE entity to work together, and that it
was for the benefit of KiliCap and Sakhumnotho should they merge to form a
bigger entity. Dr Matjila stated during questioning by the Evidence Leader that
he was not privy to information relating to the bidding process as it was
conducted by Nedbank.

236
At page 8 of the Transcript for day 21 of the Hearings held on 27 March 2019.
237 At page 62 of the Transcript for day 53 of the hearings held on 11 July 2019.
238
At page 70 of the Transcript for day 53 of the hearings held on 11 July 2019.

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Investment Corporation Page 399 of 794
318. In his statement Mr Rapudi stated the following:

‘On the 6 August 2015 PIC sent a funding undertaking letter of

support addressed to Nedbank . . . Paragraph 6 of the letter stated
that “We confirm that should the Consortium [KISACO] be selected a
winning bidder, the PIC hereby confirms its interest and commitment
to provide, in aggregate, up to R1.7 billion in funding to the
Consortium to satisfy the total purchase consideration for the
proposed transaction”.’239 (sic)

319. However, an email dated 7 August 2015 from Mr Rapudi to Mr James

Mchenga reads:

‘Attached is the final letter of support. Please make approval amount

of R1.8 billion’.

There is no explanation provided.

320. In his statement, Mr Rapudi states further that the transaction costs were ‘the
loan of R2.1 billion was approved, comprising R1.7 billion relating to the
acquisition of shares, the R300 million relating to the roll-out of 20 retail service
station sites and R100 million to fund the consortiums transaction related
costs.’ 240 The IC minutes of 14 August 2015, reflect that the project was
approved with KISACO receiving a loan facility of R1.8 billion and approval of
a senior debt facility on behalf of the UIF for R300 million.241

321. The resolution of the IC was signed by Dr Matjila as CEO on 17 August 2015.
There is no disclosure anywhere in the document containing the resolution

239 Para 23 of Mr Rapudi’s statement signed on 8 April 2019.

240
Para 31-32 of Mr Rapudi’s statement signed on 8 April 2019.
241
A copy of the IC minutes are attached as annexure ‘L’ to Mr Rapudi’s statement.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 400 of 794
 that the price paid for the stake was in fact R1.7 billion, and that the R100
million reflected capitalised ‘fees’.

322. This is in contrast to the undated letter from the PIC to Nedbank Capital,
signed by Dr Matjila, which states that:

‘6. We write to confirm that should the Consortium be selected as the

winning bidder, the PIC hereby confirms its approval to provide, in
aggregate, up to R1,7 billion (one billion seven hundred million rand)
in funding to the Consortium to satisfy the total purchase
consideration for the Proposed Transaction.’242

323. On the issue of whether due diligence was conducted by the PIC on
Sakhumnotho before the merger, Mr Rapudi and Mr Mongalo conceded that
this had not been done. Mr Mongalo stated that they ‘had never gone to the
stage where we would approach PMC1 to obtain approval to go to due
diligence’.243 Mr Rapudi testified that he obtained certain information, for FICA
purposes, from Sakhumnotho to update the appraisal report they had
prepared on KiliCap.244 There is email correspondence that shows that the
PIC was provided with a profile of Sakhumnotho and other documents for due
diligence purposes.

324. In his evidence Mr Mseleku claimed that there was no need for the PIC to do
a detailed due diligence on Sakhumnotho as it was already an existing client
of the PIC and thorough due diligence had been done in the past.245 In his
statement Mr Mseleku states that ‘[o]nly a confirmatory Due Diligence was
conducted in relation to the TOSACO transaction with the request for update

Para 6 of the letter - a copy of which is attached as annexure ‘SM 8’ to Mr Sipho Mseleku’s statement signed on 16
242

April 2019.
243 At page 60 of the Transcript for day 21 of the hearings held on 27 March 2019.
244 At page 92 of the Transcript for day 26 of the hearings held on 9 April 2019.
245 Para 11.3-11.4 of Mr Sipho Mseleku’s statement signed on 16 April 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 401 of 794
 on FICA Documents, B-BBEEVerification Certificates, Directors and
Shareholder information.’246

325. When testifying on 11 July 2019, Dr Matjila stated that the PIC had to do a
due diligence on KiliCap, Sakhumnotho and the target asset ‘in full’. When
asked about Mr Mseleku’s statement that this was not necessary, as
Sakhumnotho was an existing client of the PIC, Dr Matjila said that he would
‘check with the team’ but stated that he ‘would expect them to have done a
due diligence.’247 However, on 15 July 2019, he contradicted himself and
claimed that there was no need to have done a due diligence on Sakhumnotho
‘which has an exposure to the PIC it gets reported on a quarterly basis…’ and
the PIC has ‘information around Sakhumnotho…’248

326. On 3 August 2015, a meeting was held between representatives of KISACO

and representatives of the PIC at the PIC’s offices. Two days later, 5 August
2015, Mr Mseleku emailed a draft letter of support in favour of KISACO to Mr
Nesane, copying both Mr Rapudi and Mr Mongalo, who acknowledged receipt
thereof. The next day, 6 August 2015, Mr Rapudi sent an email to Mr Mseleku
and Mr Mulaudzi (as KISACO’s joint chairmen) asking them to provide the PIC
with the ‘final price’ (that is, the bid amount) to which KISACO had agreed. Mr
Mseleku stated that they had agreed on R1.7 billion. Dr Matjila then issued a
letter of support dated 6 August 2015 in favour of KISACO, confirming the
PIC’s commitment to provide funding in the amount of R1.7 billion if KISACO
was selected as the winning bidder. The commitment was also conditional
upon ‘the PIC’s final approval committee approving the funding to the Bidder
[KISACO]’.

246
Para 11.3 of Mr Sipho Mseleku’s statement signed on 16 April 2019.
247 At page 68 of the Transcript for day 53 of the hearings held on 11 July 2019.
248
At page 154 of the Transcript for day 54 of the hearings held on 15 July 2019.

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Investment Corporation Page 402 of 794
327. However, on 7 August 2015, Mr Rapudi forwarded the letter of support in an
email to Mr James Mchenga (Mr Mchenga) and Ms Bridgette Layloo (Ms
Layloo), employees of the PIC who had been assisting him on the KiliCap
transaction and requested them to ‘make approval amount of R1,8billion’.249
(sic).

328. KISACO was selected by Nedbank as the preferred bidder to purchase the
TOSACO shares for R1.7 billion. The transaction reached financial close on
or about 9 December 2015. The total amount of R1.8 billion was disbursed by
the PIC. The amount was disbursed as follows: R1.7 billion was paid to Main
Street 87 (Pty) Ltd (Main Street) for the shares and R100 million, which was
allegedly for transaction fees, was paid directly to KISACO. In his evidence Dr
Matjila alleged that there was no reference to transaction fees in the
transaction documents. He stated that even if the transaction fees are
capitalised the committees should be informed of those fees. He claimed that
he only became aware of the fees through media reports at a later stage.250

329. Mr Sello Nkoane (Mr Nkoane) made a note on the disbursement

memorandum raising a concern regarding the payment of the amount of R1.8
billion into two different accounts. He seems to have been under the
impression that the entire amount should be paid to Main Street.

330. In an effort to determine whether the PIC funding of the Tosaco transaction
was used for the purposes as per the transaction approval, bank statements
obtained by the Commission were examined. The following has been
established: An entity named Blackgold is registered to Mr Mulaudzi of KiliCap
and Kilimanjaro Sakhumontho. Hekima Capital (Pty) Ltd and Investar Connect
are companies registered to a Mr Lot Magosha. In the VBS Report titled ‘VBS
Mutual Bank: The Great Bank Heist’, Advocate Motau SC found that Hekima

249
A copy of the letter is attached as annexure ‘J’ to Mr Rapudi’s statement signed on 8 April 2019.
250 At page 127 of the Transcript for day 54 of the hearings held on 15 July 2019.

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Investment Corporation Page 403 of 794
 Capital and Investar were front companies for Mr Paul Magula. At paragraph
49.1 of the Motau Report, it is stated that

‘Hekima Capital (Pty) Ltd and Investar Connect Holdings (Pty) Ltd
were front companies which were his [Mr Magula’s] vehicles for
receiving payments from Vele and Vele Petroport amounting to in
excess of R7.6 million.’

331. An estimated R400,000 was transferred to Mr Shamu of Nedbank from Mr

Mulaudzi.

The contracting of advisors

332. Given the serious concerns about the R100 million (R50 million each) paid to
KiliCap and Sakhumnotho ostensibly for transaction costs, including that of
advisors, and how the amount was determined, an affidavit was obtained by
the Commission from Mr Pholisani Daniel Mahlangu (Mr Mahlangu), extracts
of which are quoted below. Mr Mahlangu is the CEO of BNP Capital (Pty) Ltd,
(BNP) which was nominated as the transaction advisor by the PIC.

333. Mr Mahlangu was Head of Funds for the PIC (private equity funds Advisory
Boards). He stated that the purpose of making the statement is to ‘set the
record straight about our involvement in the Total B-BBEE transaction and the
total fees paid to us for work done’.251 He was introduced to Mr Mulaudzi by
Mr Rajdhar, who indicated that KiliCap ‘would need to get someone to assist
them package the transaction.’ (para 4.1.2).252

334. The mandate letter BNP signed with KiliCap required BNP to run with the
entire management of the share purchase, and would be compensated with a

251 Para 2.4.1 of Mr Mahlangu’s statement signed on 1 October 2019.

252 Para 4.1.2 of Mr Mahlangu’s statement signed on 1 October 2019.

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Investment Corporation Page 404 of 794
 fee of 2%, excluding VAT, of the capital raised, i.e. R1.7 billion. In turn, BNP
engaged other service providers to assist with both legal and financial due
diligence, to be paid on the same terms as BNP. The Sakhumnotho
consortium engaged Sao Capital, led by Mr Nana Sao.

335. Mr Mahlangu states further in his statement that:

‘[t]he introduction of the new consortium and advisor meant that BNP
fees were reduced to R17 million from the initial R34 million as per
the signed mandate letter. Both KiliCap and Sakhumnotho…[to] pay
their respective advisors.’253

336. After the successful fund raising, Mr Mulaudzi advised BNP to send an invoice
for R1 million, VAT inclusive, to a company named AVACAP.

337. BNP enquired about the balance of its fees, but was only told that some of the
money was going to be paid later. KiliCap also indicated to BNP that they
would pay the two service providers that provided legal and financial due
diligence directly.

338. BNP has since been unsuccessful in its efforts to get the balance of the fees
owed being paid only around 6% of the expected fee as per the mandate letter.
254

339. The Commission is of the view that there is no merit in the claims that:

253
Para 4.1.11-4.1.12 of Mr Mahlangu’s statement signed on 1 October 2019.
254
Para 4.1.15-4.1.18 of Mr Mahlangu’s statement signed on 1 October 2019.

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Investment Corporation Page 405 of 794
339.1. the merger between KiliCap and Sakhumnotho was voluntary. If the
merger was voluntary, there would have been no reason for KiliCap’s
directors to feel aggrieved and compelled to merge.

339.2. there was no need to do a detailed due diligence on Sakhumnotho as it

was already an existing client of the PIC;

339.3. Dr Matjila gave Mr Rapudi the instruction to remove the transaction from
the agenda of a meeting where it was tabled for consideration in order to
give the other bidders a fair chance to participate in the transaction.

339.4. Dr Matjila only became aware of the transaction fees through media
reports. There was also no justification for the various PIC committees
not to be informed of the transaction fee.

340. On the issue of a due diligence on Sakhumnotho, it is clear from the evidence
of Mr Mongalo that due diligence should have been done. Mr Nesane had
informed Mr Mseleku that the PIC would do its own due diligence. Dr Matjila
gave contradictory evidence in this regard. A thorough due diligence prior to
any decision to make an investment is a critical part of the PIC’s decision-
making processes, and is intended to ensure that clients’ interests are
protected and funds are invested after due process and careful consideration.

341. As regards the transaction fees, it was disingenuous of Dr Matjila, to claim that
he only became aware thereof as a result of media reports. Dr Matjila had
stated in the letter of support in favour of KISACO that the PIC was committed
to provide funding of up to R1.7 billion to KISACO to acquire the TOSACO
shares while the Resolution of the Investment Committee, passed at a
meeting held on 14 August 2015, reflected a total funding of R1.8 billion. He
did not question what the additional R100 million was for, when he signed the
resolution on 17 August 2015.

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Investment Corporation Page 406 of 794
342. KiliCap, Sakhumnotho and KISACO, after the merger, did not make a formal
application for transaction fees. Dr Matjila conceded that even if transaction
fees are capitalised, as they allegedly were in this transaction, the PIC
approving committees must be informed thereof. In this transaction the
PEPSSME-FIP and the IC were never informed of the fees and appear to have
been misled into believing that the entire R1.8 billion was for the acquisition of
the shares. Fees of R100 million amounted to 5,8% of the value of the
transaction. The question arises as to whether payment was approved with
full information provided to the relevant committees. The Commission’s view
is that the answer to the question is ‘no’.

Findings

343. While advice offered to the two entities, KiliCap and Sakhumnotho, to merge
for purposes of improving their chances to win the bid, would probably not be
improper, in imposing the merger on KiliCap, Dr Matjila should not have done
so. The Commission is unable to point to any policy of the PIC, legislation or
contractual obligation that may have been contravened in this regard.

344. The failure to do due diligence on Sakhumnotho or the new entity, KISACO,
after the merger amounted to a disregard of the PIC’s investment policy, in
that a critical stage in the investment process, namely due diligence, was not
undertaken, in contravention of the PIC’s investment policy.

345. In giving the instruction that the transaction amount be increased from R1.7
billion to R1.8 billion and thereafter failing to ensure that the alteration is
disclosed to the approving committee, Mr Tshepo Rapudi acted improperly.
As a FAIS representative in terms of section 7(1)(b), read with section 13 of
the FAIS Act, he failed to comply with the requirements of ‘fit and proper’

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Investment Corporation Page 407 of 794
 relating to personal character qualities of honesty and integrity, thereby
contravening the provisions of section 8A(a).255

346. There is no evidence that the contravention resulted in any undue benefit for
any PIC director or employee or any associate or family member of any PIC
director or employee at the time.

347. Findings in relation to the contracting of advisors are addressed in detail in

Chapter V: The Role of Transaction Advisors.

Recommendations

348. The Board should interrogate the approval process and authorisation of
payment of the R100 million transaction fee and determine whether the R50
million paid to both KiliCap and Sakhumnotho was due, and in fact paid to the
advisors.

349. If the money was not due, the PIC should institute legal proceedings with
regard to recovering the balance of the R100 million.

350. The Board should review the structure of the PIC to ensure that there are not
parallel processes and teams working with different potential investees on the
same transaction, unbeknown to each other.

351. The signing-off approval and disbursement processes require greater legal
oversight to ensure that the proposals, approvals and final disbursements are
not manipulated or changed from the original decision.

255
The Fit and Proper requirements are addressed in detail in Chapter V of the report.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 408 of 794
352. The role of the PIC in proposing advisors to investees for potential
transactions needs to be reconsidered as it can inappropriately create a
system of patronage and enrichment.

353. The PIC should consider whether or not appropriate action must be taken
against Mr Tshepo Rapudi as a FAIS representative in terms of section 7, read
with section 13, of the FAIS Act, for issuing the instruction to increase the
amount of the transaction from R1.7 billion to R1.8 billion, and to determine
on whose authority he issued the instruction.

Conclusion

354. In relation to a number of the transactions considered above, there were

contraventions of PIC Policy, processes were not followed, necessary
disclosures were not made to the Board and on certain occasions, the Board
was misled. Furthermore, in certain transactions, the Commission found that
the Standard Operating Procedure was not followed.

355. The Commission found that a number of individuals unduly benefited from the
improprieties identified. The role of Dr Matjila is concerning in terms of his one-
on-one meetings with individuals who stood to be vastly enriched,
undercutting the objectives of the Isibaya Fund and in contravention of the
PIC’s mandate from its clients. In addition, the Commission found that Dr
Matjila’s role in pressurising Mr Mulaudzi was improper and posed a
reputational risk for the PIC.

356. The PIC’s decision to make cumulative transactions with a single individual is
of concern to the Commission and recommendations in this regard are made.

357. Finally, governance, at a variety of levels, was undermined by the conduct of

several individuals in relation to the transactions discussed above and in the
conduct addressed in the ToRs which follow.

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TERM OF REFERENCE 1.2

'Whether any findings of impropriety following the investigation in terms

of paragraph 1.1 resulted from ineffective governance and/or functioning
of the PIC Board.’

1. When considering the above Term of Reference, it is necessary to take

account of a number of factors, including current best practice and codes for
the effective functioning and accountability of boards, the legislation
applicable to the PIC (and GEPF), and the practice and role of the Board of
the PIC. This, together with further issues regarding governance, has been
addressed in ToR 1.15 below.

2. ToR 1.1 refers to ‘any alleged impropriety regarding investment decisions by

the PIC …’ Consequently, as illustrative examples, reference will be made to
the following ten transactions, all of which have been dealt with in different
chapters of this report, as set out below:

2.1. The Sekunjalo Group of companies, namely:

2.2. Ayo Technology Solutions (Ayo);

2.3. Independent News and Media South Africa (Pty) Ltd (INMSA); and

2.4. Sagarmatha;

2.5. Steinhoff/Lancaster Transaction

2.6. TOSACO

2.7. Ascendis

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2.8. S&S Refineries

2.9. VBS Mutual Bank

2.10. Erin Energy

2.11. MST256

3. The approach taken has been to consider whether there was impropriety in
the above transactions, and if so, was this the result of a failure of governance
and/or ineffective functioning of the Board. The details of each transaction will
not be covered and can be found in the case studies in ToR 1.1, above.

Ayo Technology Solutions (Ayo)

4. The Commission has found that there was impropriety in the Ayo transaction
in two respects, viz:

4.1. Mr Seanie giving instructions to ESG, Risk and Legal to proceed with
due diligence approval from PMC1, thereby contravening the policy on
Standard Operating Procedure; and

4.2. Failure by both Dr Matjila and Mr Seanie to disclose to PMC2 that an

irrevocable subscription form had already been signed by Dr Matjila
when PMC2 considered approval of the transaction.

5. The Commission concludes that these improprieties resulted from ineffective

governance.

256
Reference is made to these case studies throughout the report however detailed reference is made to each
transaction as a case study, in Term of Reference 1.1 and elsewhere in the report.

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6. This is found in the decision-making process, the material non-disclosures, as
well as a lack of interrogation of essential information – such as the
determination of the valuation – and the parallel processes that took place to
give effect to the transaction.

7. There was no proper valuation to back the investment that was done, and
therefore the question remains as to whether the PIC subscribed for the
shares at a fair and reasonable value. At the listing date, the shares were R43
per share, while as at 23 October 2019 the share price was R5.60 per share,
a decrease in value per share of 87%.

Recommendation:

8. It is recommended that the PIC should introduce stringent measures to ensure

that each step in the investment procedure is followed before the transaction
is allowed to proceed to the next step. In this regard, a committee should
satisfy itself before dealing with a matter that there was compliance with the
processes leading up to its consideration of the transaction.

Independent News and Media South Africa (Pty) Ltd (INMSA) and
Sagarmatha

9. The Commission did not consider the initial investment in INMSA, and
therefore cannot make any findings in that regard. However the Commission
finds that in the subsequent INMSA and Sagarmatha proposed transactions,
there was impropriety that occurred as a result of ineffective governance.

10. The impropriety lies in Dr Matjila signing the share swap agreement with
Sagarmatha, claiming that he did not know of the resolution by the approving
committee, (the PEPPS-FIP), in terms of which the transaction had been
approved with conditions diametrically opposed to the share swap agreement

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 that he signed. This evidences a complete disregard of the PIC’s investment
processes by Dr Matjila.

11. Further indicators of ineffective governance relating to these transactions are:

11.1. The PIC appraisal documents did not assess the implications of
cumulative group exposure in any of the applications to invest. Moreover,
even when the investment proposals were tabled at the required
approving structures, the question of overall exposure to a group
seemed to not be an issue, nor was the fact that INMSA was not
servicing their loan.

11.2. The Sekunjalo investments showed a marked disregard for PIC policy
and standard operating procedures.

11.3. Proper governance was absent or poor, and risk identification processes
were downplayed by looking for risk mitigants to make sure the deals
were approved.

11.4. Due diligence reports highlighting issues around the independence of

Board members and policies to be implemented were not followed up by
the PIC to ensure implementation post the deal approval and monies
having flowed.

11.5. The proposed Sagarmatha transaction, including the suspected share

price manipulation and essentially attempting to use the PIC’s own
investment to pay the debt INMSA owed to the PIC, demonstrates a lack
of ethics, lack of compliance with laws and regulation, and a disregard
for the best interests of the PIC and its clients.

4 The recommendation proposed in Ayo above, applies equally in respect of

this INMSA/Sagarmatha transaction.

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Steinhoff/Lancaster Transaction

12. The Commission finds that there was impropriety in the decision to invest in
both the Steinhoff and Lancaster transactions. This was due to ineffective
governance and the poor functioning of the PIC Board.

13. This is evidenced in the approach taken by Dr Matjila to essentially ‘buy’

influence and a Steinhoff Board seat, the change from the original proposal
from Mr J Naidoo for an investment of R10,4 billion, reduced by the PIC to
R9,35 billion to enable the transaction to fall within the mandate limit of the
Investment Committee and the further decision to invest in Lancaster for the
STAR transaction.

14. The statement by Dr Matjila exemplifies this ineffective governance: ‘we could
have gone to the Board but it was more convenient for the IC to deal with the
matter at that level’ adding that the Board has never rejected an Investment
Committee decision.

TOSACO

15. The Commission has found that there was impropriety in the process that led
to the approval of the transaction. The merger imposed by Dr Matjila, the
failure to do due diligence on Sakhumnotho and the inclusion in the capital
amount of transaction fees that were not requested by KISACO, nor
recommended or approved by the committees, reflects this.

16. In giving the instruction that the transaction amount be increased from R1.7
billion to R1.8 billion and thereafter failing to ensure that the alteration was
disclosed to the approving committee, Mr Tshepo Rapudi acted improperly.
As a FAIS representative in terms of section 7(1)(b), read with section 13 of
the FAIS Act, he failed to comply with the requirements of ‘fit and proper’

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 relating to personal character qualities of honesty and integrity, thereby
contravening the provisions of section 8A(a).

17. The Commission finds that there was impropriety that resulted from ineffective
governance in the TOSACO Transaction

Ascendis

18. The Ascendis transaction was presented to the PIC at virtually the same time
as the TOSACO transaction, yet the two appear to have been considered by
the relevant PIC approval committee as two discrete investments,
notwithstanding the comment below.

19. Ms Zulu, a non-executive Board member, requested Mr Rajdhar (Head:

Impacting Investing at the PIC) to bring the Ascendis transaction back for
consideration by a committee that she chaired. Mr Malaudzi asserts that he
has ‘not attempted to influence her (Ms Zulu’s) professional views in any way
and have never expected any undue influence from her through the positions
she holds, including at the PIC’.257 Yet the sequence of events and the
eventual outcomes raise significant concerns as to the role of non-executive
directors in investment decision making, as well as undue and inappropriate
influence from the Board. This is a critical matter. Clearly, as chair of the
relevant committee, Ms Zulu played a significant role, not only in getting the
deal back onto the table but also in the recommendations to make the
investment.

20. It is of concern that Mr Mulaudzi admitted in his testimony before the

Commission that he had known Ms Zulu from around 2016, but they only
began a personal intimate relationship in 2018. He confirmed that at the time

257
Para 69 of Mr Mulaudzi’s statement signed on 26 March 2019.

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 of appearing before the Commission he was in an intimate relationship with
Ms Zulu.

21. The Commission finds that there was impropriety in the Ascendis transaction
due to both ineffective governance at executive level and in the functioning of
the PIC Board, in that Ms Zulu participated in the PIC consideration of a
transaction in which Mr Mulaudzi had an interest. This is particularly important
given the roles that non-executive directors play in the PIC’s transaction
decision making, and the responsibilities exercised in that regard. This issue
is addressed in the section on ‘Lifestyle Audits’ in Chapter V.

S&S Refineries

22. The Commission found that there was no impropriety regarding the decision
taken to invest in S&S Refineries.

23. The Commission finds that failure to ensure that the decision taken to invest
was based on a rigorous and thorough analysis of the relevant information
points to ineffective governance, which is also evidenced by the fact that the
conditions precedent which applied to the transaction were not implemented.

VBS Mutual Bank

24. The Commission found that there was no impropriety on the part of the Board
of the PIC in the decision to invest in the VBS transaction.

25. The Commission is of the view, however, that there is clear evidence of
ineffective governance in the PIC in that two of its executive directors, Mr
Nesane and Mr Magula, egregiously violated their fiduciary duties towards
both VBS and the PIC.

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26. They acted in collusion, such that the PIC was not aware of critical information
relating to, among other things, shareholding in VBS, notwithstanding that the
information that they were privy to was critical to any investor/shareholder.
They hid behind the excuse that they could not share such information as they
had fiduciary responsibilities to the VBS Board. Nor did they act responsibly
as non-executive directors on the Board of VBS as they did not insist that the
information be made available to all shareholders and investors.

27. Both men used their positions of trust and responsibility to unduly enrich
themselves at the expense of the depositors, clients and investors of VBS,
including the PIC.

Erin Energy

28. The Commission found that there was impropriety in the decision to approve
the Erin transaction. This came about, in the Commission’s view, as a result
of ineffective governance. This investment (provision of a guarantee) was
made notwithstanding Erin being technically insolvent and against the advice
of the PIC’s own energy experts and internal team that had identified the
problem as being one of insolvency and not that of liquidity. Dr Matjila himself
conceded that the legal risk assessment was not properly done. Given the fact
that this transaction was to be performed outside the South African borders,
and particularly that the first transaction was to facilitate the purchase, by the
investee, of oil leases/licenses, it was imperative that legal and risk
established that the purchase did occur, yet neitherestablished this fact. In
addition, conditions precedent proposed by credit and risk analysts of the PIC
were disregarded. These factors point to a serious lack of effective
governance.

29. The question has to be asked as to how appropriate it is for an asset manager
of a pension fund to invest in oil exploration, which is a high risk endeavor.

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MST

30. The Commission found that there was no impropriety in the decision to invest
in MST. However, the circumstances that led the PIC to consider the
investment in the first place are indicative of a serious lack of appropriate
governance.

31. During the presentation by MST for loan funding in November 2015, Dr Matjila
requested Corporte Affairs (PIC) to consider CIS funding for the MST project.
After a number of unsuccessful attempts to obtain funding, as the request did
not find favour with the Executive Committee, R5 million was approved in
February 2017, with payment authorised by Dr Matjila on 20 March 2017. On
1 April 2017 MST paid R438 plus VAT (R500 000) to Maison Holdings, Ms
Louw’s company, ‘for work done to date’.

32. The link to Ms Louw arose from the former Minister of Intelligence, Mr
Mahlobo, calling Dr Matjila to a meeting at OR Tambo airport without any
indication of the purpose of the meeting or who would be present. Moreover,
Dr Matjila said he saw no problem with this conduct. In this instance, he was
asked, as the PIC, to help Ms Pretty Louw.

33. There was ineffective governance in the provision of R5 million as a CSI

contribution to MST, of which Ms Louw received R500 000.

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TERM OF REFERENCE 1.3

‘Whether any PIC director or employee used his or her position or

privileges, or confidential information for personal gain or to improperly
benefit another person.’

1. This Term of Reference will be answered by way of illustration using the case
study of Harith, which exemplifies using a position of trust for personal
enrichment, the case study of the Venda Building Society Mutual Bank (VBS)
and the Edcon Mandate letter.

Harith

2. General Holomisa said the following in his testimony before the Commission:

‘One of the most difficult tasks regarding dealing with the type of
corruption that is alleged to have happened at the PIC is the
sophisticated nature of the transactions. Corruption can come in two
forms, legal and illegal corruption. Legal corruption occurs when the
elite build a legal framework that protects corruption or manipulate
existing legal framework without necessarily breaking the law.’258Hon.
B Holomisa, 2019-04-10, testimony on day 27 of the Commission of
Inquiry.

3. When going through the story of Harith, these words resonate. The layering
of legal entities (state owned corporations, pension funds, banks, companies
and trusts and partnerships etc), when applied by financiers and corporate
structure experts, can make finding the substance, and not form, of a
transaction or series of transactions complex and quite perplexing. These
layers also give the players in such a formation the ability to use ‘plausible

258
At page 32 of the Transcript for day 27 of the hearings held on 10 April 2019.

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 deniability’ most effectively, as looking through all the conduits is challenging
and time consuming.

4. Presidential vision and ambition to catalyse an African Renaissance led to the

idea of creating an Africa Fund. In a PIC board meeting on June 6, 2005 it is
noted that President Mbeki mandated the then CEO, Brian Molefe, to initiate
the creation of an Africa Fund as a core investment. This new fund’s creation
would require the GEPF to change the PIC’s investment mandate to include
non-South African investments. It would, as a starting point, also need the
GEPF to express a desire and approval for such an investment, as neither the
President nor his government had a mandate to direct or commit GEPF
investment.

5. The PIC initiated a multi-year process to establish a pan-African investment

fund which materialised as the Pan African Infrastructure Development Fund
(PAIDF). The object of the PAIDF was to primarily invest in private equity
interests in infrastructure development projects in sectors such as power and
energy, telecommunications, transportation, as well as water and sanitation
sectors in the African continent. The goal of the PAIDF managers was to
secure funding of at least US$1 billion. PAIDF, a 15-year Fund, was set up as
a vesting Trust and commenced operations on 14 September 2007 with
commitments totalling US$625 million from nine investors, including US$250
million from the GEPF. Only the Social Security and National Insurance Trust
(SSNIT) of Ghana and the African Development Bank (AfDB) were non-South
African investors.

6. In his testimony before the Commission, Dr Matjila stated that:

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 ‘The formation of PAIDF led to the establishment of Harith Fund
Managers … Harith was set up in 2006 (sic) by the PIC to manage
PAIDF.’259

The PIC provided around R22m as seed capital from its own funds, and
obtained all the statutory approvals, he said. This seed money was repaid in
full in due course. Dr Matjila said that, ‘Mr Tshepo Mahloele resigned from the
PIC but was persuaded by the PIC to become the CEO of Harith Fund
Managers.’260

7. This statement is incorrect as Mr Tshepo Mahloele (Mr Mahloele) was

employed by the PIC as Head of Corporate Finance and of the Isibaya Fund.
Without any due selection process or consideration of other candidates, he
was appointed by the PIC to lead the PAIDF Secretariat which was to
coordinate the processes to bring PAIDF to fruition. Harith Fund Managers
(HFM), initially a shelf company secured by Mahloele in his personal capacity,
was then transferred to the PIC ‘as a matter of convenience and as the
nominal shareholder’, according to Mr Mahloele.

8. In Mr Mahloele’s statement it is stated that:

‘The PIC’s Management Executive Committee identified me (I believe) as

the best candidate for the job of establishing the PAIDF … With effect from
31 March 2006, I resigned from the PIC with the specific task of establishing
the PAIDF, outside of the PIC…’261

259
At page 76 of the Transcript for day 50 of the hearings held on 8 July 2019.
260
Para 45 of Dr Matjila’s statement signed on 17 July 2019.
261
Para 7 of Mr Tshepo Mahloele’s statement signed on 15 April 2019.

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9. He was employed as the CEO of HFM with effect from 1 September 2007, for
a period of seven years, after his service agreement with the PAIDF
Facilitation Trust, established to create PAIDF, ended.

10. Mr Mahloele noted in his testimony that he was hired by HFM. What that
obfuscates is that HFM was 100% owned by the PIC. Therefore, he was put
in place by the PIC. This could also be seen as an ‘internal transfer’.

11. Prior to his appointment to head up HFM Mr Mahloele was the author of a
memo wherein the PIC, in November 2005, requested a mandate from the
GEPF to invest US$250 million (R1,65 billion) in the PAIDF.

12. Mr Jabu Moleketi served as Deputy Minister of Finance and Chairperson of

the PIC from 2004 to 2008. In his statement Mr Moleketi said that,

‘…by virtue of my chairmanship of the PIC I, together with two other non-
executive directors of the PIC, was appointed as the PIC’s nominee to
the Board as a non-executive director of HFM. In that capacity, I was
then elected as the Chairman of the Board of HFM … As I have already
mentioned, in September 2008, I resigned as Deputy Minister of Finance
and accordingly as … Chairman of the PIC. However, at the request of
the shareholders of HFM, who obviously had the necessary confidence
in me and who were probably motivated by considerations of continuity
and stability, I remained on as the Chairman of HFM, and from then
onwards received a modest emolument.’262

13. He continues,

262
Para 35-44 of Mr Phillip Jabulani Moleketi’s statement signed on 23 April 2019.

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 ‘I became a non-executive director, and the Chairman, of HGP [Harith
General Partners].’ 263

14. At this point the PIC was the sole shareholder that owned 100% of HFM,
therefore Mr Moleketi was appointed by the PIC.

15. Harith General Partners’ shareholders are Harith Holdings (Pty) Ltd at 70%
and the PIC at 30%. Harith Holdings is held 100% by an employees’ equity
trust of the same type as the Harith Share Incentive Scheme Trust (HSIST),
in which its skilled employees participate. Mr Moleketi stated that he has never
had any interest in the shareholding of HGP and was not a beneficiary of the
Trust.

16. In March 2007 Mr Mahloele proposed that the PIC retain 70% of Harith Fund
Managers (HFM) and management obtain 30% for R5 million, which was
approved by the PIC Board. Among the reasons given for the establishment
of Harith Fund Managers was to diversify the PIC’s revenue.

17. In his testimony, Mr Mahloele said he was a director of Harith Fund Managers
(HFM), HGP of which he is the CEO, and is the chairman of Lebashe
Investment Group, an unlisted investment holding company. He refers to both
HGP and HFM as Harith.

18. Mr Mahloele testified that the PIC intended to remain the sole shareholder of
the management company, a position that was opposed by the GEPF and
other investors. In this regard, he stated that,

263
Para 48 of Mr Phillip Jabulani Moleketi’s statement signed on 23 April 2019.

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 ‘A compromise was reached and Harith Fund Managers shareholding
was restructured with the approval of then Minister of Finance Mr Pravin
Gordhan and the PIC board...’264

19. The restructuring resulted in the PIC owning 46%, while the HSIST held a 30%
stake and two other investors, ABSA and Old Mutual Life Assurance each held
12%. The HSIST permits employees of HFM, including Mr Mahloele, to
participate in an equity share in PAIDF as a form of incentive over and above
their salaries.

20. HFM, and later HGP, earned an annual management fee averaging out at
1,75% of the total value of the funds. In addition, they earned a ‘carry’, which
is determined as a percentage of the value of the funds under administration
beyond a certain threshold.

21. HFM was intended to only manage PAIDF. Consequently, when the Fund was
closed it was anticipated that it would be necessary to incorporate a multi-fund
entity to manage further funds. Harith General Partners (HGP) was
established for this purpose and with effect from 1 April 2012 HFM, under the
chairmanship of Mr Moleketi and with Mr Mahloele as the CEO, resolved to
subcontract to HGP its management agreement with the PAIDF. As a result,
all employees were transferred to HGP, but HFM remained with a board of
directors constituted of investee representatives whose task was to oversee
the execution of the management agreement by HGP.

22. On 23 April 2012, the PIC wrote to Minister Gordhan to request authorisation
for the PIC to acquire a 30% shareholding in the issued share capital of Harith
General Partners (for R30), which Harith management incorporated and was

264
At page 25 of the Transcript for day 29 of the hearings held on 16 April 2019.

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 intended to manage PAIDF II funds as well as those of other funds. This was
approved by the Minister.

23. HGP became active in October 2012 with the following shareholders:

Harith Holdings (Pty) Ltd with 70% and the PIC with 30%.

24. The establishment of HGP led to the creation of PAIDF II, which was closed
in June 2014 with total capital commitments of US$435 million, of which
US$350 million came from the GEPF. Thus, the GEPF invested a total of
US$600 million in the PAIDF initiative.

25. According to Mr Mahloele,

‘The Fund was never intended to be a public sector led initiative. On the
contrary, the investors agreed to invest in the PAIDF expressly on the
basis that they would not be subject to a fund, governed by the structures
of the PAIDF…’265

26. Simply put: The PIC, with government support and using its influence and the
provision of R22 million seed funding as a loan created for PAIDF I, drew in
other South African investors, particularly the GEPF and two other investors.
This loan was repaid via the ‘establishment fee’ of 1% on the US$625 million
raised, of which US$250 million was government employee savings through
the GEPF. When PAIDF II was established, the establishment fee was
dropped to 0.25%, 75% lower than that charged in PAIDF I.

27. The fees charged by HFM appear punitive: management fees, advisory fees,
transaction fees, costs of covering HFM operating expenses, incentive fees
from 2015 on returns in excess of 8% per annum and a poison pill termination

265
At page 13 of the Transcript for day 29 of the hearings held on 16 April 2019.

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 clause. On termination HFM is to be paid 12 months management fee (2% of
investments) and 13% of the market value of all investments. To illustrate,
assuming assets had not grown and stayed at US$625 million, they would be
paid 13% of that amount. This is certainly not a standard management
agreement.

28. HFM was permitted to use US$6,25 million of the original US$625 million
raised to establish itself. It would appear that the US$6,25 million was used
from the funds raised for investment into the PAIDF to establish HFM. This
meant that the PIC essentially funded an entity in which the person seconded
from the PIC and later appointed as CEO, who had part of a 30% stake in the
company, benefitted without incurring any financial cost.

29. An estimate of management fees between 1 April 2009 and 31 December

2014 was US$72,45 million, while the estimate of management fees paid
between May 2014 and the end of March 2019 stood at US$37,4 million or
R542 million, 70% of which would have gone to Harith.

30. This can be illustrated quoting from the PIC Annual Integrated Report (AIR) of
2009, which shows HFM generated revenue of R93 million, with costs of R57
and a net profit of R36. The revenue shown is partly a drawdown on the
establishment fees that are part of the management agreement. In the PIC
AIR of 2008, this is reflected as:

‘Harith’s turnover amounted to R83m, consisting of an organisational fee

of R40m and a management fee of R43m. The fees are calculated based
on the management agreement between HFM and PAIDF’.

31. In the 2010 report the following is stated:

‘On 30 June 2009 the PIC disposed of 54% of its controlling stake in
HFM … the cash profit on the sale of 54% of Harith is R57m’.

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32. Moreover, there were concerns about Harith such that the GEPF, in 2009,
obtained a legal opinion from TWB and Partners as to who actually owned the
shares.266 An extract from the opinion states that the,

‘GEPF’s contention is that:

1. PIC set up the PAIDF and Harith entirely in the course of its
activities as GEPF’s asset manager;

2. GEPF is the single largest investor in PAIDF – in fact GEPF’s

capital commitment to PAIDF amounts to 40% of the aggregate of
all the capital commitments made by all the investors;

3. PIC accordingly set up PAIDF and Harith with GEPF’s money; and

4. In the circumstances GEPF is entitled to both (1) the dividend

which will be declared at the end of March 2009, and (2) PIC’s
remaining shares in Harith.’

33. The legal opinion concluded that ‘there is virtually no doubt that GEPF is
entitled both to the dividend which Harith will declare and to PIC’s shares in
Harith … (and) in the circumstances PIC is not entitled, without GEPF’s written
consent, to realise a profit …’

34. The GEPF was advised that, to enforce the above, it should write a letter of
demand to the PIC in which it claims immediate transfer of the shares. This
matter remained unresolved as at the last evidence presented to the
Commission.

266
The opinion is signed by Mr Ludwig Smith of Tugendhaft Wapnick Banchetti and Partners.

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 The VBS Mutual Bank case study

35. The ‘Great Bank Heist’ report of Advocate Motau SC (Motau report) is publicly
available and provides a full report on the VBS saga. For the purposes of
addressing this ToR, the focus will be on the PIC’s actions and involvement.

36. The GEPF inherited the Venda Building Society (VBS) as part of the
amalgamation of the civil servants’ pension funds of the former independent
bantustans. At the time exposure to VBS was around R10 million, which was
invested in a Perpetual Bond or Indefinite Period Shares (IPS), which gave it
a 34% shareholding. The PIC saw this as a strategic asset with the potential
to grow into a regional bank, servicing the largely rural population of Limpopo.
According to Dr Matjila in his testimony before the Commission, the PIC
supported the conversion of VBS from a building society into a mutual bank
as a vehicle to assist in the development of a black-owned and black managed
player in the banking sector with the aspiration that VBS would grow into a
fully-fledged bank in the future.267

37. In 2011, VBS decided to convert the IPS to Permanent Interest Bearing
Shares (PIBS) to ensure the bank had primary capital adequacy in place. The
PIC approved this change subject to board representation with an alternate
and being provided with a strategy to ensure sustainability and stability within
three months.

38. On 29 March 2012, Dr Matjila proposed that the Director’s Affairs Committee
(DAC) of the PIC appoint two of its senior executives to the VBS Board,
namely Mr Ernest Nesane (Mr Nesane), Executive Head: Legal and Mr Paul
Magula (Mr Magula) as his alternate (who later became a full director), who

267
Para 499 of Dr Matjila’s statement signed on 17 July 2019.

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 was Executive Head: Risk. In his evidence, Dr Matjila stated that they had
deployed these two executives as they both had roots in Venda. 268 Their
appointment was approved by the DAC at a meeting held on 9 May 2012. The
resolution does not reflect any concern by the DAC that both men were
responsible for signing off on PIC legal and risk approvals for the investment,
and were now being appointed to the board of VBS, which would be a conflict
of interest.

39. In her evidence Ms Brendah Mdluli (Ms Mdluli), Associate Principal for Impact
Investing, stated that the VBS request for a revolving credit facility (RCF) from
the PIC for R350 million was introduced by Mr Magula, who was at the time
an alternate VBS Board member, and he subsequently compiled the required
appraisal report for the PMC – Unlisted Investment meeting. The RCF was
finally approved by the relevant committee, the Priority Sectors, Small and
Medium Enterprises Fund Investment Panel (PSSME FIP) on 24 June 2014.
The facility was approved on a ring-fenced basis.

40. Ms Mdluli says in her statement that the facility agreed to by the committees
did not include the following amended conditions (underlined below) which
were included in the Facility Agreement post approval, both of which seriously
disadvantage the rights of the PIC:

‘a. Clause 3.5 which now reads as follows: “The facility shall be ring
fenced for its purpose as defined in this Agreement as such shall be
subordinated as against other Borrower creditors’; and

b. Clause 3.6, which now reads as follows: “The facility outstanding

amount or any portion thereof may be converted into equity, at the

268
Para 498 of Dr Matjila’s statement signed on 17 July 2019.

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 discretion of the Lender, at any time before the Final Repayment
Date”.’269

41. Ms Mercy Boitumelo Leroke (Ms Leroke), Legal Advisor at the PIC, stated in
her evidence that she was included in email correspondence of 23 April 2015
in which Mr Nesane responded to the investment team and advised that he
had incorporated their final comments. In this regard, she testified that:

‘…at all material times the draft of the revolving credit facility agreement
of which I was asked to review did not have clauses 3.5 and 3.6 … it is
unclear to me when the clauses were inserted in the agreement.’270

42. Notwithstanding all of the above, the version of the Revolving Credit Facility
Agreement (RCFA) ultimately signed off by Dr Matjila and witnessed by Ms
Leroke included the changed clauses.

43. Giving testimony before the Commission, South African Reserve Bank Deputy
Governor, Mr Kuben Naidoo (Mr Naidoo) covered the investigation into VBS,
the evidence of Mr Magula and Mr Nesane and the confidentiality of their
evidence given to the Motau investigation.

44. Mr Naidoo testified that,

‘(Mr Nesane) eventually confessed after putting up strenuous denials

that he had received unlawful payments made to a nominee
company271… in a total amount in excess of R7,2 million in order to buy

269
Para 18 of Ms Brendah Mdluli’s statement signed on 26 March 2019.
270
At page 84 of the Transcript for day 22 of the hearings held on 1 April 2019.
271
At page 6 of the Transcript for day 23 of the hearings held on 2 April 2019.

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 his silence. Mr Nesane resigned from his post at the PIC two days after
testifying …’272

45. In relation to Mr Magula, it is stated at paragraph 21.4 of Motau’s report that:

‘…[he] eventually confessed, after putting up strenuous denials, that he

had received unlawful payments, made to two companies which acted
as his nominees, in a total amount in excess of R7.6 million in order to
buy his silence.’

46. Motau’s report further states at paragraph 39.3 that:

‘The monthly payments of R300 000 all took place on the same date
each month that Vele made a distribution of monies to a variety of related
parties, including Magula’s front companies, Nesane’s front company,
Makhavhu, who is the advisor to the Venda king.’

47. In Para 52.4 it is stated that Mr Nesane testified that he ‘did not properly
comply with his fiduciary duties as a director of VBS.’

48. The Motau report, in paragraph 237, deals with the extent of the looting,
indicating that R1 894 923 674 was gratuitously received from VBS by 53
individuals for the period 1 March 2015 to 17 June 2018. These recipients
included Vele and Associates (R936 699 111) and the two PIC senior
executives who were appointed to the Board as non-executive directors to
exercise their fiduciary duties so as to ensure PIC investments were not
wasted. It was found by Adv Motau SC that, in total, Mr Nesane received
R16 646 086 and Mr Magula, R14 818 098. They seem to have been
handsomely rewarded for turning a blind eye.

272
Para 21.5 of the Motau report.

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The Edcon Mandate Letter

49. Kleoss Capital, in a letter to the PIC’s Mr M Muller dated 8 August 2017, and
signed by Mr Andile Keta, sets out the terms of their appointment as joint
financial advisors to the PIC in relation to a potential investment by the PIC
and/or funds managed by it into Edcon Holdings Ltd. The second adviser is
Mr Koketso Mabe (Mr Mabe) of Keletso M Squared (Pty) Ltd). He is a former
PIC employee who, at the time of his employment, was Executive Head,
Private Equity and SIPS (structured investment products). He left the PIC at
the beginning of February 2017.

50. The fees and expenses are to be paid to the joint financial advisors, being ‘a
success fee in the amount of 1,5% of the total capital raised from the PIC,
including any potential co-investors, payable upon closing of the transaction
once all the conditions precedent have been fulfilled’.

51. The relevant part of this agreement is contained in Paragraph 4.2, which
states that:

52. ‘It is confirmed that, unless otherwise agreed by both parties on termination of
this Appointment Letter, or unless this Appointment Letter shall have been
terminated as a result of a breach by the Joint Financial Advisers of their
obligations in terms of this Appointment Letter, should the Transaction be
completed within a period of 2 years from termination of this Appointment
Letter, the Joint Financial Advisers full fee in respect of the Transaction shall
remain payable upon completion thereof, regardless of such termination, and
regardless of the fact that the PIC may have completed the Transaction with
the assistance of no advisers or advisers other than the Joint Financial
Advisers.’

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53. Confirming this agreement, the ‘PIC hereby agrees to the terms and conditions
of the appointment of the Joint Financial Advisers as recorded above. For and
on behalf of the PIC’.

54. This is ‘PP’ signed by Ms More on behalf of Dr Matjila on 17 August 2017.

55. On 11 October 2019, Kleoss Capital, on behalf of the joint advisors, presented
an invoice to the PIC claiming R44 661 975, as payment from the PIC for the
services rendered as per the Appointment Letter.

56. This open-ended commitment raises a number of questions:

56.1. Is this the only contract with such a clause, and if so, what were the
special circumstances that gave rise to it?

56.2. Was this contract signed off and approved by the PIC legal team?

56.3. Was any work as set out in the appointment letter performed by the
advisors, and if so, was any assessment of the contribution made to the
conclusion of the Edcon deal done?

Findings

Findings in relation to Harith

57. From the evidence and testimony before the Commission, the PIC created two
funds – PAIDF I and PAIDF II – and appointed a senior employee, Mr
Mahloele, to establish the funds and who, in due course, became the CEO of
Harith in its various forms.

58. Harith was a company established precisely to manage the two Funds, and at
significantly high fees. The Deputy Minister and Chair of the PIC, Mr Moleketi,

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 was appointed chairman of Harith. Through various processes, two employee
bodies were created, the HSIST and Harith Holdings, which was held 100%
by an employees’ equity trust of the same type as the HSIST, in which its
skilled employees participated.

59. The GEPF, the most significant investor in the Funds, initiated a legal process
to enforce its rights to both dividends and share ownership.

60. The earnings and incentive schemes provided rich rewards for those selected
by the PIC to fulfil these roles, confirming that PIC directors and employees
used their positions for personal gain and/or to benefit another person.

61. Legal structures can be engineered such that they obfuscate substance for
form. In other words, the substance may still be legal. The ‘arm’s length’ loan,
based on the minutes of the PIC, clearly shows that this was not done at an
arms’ length. This leaves the Commission with several unanswered questions:
was any other fund manager considered? Was a competitive process run? If
it was intended to be independent of government, why was Harith so PIC-
employee heavy and had the former Chairman of the PIC as its chairman? It
is the Commission’s view that there is no question that the approach taken
provided easy access to PIC funds, influence and including an enhanced
ability to secure additional investment, including from the GEPF.

62. Harith’s conduct was driven by financial reward to its employees and
management, and not by returns to the GEPF. In essence, the PIC initiative,
created in keeping with government vision and PIC funding was ‘privatised’
such that those PIC employees and office bearers originally appointed to
establish the various Funds and companies reaped rich rewards.

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Findings specifically related to ToR 1.3 in respect of the VBS case
study (and not to the whole VBS matter)

63. The two executive directors of the PIC, Mr Nesane and Mr Magula,
egregiously violated their fiduciary duties towards both VBS and the PIC.

64. They acted in collusion, such that the PIC was not aware of critical information
relating to, among other things, shareholding in VBS, notwithstanding that the
information that they were privy to was critical to any investor/shareholder.
They hid behind the excuse that they could not share such information as they
had fiduciary responsibilities to the VBS Board. Nor did they act responsibly
as non-executive directors on the Board of VBS as they did not insist that the
information be made available to all shareholders and investors.

65. Both men used their positions of trust and responsibility to steal and unduly
enrich themselves at the expense of the depositors, clients and investors of
VBS.

Recommendations

Recommendations in relation to Harith

66. The GEPF and the PIC should jointly appoint an independent investigator as
soon as possible after receiving this report. The mandate must be to examine
the entire PAIDF initiative to determine that all monies due to both parties have
been paid and properly accounted for; to determine whether any monies due
to overcharging or any other malpractice should be recovered, and to provide
the results of such investigation within six months to the Boards of both the
GEPF and the PIC.

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67. The Board of the PIC should examine whether the role played by either Mr
Moleketi and Mr Mahloele breached their fiduciary duties or the fit and proper
test required of a director in terms of the Companies Act.

68. The Board of the PIC should develop appropriate policies and guidelines for
the secondment/transfer/appointment of employees to external entities such
that the interests of the PIC and its clients are duly protected.

Recommendations in relation to the Edcon Mandate Letter

69. The PIC Board of Directors institute a review of all contracts signed with
advisors over the past five years to see if any contain similar or the same
agreements.

70. The PIC review the Edcon transaction and determine whether the joint
advisors executed the mandate they were engaged to fulfill, or were utilised in
any way.

71. The PIC to consider legal options available to it regarding the claim for
payment.

72. Ms More be asked to explain her approval, as CFO, of clause 4.2 above.

Recommendations in relation to the whole of ToR 1.3

73. The Board of the PIC must ensure due legal process is pursued to recoup
investment funds lost in so far as this is possible. This is dealt with in more
detail in Chapter V: Next Steps: Investment Risks and Losses.

74. The PIC, going forward, should not be seen to be rewarding work performed
in one area of responsibility, when fulfilling other responsibilities, the same
person is being significantly enriched and/or involved in the theft of monies

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 and not complying with their fiduciary duties – at great cost to the PIC and
investors.

75. The Board of the PIC must institute due legal process to recover the ill-gotten
gains from both Mr Nesane and Mr Magula, who were in their employ at the
time of the theft.

76. The PIC should explore recovering any bonus or enhanced payments made
to both men during the period that they served on the VBS board, whether
related to the VBS matter or their regular duties.

77. The actions of both Mr Nesane and Mr Magula should be referred to the
relevant regulatory and professional bodies to consider what action they
should take, should this not have been done already.

78. The criminal conduct of Mr Nesane and Mr Magula should be referred to the
National Prosecuting Authority.

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TERM OF REFERENCE 1.4

‘Whether any legislation or PIC policies concerning the reporting of

alleged corrupt activities and the protection of whistle-blowers were not
complied with in respect of any alleged impropriety referred to in
paragraph 1.1.’

Statutory Framework

1. The legislation applicable is the Protected Disclosures Act, 26 of 2000 (PDA).

The provisions of the Act protect an employee or ‘any other person who in any
manner assists in carrying on or contributing to the business of an employer’.273
To qualify for protection, therefore, the person must be covered by the definition
of ‘employee’ contained in section 1 of the PDA.

2. The PDA provides protection to whistleblowers in the private and public

sectors who disclose information regarding unlawful or irregular conduct by
their employers or fellow employees. The Amendment Act of 2017, according
to an article by Zaakir Mohamed, What does the Protected Disclosures
Amendment Act mean for whistleblowers and employers alike? Cliffe Dekker
Hofmeyr, 16 August 2017, broadens the ambit of the PDA and introduces
several new provisions which place further obligations on whistleblowers and
employers alike.

3. Mohamed explains that,

‘the Amendment Act amends some of the definitions in the PDA and also
introduces new definitions. The definition of ‘occupational detriment’ has

273
Section 1 of the Protected Disclosures Act 26 of 2000, the definition of ‘employee’.

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 been extended to include being subjected to a civil claim for the alleged
breach of a duty of confidentiality or a confidentiality agreement arising
out of the disclosure of a criminal offence or information which shows or
tends to show that a substantial contravention or failure to comply with
the law has occurred, is occurring or is likely to occur.

The Amendment Act introduces definitions for ‘temporary employment

service’ as well as ‘worker’. The definition of ‘worker’ includes individuals
currently or previously employed by the state as well as independent
contractors, consultants, agents and those rendering services to a client
whilst being employed by a ‘temporary employment service’ (i.e. a labour
broker).

The Amendment Act substitutes section 6 of the principal Act with an

amended section 6, that imposes a new obligation on employers, who
are now required to:

• authorise appropriate internal procedures for receiving and

dealing with information about improprieties; and

• take reasonable steps to bring the internal procedures to the

attention of every employee and worker.

Therefore, employers need to ensure that they have measures in place

to deal with employee disclosures. These procedures should be set out
in a company policy which is made available to all of its employees. The
aim of any whistle-blowing policy is ultimately to create a culture of
openness and accountability without fear of reprisals or occupational
detriment to ensure that employees report knowledge of any
irregularities so that management can take the necessary steps to
investigate and/or deal with those irregularities identified. ‘

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 A whistleblowing policy should include information regarding matters
which are to be disclosed in terms of the policy as well as the procedures
that need to be followed when making such disclosures. The policy
should also provide guidance on the amount of information that should
be provided when making any disclosures (for example, the type of
conduct which constitutes the alleged irregularity, the names of the
individuals involved in the alleged conduct, dates and places of
occurrence as well as how the information had come into the relevant
employee’s knowledge). In addition to making the policy available to all
of their employees, employers should ensure that they provide training
to their employees on the policy.’

Ultimately, a whistleblowing policy should form part of a company’s suite

of anti-fraud and corruption policies, all of which should be aimed at
creating a culture within the company of zero tolerance to irregular and/or
unethical conduct, as well as a culture of reporting knowledge of such
conduct so that appropriate steps may be taken.

Another new provision introduced into the PDA is the duty to inform an
employee or worker of the steps taken once a disclosure has been made.
In this respect, employers are required to, as soon as reasonably
possible, but within a period of 21 days after receiving the protected
disclosure, decide whether to investigate the matter or refer the
disclosure to another person or body (if that disclosure could be
investigated or dealt with more appropriately by that other person or
body). The employer is also required to acknowledge receipt of the
disclosure in writing by informing the employee or worker of its decision
to investigate the matter or to refer it to another person or body. Should
an employer be unable to make a decision within this time period, the
employer will be required to inform the employee or worker, in writing,
that it is unable to do so and, thereafter, advise the employee or worker

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Investment Corporation Page 440 of 794
 on a regular basis (at intervals of not more than two months at a time)
that the decision is still pending. In such instance, the employer is
required to advise the employee or worker of its decision on whether to
investigate the matter as soon as reasonably possible but within a period
of six months after the protected disclosure has been made.

An employer need not comply with the duty to advise an employee or

worker of its decision on whether or not to investigate the relevant matter
if ‘it is necessary to avoid prejudice to the prevention, detection or
investigation of a criminal offence. An employer will also be required to
inform the employee or worker of the outcome of any investigation
undertaken at the conclusion of the investigation.

Employees who make disclosures in terms of the PDA are required to do

so in good faith. In this respect, the Amendment Act introduces a new
provision in the PDA in terms of which an employee or worker who
intentionally discloses false information knowing that the information is
false with the intention to cause harm to the affected party and the
affected party suffered harm as a result of such disclosure is guilty of an
offence. This conduct would constitute an offence even if an employee
or worker ‘ought reasonably to have known’ that the information being
disclosed is false. If an employee or worker is found guilty of this offence,
he or she would be liable on conviction to a fine or to imprisonment for a
period not exceeding two years or to both such fine and such
imprisonment. The relevant section reads as follows:

‘Disclosure of false information

9B. (1) An employee or worker who intentionally discloses false

Information -

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 (a) knowing that information to be false or who ought reasonably to have
known that the information is false; and

(b) with the intention to cause harm to the affected party and where the
affected party has suffered harm as a result of such disclosure,

is guilty of an offence and is liable on conviction to a fine or to

imprisonment for a period not exceeding two years or to both a fine and
such imprisonment.

(2) (a) The institution of a prosecution for an offence referred to in

subsection (1) must be authorised in writing by the Director of Public
Prosecutions.

(b) The Director of Public Prosecutions concerned may delegate his

or her power to decide whether a prosecution in terms of this section
should be instituted or not.’

The introduction of this new provision is to be welcomed as it is likely to

serve as a deterrent to employees leveling false allegations against their
employers or fellow employees. It further strengthens the principle that
disclosures should be made in good faith. There should be a basis on
which the relevant disclosure is made and disclosures should not stem
from mere speculation without any substance. This is because
allegations received by a company have serious consequences for the
company and any employee implicated in the allegations. This includes
the cost and time spent on investigating the relevant allegations as well
as the potential reputational harm that the company or relevant

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 employee against whom the allegations are leveled may suffer as a
result of any pursuant investigation.’274

General disclosure in terms of the guidelines issued by the

Department of Justice in terms of the Act:

4. The employee must act in good faith when making a disclosure to any other
person. In making the disclosure the employee must reasonably believe that
the information is true.

5. One or more of the following must apply:

5.1. the employee must believe that he or she will be subjected to an

occupational detriment if the disclosure is made to the employer; or

5.2. the employee must believe that the employer will conceal or destroy
evidence relating to the criminal offence or malpractice if the disclosure
is made to the employer; or

5.3. no action was taken in respect of a previous disclosure to the employer;

or

5.4. the criminal offence or malpractice is of an exceptionally serious nature.

6. Lastly, according to the CDH article, ‘the Amendment Act introduces a provision
whereby an employee or worker will not be liable to any civil, criminal or
disciplinary proceedings for making a disclosure which is ‘prohibited by any
other law, oath, contract, practice or agreement requiring him or her to maintain
confidentiality or otherwise restricting the disclosure of the information with

274
Article by Zaakir Mohamed.

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 respect to a matter’275. This provision applies to the disclosure of information
that a criminal offence has been committed, is being committed or is likely to be
committed or which shows or tends to show that a substantial contravention of,
or failure to comply with the law has occurred, is occurring or is likely to occur.
This exclusion of liability does not extend to the civil or criminal liability of the
employee or worker for his or her participation in the disclosed impropriety.’276

The PIC’s Whistleblower Policy

7. The PIC has a policy dealing with whistleblowing. It is posted on the intranet
of the PIC and consists of 25 pages. In terms of paragraph 3.4 of the policy, it
was to come into effect immediately on approval by the Board of Directors,
which occurred on 27 November 2015.

8. The policy opens with a Policy Statement setting out the importance of
awareness of fraud/corruption and nepotism. In paragraph 1.4 the following is
stated:

‘The PIC recognises that the continuous success of this policy depends
upon the effectiveness of the awareness of the Board of Directors and
employees at all levels and programmed training.’

9. However, there is no evidence that the Board approved an awareness

programme, nor did any programme training take place.

10. In paragraph 8 of the document, ‘ENVIRONMENT AND CULTURE’, the

following is stated:

275
Section 9A(1)(b) inserted by the Amendment Act, 2017.
276
Article by Zaakir Mohamed.

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 ‘8.1 The Board and management must create an environment and
culture in which employees are reassured that dishonest acts shall be
detected and investigated by ensuring that –

8.1.1 Employees participate in in-house training programmes

covering fraud, corruption and nepotism, and the detection
and prevention thereof.’

11. In terms of paragraph 9.2 of the policy, the overall responsibility for the
response and investigations into corruption/fraud and nepotism rests with the
CEO. Notwithstanding the policies and obligations, there was no roll out of in-
house training programmes, nor does it appear that such programmes were
even developed. Furthermore, the Board never reviewed, considered or
received a report from the CEO on an anti-corruption programme.

12. The Commission has been informed by the PIC that the law firm ENSAfrica is
in the process of reviewing the current policy and drafting a policy specifically
to address whistleblowing.

13. In the Budlender report (Appendix Three) the following is stated:

‘The somewhat perfunctory investigation of the allegations in the emails

contrasts sharply with the investigation which was undertaken in an
attempt to find out who had sent the emails, and who had “leaked” PIC
documents (in particular, the MST transaction documents and the draft
minutes). Three IT companies were involved in this investigation, which
was intensive and extensive. (I note that the IT companies were
ultimately reporting to Dr Matjila, which appears inappropriate in light of
the fact that the allegations were made about him.)’277 (Sic.)

277
Para 145 of the Budlender report.

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14. The transactions covered by the Commission’s terms of reference are the
following as per ToR 1.1:

14.1. INSMA

14.2. MST

14.3. Erin Energy

14.4. Karan Beef

14.5. Ayo

14.6. Sagarmatha

14.7. S&S Refinery

14.8. Lancaster & Steinhoff

14.9. Tosaco

14.10. Ascendis

15. The only transactions referred to in the section addressing ToR 1.1 that
featured in the Noko/Nogu emails are MST and Karan Beef. The Commission
is of the view that the content and tone of the Noko/Nogu emails indicate that
the intention of the originator was not to blow the whistle on corruption but to
cause maximum reputational damage to the PIC and its directors/top
management. Investigations conducted by the forensic team of the
Commission, assisted by FIC, could not establish the veracity of the
allegations contained in the emails, except for the R300 000 paid to Ms Pretty

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 Louw (discussed in the MST transaction) by Mr Mulaudzi at the request of Dr
Matjila.

16. The Karan Beef allegations were found to be without any substance. On the
facts before the Commission it is clear that the content of the Nogu/Noko
emails cannot be classified as bona fide. On the contrary, they are clearly mala
fide and the anonymous author/s cannot rely on any statutory protection.

17. Mr Simphiwe Mayisela (Mr Mayisela) is the only former employee who could
possibly claim to be described as a whistleblower. However, on the facts and
on his own evidence he is not a whistleblower. Mr Mayisela, in his evidence
before the Commission, clearly stated that he had deliberately used his super-
administrator rights to access and steal documents and claimed that he
received various documents from other employees, including documents
dealing with transactions. He confirmed that he had knowingly and deliberately
handed such documents over to a member of the South African Police
Service, who readily received them. 278

18. Mr Mayisela was charged with misconduct, a hearing was conducted, chaired
by an independent chairperson in terms of the PIC policies and procedures,
was found to be guilty and dismissed. There is no suggestion that the hearing
was unfair or that the findings were wrong. The same with regard to Ms
Bongani Mathebula (Ms Mathebula) who was charged with leaking Board
minutes to third parties. Ms Mathebula was charged in terms of PIC policies
and procedures, a hearing chaired by an independent chairperson found her
guilty and recommended her dismissal.

278
Pages 39-106 of the Transcript for day 11 of the hearings held on 5 March 2019.

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19. The former CEO ordered all passwords from the IT Department as well as
whistleblower reports to be given to him according to the evidence before the
Commission.279 This is in clear breach of the PIC whistleblowers policy.

20. All indications are that the Nogu/Noko emails have their origin in the PIC and
were probably from a senior employee with access to Board minutes and the
email server. Ms Menye probably is correct in her evidence where she stated
that the emails come from someone ‘…who has been “drinking coffee from
the same cup and eating from the same plate with Dr Dan”.’(sic)280 The
Commission has on many occasions publicly issued an invitation to
Noko/Nogu to come forward with proof of the allegations, without a response.
The Commission also requested Crime Intelligence and the Hawks to assist
with establishing the identity of Noko/Nogu without any success.

Findings

On the evidence before the Commission:

21. The PIC failed to implement a Fraud Prevention Plan in terms of the PDA.

22. Dr Matjila failed to initiate training and information programmes to create

awareness of the PIC whistleblower policy and the Board in situ at the time
failed to exercise its oversight function in this regard

23. Dr Matjila acted in breach of the PIC’s whistleblowing Policy by demanding

the passwords from the IT Department, insisting that all whistleblower reports
be handed to him and taking charge of a forensic investigation in which he
and his fellow executive director, Ms More (CFO), were directly implicated.

279
Paras 550 and 594 of Dr Matjila’s statement signed on 17 July 2019.
280
Para 24 of Ms Menye’s statement signed on 6 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 448 of 794
24. Noku/Nogu cannot seek protection as a whistleblower in terms of the PDA as
his/her emails cannot be classified as bona fide as they contain false
information in general except for elements of the ‘Pretty Louw’ matter. The
probabilities are that Nogu/Noku is a person within the PIC with access to
information not readily available to most PIC employees, for example
Board/Exco minutes.

25. The Commission cannot, on the evidence before it, comment on the
disciplinary enquiries of Mr Mayisela and Ms Mathebula as the enquiries were
conducted in terms of the PIC disciplinary policy and the hearings were
chaired by independent chairpersons. Ms Mathebula was suspended and
resumed her duties after the departure of the former CEO, following a decision
by the Board not to implement the sanction recommended by the Chairperson.

26. It is important to note that the practice of issuing anonymous emails has
continued at the PIC, with the latest being in or about October 2019. With
regard to the latest email, it is clear that the contents were obtained from a
specific PIC email address, possibly by hacking emails of certain employees
of the PIC and distributing them in various forums. It appears that information
within the PIC’s information system platforms of communication continues to
be accessed without permission and leakages continue unabated, including
records of meetings of various forums within the PIC, such as the Exco, Board
and Board subcommittees.

Recommendations

27. The Board of the PIC must, as a matter of priority, develop a comprehensive
policy to give effect to the PDA.

28. A programme ensuring that information and training to implement the

amended policy must be instituted. The implementation and effectiveness of

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Investment Corporation Page 449 of 794
 such a programme must be regularly reviewed and measured by the Board,
which must also undergo such training.

29. A complete review of the whistle blowing policy and how it has been
implemented is essential.

30. The PIC IT systems need to be adequately and appropriately secured.

31. The document management policy should be reviewed to reflect levels of

confidentiality, access, processes and versions that can be tracked
appropriately.

32. The continued use of anonymous emails, the leaking of confidential

documents and abuse of social media reflects a serious breakdown of trust
and confidence within the PIC.

33. The Board and Executive need to address this as a matter of urgency through,
among other things:

33.1. reviewing existing policies on ethics and values;

33.2. examining and addressing the behaviour of leadership, including that of

the Board and Executive, to ensure they practice, and are seen to live
up to, the values and ethics the PIC espouses; and

33.3. ensuring transparency and fairness throughout the organisation.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 450 of 794
TERM OF REFERENCE 1.5

‘Whether the approved minutes of the PIC Board regarding discussions

of any alleged impropriety referred to in paragraph 1.1 are an accurate
reflection of the discussions and the Board’s resolution regarding the
matters, and whether the minutes were altered to unduly protect persons
implicated and, if so, to make a finding on the person/s responsible for
the alterations’

1. Mr Chris Pholwane, Executive Head of Human Resources, outlined the

disciplinary procedures followed by the PIC in his testimony before the
Commission. He specifically referred to the disciplinary hearing conducted
with regard to then Company Secretary Ms Bongani Mathebula, citing for
background:

‘The Board minutes, accuracy or alteration thereof are best dealt with
by the author of the minutes and the Board members present at the
said meetings; and

In general it is common cause that the officially signed minutes are

accepted as the accurate reflection of the minutes of the meeting and
in this instance the same would apply to the said minutes of the Board
for the period under consideration …’

2. In her testimony before the Commission, the Company Secretary, Ms Bongani

Mathebula, stated that ‘I was suspended by the PIC on allegations that I
caused the distribution and/or copying of confidential information to
unauthorised persons. The allegations against me were that I had leaked draft
Board minutes which related to the allegations of impropriety against the
former CEO, Dr Matjila … I will deal with how that particular aspect of the

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Investment Corporation Page 451 of 794
 minutes were substantially deleted (sanitised) from the original draft of the
minutes …’

3. The matter arose from the Board approach to dealing with the email containing
allegations of corruption by the PIC CEO. (Note: the anonymous emails are
dealt with in Chapter I of this Report).

4. Ms Mathebula states281 : ‘The whistle-blower allegations were tabled in a

Board meeting held on 15 September 2017. As Company Secretary, I was in
the in-camera meeting and was responsible for taking the minutes in that
meeting. At the start of the meeting, I was instructed to switch off the tape
recording. The Board was adamant that it did not want the in-camera meeting
to have a voice recording. I then decided to take notes of all discussions in
order to enable me to prepare minutes which would be presented to the Board
for approval. It must be noted that all meetings that relate to the allegations
against the CEO and CFO were not recorded at the behest of the Board. The
Board proceeded with the meeting although it was highlighted from the onset
that a letter requesting cancellation of the meeting was received from Fedusa.
Such a letter was never made available at the meeting as part of the official
record’.

5. Ms Mathebula expands on the divisions in the Board about how to deal with
the e-mail allegations, the mandating of Internal Audit to conduct an internal
review notwithstanding their indication that they lacked the forensic expertise
to do so, the Board’s reversal of its original resolution to conduct an
independent investigation into the allegations, noting that ‘the about-turn came
at the instance of the individuals against whom allegations had been made
and in the face of IA’s stated lack of forensic capacity to properly pursue the
investigation’.

281
At page 11 of the Transcript for day 32 of the hearings held on 24 April 2019.

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Investment Corporation Page 452 of 794
6. The Internal Audit Report on the allegations regarding the loan by PIC to MST
was presented to a Board meeting on 29 September 2017. No board pack
was presented. Ms Mathebula testified that:

‘I was in attendance at that meeting, taking minutes, so it was prudent

for me to capture the true proceedings of the discussion at the
meeting. I also did not want to second-guess the discussion of the
Board and confine the minutes to only the resolutions taken at the
meeting …282

On 6 October 2017 the Board held an urgent special Board meeting

… I was in attendance and taking minutes. Again, I was instructed not
to record the discussions. The Board took a resolution not to pursue
any further investigations of the allegations of 13 September 2017 …
the reason given by the Board to stop all further investigations was to
restore stability at the PIC and focus on the implementation of the
mandate of the PIC … .’283

7. Ms Mathebula lists the draft Board minutes that she emailed to the Board on
12 October 2017, namely those of 28 July, 4 August, 15 September, 29
September and 6 October 2017 and said that the only Board member who
indicated her comfort with the minutes was Ms Lindiwe Toyi, except for a few
grammatical errors.

8. At a Board meeting of 17 November 2017, the minutes of 15/9, 29/9, 6, 16

and 19 October were tabled for adoption by the Board. In her testimony Ms
Mathebula states that:

282
At pages 44-45 of the Transcript for day 32 of the hearings held on 24 April 2019.
283
At page 49 of the Transcript for day 32 of the hearings held on 24 April 2019.

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 ‘The minutes were never considered but subsequently submitted to
the Board meeting of 24 November. Instead the Board requested that
the minutes be revised and be confined to matters under discussion
and the end-point resolution only’.

‘I held a different view in that all minutes of the Board should bear a
true reflection of the discussions of the meeting … How does one
prove that the Board discharged its fiduciary duties if minutes just
capture the resolutions only?’284

9. At the Board meeting of 24 November 2017, the minutes as originally drafted

were submitted to the Board, which made changes to the minutes. Ms
Mathebula testified that: ‘A considerable number of deletions were made to
the minutes of 29 September during the meeting as the Board felt that the
minutes portrayed a negative picture … Some Board members were giving
instructions on how portions of the minutes should be deleted. There was one
Board member who felt that discussions held during the meeting be retained
… The Board decided that the minutes of 15 September, 29 September and
16 October 2017 be adopted via Round Robin Resolution (RRR). This was
unorthodox as normally the Board would correct the minutes. If there are
substantial corrections, the Board would still adopt the minutes but request
that the final minutes be circulated for the Board to note that all the corrections
have been taken into account before the Chairman signs the final
minutes….’285

10. The RRR was prepared and circulated to the Board on 28 November 2017
and the minutes were eventually approved by RRR which itself was confirmed
at a meeting of 2 February 2018.

284
Ibid. pages 65 and 66.
285
At pages 72 and 73 of the Transcript for day 32 of the hearings held on 24 April 2019

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Investment Corporation Page 454 of 794
11. Ms Mathebula stated that it was out of the ordinary to correct the minutes by
deleting the critical discussions held during the meeting and that ‘one of the
effects of this editing of the minutes down to the resolutions taken was that
criticism by the Board of the CEO’s involvement in securing funding for Ms
Pretty Louw’s company was effectively excised from the record, thereby
sanitising the minutes. At no point did the Board highlight that the minutes did
not capture the true nature of the discussions held’.286

12. However, she further stated with regard to the allegations of doctoring of
minutes that while discussions were deleted from the minutes, the resolutions
were not changed. She was aware of a number of joint committee meetings
that had taken place, but no secretarial support was asked for and therefore
no minutes were taken of these meetings. She stated that the minutes that
were leaked were in fact still draft minutes, which were, in keeping with
standard practice, circulated for comment and amendments prior to the final
minutes being tabled for approval.

13. Ms Mathebula stated that while she was told not to record meetings
electronically, she took copious notes during meetings that she could refer to
afterwards when drafting the minutes.

14. Ms Wilhelmina Louw, Acting Company Secretary, provided an overview of the

functioning and structure of the PIC to the Commission. She stated that ‘Since
December 2017 all discussions at Board and Board Committee meetings are
recorded, including in-camera discussions’.287

286
Ibid. page 74.
287
At page 41 of the Transcript for day 1 of the hearings held on 21 January 2019.

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Investment Corporation Page 455 of 794
15. Responding to questions regarding the minutes of 29 September 2017, Ms W
Louw, Acting Company Secretary of the PIC at the time and current Board
Secretary, testified:

‘The Board Secretary and the Company Secretary attend Board

meetings. The Minutes of the Board are then drafted by the Board
secretary. The Board Secretary is most of the time recused from in-
camera discussions.

The Company Secretary attended the in-camera Board meeting of

Friday, 29 September 2017, after which she gave her notes to the
Assistant Company Secretary for typing as the Board Secretary was
not available to attend to the typing of the notes. The draft minutes
were then refined by the Company Secretary. Directors also have a
chance to provide input into the draft Minutes. There are usually a
number of draft minutes before the final minutes are approved by the
Board. In this specific case, the minutes that served before the Board
were amended by the directors and the Company Secretary was
requested to indicate the changes when circulating the final Mnutes
for adoption.

The changes to the minutes were to summarise the discussions of the

Board. The concern raised by the Commission that the Minutes have
been shortened from 10 to 6 pages, should take into account that the
draft minutes contain the changes (original text) as well as the final
text.

Minutes of the Board are usually kept confidential ….‘288(sic)

288
Written submission by Ms Louw, not dated, in response to questions raised at the Commission on 21 January 2019
regarding the minutes of 29 September 2017.

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Investment Corporation Page 456 of 794
16. Ms Louw stated that she did not believe that the minutes were altered so as
to not reflect the discussions and decisions of the Board. She said that the
minutes of the Board meeting of 29 September 2017, signed by the chairman
of the Board, are therefore the final minutes and evidence of the proceedings
of that meeting. Furthermore, the only changes to the minutes were those that
occurred in the normal course of Board members commenting on or changing
draft minutes, and the final minutes presented to the Board took such changes
into account and were then signed by the Chairman.

17. PIC Chairperson, Mr Gungubele, Deputy Minister of Finance, stated that ‘the
Board found itself divided on issues relating to the former CEO Dr Matjila …
where we disagreed there was so much tension’.289 Among other points he
made were that there was no tampering with the minutes of Board meetings
and that systems need overhauling to deal with leakages from meetings’.

18. Non-Executive Director Ms Sandra Beswick, testified that ‘highly confidential

documents, including board papers, transaction reports and correspondence
were leaked…290’ and that Board meetings became highly contentious with
strong divisions and mistrust between Board members.

19. Ms Sibusiswe Zulu, former non-executive director of the PIC, gave evidence
before the Commission, on whether Board minutes were tampered with. Ms
Zulu said that meetings dealing with the Nogu emails during 2017 were not
recorded. This was a decision of the Board as they were concerned about
leakage of information. She said in retrospect this was an incorrect decision
as what was discussed was now not available to be replayed. Minutes were
circulated, comments made and ultimately when presented to the Board it was
felt there was too much detail and content. The Board decided that much of
the content and issues covered should be removed and the minutes should

289
Page 6 of Mr Gungubele’s statement signed on 25 February 2019.
290
At page 7 of the Transcript for day 9 of the hearings held on 27 February 2019

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Investment Corporation Page 457 of 794
 only focus on the resolutions taken. Ms Zulu confirmed that the sanitised
version was adopted adding that there was no dishonest or fraudulent intent
at the time, and the minutes were not altered, but with hindsight the content is
missing.291

20. Ms Zulu reiterated that there were many examples of a culture of fear. There
was the understanding that you must comply and cannot question and that
there was an unhealthy environment for employees who were unable to freely
voice their opinions. When asked about who she thinks sets the culture in an
organisation, she responded that it was the responsibility of the Board.292

21. Bongani Mathebula was the only witness who testified that Board minutes
were tampered with. She was also adamant in her testimony that Nogu was a
whistle-blower and probably an employee of the PIC with intimate knowledge
of the PIC. She was highly critical of the manner in which the Board dealt with
the allegations against the CEO and giving the CEO a mandate to establish
the identity of Nogu rather than protecting the whistle-blower and establish an
independent forensic inquiry into the veracity of the allegations.293

22. It is therefore a matter of great concern that soon after she was suspended,
there was an application by the UDM relying inter alia on doctored Board
minutes which were found on her computer during her disciplinary hearing,
where she was found guilty by an independent chair. A perusal of the record
of the disciplinary proceedings does not reveal any glaring irregularity or bias
at the hearing. In an about-turn, the PIC Board subsequently reinstated her on
the basis that she was a victim of the actions taken by the former CEO.

291
At pages 43-44 of the Transcript for day 62 of the hearings held on 13 August 2019.
292
Ibid. page 20.
293
Pages 2-170 of the Transcript for day 32 of the hearings held on 24 April 2019.

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Investment Corporation Page 458 of 794
23. In attempting to answer the question ‘whether the approved minutes of the
PIC Board regarding the discussions of any alleged impropriety referred to in
Clause 1.1 are an accurate reflection of the discussions and the Board’s
resolution regarding the matters, and whether the minutes were altered to
unduly protect persons implicated and, if so, to make a finding on the person/s
responsible for the alterations’ it is necessary to consider two different aspects
of the above.

24. Firstly, on whether the approved minutes accurately reflect the discussions of
the Board and the resolutions taken, it is clear the Board was concerned about
recording the discussions. The instruction to Ms Mathebula not to record the
meeting, and the subsequent redaction of the minutes to exclude references
to the discussions, reflect the concerns, and perhaps fears and tensions within
the Board, of individual comments and opinions being recorded. The concern
about leakages also informed this approach.

25. Secondly, it is not possible to determine the accuracy of the minutes as only
resolutions were detailed in the minutes of the Board meeting of 29 September
2017, the above minutes were signed by the chairman of the Board. These
are therefore the final minutes and evidence of the proceedings of the
meeting. Furthermore, the only changes to the minutes were those that
occurred in the normal course of Board members commenting on or changing
draft minutes, and the final minutes presented to the Board took such changes
into account and were then signed by the Chairman on 29 September 2019.

26. The evidence presented was consistent in that:

26.1. there was a decision not to record the Board meetings dealing with the
anonymous email allegations

26.2. there was a concern about such minutes being leaked and becoming
public

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Investment Corporation Page 459 of 794
26.3. the content containing discussions that took place in the meeting was
removed as a deliberate decision from the draft minutes, but there was
no apparent difference of view between Board members as to the
accuracy thereof

26.4. the minutes containing the resolutions were adopted by the Board and
signed off by the chairperson.

Findings

27. ToR 1.1 refers to ‘any alleged impropriety regarding investment decisions …’
This ToR refers the Commission back to alleged impropriety referred to in
ToR1.1. However, the allegations of tampering with the minutes arose from
the evidence given by Ms Mathebula, and related to Board discussions that
were centred on how to deal with the anonymous emails. The Commission
therefore dealt with this matter. It should be recognised that it would be
impossible for the Commission, given the time and resources available, to
properly examine all the minutes of all the investment decisions. The altering
of an investment decision can be found in the VBS case study, referred to in
more detail in the section addressing ToR 1.3, situated in Chapter III of this
report. Nothing else was brought to the attention of the Commission regarding
alteration of the minutes of investment decisions.

28. From the statements before the Commission it would appear that the actual
content of the Board minutes was not questioned. Due to the concern that the
detail of the Board discussions would be leaked, only the resolutions were
recorded. There was no evidence that they were altered in any way.

29. It is reasonable to conclude that there was no intention to change the record
of the discussions or purposefully alter the outcome and decisions

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 460 of 794
30. It is reasonable to recognise this as an honest error of judgement taken at a
time of great tension and fragility in the PIC and significant distrust among
members of the Board itself.

Recommendations

31. The Company Secretary must ensure the Board minutes document the
discussion that led to the decision, including the issues raised and the reasons
for the decision.

32. All Board meetings, whether ad hoc, in camera or regular meeting, as well as
those of Board sub-committees established for any special purpose, should
have an experienced minute-taker and an audio recording for ease of
reference.

33. Audio recordings must be kept for at least 30 days after the formal minutes
have been adopted.

34. Where appropriate, resolutions should indicate whether the decisions taken
were unanimous or record the vote and any dissenting views, including, if
requested, the director/s name.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 461 of 794
TERM OF REFERENCE 1.6

‘Whether the investigations into the leakage of information and the source
of emails containing allegations against senior executives of the PIC in
media reports in 2017 and 2018, while not thoroughly investigating the
substance of these allegations, were justified;’

1. This term of reference (ToR) deals with investigations that arose after the
leakage of information and the submission of anonymous emails from
September 2017. The key issues to be considered include the following:

1.1. The events leading to the investigations.

1.2. The authorisation of the investigations.

1.3. The number of investigations conducted.

1.4. What was investigated and was the substance of the allegations made
sufficiently investigated?

1.5. Were the investigations undertaken to:

1.5.1. investigate the leakage of information, or

1.5.2. identify the source of the emails containing the allegations or

1.5.3. consider the substance of the allegations?

1.6. Given the above, were the investigations justified?

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Investment Corporation Page 462 of 794
Events Leading to the Investigations

2. The former chief executive officer (CEO), Dr Daniel Matjila (Dr Matjila), in his
testimony said that by August 2017 journalists were calling him about
allegations of impropriety at the PIC, clearly having had access to confidential,
but leaked, PIC information. The key early leakage of information that led to
the investigations being undertaken happened on Tuesday, 5 September
2017 and Wednesday, 13 September 2017.

3. On 5 September 2017, an email from someone with the name ‘James Nogu’
(Nogu) was sent to a number of people, including PIC board members and
staff at National Treasury. The email, with the subject ‘PIC CEO FUNDS
GIRLFRIEND’, contained allegations against the CEO that he funded his
alleged girlfriend with PIC money. This issue has also been covered in
Chapter I of this Report.

4. The PIC management became aware of this email while they were holding an
off-site strategy session. The Head of IT, Ms Vuyokazi Menye (Ms Menye),
was instructed to block further distribution of the emails. In her statement Ms
Menye stated that:

‘…the CFO and EH: HR advised me that they have an urgent and
highly confidential request for me. They instructed me to immediately
block and not release all the emails that were being received by some
employees in the organisation and they indicated that the emails were
about the CEO.’294

5. On 6 September 2017, the Deputy Chairperson, Dr Xolani Mkhwanazi (Dr

Mkhwanazi), with the Board’s approval, met Dr Matjila to formally inform him

294
Para 11 of Ms Vuyokazi Menye’s statement signed on 6 March 2019.

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Investment Corporation Page 463 of 794
 of the serious allegations contained in the anonymous email. He told Dr Matjila
to provide a response to the Board by 15 September 2017.

6. A second email from someone whose name was reflected as Leihlola Leihlola
(Leihlola) surfaced on 13 September 2017. This email extended the
allegations made against Dr Matjila and also included allegations against the
Chief Financial Officer (CFO), Ms Matshepo More, accusing her of victimising
staff at the PIC.

7. On 15 September 2017 a special Board meeting was held to consider the

allegations contained in the emails. The following occurred at the meeting:

7.1. The Board decided to appoint an external party to investigate the

allegations.

7.2. Dr Matjila requested the Board to afford him an opportunity to respond to

the emails as had been agreed with Dr Mkhwanazi. He was granted the
opportunity. The Board was satisfied with Dr Matjila’s response to the
allegations, with Ms More concurring.

7.3. The Board accordingly rescinded their decision to appoint an external

investigator. Instead, the Internal Audit Department (IAD) was tasked with
verifying the responses given by Dr Matjila and report to the Board on 29
September 2017. This was notwithstanding the Head of Internal Audit
advising the Board that the IAD did not have the capacity to conduct a
forensic investigation.

8. The Board thereafter issued a media statement affirming its confidence in the
CEO. It expressed its concern, however, that given the extent of state capture,
certain forces might be intent on removing the CEO from the PIC.

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Investment Corporation Page 464 of 794
9. Former board member, Ms Sandra Beswick (Ms Beswick), had this to say on
the issue at hand:

‘As far as I am aware there was no leakage of information during this

period [when Mr Mcebisi Jonas was chairperson of the PIC]

The firing of Finance Minister Mr. Pravin Gordhan and Deputy

Finance Minister Mr. Jonas at the end of March 2017 was a cause of
great concern for me because the perceived risk of potential “State
Capture” of the PIC increased significantly’.295

10. During the next Board meeting, held on 29 September 2017, the IAD
presented the results of its investigations, which corroborated Dr Matjila’s
statement. The Board accepted the findings that there was no impropriety on
the part of the implicated parties and cleared them of any wrongdoing.

11. The Board meeting of 6 October 2017 decided to spend no more time on
investigating what some Board members felt were malicious allegations
against the CEO and CFO. Thus, no further investigations were undertaken
on the contents of the emails, to which answers had been provided by Dr
Matjila.

Approval of the Investigations

12. At the Board meeting of 15 September 2017, besides finding no wrongdoing

by the CEO as alleged in the contents of the Nogu email, the Board authorised

295
Para 2.4-2.5 of Ms Sandra Beswick’s statement signed on 27 February 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 465 of 794
 Dr Matjila to investigate the leakage of information himself. In this regard, Dr
Claudia Manning, now a former Board member, stated that:

‘At the same [Board] meeting management was also instructed to

investigate the IT systems of the organi[s]ation which had been
breached, resulting in confidential transaction documents being
distributed in public. The concern was that this would continue and
put the work of the PIC at risk. The Board appeared unanimous in its
view that the security breaches were a serious risk to the PIC and that
they needed to be investigated and resolved as a matter of
urgency.’296 (Emphasis added.)

13. Thus, it is clear that the investigations were approved by the Board and the
CEO was tasked with investigating the leakage of information.

Number of Investigations

14. Following the leaks on 5 and 13 September 2017, investigations were

launched at the PIC by different entities, including:

14.1. The IAD investigation – this was undertaken to verify the responses
provided by Dr Matjila, as instructed by the Board, and to investigate senior
management (i.e. Dr Matjila and Ms More) on the allegations relating to the
leaked information.

14.2. The BCX/Telkom investigation - this was initiated by senior management,

the purpose of which was to investigate the leaks and the source of the
emails. BCX outsourced this to Naledi Advisory Services (Naledi) and
Sensepost. Naledi conducted a forensic investigation into the leaks and
Sensepost undertook an external security assessment of the PIC IT

296
Paragraph 4, page 2, of Dr Claudia Manning’s statement signed on 28 January 2019.

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Investment Corporation Page 466 of 794
 systems for potential hacking and other issues. Subsequently, Naledi was
also asked to investigate the circumstances of the opening of the corruption
case against the CEO.

14.3. The Sizwe Ntsaluba Gobodo (SNG) investigation – this was initiated by
senior management to conduct a digital forensic investigation of the leaks.
This investigation emerged during the testimony of Ms Bongani Mathebula
(Ms Mathebula), the PIC’s Company Secretary, regarding the SNG
investigation into her for allegedly leaking some minutes of the Board.

14.4. The Budlender Report – this relates to the external investigation initiated by
the Ministry of Finance against the CEO. It investigated the content of the
Nogu email of 5 September 2017 and held that there was no evidence of
wrongdoing by the CEO.

15. Thus, two investigations, namely the IAD’s and Budlender SC’s, probed senior
management (mainly Dr Matjila and Ms More), while three investigations,
namely the Naledi, Sensepost and SNG, were ordered by the senior
management to investigate parties suspected of leaking information.

16. The investigations were commissioned as a result of the allegations in the

anonymous emails and the leakage of confidential information. Naledi was
briefed on the scope of the investigation on 18 September 2017, while
Sensepost’s brief was signed on 21 September 2017.

The Content of the Investigations

17. The content of these investigations is dealt with below.

18. First, it is important to sketch how the leakage of information arose:

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Investment Corporation Page 467 of 794
18.1. Confidential PIC information was obtained, most probably from parties
internal to the PIC and found its way to various parties, including PIC
non-executive directors, National Treasury officials, retired general
Bantubonke Holomisa (Gen Holomisa) and the media.

18.2. James Nogu disseminated the information to different parties, utilising

an external email address that has proved difficult to trace.

19. The three different routes that investigations took are outlined below.

19.1. Investigating the actual information leaks

Since it appeared that the leaked information came from internal parties
it was important to determine who could have supplied the information to
external parties. The focus was on the potential ‘suspects’, namely those
who had access to the relevant information. This was also prioritised to
endeavour to avoid further outflow of confidential information. Many
employees were cleared in the process, but a few were investigated
further.

It was appropriate to take this approach in the investigation so as to

better secure the IT systems.

19.2. Investigating the source of the emails

To try to ensure that leakage of damaging emails would not occur again,
the PIC wanted to find and isolate the source of these emails. If a PIC
employee/s were leaking information, this would have been in breach of
policies and the ethical standards of the organisation.

19.3. There were two schools of thought presented during the Commission’s
hearings:

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Investment Corporation Page 468 of 794
19.3.1. The sender inappropriately obtained and circulated information.
Initially, there was uncertainty as to whether or not Nogu had
hacked into the PIC IT systems, resulting in an investigation to try
to identify the sender. There was a view that the sender was not a
whistle-blower and thus not entitled to the legal protection afforded
to whistle-blowers. Moreover, hacking into IT systems would be a
breach of the Electronic Communications and Transactions Act 25
of 2002 (ECTA).

19.3.2. Others held the view that the sender was a whistle-blower and thus
taking steps to identify Nogu would contravene the Protected
Disclosures Act 26 of 2000 (PDA). A number of board members
and several senior managers emphasised that Nogu and other
senders of information did not follow the whistle-blowing policy of
the PIC and therefore could not claim protection under the PDA. It
is also not clear how the PDA would protect an unknown person or
entity.

The decision to investigate and the subsequent investigations into the

leakage of confidential information were necessary to enable the PIC to
protect the integrity of its transactions, its processes and the IT system
itself. It should also be noted that the provider of the information and the
sender of the emails may not necessarily have been the same person.
The steps taken by the PIC would therefore appear to have been
appropriate, given the circumstances.

19.4. Investigating the substance of the allegations

Besides the Naledi, Sensepost and SNG investigations into the leaking
of documents, the IAD and Budlender SC investigations looked into the
substance of the allegations contained in the emails. The IAD

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Investment Corporation Page 469 of 794
 investigation has been dealt with above, while Adv. Budlender SC, who
was tasked with investigating the allegations, did not find any wrong-
doing on the part of Dr Matjila. Notwithstanding the measures taken as
indicated above, anonymous emails have continued to surface, making
various allegations against members of the PIC Board and the
Executive.

The Commission is of the view that once the leakages emerged, the PIC
had to act urgently and institute investigations without delay so as to
protect client information, transactions under consideration and
information relating to its assets under management. The question,
however, is whether the CEO and CFO, as implicated parties, should
have been mandated to undertake some of the investigations. Concerns
were raised about the investigations being a witch hunt and about some
investigations being handled by management instead of external parties.
Independent counsel that presided over the disciplinary hearings of
implicated employees also raised this issue as a concern. The leakage
of confidential documentation, coupled with the allegations made in the
anonymous emails, resulted in tensions, conflict and mistrust among
Board members, as well as between the Board and the executive.

Findings

The following findings are made:

20. The investigations into the leakage of information and the source of emails
containing allegations against senior executives of the PIC in media reports in
2017 and 2018 were justified.

21. The Commission finds that the Board abdicated its responsibilities by failing
to take charge of all aspects of the investigations. It was the responsibility of

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Investment Corporation Page 470 of 794
 the Board to manage the process, to ensure that the IT systems of the PIC
were protected and that due and fair process was followed throughout the
investigations.

22. The PIC suffered considerable reputational damage as a consequence of the

leakages and the internal turmoil that resulted.

Recommendations

23. The role of the Board is to ensure due process and proper governance at all
times. In the matter of the anonymous email allegations the Board did not
respond adequately. It should have obtained specialist legal advice on the
matter.

24. Conflicts of interest need to be thoroughly evaluated and properly managed.

25. The policies of the PIC should be reviewed to ensure that provision is made
for appropriate guidance in circumstances such as those under consideration.
Such policies must be known to all and adherence thereto must be enforced.

26. The Board must ensure that investigative processes are fair, transparent and
thorough in the interests of affected parties, the PIC and its employees.

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Investment Corporation Page 471 of 794
TERM OF REFERENCE 1.7

‘Whether any employees of the PIC obtained access to emails and other
information of the PIC, contrary to the internal policies of the PIC or
legislation?’

1. To address this term of reference (ToR) the following aspects will be

considered:

1.1 The PIC policies regarding the safeguarding and release of information
belonging to the company.

1.2 Legislation relating to the handling of information.

1.3 The nature of the information obtained irregularly.

PIC Policies on Information

2. As an asset manager that manages more than R2 trillion, the PIC has a wealth
of information across its many departments. Various policies are in place as
well as designated entities within the PIC that manage the flow of information.
Certain of these policies, relevant to this term of reference, are briefly
elaborated on below.

The Corporate Affairs Department and the News and Social Media
Policy

3. This department is tasked with managing communications at the PIC and the
flow of information from both an internal and external perspective. Amongst
others, it regulates the manner in which information should be released to

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Investment Corporation Page 472 of 794
 external parties and broader stakeholders and how to deal specifically with the
media and the use of social media by employees. Strict guidelines have been
issued relating to the dissemination of sensitive information pertaining to
transactions, the PIC’s business partners and issues such as proxy voting. All
these are covered in the News and Social Media Policy within the Corporate
Affairs Department. The rationale, it appears, is that the PIC’s information
cannot be obtained and released without codified procedures being followed.

Confidentiality clauses in employment agreements

4. The PIC (the Employer) specifically includes its policies on information in the
employment contracts it enters into with its employees. Embedding the PIC’s
policy on information in the contractual relationship between the parties has a
binding effect. The objective is to ensure that employees do not have access
to information they should not possess. There are numerous clauses in these
contracts that are intended to ensure the safeguarding of the PIC’s
information, examples of which were provided to the Commission during its
hearings. The employment contracts of Ms Nomzamo Petje (Ms Petje), a
current employee and Mr Paul Magula (Mr Magula), a former employee, were
included as part of their submissions to the Commission.

5. In terms of these contracts employees are required to -

5.1. comply with the rules, policies, procedures and regulations of the PIC
and legislation applicable to the PIC and to familiarize themselves with
such policies, procedures, regulations and legislation; and

5.2. at all times use their best endeavours to further the interests and
objectives of the PIC and not place themselves in situations where there
would be a conflict between personal interests and the interests of the
PIC.

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Investment Corporation Page 473 of 794
6. On confidentiality and disclosure of information, clause 21 of Mr Magula’s
employment contract – it is assumed that other PIC employees’ contracts
contain a similar provision – stipulates that the employee ‘shall not . . . except
in the proper course of his duties . . . divulge to any person . . . any information
of a confidential nature acquired by him during the course of his employment
with the Employer’. Confidential information is said to include, among others,
all information and data concerning operations, dealings, transactions and
finances. In addition, an employee who wishes to make a public statement
regarding the PIC or its business is required to obtain prior permission to do
so from the Employer.

Information Technology Use Policy (IT Use Policy)

7. Information is now stored mainly in electronic devices and not in physical form
and locations as in the past. It is thus important that users of the information
technology (IT) systems of the PIC conduct themselves appropriately and as
per the Acceptable Use Policy of the PIC to avoid creating risks that could
harm the systems. Section 5 of the IT Use Policy gives general guidelines on
the use of IT resources and prohibits employees from -

7.1. accessing data and information without authorization, especially

information they do not need for their day to day duties;

7.2. obtaining, viewing, storing and distributing information in contravention

of PIC policies and any applicable laws; and

7.3. accessing, using or distributing inappropriate material that harms, or

could harm, the reputation of the PIC.

8. Section 10 of the IT Use Policy deals with the monitoring and interception of
issues within the PIC’s IT resources and indicates the following:

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Investment Corporation Page 474 of 794
8.1. the CEO can authorise persons within the PIC to intercept any
communications and monitor every user’s use of IT resources as a
matter of routine or when it has launched an investigation.

8.2. importantly, users of the IT system may not intercept and monitor any
information or communication of the PIC without authorisation.

9. Besides the IT Use Policy mentioned above, the PIC has created a higher
level governing body, being a sub-committee of the Board, namely, the
Information and Communication Technology Governance Committee
(ICTGC), which has oversight of the PIC IT resources and the IT department.
Its duties are, among others, to ensure that the IT department properly assists
the PIC in the execution of its corporate strategy; that it has appropriate
policies and that it monitors compliance thereof. It must also approve the IT
strategy prepared by management and IT investments to be made.

Legislation

10. In addition to the policies outlined above, there is legislation applicable and
relevant to this term of reference, that legislation prohibits obtaining
information without authorisation. Even though this particular issue was not
traversed during the hearings, the PIC examined this prior to the appointment
of the Commission. In June 2018, the PIC commissioned a legal opinion from
law firm ENSAFrica (the Opinion) in response to the actions of Mr Simphiwe
Mayisela (Mr Mayisela) with regard to him accessing or attempting to access
the PIC’s confidential information without authorisation. Human Resources
head, Mr Christopher Pholwane (Mr Pholwane), attached the Opinion as an
annexure to his statement297, which he confirmed under oath at a hearing on
27 May 2019. The background to the legal opinion was that Mr Mayisela had
allegedly informed Mr Lufuno Nemagovhani (Mr Nemagovhani), the Head of

297
A copy of the legal opinion is annexure ‘CP15’ to Mr Christopher Pholwane’s statement.

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 Internal Audit, that he was in possession of an electronic password protected
copy of the internal audit report on the investment by the PIC in Ayo
Technology Solutions. He requested Mr Nemagovhani to provide him with the
password for the report, but Mr Nemagovhani declined the request.

11. In the Opinion, ENSAfrica concluded that Mr Mayisela could have

contravened, among others, section 86(1) of the Electronic Communications
and Transactions Act, 25 of 2002 (ECTA), which reads:

‘Subject to the Interception and Monitoring Prohibition Act, 27 of 1992,

a person who intentionally accesses or intercepts any data without
authority or permission to do so is guilty of an offence.’

12. The Commission agrees. Furthermore, the Commission is of the view that,
since Mr Nemagovhani refused to provide Mr Mayisela with the password and
the latter could therefore not gain access to the report, he could also have
been guilty of a contravention of section 88(1) of ECTA, in that he had
attempted to commit an offence referred to in section 86. Section 88(1)
provides that:

‘[a] person who attempts to commit any of the offences referred to in

sections 86 and 87 is guilty of an offence and is liable on conviction
to the penalties set out in section 89(1) or (2), as the case may be’.

What Other PIC-Held Information was Obtained?

13. Over the past few years, especially in 2017 and 2018, confidential information
belonging to the PIC has found its way to external parties, including the media
and retired General Bantubonke Holomisa. This information relates to various
aspects of the PIC, including the following:

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Investment Corporation Page 476 of 794
13.1. Transactions undertaken or concluded by the PIC, including Mobile
Satellite Technologies, Ayo Technologies and Tosaco Energy.

13.2. Remuneration and incentive structures of the PIC.

13.3. Alleged victimisation of employees who were trying to expose alleged

irregular and corrupt practices at the PIC.

13.4. Alleged political interference in the investment and other decisions at the
PIC.

13.5. Leaking of documents relating to the deliberations of the Board of

Directors and Board committees.

Employees that Obtained Information Without Authorisation

14. As to which employees obtained the PIC’s information contrary to internal

policies and legislation, certain individuals and their conduct will be examined,
including members of the Board of the PIC. The key individuals who are
alleged to have obtained and leaked the PIC’s confidential information and
those who might have assisted in this process are discussed below.

Past disciplinary processes

15. An important point to note is that a number of employees went through

disciplinary processes presided over by independent Senior Counsel, where
they were represented by experienced lawyers during hearings that often
lasted many days. The Commission will not interfere with the findings and
recommendations or conclusions in these hearings. It has no review or appeal
jurisdiction.

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Mr Mayisela

16. Mr Mayisela is the former senior manager Information Security, Risk and
Governance at the PIC. He was involved in a disciplinary process during
December 2017 and May 2018. He faced a number of charges, but for
purposes of this ToR he was charged with, and found guilty of, being
irregularly in possession of a document – Loan Market Association (LMA) Risk
Participation - that related to a transaction between Deutsche Bank, the
Government Employees Pension Fund (GEPF) and the PIC. According to the
decision of the chairman of the disciplinary committee he also irregularly
‘accessed and retained the letter of appointment of Naledi Advisory Services
to investigate the circumstances relating to the opening of the corruption case
against the CEO’. This document related to an investigation conducted into Mr
Mayisela himself. The disciplinary committee held that there was no justifiable
reason or reasonable explanation for accessing and retaining these
documents. This amounted to misconduct on his part and a dismissal was
recommended by the Chairperson (Advocate N.A. Cassim SC), which
recommendation was carried out by the PIC.

17. It may be mentioned, in addition, that Ms Matshepo More (Ms More) testified
that Mr Mayisela utilised the access privileges to monitor email
communications of employees, including hers.

18. Whilst Ms Menye has not been brought before a disciplinary committee, her
conduct has been called into question in testimonies of Mr Pholwane, Chief
Financial Officer Ms Matshepo More (Ms More) and former chief executive
officer (CEO) Dr Daniel Matjila (Dr Matjila).

19. Whilst Mr Mayisela’s former manager, Ms Vuyokazi Menye did not obtain
unauthorised information herself her actions might have contributed to Mr
Mayisela irregularly obtaining information. Evidence was led by Ms More

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Investment Corporation Page 478 of 794
 indicating that Ms Menye gave super-administrator rights to Mr Mayisela.
These rights entitle the holder to literally have access to the entire IT system
of the PIC.

20. Ms More said granting of super administrator rights to Mr Mayisela without

following procedures exposed the PIC to major risks. Mr Mayisela said he
accessed information to assist the police in their corruption investigation
against Dr Matjila, while Ms Menye said she gave the rights to enable Mr
Mayisela to carry out his daily duties in accordance with his responsibilities.

21. As the statement from Ms More indicates below, it appears Ms Menye did not
follow the process laid out by the PIC to grant the rights and Mr Mayisela
utilised this to obtain wide ranging information not related to the police
investigation. In any event, he was not supposed to irregularly access any
information. Thus, it is likely that Ms Menye aided Mr Mayisela in obtaining the
information.

‘For the PIC IT team to have access to Mimecast it has to be duly

enabled to access Mimecast. In this regard there are controls that
have been put in place from both the PIC and Mimecast perspectives
in order to ensure that such access is not abused. The internal
controls referred to above are in addition to the required compliance
with the applicable legislation including, among others, RICA and
POPI.

Within the PIC, super administrator privileges to access employee

emails are only granted in the following instances:

when specific information is needed internally from a former

employee's email inbox; and

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Investment Corporation Page 479 of 794
 during forensic investigations where the investigators require access
to certain employees' emails as part of the investigation.

The process at the PIC with regards to granting super administrator

access to staff emails is that a request is sent by the business or
applicable person to the CEO with a memo motivating why access to
employees' email is requested.

Once the CEO has considered and granted the request, she/he would
send a letter to Mimecast requesting that they grant super
administrator privileges i.e. access to staff emails.

The letter addressed to Mimecast will clearly identify the purpose,

nature and extent of the activity for which access is required. The IT
team within the PIC would then facilitate the implementation of the
access granted. I attach hereto, for demonstration purposes, a copy
of a letter requesting super administrator privileges to the forensic
investigation company in relation to the VBS investigation marked
Annexure "MM13".

From the perspective of Mimecast, access is granted only when it has

been duly authorised by certain senior officials within the PIC. I attach
hereto a letter from Mimecast dated 4 May 2018 addressed to the PIC
confirming measures in place to grant super administrator privileges
marked Annexure "MM14". It is to be noted that the letter states that
"requests must be made by a customer employee with the title of
Director or higher". Placing the approval responsibility at a senior level
is in recognition of the high risk that the granting of such privileges
exposes the business to. (risks).

It therefore follows that granting such privileges on a permanent basis

and without checks and balances is not in keeping with PIC policy or

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Investment Corporation Page 480 of 794
 good corporate governance and in fact borders on irresponsibility
and/or recklessness.’298

22. On his own version Mr Mayisela obtained access to PIC documents which he
passed on to the South African Police Service (SAPS) contrary to internal
policies of the PIC299.

Ms Vuyokazi Menye

23. Whilst the disciplinary action against Ms Menye, Executive Head of the
Information Technology division, ultimately did not proceed because of the
conclusion of a separation agreement discussed under ToR 1.13 below, her
conduct has been called into question during the testimonies of Mr Pholwane,
Ms More and Dr Matjila. It is common cause that Ms Menye gave super
administrator rights without the usual limitations to Mr Mayisela. These rights
entitle the holder to have unlimited access to the entire IT system of the PIC.
According to Ms More, Ms Menye did not follow the process prescribed by the
PIC when she granted the super administrator rights to Mr Mayisela and this
exposed the PIC to major risks. Indeed, Mr Mayisela utilised this access to
obtain wide-ranging information not related to the SAPS investigation. He
justified his actions, saying he accessed confidential information in order to
assist the SAPS in their corruption investigation against Dr Matjila.

24. Ms More testified that within the PIC, super administrator privileges to access
employee emails are only granted where specific information is needed
internally from a former employee’s email inbox and during forensic
investigations where the investigators require access to certain employees’
emails as part of the investigations. She sets out in her statement the process

298
Para 4.3.4-4.3.10 of Ms More’s statement signed on 21 June 2019.
299
Page 10 of Mr Mayisela’s statement signed on 27 February 2019.

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Investment Corporation Page 481 of 794
 to be followed when applying for super administrator privileges, which Ms
Menye did not follow. 300

25. There is no evidence that Ms Menye obtained unauthorised access to

information at any stage, but her actions contributed to Mr Mayisela irregularly
obtaining information. It could be argued that she aided Mr Mayisela to obtain
information without the necessary authorisation. However, the question is
whether she knew that Mr Mayisela would use the super administrator
privileges to obtain access to information for purposes other than those
intended. We think not.

26. Ms More stated301 that the granting of super administrator privileges on a

permanent basis ‘without checks and balances’ is not in line with good
corporate governance and in fact borders on irresponsibility and/or
recklessness. Granting super administrator rights without limitations was not
appropriate on the part of Ms Menye however on the evidence traversed she
cannot be held to have aided the obtaining or herself obtained confidential
information.

27. Though not directly related to this ToR, the Board of the PIC should examine
the role played by Ms Menye in the leaks, especially putting no limitations on
the granting of super administrator rights to Mr Mayisela, who went on to
abuse the rights by ‘spying’ on PIC employees. Allied to this the Board should
investigate the role played by Ms Menye in not letting the PIC know that the
CEO (Dr Matjila) was under investigation for corruption charges. This aspect
is also covered in TOR1.13.

300
Paras 4.3.6-4.3.10 of Ms More’s statement signed on 21 June 2019.
301
Para 4.3.10 of Ms More’s statement signed on 21 June 2019.

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Investment Corporation Page 482 of 794
Ms Bongani Mathebula (Ms Mathebula)

28. Ms Mathebula, the Company Secretary, went through a full and in our view,
independent, disciplinary process where she was charged with enabling Mr
Mayisela to have access to confidential minutes of the Board, which were then
found to be in the public domain. The charge against her is couched as follows
in the decision of the disciplinary committee provided to the Commission by
Mr Pholwane during his testimony:

‘It is alleged that you breached your duty of good faith and
confidentiality as an Employee and in your position as Company
Secretary of the Public Investment Corporation (SOC) Limited (“the
PIC”) in that you caused the distribution and/or copying of confidential
PIC information.’302 (Emphasis added)

29. She was found guilty in March 2019 of breaching PIC policies and a dismissal
was recommended by the Chairperson, Adv W Hutchinson SC.

30. Although Ms Mathebula denied, before the Commission, that she caused the
distribution of confidential PIC information in the form of minutes of the Board,
the Commission accepts the findings of the disciplinary committee until they
are successfully challenged. After Ms Mathebula had been found guilty of a
dismissible offence, the Board of the PIC opted to give her a final written
warning. However, it was never suggested that Ms Mathebula was irregularly
in possession of the minutes at the time that she would have breached PIC
policies, or at any other time. Thus, strictly speaking she can therefore not be
said to have ‘obtained access to emails and information of the PIC contrary to
the internal policies of the PIC or legislation’.

302
A copy of Ms Mathebula’s charge sheet is attached as annexure ‘P’ to Mr Pholwane’s first statement, para 5.1.1.1,
signed on 22 January 2019.

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Investment Corporation Page 483 of 794
31. Whilst not directly related to this ToR, the role that Ms Mathebula played in the
leakage of information and Board issues need to be dealt with here. As a
Company Secretary (Secretary) Ms Mathebula’s role is to assist and guide the
Board on its duties and as perform the duties of the Secretary, which include
administrative activities. During the hearings she has been found to hold
strong views on Board deliberations and appeared to take sides among Board
members. She should have assisted the Board to be well-functioning. She
might not have breached any policies or legislation, but it is recommended that
she be apprised of this by the Board. Finally, a major concern is that Ms
Mathebula underwent a full disciplinary process, for leaking minutes of the
Board, which disciplinary process recommended her dismissal and yet the
Board, let by Mr Gungubele, chose not to dismiss her. This might make a
mockery of the PIC’s disciplinary processes.

32. We recommend that the Board examines the issue of Ms Mathebula’s

resintatement and satisfies itself on whether this was correct or not.

Dr Xolani Mkhwanazi

33. Dr Matjila had a lot to say about the behaviour of Dr Mkhwanazi in terms of
the leakage of information and that the first Nogu email appears to have
emerged, in some ways, through the electronic platforms of Dr Mkhwanazi
and that his personal assistant might also have played a role here. When
asked about this, Dr Mkhwanazi denied any part in the leakage of information
and offered to answer these at a later date. Though not related to this ToR,
but treated here, Dr Matjila accused Dr Mkhwanazi of being involved in
political interference at the PIC. Dr Matjila said that when the National
Empowerment Fund (NEF) was applying for funding at the PIC in one
instance, Dr Mkhwanazi was in the company of the then Chairperson of the
PIC and Deputy Minister of Finance, Mr Buthelezi, and pressurised Dr Matjila
to approve funding for the NEF. It should be noted that Mr Buthelezi is the

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Investment Corporation Page 484 of 794
 brother of the Chief Executive of the NEF, Ms Philisiwe Mthethwa. Dr
Mkhwanazi has yet to answer to these allegations. It is recommended that the
Minister and/or Chairperson of the PIC investigate these concerns and bring
them to finality.

‘James Nogu’

34. There may well be more PIC employees involved in irregularly obtaining and
disseminating information of the PIC. In fact, Mr Mayisela testified that he was
still receiving documents leaked from the PIC, which he passed on to a
member(s)of the SAPS. This was after he had been dismissed from the PIC.
Despite the Commission having appointed, through the investigation team,
what was considered to be experts in the field of IT, the person/s behind the
pseudonyms James Nogu, James Noko and Leihlola Leihlola could not be
identified.

Findings

35. The question posed in this term of reference, namely, whether any employees
of the PIC obtained access to emails and other information of the PIC, contrary
to the internal policies of the PIC or legislation, is answered in the affirmative.

36. There is sufficient evidence for the Commission to conclude that one of the
employees of the PIC who obtained access to emails and other information of
the PIC contrary to the internal policies of the PIC or legislation (at least
section 86(1) of the Electronic Communications and Transactions Act, 25 of
2002) was Mr Simphiwe Mayisela.

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Investment Corporation Page 485 of 794
Recommendations

37. The PIC has good policies and procedures on safeguarding its information
and employees are obliged to familiarise themselves therewith. It is
accordingly recommended that-

37.1. The PIC should regularly review and enhance its policies on
safeguarding its information, particularly given the pace of change taking
place in the IT environment.

37.2. Leakage of information and similar transgressions of policies and ethics

have a great deal to do with the culture of the organisation. The PIC
should therefore continue to inculcate values of integrity, honesty and
transparency in its environment.

37.3. The Board of the PIC must determine what legal recourse it intends
taking with regard to the deliberate actions by Mr Mayisela to obtain
privileged information and pass such information on to third parties, with
severe consequences for the PIC. As indicated above, Mr Mayisela
could have contravened, among others, section 86(1) of the Electronic
Communications and Transactions Act, 25 of 2002 (ECTA), which reads:

‘Subject to the Interception and Monitoring Prohibition Act, 27 of 1992,

a person who intentionally accesses or intercepts any data without
authority or permission to do so is guilty of an offence.’

37.4. Furthermore, Mr Mayisela may well have contravened section 88(1) of

ECTA, in that he had attempted to commit an offence referred to in
section 86. Section 88(1) provides that:

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Investment Corporation Page 486 of 794
 ‘[a] person who attempts to commit any of the offences referred to in
sections 86 and 87 is guilty of an offence and is liable on conviction
to the penalties set out in section 89(1) or (2), as the case may be’.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 487 of 794
TERM OF REFERENCE 1.8

‘Whether any confidential information of the PIC was disclosed to third

parties without the requisite authority or in accordance with the Protected
Disclosures Act, 2000, and, if so, to advise whether such disclosure
impacted negatively on the integrity and effective functioning of the PIC;’

1. This Term of Reference (ToR) addresses the alleged leaking of the PIC’s
confidential information to third parties and whether, if this indeed occurred, it
affected the integrity and functioning of the PIC. It also deals with whether or
not such information was released irregularly.

2. From the second half of 2017 to the present, the PIC has received negative
media and other coverage. Confidential information found its way into the
hands of a variety of third parties, including print, radio, television and social
media. These platforms have disseminated, among others, material that
contained confidential information on PIC transactions, internal treatment of
staff and PIC Board deliberations. This is also covered elsewhere in this
Report in the sections addressing terms of reference 1.1, 1.5, 1.6 and 1.7.

Information disclosed without authority

3. It has been determined that highly confidential documents, including Board

papers, transaction reports and correspondence were leaked to the media and
other external parties, irregularly and without the requisite authority of the PIC
(see also ToR 1.7).303 Even prior to the anonymous emails of James
Nogu/Noko (Nogu) and Leihlola Leihlola (Leihlola), confidential PIC
information could already be found in the public domain. Nogu and Leihlola

303
Para 3.3.4 of Ms Sandra Beswick’s statement signed on 27 February 2019.

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 raised the stakes by making wide-ranging allegations about the CEO and
operations inside the PIC. This distribution of information was in violation of
PIC protocols on handling of information, and was thus done irregularly.

Information disclosed without following the Protection of

Disclosure Act, No 26 of 2000 (PDA)

4. Certain of the witnesses who testified before the Commission emphasised that
information that was released was in keeping with the PIC’s Whistle-Blowing
Policy (WBP), which policy is based on the PDA. However, there was no
evidence that anyone followed the protocols contained in the WBP and the
provisions of the PDA, including Nogu and Leihlola; nor were these protocols
taken into account, notwithstanding the damage that would be inflicted on the
reputation and functionality of the PIC. The leakage of information through
the Nogu/Noku and Leihlola emails was not in keeping with the processes as
determined by the WBP. The confidential information disclosed to the SAPS
by Mr Mayisela was done without authority and not in accordance with the
PDA, as explained in the section addressing Term of Reference 1.4 above.

Did disclosure of confidential information negatively impact on the

integrity of the PIC?

5. As outlined above, negative media coverage abounded over the past few
years. External parties have had access to confidential information and placed
it in the public domain. Retired General Bantubonke Holomisa (General
Holomisa) was also provided with much of the information, which was integral
to his allegations against the PIC. Certain parties that appeared before the
Commission were critical of the PIC especially after the leakage of its
information. Among these, the Association for Monitoring and Advocacy of
Government Pensions (AMAGP) and Congress of South African Trade Unions
(COSATU), organisations that have a direct interest in the funds managed by

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 the PIC, expressed unhappiness with losses the PIC had allegedly incurred,
as per evidence placed before the Commission.

6. AMAGP’s key complaints against the PIC related to the various transactions
that had attracted controversy such as VBS losses, a R5 billion loan to Eskom
and the Harith/Lebashe transactions. They accused the PIC of lack of
accountability and transparency.

7. COSATU accused the PIC of looting pensioners’ funds and claimed that they
had lost faith in the PIC and demanded that labour federations have
representation on the Board of the PIC.

8. Inevitably, the information leaks have fueled negative public and stakeholder
perceptions about the PIC, which has in turn impacted negatively on the
integrity of the PIC, denting the confidence of key stakeholders and clients in
the PIC.

9. It is unfortunate that the integrity of the PIC has been called into question by
the practices it followed that have come to light during the hearings of the
Commission. The PIC has ethical codes and policies in place that seek to
entrench its integrity. One of its core values states as follows:

‘We believe that everything we do is glued together by integrity;

without integrity our relationship with our stakeholders can never
stand.’

10. There are two key policies that outline the ethical conduct expected from all
PIC employees with regard to integrity, honesty and transparency:

10.1. The Board of Directors Code of Conduct – this is applicable to all executive
and non-executive directors of the PIC. The Code of Conduct requires:-

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10.1.1. That directors diligently carry out their fiduciary duties.

10.1.2. Honest and ethical conduct of directors.

10.1.3. Good governance, risk and compliance management.

10.1.4. Avoidance and management of conflicts of interest.

10.1.5. Failure to adhere to the Code could result in a director being removed
from the Board.

10.2. Code of Ethics Policy – this is applicable to all directors and employees at
all levels of the PIC. It also emphasizes ethical conduct in all dealings at the
PIC. The Policy:

10.2.1. Lays out ethical principles to live by, including protecting the reputation
and confidential information of the PIC.

10.2.2. Expects all employees, at all times, to behave in a way that respects the
laws, delegations of authority, policies, procedures and values that
govern or are applicable to the PIC.

10.2.3. Encourages directors and employees to report breaches of the code of

ethics and espoused values.

11. The extent to which these codes and policies have been breached, as per the
testimonies presented to the Commission, and the widespread concerns
raised by the general public and stakeholders with regard to the functioning of
the PIC – at both Board and Executive level – makes it clear that confidence
in, and the integrity of, the PIC have been impacted negatively.

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Did disclosure have a negative impact on the functioning of the
PIC?

12. From the documentation provided to the Commission, and from testimony
presented, the PIC’s functioning can be broken down into the following levels:

12.1. The interaction between the PIC and the Minister of Finance as shareholder
representative, primarily through the Annual General Meeting (AGM) and
the Shareholder Compact.

12.2. The activities of the Board of Directors and the Board sub-committees,
including the Investment Committee, Audit and Risk Committee and those
of IT and Human Resources.

12.3. The activities of executive management, the executive committee, and

various management committees, including the Portfolio Management
Committees (PMCs).

12.4. The managers and general staff from senior, middle to lower ranks that carry
out the PIC operations on a daily basis.

13. From evidence presented before the Commission, there is no doubt that the
effective functioning of the PIC, at all levels, has been negatively affected by
the events of the past two to three years. From receipt of the first James Nogu
email on 5 September 2017, the PIC has been severely affected. This is
reflected in the resignation letter of Dr Manning to then Minister of Finance
Nene, dated 22 July 2018, where she states that ‘I would urge, as the
shareholder representative of the PIC, to act swiftly to introduce stability and
restore public confidence in the PIC …’.304

304
At page 46 of the Transcript for day 5 of the hearings held on 29 January 2019.

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14. In the aftermath of the Nogu/Noko/Leihlola emails the following developments
impacting on the functioning of the PIC unfolded:

14.1. The representative of the shareholder of the PIC, the Minister of Finance,
was called upon to intervene. This resulted in the Finance Minister
commissioning the Budlender report.

14.2. The Board experienced deep divisions on how to deal with the issue of the
CEO, Dr Matjila, in relation to the allegations contained in the emails and
what action should be taken.

14.3. The functioning of Board was significantly affected, particularly in 2018

when General Holomisa launched litigation to have Dr Matjila suspended.

14.4. Individual members of the Board resigned at various times. The Board, as
a whole, offered to resign and the Minister of Finance, Mr Mboweni,
‘advised’ the members of the Board, through its Chairperson, Deputy
Minister Gungubele, to resign.

14.5. Ultimately, the Board resigned in 2019 and an interim Board has been
appointed.

14.6. Investigations, including various disciplinary charges, were instituted that

resulted in a number of senior executives of the PIC losing their jobs.

14.7. At present, the PIC has a substantial number of executive heads in acting
positions, including acting positions for the CEO, CFO, heads of legal, risk
and others.

14.8. The staff at the PIC operated under extremely difficult circumstances during
these times, but they have largely continued to execute their duties in a
professional manner.

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14.9. Some of the key issues reflected above have resulted in the President of
the Republic of South Africa instituting the PIC Commission of Inquiry. This,
in itself, has resulted in intense public scrutiny.

Findings

15. Confidential information was disclosed to third parties without the requisite
authority.

16. This was done neither in accordance with the PDA, nor in keeping with the
PIC’s own whistle-blowing policy.

17. This unauthorised disclosure of the PIC’s confidential information impacted

negatively on the integrity and functioning of the PIC. However, the
disclosures also reflect the climate of fear and victimisation that prevailed at
the PIC.

18. Major reputational damage has been done to the PIC.

19. It is apparent that while codes and policies to address ethics and values were
developed and put in place, they were not respected in many of the practices
followed at the PIC.

Recommendations

20. The Board must review the codes and policies that address ethics, values and
whistle blowing, examine why they have not been effective and put in place
appropriate measures to enhance the value system adhered to by all
employees, including management, the executive and directors of the PIC.

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21. The PIC should take measures to ensure that directors, management and
employees at all levels know, espouse and live the values and policies of the
PIC.

22. Initiatives and induction for all new employees and/or Board members should
be reviewed and strengthened so as to embed the values and ethics of the
PIC into the culture of the organisation. This should include the protection of
information and the imperative to always carry out duties and responsibilities
with integrity.

23. The PIC has suffered major reputational damage. The Board will need to take
appropriate measures to rebuild trust, confidence and integrity both internally
and with clients and stakeholders, as well as the business sector and the
general public.

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TERM OF REFERENCE 1.9

‘Whether the PIC has adequate measures in place to ensure that

confidential information is not disclosed and, if not, to advise on
measures that should be introduced;’

1. In considering this ToR, the Commission will deal with the following issues:

1.1 What are the current measures in place to protect the PIC’s confidential
information?

1.2 Whether these measures were breached during the outflow of

information from the PIC, mainly from quarter four of 2017 to quarter one
of 2019 and, if so, how did the breach occur?

1.3 Possible measures to ensure that the confidential information of the PIC
is adequately protected.

Current Measures in Place

2. As indicated in ToR 1.7 above, the PIC has implemented various measures to
safeguard its confidential information. These measures are embedded in the
Corporate Affairs Department, employee contracts, Information Technology
(IT) policies and procedures and also include reference and adherence to
relevant legislation. The PIC requires physical space to secure information in
its physical form, such as printed documents, as well as the ability to ensure
the physical security of its hardware and IT systems; in other words,
essentially all elements of IT security. There is no suggestion that physical
space for these purposes is inadequate.

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3. IT security is found in the following policies of the PIC.

3.1 Acceptable Use Policy;

3.2 IT Disposal Policy; and

3.3 Third Party Management.

Acceptable Use Policy: IT Security sections

4. The Acceptable Use Policy deals with all manner of IT issues, with the focus
on IT security. There are procedures and guidelines on how users should
utilize the PIC’s IT resources, covering a wide area of the IT systems. Some
of the procedures are:

4.1 Confidential information must be stored in the right places on the network
drive.

4.2 Users must protect their passwords to prevent unauthorised access to their
information.

4.3 Users must not access, especially classified information, on the network
without authorisation.

4.4 Unauthorised distribution of information, usernames and email addresses

of users to third parties is prohibited.

4.5 Users must exercise caution in opening email attachments from unknown
senders as these might contain viruses.

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4.6 The placing of the PIC’s material – such as internal memos, policies and
presentations - on any publicly accessible internet computers is not
permitted.

4.7 All users of mobile devices of the PIC must follow the same procedures as
they do in respect of desktops in the office, including ensuring that they
have password protection enabled and that users should not fall behind by
more than two weeks without updating their mobile operating systems such
as iOS.

4.8 Users are not permitted to store or copy information to any external media
unless this has been approved by their line manager.

4.9 The CEO may authorise persons within the PIC to intercept any
communications and may monitor user’s use of IT resources either as a
matter of routine or when undertaking an investigation.

4.10 Users are not permitted to intercept messages or files in transit on the
network without prior written permission of the CEO.

5. The PIC ensures that all the users of IT resources sign a user agreement.
Breach of this IT user agreement may result in disciplinary action against the
user and may constitute a criminal offence in certain instances.

Disposal Policy

6. This policy essentially addresses the proper disposal of the PIC’s IT

equipment (or IT assets) in an environmentally responsible way. This
equipment, such as hard drives, USB drivers, servers, personal computers
and laptops can store sensitive data and their disposal must take this into
account and be treated with care. IT security is important in such disposals.
When IT assets have reached the end of their useful lives they are disposed

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 of, but all data and software stored in the equipment such as hard drives must
be erased beforehand.

Third Party Management

7. For various reasons the PIC outsources parts of its IT Services to external
suppliers or third parties. This could pose risks with regard to information
security at the PIC and one mitigation measure is to sign rigorous supplier
agreements with such external parties.

8. These supplier agreements include the following:

8.1 Agreed security controls;

8.2 Confidentiality and non-disclosure agreements to safeguard information;

8.3 Protection of the intellectual property of the PIC; and

8.4 The need for suppliers to comply with relevant legislation and regulations.

9. In terms of risk management there is regular monitoring of the performance of

the suppliers and also protocols on how suppliers can gain privileged access
to the PIC’s IT resources related to the services provided.

Were These Measures Breached?

10. From August/September 2017 the PIC experienced unprecedented instances

of leaked information. The first occurred on 5 September 2017, namely, the
Mobile Satellite Technologies (MST) investment and allegations regarding Dr
Matjila’s romantic involvement with Ms P Louw. For purposes of this ToR it is
important to trace the events relating to this leak:

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10.1 The message emerged from an external email address in the name of
‘James Nogu’ (Nogu).

10.2 The message was sent to a number of people, including Board members
of the PIC and National Treasury officials.

10.3 It is not clear how the sender –

10.3.1 obtained the email addresses of the people to whom the message was
sent;

10.3.2 obtained the information contained in the body of the email;

10.3.3 obtained access to the document attached to the email, which was about
the Pan African Infrastructure Development Fund (PAIDF).

11. It appears that the anonymous sender obtained access to internal information
of the PIC and sent it to the parties he/she desired. There are, seemingly,
three possible means by which ‘Nogu’ could gain access to the information:

11.1 Irregularly breaching the IT systems of the PIC by exploiting the

vulnerabilities therein, essentially hacking into the systems; or

11.2 Internal parties at the PIC with access to the information providing that
information to ‘Nogu’; or

11.3 Being provided with irregular/illegal access to the IT system by unknown

internal parties such that the information could be directly accessed by
‘Nogu’.

12. Ms Menye testified that there was no hacking of the IT systems during the time
of the leak. In her statement she said the following:

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 ‘24. He (Dr Matjila) then enquired whether there was anyone who
would like to say something. Mr Deon Botha raised his hand and he
said that he does not believe that we were hacked, Mr Botha indicated
that whoever has been sending those emails has that information. I
also raised my hand to clarify that what was contained in the email,
which I had seen is far from hacking. I then explained what hacking
is. I also indicated that the information that was contained in the email
by the looks of things appeared to come from someone who has been
"drinking coffee from the same cup and eating from the same plate
with Dr Dan". I also clarified that the systems of PIC do not store such
personal information.’305 (Emphasis added).

13. When asked about what hacking is, the following exchange took place with
Ms Menye:

‘ADV SECHABA MOHAPI: Just for the benefit of the Commission Ms

Menye can you give that explanation of what hacking is versus the
James Nogu e-mail distribution?

MS VUYOKAZI MENYE: …So basically hacking is to use a technical

measure to penetrate … a system for the intention of getting . . .
information for malicious use.’306

14. Though initially it was not clear if hacking was involved or not, it later became
clear that the leaks most likely came from internal parties. Thus 11.2 and 11.3
was applicable and it is difficult to ensure protection against this form of breach
since the means to enable a contravention have, in all likelihood, been
provided by internal parties.

305
Para 24 of Ms Menye’s statement signed on 6 March 2019.
306
At page 15 of the Transcript for day 12 of the hearing held on 6 March 2019.

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15. The PIC’s IT team responded as follows to the breach:

15.1. Further dissemination via the PIC IT system was blocked.

15.2. Steps were taken to investigate employees of the PIC who had access to
and/handled the information that was leaked and whether they may have
sent or delivered it to external parties.

15.3. Steps were taken to identify the domain source of the emails and to establish
‘Nogu’s’ identity so as to halt further leaks.

15.4. The actual contents of the email were investigated to establish whether
policies of the PIC were flouted and any legislation contravened. The Board
mandated the Internal Audit Department to investigate the matter and later
the Minister appointed an external and independent Counsel, Advocate G.
Budlender SC, to investigate the veracity of the allegations contained in the
email.

16. From the above sections, it appears that the PIC had put in place a reasonable
level of protection for its information. Notwithstanding such policies, it is clear
that collusion between internal parties in breach of policies, practices and
laws, or collusion between internal and external parties, is very difficult to
prevent.

Further Protective Measures to be Considered

People and technology

17. Protection of information and IT security is not only a process of policies,

procedures and controls, but, critically, one dependent on the behaviour of the
employees and the culture of the organisation. Ethical and value-driven

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 employees and an ethical and transparent culture from top to bottom can
assist in curbing incidents such as information leaks.

18. When asked at the hearings how the PIC could further protect its information
Ms Menye had this to say about IT security:

‘MR EMMANUEL LEDIGA: … part of our terms of reference is to find

out how the leaks happened and why they happened and finding out
about James Nogu not really dealing with the whistle-blowers…. Can
you . . . give us some ideas about that?

MS VUYOKAZI MENYE: Thank you Sir. I will not know how the leaks
have happened and I don’t know who James Nogu is . . . there’s a lot
of processes that needs to be considered in terms of avoiding
information leaks in the organisation.

I always say to my colleagues in the industry that there are four key
things . . . when you’re running an IT organisation to enable an
organisation to achieve its strategic and operational objectives to be
considered.

[Y]ou can buy expensive technologies and implement them and put in
place but if you do not educate your people on how to manage the
information and how to take care of the information that investment
will be worthless . . . . And also if you do not have the right processes
in place to ensure that all this information that you’re using in the
organisation . . . flows effectively and be stored in this technology and
disseminated correctly and classified . . . correctly then all of those
things they go together.

So there’s a lot of things to be considered in terms of you know

avoiding . . . information leaks in any organisation or in any industry

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 but the four key things are people, process, technology and
information and education about how to handle information is critical
in any organisation or in any entity.

. . . I don’t know who James Nogu is and I do not know . . . how this
information could have leaked, it could have been through hardcopy
documents, emails, taking pictures or maybe a person just looking at
information…there’s a number of e-mails that were circulated that we
saw, so really I don’t have an idea.’307 (Emphasis added).

19. Mr Simphiwe Mayisela (Mr Mayisela), had this to say on IT security:

‘MR EMMANUEL LEDIGA: And is there some way in which the

systems can be strengthened or ….the leaks stopped?

MR SIMPHIWE MAYISELA: So in the realm of IT, IT is composed of

people, processes and technology. When you strengthen the systems
you are only addressing the technology component you cannot
address the people, there’s nothing stopping people from walking
away with confidential documents no matter how robust your
technology may be and there’s nothing stopping people from stealing
with their eyes….’308 (Emphasis added)

Further protection measures

20. Securing information is clearly a multi-dimensional undertaking and since the

leaks the PIC has moved to strengthen its protection measures in the following
way:

307
At pages 60-61 of the Transcript for day 12 of the hearing held on 6 March 2019.
308
At page 102 of the Transcript for day 11 of the hearing held on 5 March 2019.

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20.1. It took action immediately after the leaks. The then CEO, Dr Matjila,
indicated at the hearings that the PIC commissioned an investigation into
options to strengthen the IT environment. He stated that the action and
future plans, recommended in the resulting report, are being implemented.

20.2. There is an on-going effort to finalise a comprehensive classification of the

PIC’s information so that various levels of access to information can be
designated accordingly.

21. The current and planned measures for the protection of the PIC’s information
are wide ranging and the approach among best-in-class levels. The successful
implementation, monitoring and regular review of the measures are essential
steps to ensure on-going effective protection that is able to adapt to the rapidly
changing world of IT systems. This will include vulnerability awareness
programmes for all employees at all levels, an improved overall control
environment and ensuring that a suitable IT system is put in place for unlisted
investments.

22. The PIC is intent on strengthening the protection of its information and aspires
to have a high-level state of IT security in the next few years. Security,
however, remains a moving target. The PIC has taken significant steps to
address the vulnerabilities identified and to create a greater awareness among
all employees. It has committed to assigning responsibilities for information
security, enhancing the capacity of the IT teams and implementing a security
strategy that focuses on key areas the Board and Executive have identified.

Findings

23. The following findings are made:

23.1. The PIC had reasonably good information protection policies in place prior
to the leaks, which policies might have mitigated risks on actions taken by

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 those parties who deliberately chose to leak information and documents.
Policies that were in place include the Acceptable Use Policy, the IT
Disposal Policy and the Third Party Management Policy that covered key
aspects of the PIC’s IT resources.

23.2. The parties who participated in the leaks appear to have simply taken the
information to which they had access and provided it to third parties.

23.3. Besides admitting that he both stole and was given PIC information, Mr
Mayisela misused the super administrator rights enabling him full access to
the whole of the PIC’s IT systems. He did not need to, and did not in all
likelihood, hack the system.

23.4. The PIC is instituting comprehensive measures to protect its information

from current and possible future threats.

23.5. Clearly defined and enforced classification of information will enhance the
security of sensitive information.

Recommendations

24. The recommendations that follow from the findings are:

24.1. The PIC should continue to strengthen its information protection measures.
Appropriate measures on how to classify and declassify information should
assist with security of information and enable the detection of leaks with
more certainty.

24.2. The IT systems should be state of the art and be regularly updated in
keeping with changes in technology, including the capacity to deal with
cybercrime.

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24.3. The PIC manual systems that are still in use must be automated as a priority.

24.4. The PIC should develop an ethical, transparent and values-driven culture
and ensure that employee disputes are fairly and quickly addressed.

24.5. Investments in IT security systems and human resources should continue

to be made.

24.6. The PIC should live its stated values of integrity, empathy, accountability
and respect to ensure a workforce that pulls together.

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TERM OF REFERENCE 1.10

‘Whether measures that the PIC has in place are adequate to ensure that
investments do not unduly favour or discriminate against –

1.10.1 a domestic prominent influential person (as defined in section 1

of the Financial Intelligence Centre Act, 2001 [“FICA”]);

1.10.2 an immediate family member (as contemplated in section 21H(2)

of the Financial Intelligence Centre Act, 2001 of a domestic prominent
influential person; and

1.10.3 known close associates of a domestic prominent influential

person.’

Scope of the Enquiry of ToR 1.10

1. Term of Reference (ToR) 1.10, mandates the Commission to enquire, make

findings, report on and make recommendations into the adequacy of PIC
measures relating to ‘domestic prominent influential persons’309, better known
as politically exposed persons (PEPs): that investments do not unduly favour
or discriminate against them, their immediate family members and known
close associates. The operative words in ToR 1.10 being: “adequacy” and
“measures.”

2. The term ‘domestic prominent influential person’, which is more self-

descriptive and unambiguous than PEPs (but which will be used

309
Cf. “foreign prominent public officials” who have been defined in FICA as persons referred to in Schedule 3B of
FICA.

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 interchangeable with the latter term), is defined in section 1 of the Financial
Intelligence Centre Act, 38 of 2001 (FICA), as a person referred to in Schedule
3A of the FICA.

3. Schedule 3A of the FICA, in turn, defines such persons, through a

comprehensive list, as individuals who hold ‘a prominent public function’,
‘including in an acting position for a period exceeding six months, or has held
at any time in the preceding 12 months, in the Republic’: in national, provincial
and local government, political leaders, traditional leaders, army generals,
certain diplomatic officials, judges, as well as accounting officers, CEOs,
CFOs and CIOs of entities listed in Schedules 2 and 3 of the Public
Management Finance Act, 1999 and those appointed in term of section 54A
of the Local Government: Municipal Systems Act, 2000, or in terms of section
80(2) of the Municipal Finance Management Act, 2003.

4. This fairly comprehensive list further includes – executives, board chairs and
audit committee chairs of companies that provide goods or services to a State
organ worth a certain threshold fixed by the Minister of Finance; and head or
executive of an international organisation based in the Republic.

5. In respect of the term ‘immediate family member’, section 21H(2) of the FICA
provides, in relevant part, that it

‘includes-

the spouse, civil partner or life partner;

the previous spouse, civil partner or life partner, if applicable;

children and stepchildren and their spouse, civil partner or life

partner;

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 parents; and

sibling and step siblings and their spouse, civil partner or life
partner.’

6. Whilst the list in Schedule 3A of FICA (relating to the term “domestic

prominent influential person”) is fairly exhaustive, section 21H(2) (in relation
to the term “immediate family member”) is not, because of the use of the
word “includes” in the latter provision, which implies that the ensuing list is not
exhaustive.

7. The self-contained test for the adequacy of the measures, discernible from
ToR 1.10, is that such measures: ‘ensure that investments’ neither ‘unduly
favour’ nor ‘discriminate against’ the class of persons in question.

Background to the PEPs Concept

8. The idea of persons who occupy (or who previously occupied) prominent
public office being more pre-disposed to corruption and money-laundering and
thus drawing more risk to financial transactions than the average person has
a proven history and underpinning.

9. At the end of the 1990s, Nigerian army general and dictator, Sani Abacha,
who had taken power in Nigeria through a military coup in November 1993, is
said to have looted over US$4 billion in public funds for his personal gain,
comprised, in part, of development aid. He did this with the help of his family
members and close associates. He allegedly siphoned and hid the looted
funds in bank accounts in Europe, mostly in the UK and Switzerland.310

310
Bosse and Benisty “Politically exposed persons vs. Local corruption” Europe, Global Financial Crime Review 20
March 2018 (see www.acamstoday.org). See also, Enrico Monfrini “The Abacha Case” in M Pieth (ed) Recovering
Stolen Assets (2008) pp 41-61.

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10. After a new government was subsequently installed in Nigeria, it
commissioned an international judicial inquiry on the recovery of the looted
funds from several European countries. That led to a feat that remains praised
to this day involving a combination of anti-dissipation relief sought through
mutual assistance arrangements and the launching of criminal proceedings
for money-laundering where Abacha had held bank accounts. Funds of up to
US$2 billion in ten jurisdictions were consequently frozen, of which US$1,2
billion is reported to have since been recovered.311

11. It is from this background, which is reported to have involved more than 60
financial institutions, that the concept of politically exposed persons (PEPs) is
said to have been conceived and developed.

International legislative origin

12. PEPs became the subject of a landmark, international anti-corruption treaty

that was adopted by the UN General Assembly in October 2003, namely the
United Nations Convention against Corruption, 2003 (treaty).312 The treaty, for
the first time, brought into sharp focus the role of public officials in financial
transactions. It insisted that care be taken when dealing with public officials as
individuals who are more prone to be linked to corruption than the average
customer. The treaty listed nearly every possible characteristic that would later
define PEPs and would be integrated in the Financial Action Task Force
(FATF) Recommendations313 and the subsequent EU directives.314

311
See Abacha v Secretary of State of the Home Department [2001] EWHC Admin 787 para 1.
312
The treaty was adopted on 31 October 2003 and came into force on 14 December 2005. See 43 (2004) ILM 37.
313
FATF Recommendations, 2012 were adopted on 16 February 2012 and have been updated regularly since. See
FATF (2012-2019), International Standards on Combating Money Laundering and the Financing of Terrorism &
Proliferation, www.fatf-gafi.org/recommendations.html.
314
Bosse and Benisty “Politically exposed persons vs. Local corruption” Europe, Global Financial Crime Review 20
March 2018 (see www.acamstoday.org).

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13. The treaty represents a remarkable global achievement in response to a
global problem. With 186 State Parties, including the Republic of South
Africa,315 bound by it, the treaty recognises the importance of both preventive
and punitive measures. It addresses the cross-border nature of corruption with
provisions on international cooperation and on the return of the proceeds of
corruption. It obliges State Parties to, inter alia, cooperate in the prevention
and combating of corruption through technical assistance (defined broadly as
including financial and human resources, training, and research).316

The PEPs concept closer to home

14. Closer to home, the concept of PEPs recently received judicial consideration
by the Gauteng Local Division in Kassel v Thompson Reuters (Markets) SA
2019 (1) SA 251 (GJ), where Unterhalter J, held as follows:

‘[1] This case concerns a particular class of persons: politically

exposed persons (PEPs). There is no universal definition of PEPs.
The Financial Action Task Force (FATF), an international body of
which South Africa is a member, defines domestic and foreign PEPs.
In essence, PEPs enjoy or have enjoyed high office within the State
and its institutions from which office PEPs discharge prominent public
functions. There is no closed list of these offices. They include heads
of State or government, senior government, judicial and military
officials; and, importantly for this case, senior executives of State-
owned corporations.

[2] The designation of this class of persons is intended to facilitate

enhanced due diligence by financial institutions when a customer or

315
South Africa signed the treaty on 9 December 2003 and ratified it on 22 November 2004.
316
United Nations Convention against Corruption, 2003. Adopted by the UN General Assembly on 31 October 2003,
by resolution 58/4 and entered into force on 14 December 2005, in accordance with article 68(1).

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 prospective customer is a PEP. And it is common ground that this
enhanced scrutiny is part of a worldwide effort to exercise greater
vigilance in the global financial system so as to detect and deter
money-laundering and the financing of terrorism. Many countries,
South Africa included, have passed legislation that requires enhanced
due diligence of PEPs.’

15. The legislation that has been passed in South Africa for the purposes
mentioned in Kassel, is FICA, which came into effect on 1 February 2002.

The PIC’s Unique Position

16. As one of the largest asset managing companies in the country, wholly owned
by the State (represented by the Minister of Finance), that manages a
diversified investment portfolio comprised of multiple asset classes spanning
all sectors of the South African economy, the PIC is vulnerable to the
challenges concerning PEPs. Dr Matjila in his evidence stated that ‘[w]ith
funds exceeding R2 trillion the PIC is a very tempting piggybank for many.’317
He referred to the adverse influence of politics on the PIC, stating that the PIC
received a barrage of funding proposals from politically connected people
across political formations. He testified thus:

‘DR DANIEL MATJILA: . . . The biggest challenge that I and my

management colleagues faced during these trying times was handling
deals that originated from powerful people and influential people
including the office of the [PIC] chairman at that time. As the CEO
responsible for most of significant asset manager on the African
continent, I have on countless occasions been approached by many
people of influence, bankers, financials, business people and

317
At pages 4-5 of the Transcript for day 53 of the hearing held on 11 July 2019.

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 politicians not just of the ruling party I must add, but by all political
parties with requests to invest in various companies…. (sic)

MR EMMANUEL LEDIGA: …to follow up there on these political

parties just give us an example of a typical transaction they would
pitch …?

DR DANIEL MATJILA: …it’s a lot, they really come in many forms . .

. some coming in e-mail format, some verbally…followed by e-mail,
some followed by actual information memorandum already …

MR EMMANUEL LEDIGA: But can’t you give me just one example

just to get a sense…?

DR DANIEL MATJILA: I think the closest one would be [a] request to

provide R3 billion to the National Empowerment Fund …

ACSA, Adcock Ingram, Sasol Petroleum, Ascendis itself, Tosaco…,

Erin Energy will fall into that category…

MR EMMANUEL LEDIGA: And across from ANC, DA, EFF and the
others…?

DR DANIEL MATJILA: Not the political party but individuals that are
connected.’ 318

17. However, despite the barrage of proposals that the PIC receives from
politically connected persons, and because of ‘PIC’s stringent compliance

318
Pages 72-73 of the Transcript for day 52 of the hearings held on 10 July 2019.

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 practices,’ Dr Matjila testified that many of such proposals ‘have not been
fruitful.’319 The ‘stringent compliance practices’ referred to by Dr Matjila include
the PIC policies relating to PEPs, which, inter alia, stipulate that once PEPs
are identified, an enhanced due diligence be conducted in transactions
involving them.

18. Dr Matjila was asked whether the PIC had effective internal processes that
appropriately assessed investment proposals of PEPs:

‘MS GILL MARCUS: (Referring to) …[paragraph] 272… that says the
fact that they were not fruitful is a consequence of the process within
the PIC but it is not a mechanism to deal with the pressures or the
access [by PEPS] and therefore this is an area that would need much
closer scrutiny by the Commission. Does that cover what we have
discussed earlier?

DR DANIEL MATJILA: Yes Commissioner.’320 (Emphasis added.)

19. Accordingly, Dr Matjila confirmed that whilst there are proper measures in
place as part of the internal PIC ‘process’, that ‘access’ pressures is something
that would still have to be dealt with. Such ‘pressures’ are ascribable to the
reality of the PIC’s unique position as a State-owned asset manager.

20. Dr Matjila’s responses to this matter, when asked what measures he put in
place to manage such political and PEP pressures, are dealt with in greater
detail in Chapter IV under the heading ‘Responsibilities and Accountability’.

319
Ibid. page 72.
320
Ibid. page 74.

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Evidence Heard by the Commission

21. The Commission heard evidence that the PIC has a plethora of policies that
form part of the regulatory framework within which it operates. Ms Wilna Louw
(Ms Louw), the PIC’s Acting Company Secretary, in her capacity as custodian
of the PIC’s policies and records, stated the following:

‘MS WILNA LOUW: . . . PIC is also adhering to a number of policies.

PIC’s policies and procedures are designed to influence, determine
and guide all major decisions and actions.’321

PEPs regulation part of broader policy framework

22. In further evidence Ms Louw mentioned a number of indirectly important

policies for the purposes of ToR 1.10:

‘MS WILNA LOUW: [In] The Records Management Department, we

have the Records Management Policy and the Records Retention
Schedule for PIC. In our Compliance Department we have got an Anti-
money laundering Policy, Client Complaints Resolution Policy, the
Compliance Charter, Compliance Framework and Manual Conflict of
Interest Management Policy, Debarment Policy, Personal Account
and Inside[r] Trading Policy, Risk Management and compliance
programme and treating customers fairly policy with the ...[intervenes]

COMMISSIONER: Mr Lubbe I suspect that virtually all these would be

relevant, is it not?

ADV JANNIE LUBBE SC: It is absolutely correct Mr Commissioner yes.

321
At page 26 of the Transcript for day 1 of the hearings held on 21 January 2019.

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 …

MS WILNA LOUW: . . . then for listed investments they are

responsible for the Dealing Policies Procedures, Fixed Income
Policies and Procedures, listed equity straight allocation policy and
they have also got a standard operating procedure for listed
investments. Investment management is the Asset Apportionment
Policy, Asset Disposal Guidelines, Triple B-BBEE Policy for Listed
Investments. Triple B-BBEE Guidelines for the Isibaya Investments,
Delisted Investment Policy, ESG Guidelines for External Managers
and ESG Policy for Fixed Income, ESG Policy for Listed Equities,
ESG Policy for Public Entities and ESG Policy for Unlisted
Investments, Governance Policy and a Politically Exposed Persons
Policy.

ADV J LUBBE SC: Again, if I may interrupt Mr Commissioner, highly

relevant, you will notice in the terms of reference that specific
reference is made to politically exposed persons for this
Commission’s investigations.’ 322 (Emphasis added.)

23. The PIC PEPs policy323 is accordingly designated to the unlisted division
given that in respect of transactions in the listed division, the PIC’s
counterparty is a JSE-listed company subject to legal, regulatory and oversight
measures.

322
At pages 28-29 of the Transcript for day 1 of the hearings held on 21 January 2019.
323
The full citation of this policy is the: Unlisted Investment Isibaya Fund: Policy on Treatment of Politically Exposed
Person

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Development and continued improvements on the PIC PEPs policy

24. When Mr Roy Rajdhar (Mr Rajdhar), the Executive Head for Impact Investing,
who heads the Private Equity, Impact Investing and Unlisted Properties
subdivisions, gave evidence before this Commission on, inter alia, the
investment process, function and operation of his division, he affirmed as
follows:

‘MR ROY RAJDHAR: …in terms of politically exposed persons, we

have also improved in terms of the policy in that regard… following
the establishment of the Social and Ethics Committee,… [it] can be
approached for guidance to the Committee to which the [PEP’S]
project is serving, notwithstanding that at Committees we have
declaration of interest register signed. Later on we decided let us bring
a process of declaration [of interests] much earlier in the process…
We are incorporating ESG issues in the investment process as
well…going forward, there may be areas where we find that we can
improve and that is what we continually strive to do…

ADV JANNIE LUBBE SC: What is your understanding of a politically

exposed person?

MR RAJDHAR: Well my understanding of a politically exposed

person is any person who has been employed in any sphere of
Government, including public entities. Then it is people related to
those persons, ... and then it is also people who is known to be
politically aligned, I mean based on reports that you see in the public
[domain]. So we would also consider them to be politically exposed
persons.’ 324

324
At pages 80-81 of the Transcript for day 1 of the hearings held on 21 January 2019.

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25. The two main points that emerge from Mr Rajdhar’s evidence are: firstly, that
the PIC PEPs policy is continually being improved to respond to the needs of
the PIC. Secondly, the PIC adopts a broader understanding of PEPs to include
people who are known to be ‘politically aligned’ from reports in the public
domain. This encompasses more than ‘known close associates’ and it thus
provides for a more effective policy framework governing the risks associated
with PEPs.

The PIC Policy on the Treatment of PEPs

26. The PIC’s PEPs policy is titled the ‘Unlisted Investment Isibaya Fund: Policy
on Treatment of Politically Exposed Persons’ (the PEPs Policy) and is dated
May 2014 but was reviewed by the Investment Committee in December 2014.

27. Dr Matjila testified on the underpinnings and purpose of the PEPs Policy:

‘DR DANIEL MATJILA: The politically exposed persons policy, it’s

actually derived from the law, this law that deals with politically
exposed person, I think it’s under FIC. So we have taken that and
crafted a politically exposed persons policy that allows us to do deeper
due diligence on the parties spends in any transaction, if there are
politicians, we need to understand their sources or finance, delve
deep into . . . the relationships that they have . . . so that we ensure
that the political reputational risk exposure on the PIC’s side resulting
in this transaction is minimised if not eliminated.’(sic) 325

28. These are some the main features of the PEPs Policy:

28.1. The PEPs Policy defines PEPs as ‘Natural persons who are or have been
entrusted with prominent public functions by a domestic or foreign country,

325
At page 105 of the Transcript for day 51 of the hearings held on 9 July 2019.

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 their family member, relatives, persons known to be close associates of
such persons, or trusts and other juristic persons over which they practice
control.’326

28.2. The definition list setting out who is regarded as PEPs by the PIC, casts the
net wider than Schedule 3A of FICA. By way of illustration, it is not only
confined to leaders of political parties, but to members of parliament and of
provincial legislatures, senior government officials, including local
government officials. In relation to the judiciary, it extends its reach beyond
just high court judges, to include Magistrates and even State prosecutors. It
further includes labour group officials (i.e. trade union officials) and
executives of State-owned Enterprises.327

28.3. The PEPs Policy further adopts, as wide as possible, definitions in respect
of family members and associates of PEPs. This widening of the definitions,
however, is at best precautionary as the aim of the policy is not to exclude,
but to invoke enhanced due diligence investigations into PEPs, their family
members and associates.

28.4. In defining the mischief to which it is directed, namely risk, the PEPs Policy
provides that ‘[r]elationships with PEPs can culminate in increased risks for
the PIC due to the possibility that individuals holding such political positions
may misuse their power and influence for personal gain or advantage of
family and/or close associates.’328 It further sets out the reasons why PEPs
are screened. Its focus is on the PIC’s business relationships where PEPs
are counterparties.329

326
See ‘Definitions’ at page 7 of the PEPs Policy.
327
Ibid, see definition of ‘domestic PEPs’ at pages 7-8.
328
At 15 of the PEPs policy.
329
See the ‘Scope’ of the policy at 5.

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28.5. It defines the purpose of the policy as the regulation of all investment
activities of the Isibaya Fund and ensuring that they comply with acceptable
ethical norms and standards. ‘It seeks to manage the resultant reputational
and related risks that the PIC and its clients may become exposed to, by
virtue of such relationships.’330

28.6. The objectives of the policy are to combat corruption, ensure that the PIC
adheres to statutory requirements and best practice. The further objectives
are to bring about consistency in the treatment of PEPs and to ensure
equity, fairness and transparency whilst also mitigating the risk for the
PIC.331

28.7. Although the primary responsibility for the PEPs Policy is that of the CEO, it
is also the joint responsibility of all PIC employees and directors without
exception, and a breach of the policy constitutes misconduct.332

28.8. The PEPs Policy has features similar to an operations manual that sets out
what markers to look for in client due diligences to identify PEPs. It, inter
alia, sets out what an enhanced due diligence is and when to do it and
provides for enhanced on-going monitoring of PEPs related transactions
and the keeping of a PEPs database.

28.9. The PEPs Policy sets out ten policy principles on which it is based, such as
that ‘Senior management shall decide on the circumstances under which
PIC may reject establishing a business relationship with a PEP’: under
which principle, it is provided that the intention is not to give reasons for

330
See ‘Purpose of the policy’ at 5.
331
See ‘Objectives’ of the policy at 5.
332
See application of the policy and exclusions at 5-6.

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 declining transactions involving PEPs, but to ensure that preventive
measures are adopted.

Application of the PEPs Policy

29. Dr Matjila testified as follows on the application of the PEPs Policy:

‘ADV ALEXANDER ROELOFSE: Then I just want to deal quickly with

this issue of PEPs. Who is responsible really for implementing the
policy regarding PEPs and for screening deals for PEPs and that sort
of thing?

DR DANIEL MATJILA: This is the deal team with – the deal team
comprises of both the investment team, legal, risk and environmental
and social and governance teams. All of them will have to identify
potential PEPs, mainly the ESG team is the one that identifies those
characters in any transaction and they will be the one that proposes
the way forward.

If they can’t resolve the matter on their own or the extent of the PEP
or the risk is regarded as high, that PEP is then referred to the social
and ethics committee, which is a sub-committee of the [B]oard, for
review and guidance.

ADV ALEXANDER ROELOFSE: But we know certainly in respect of

the Ascendis deal the issue of PEPs was indeed at the forefront or
one of the items at the forefront of the FIP’s concerns.

DR DANIEL MATJILA: Yes

ADV ALEXANDER ROELOFSE: Because when the deal initially

goes before the FIP on the 20 January 2016, the Chairman suggests

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 that due to the presence of politically connected people in the
transaction that the deal team review the whole transaction before it
was resubmitted for approval?

DR DANIEL MATJILA: That’s true.

ADV ALEXANDER ROELOFSE: So that policy was being applied?

DR DANIEL MATJILA: [It] was being applied.

ADV ALEXANDER ROELOFSE: At the time of this transaction.

DR DANIEL MATJILA: That’s correct.’ 333

30. The Commission had earlier heard evidence affirming that there is no blanket
exclusion of PEPs in transactions at the PIC. This was during Dr Matjila’s
evidence. He confirmed that, in fact, the PEPs Policy prohibits discriminating
against PEPs. In part, this accordingly, meets the test under ToR 1.10 for the
adequacy of PIC measures, in that the PEPs Policy does not discriminate
against PEPs in investments. Dr Matjila testified thus:

‘MR EMMANUEL LEDIGA: … And then final thing is about the PEPs
... So you say that in the Shkhara transaction there were two PEPs
which [were] removed … my issue is that are you saying that PEPs
cannot do business with the PIC? I’m just worried that much as we
say PEPs can exert pressure, are they excluded from the
opportunities in the country?

DR DANIEL MATJILA: Not necessarily.

333
At pages 52-53 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 …

As we said, if they are there then there’s a process of enhanced due

diligence, a thorough process around enhanced due diligence that
takes place as part of the transaction and we’ve done so, there are
other PEPs where the transaction had been approved … and
enhanced due diligence done on them

… as part of the processing.

MR EMMANUEL LEDIGA: And so there could be times where you

are not happy with the PEPs and you tell them that after the enhanced
D[D] [that you] were not happy to…(inaudible – speaking
simultaneously)

DR DANIEL MATJILA: Yes, is that - if the results are negative, we

wouldn’t … [intervenes]

MR EMMANUEL LEDIGA: Ja, okay. So, there’s no blanket ban about

PEPs?

DR DANIEL MATJILA: No, there is not.

… In fact, the policy of the PIC was saying we don’t discriminate. If

there are issues, they need to be dealt with, conflicts and those kind
of politically exposed persons which is now even law to some extent
needs to be complied with in terms of FICA.’ 334

31. The Commission also heard evidence that one of the important purposes of
the PEPs Policy is the scrutiny and transparency it brings about to the

334
At pages 45-46 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 transactions involving PEPs.335 The Commission further heard evidence on
how the pragmatic and combined use of the PEPs Policy, in tandem with the
deal screening committee and appeals made to the Chairman of the PIC
Board, Deputy Finance Minister, Mr Mcebisi Jonas, during meetings, were
used to manage some of the pressures from and interferences of politicians.
Dr Matjila gave the following evidence:

‘ADV ALEXANDER ROELOFSE: . . . Dr Matjila, in [paragraph] 144

you talk about the fact that people had gone effectively behind the
back of yourself and others to deal directly with senior managers
bypassing PIC executives to exert influence over deals at that level
and then you then say that you established a deal screening
committee to deal with that. Can you just briefly explain to us what
was that deal screening committee?

DR DANIEL MATJILA: Commissioner, thanks a lot , we had

challenges with deals that were brought about by politically connected
people and most of them we were able to reject upfront, especially
when they don’t fit the portfolio and for some reason in some
instances they found a way of getting into lower management to try
and get their deals considered at that level, so we established a deal
screening committee that will then give us capability of seeing – have
sight on all the deals that are coming to the PIC so that we are able
to identify those that have high political risk and subject them to the
policy that we have put together, the politically exposed person policy
that we had, the board had adopted within the PIC as part of that
process of managing politically exposed persons.

Insofar as the meetings are concerned, I have used the politician

within the PIC to deal with political matters and this has happened

335
At page 201 of the Transcript for day 61 of the hearings held on 12 August 2019.

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 quite a lot in the time of Mr Mcebisi Jonas and we agreed that . . . any
political matters he will have to handle as a politician with his
colleagues or . . . comrades for that matter and applying PIC
processes to deals so that we take the best deals and we do all the
analysis including enhanced due diligence that is required if we see a
politically exposed person involved in the transaction.’ 336

32. Dr Matjila testified, in another context, about how he raised the PEPs Policy
with the then Chairman of the Board, Deputy Finance Minister Gungubele,
when the latter castigated him about a certain deal. He testified that:

‘DR DANIEL MATJILA:[Reading from para 239 of his Statement] ". .

. I arranged a meeting with the chairman to brief him on PIC matters
before I flew overseas. He suggested that we meet at O.R. Tambo
International.

When I entered the protocol lounge where the meeting was due to
take place, I was surprised to see the deputy chairman accompanying
the chairman. The chairman was Mr Buthelezi at that time

…However, during that meeting, the chairman also [castigated] me

for… raising in the PIC’s then consideration of the National
Empowerment Fund’s application for R3 billion funding from the PIC,
the issue of the relationship between his sister, who was the CEO of
the NEF, Ms Buthelezi, and her husband who was the Minister of Arts
and Culture.

He was visibl[y] angry and told me at some [point] in time that: “We
must leave politics to politicians.”

336
At pages 103-105 of the Transcript for day 51 of the hearings held on 9 July 2019.

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 I explained to him that I had not raised this issue but rather the PIC
Investment Team that was considering the deal and it had nothing to
do with politics at all, but it was simpl[y] a standard procedure at the
PIC, when a politically exposed person was involved in the potential
PIC transaction.

An enhanced level due diligence had to be performed by the PIC as

part of the ESG process’. 337 (Sic)

33. PEPs were directly involved in at least two of the transactions that came under
scrutiny before this Commission, namely, the Ascendis transaction (Ascendis)
and the Tosaco transaction (TOSACO).

34. Dr Matjila gave the following evidence on Tosaco in relation to PEPs:

‘DR DANIEL MATJILA: . . . sometime after Kisaco’s successful bid, I

became formally aware of the involvement of Mr Shezi who was at
the time a chairman and trustee respectively in two of former
President Zuma’s trust[s].

CHAIRPERSON: There’s probably many Shezi’s so it’s Tshwane

Sizwe Shezi.

DR DANIEL MATJILA: Yes.

CHAIRPERSON: According to the statement.

DR DANIEL MATJILA: Sizwe Shezi, that’s correct. So he was the

shareholder in now KiliCap and Kisaco. He was so angry – I think Mr
Mulaudzi in his testimony to this Commission said that Mr Shezi bled

337
At pages 31 – 32 of the Transcript for day 52 of the hearings held on 10 July 2019.

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 for two hours. He was angry with my initial refusal to issue KiliCap
with a binding letter of support to a point where he started putting
pressure on the Minister at the time, Mr Nhlanhla and Deputy Minister
to fire me. I was later informed of this by the Deputy Minister at that
time Mr Mcebisi Jonas himself.

… As per the statement of Mr Mseleku to the Commission, the

involvement of Mr Shezi in the transaction [caused] a big uproar in the
public space. This came as a surprise to the PIC as well because his
name only came up after the merger of the two companies. I must
emphasise that the deal followed PIC processes and it’s performing
well. The PIC has since revised its delegation o[f] authority to ensure
that the issuing of letters of expression of interest is properly
managed.’ 338 (Sic)

35. In response to the above testimony from Dr Matjila, Mr Shezi, on 18 July 2019,
wrote to the Commission, saying:

‘I watched with shock as Dr Matjila related his concerns regarding my

involvement in Kilimanjaro Capital Propriety Limited (“KiliCap”) and by
virtue of the imposed merger, KISACO, as a shareholder. My shock
and surprise stems from the fact that at the very onset of the TOSACO
Transaction, I personally met with Dr Matjila to introduce Mr Mulaudzi
and the TOSACO Transaction to the PIC. This meeting took place at
the PIC head office in Garsfontein on 21 May 2015. Dr Matjila
therefore knew of my involvement and interest even before the
TOSACO Transaction started being processed by the PIC.

None of the PIC transaction team members, nor Dr Matjila himself,

raised any concerns regarding my shareholding in KiliCap or indirectly

338
At pages 127-128 of the Transcript for day 54 of the hearings held on 15 July 2019.

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 in KISACO at any point before the TOSACO Transaction reached
financial close.

It is indeed true that I personally felt very aggrieved regarding the

imposition of a merger with another company. And I conveyed this to
Dr Matjila himself. Dr Matjila’s testimony that I was angry because he
would not issue a binding letter of support is not true.

It is a blatant lie that I approached the then Minister of Finance, Mr.

Nhlanhla Nene, and Deputy Finance Minister Mr. Mcebisi Jonas to
have Dr Matjila fired … Dr Matjila has unfairly and dishonestly created
the impression that I am a politically exposed person, when the same
has no basis.’339

36. The Commission heard evidence that owing to subsequent improvements of

the internal controls, now, before the PIC issues binding expressions of
interest, these types of transactions are first referred to the deal screening
committee.

37. On Ascendis, Dr Matjila testified as follows:

‘DR DANIEL MATJILA: …As [per] Mr Lawrence Mulaudzi’s

statement to this Commission, I received the Ascendis proposal from
him a few days after Tosaco proposal. This time…Shkhara Health a
recently incorporated company was used as a vehicle to make this
investment…Shkhara was requesting the PIC to provide funding
approximately R1.25 billion to purchase one billion worth of shares in
Ascendis Health a listed company and R250 million worth of shares

339
Extract from paras 1-7 of a letter submitted to the Commission by Mr Sizwe Shezi signed on 18 July 2019.

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 in Bounty Brands. I passed this proposal to the executive heads for
consideration and guidance.

I was extremely concerned with this new application just being a few
days after Tosaco. However, the transaction team commenced with
their process. The role played by politically exposed person in this
transaction was a big worry for me especially now that Mr Sizwe Shezi
had now revealed his interest in the business affairs of KiliCap and
subsequently Kisaco. The shareholding of Shkhara was very much
similar to KiliCap but with more PEPs in it.’ 340

38. Dr Matjila testified that he told the deal team to ensure that there were no
politically exposed persons included in the deal, and if there were to ensure
that there was appropriate due diligence conducted on those individuals as
part of the transaction process. He also said the structure should be ‘cleaned
up and broadened’, which resulted in only Mr Shezi remaining in the
transaction.341

Findings

39. As a measure directed at addressing the risks associated with PEPs,

weaknesses in the PEPs Policy create the opportunity for abuse and pose a
real and on-going risk for the PIC that needs to be addressed.

40. Moreover, the practice, or implementation, of the PEPs Policy as reflected in

the actions of Dr Matjila, shows a total disregard for the policy on PEPS. These
are dealt with in the section addressing ToR 1.1 contained in Chapter III.

340
At pages 2-3 of the Transcript for day 55 of the hearings held on 16 July 2019.
341
Ibid. page 5.

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Recommendations

41. The Board, through the proposed Risk Committee, should ensure oversight
and evaluation of the effective implementation of a revised PEPs Policy on a
regular basis.

42. The Board should review, in its entirety, the PEPs policies, taking into account
the information presented to the Commission of the weaknesses in practice
when implementing the PEPS policy.

43. The Lancaster/Steinhoff transaction, the Harith/PAIDF investment, the

Sakumnotho/Kilicap Tosaco and Ascendis transactions are illustrations of the
weaknesses of the PEPs policies in practice.

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TERM OF REFERENCE 1.11

‘Whether there are discriminatory practices with regard to remuneration

and performance awards of PIC employees.’

Introduction

1. Consideration of discriminatory remuneration and performance practices in

the PIC needs also to take account of allegations of victimisation, as
victimisation also manifests itself in remuneration practices, bonus payments,
balanced scorecard assessments, bias in promotions and opportunities for
advancement as well as exposure to opportunities that enhance experience
and expertise. Therefore, this term of reference needs to be read in
conjunction with ToR 1.12, below, which addresses the question of
victimisation.

Climate Survey

2. Remuneration and performance should also be considered taking account of

the levels of staff dissatisfaction. In his testimony before the Commission, Mr
Ramabu Diamond Motimele (Mr Motimele), senior HR Business Partner at the
PIC, said that the PIC conducted employee engagement surveys, through an
independent service provider, between October 2016 and May 2017. The first
survey had such a low participation rate (36% of staff at the PIC participated
in it) that it had to be redone. Staff reasons for their unwillingness to participate
included concerns of being identified in the survey, and that possible means
of identifying who said what – race, gender and occupation level – were to be
excluded. Even though all of these requests were met, only 51% of staff at the

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 PIC participated in the second survey. Mr Motimele said this was a clear
indication of the environment that prevailed at the PIC.342

3. The overall results of the survey were negative, with the key issues identified
as follows: dissatisfaction with leadership, issues relating to performance
management and incentives. The report proposed that the PIC Executive
should undergo coaching on the PIC’s values. The survey reflected
employees’ unhappiness about the environment, deeming it bureaucratic,
political, unfair and frustrating.

4. Mr Motimele testified that his line manager, Executive Head: HR, Mr

Pholwane, who reported directly to the CFO, Ms More, was not happy with the
results of the survey. He proposed adding the neutral scores (18.1%) to the
positive scores (51%) and other changes. The service provider explained that
this could not be done, and expressed surprise when the final score for the
PIC was reflected as 74,8% and not the 51% which was the true result. Mr
Motimele regarded this as misleading, and as a consequence of expressing
these views found that he was side-lined, the working relationship with Mr
Pholwane deteriorated and his work was frustrated.343

Remuneration and Incentives

Evidence of Mr Mervyn Muller (Mr Muller)

5. Mr Muller was the Executive Head: Private Equity and Structured Investment
Products (SIPS), until his resignation from the PIC on 14 March 2019. Mr
Muller testified extensively about his experience regarding both Short Term

342
At page 22 of the Transcript for day 48 of the hearings held on 2 July 2019.
343
At pages 43-50 of the Transcript for day 48 of the hearings held on 2 July 2019.

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 (STI) and Long Term Incentives (LTI), and the issues as they impacted on PIC
employees. Reading from his statement, he testified that,

‘… the lack of transparency internally at the PIC as well as the

retrospective interference by the shareholder in the incentives of PIC
staff creates a risk for the most important resource of the PIC, its staff.
. .’344

6. Mr Muller addressed the question of the introduction, by the Minister of

Finance Mr Nhlanhla Nene in 2016/17, of caps to the bonuses of staff and the
executive, and applicable to all staff. The cap on the executive was set at 80%
of their annual guaranteed package. It was applied retrospectively to the
incentives of the previous year. This was unprecedented and was not possible
if the remuneration policy of the PIC was adhered to. This situation was
exacerbated when, for the 2017/18 financial year, in August 2018, the PIC
Board submitted an incentive proposal to the Minister of Finance in which a
cap of 50% was to be applied to the executive. No reply was received from
the Minister and, given the level of staff unhappiness, a decision was taken
that all staff, excluding the executive, be paid their STI bonuses, effective 30
September 2018. This payment was in accordance with the remuneration
policy and the Board’s recommendations to the Minister. The pool used to pay
the staff was as per the agreement in the Shareholder Compact that had been
signed in July 2017 between the PIC and the Shareholder. It is this
Shareholder Compact that introduced a new clause whereby the Minister must
approve the incentives awarded. 345

7. Exco STI bonuses were paid on 14 December 2018, with the amounts
significantly reduced by the Minister who had introduced a new method of
calculating the bonuses paid to Exco, changing the past PIC practices. Mr

344
At page 48 of the Transcript for day 17 of the hearings held on 18 March 2019.
345
At pages 49-52 of the Transcript for day 17 of the hearings held on 18 March 2019.

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 Muller testified that, ‘[t]his new method of calculation is now in direct
contravention to the Shareholder Compact …’.346

8. He went on to say that the PIC (Board) did not engage the
Minister/Shareholder on the breach of the compact and the unfair
discrepancies that resulted, for instance, some Exco members found that a
number of their direct reports, who had lower performance scores than they
did, were being paid more than the Exco member. He was also concerned that
this had been applied retrospectively, without consultation. Furthermore,
employees affected by the shareholder intervention were unaware of the basis
on which their STIs were calculated, were reduced or the reasons why LTIs
were deferred. In his own circumstances, Mr Muller’s STI as reported in the
Annual Financial Statements was R1,85 million. There was no clarity over the
following five months when the STI would be paid.347

9. When ultimately paid on 14 December 2018, Mr Muller found that the amounts
paid were halved. A letter from Minister Mboweni that outlined his approach
‘was only shared with me [Mr Muller] when requested by my lawyer [during a
grievance procedure he instituted to try to receive payment prior to emigrating]
and had not been shared with other Exco members…’.348

10. Mr Muller also testified that PIC staff was issued with letters regarding
significant increases to their annual salaries, including back payments
effective 1 April 2017, but that Exco were not involved in the process and had
no sight of the calculations that resulted in the increases. The staff was
generally very unhappy as, when they compared their salaries among peers,
they could not understand the differentials. He said that there were some
peers who had differences in salaries of up to R1 million between each other.

346
Ibid. page 52.
347
Ibid. pages 54-61.
348
At page 62 of the Transcript for day 17 of the hearings held on 18 March 2019.

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 The lack of transparency created a perception that favouritism was rife in the
application of the principles.349

11. Mr Muller stated that ‘in my department it created massive gaps between
peers and I was not in a position as head of department, to explain the reasons
for this’.350 When he asked why he should not be involved in analysing his own
staff and their performance prior to approval of the new grades, which resulted
in the increases, he was told it was a matter of confidentiality. His perception
was that only Mr Pholwane and Ms More were involved in the determination
of staff grading. Mr Muller refused to sign off on the letters to staff in his
department, and ultimately Mr Pholwane did so himself.

12. However, shortly after the re-grading payments of staff, ‘we [the staff] were
told that all appointments of new staff members would now be frozen as the
re-grading has now resulted in a shortfall in budget that would first need to be
sorted out.’351 [our insertion] According to Mr Muller, the freeze was lifted in
March 2018, but salaries were again adjusted, without discussion, in August
2018, without the involvement of Exco. Nor were the principles that were
applied, disclosed. In December 2018 further new principles were introduced
by Ms More, with new criteria. Exco members advised the Head of HR, Mr
Pholwane, that they were uncomfortable with the processes followed. Mr
Muller concluded that staff salaries and the HR processes followed remain a
massive bone of contention at the PIC, with suspicions of unfairness and
favouritism.352

349
Ibid. page 65.
350
Ibid.
351
Ibid page 66.
352
At page 71 of the Transcript for day 17 of the hearings held on 18 March 2019.

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Evidence of Ms Candace Abrahams (Ms Abrahams)

13. The core of the evidence given by Ms Abrahams, acting Executive Head of
Risk and Compliance, related to HR and remuneration matters. She said that:

‘… there is no clear and transparent approach in the manner in which

remuneration is calculated and determined for staff … I am not privy
to nor am I consulted or given an opportunity to input into the actual
calculations and determination for staff that report in to the Executive
Head for the Risk and Compliance function.’353

14. Echoing the testimony of Mr Muller, Ms Abrahams testified that:

‘Whilst I am required by the Human Resources Department to sign off

remuneration letters for staff as the Executive Head for the
department, this remuneration is already predetermined. The letters
addressed to each staff member outlining their remuneration are
compiled and printed by the Human Resources department and then
are sent for my signature. The timing of signing these letters itself
would render me unable to give input therein as the letters are in my
experience circulated for signature a day or two before actual
payment into staff bank accounts is made. This therefore would
infer… that the payroll process would have already been
concluded.’354

15. Ms Abrahams said that remuneration was a major bone of contention among
staff, adding that while HR states that salary adjustments are made to ensure
staff are remunerated at the midpoint of their grade, staff had determined that

353
At page 92 of the Transcript for day 14 of the hearings held on 12 March 2019.
354
At page 93-94 of the Transcript for day 14 of the hearings held on 12 March 2019.

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 this was not the case and that they are remunerated below the midpoint of the
pay scale.355

16. Confirming Mr Muller’s testimony, Ms Abrahams said she was excluded from
the last Exco that addressed remuneration of staff, with Mr Pholwane stating
that ‘actors’ were conflicted.356 Ms Abrahams also dealt with the question of
capacity and vacancies in the Risk Department. The total number of positions
as per the approved structure of the Risk Department is 51, but the actual
head count was 22 with 29 vacant positions, which are budgeted for but the
approval required from the CEO to fill the vacancies was not forthcoming.357

Evidence of Ms Petro Dekker (Ms Dekker)

17. A number of other senior PIC employees testified as to their concerns about
the remuneration policy, incentive schemes, manipulation of the balanced
score card, pay and reward differentials, grading of positions as well as the
restructuring process and outcomes that favoured some people: for instance,
Mr Manuka, a general manager in the Finance department, received an
increase of R1 957 975 while disadvantaging and demoting others. Ms
Nomzamo Petje, a communications manager who was demoted to an ESG
analyst said in her statement that:

‘… my demotion and transfer was utterly baseless and unlawful. [I]t

was nothing but a show of arrogance and power by management…At
no stage did I receive a complaint from my employer regarding my
performance. To the contrary, I was rewarded for my performance
[and] I received both STI and long term incentive LTI bonuses …

355
Ibid. page 94.
356
Ibid.
357
Ibid. page 97.

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 Being moved to grade C5 meant that I no longer qualified for the LTI
bonus.’358

18. A case in point is that of Ms Dekker who joined the PIC in 2004, and by 2012,
had been appointed the PIC COO. The PIC restructuring process resulted in
her being appointed to the role of Executive Head (EH): Corporate Services.
In her evidence Ms Dekker said that during the restructuring process in
2014/15, Ms More informed her that the position of EH: Corporate Services
would no longer form part of Exco and the grade of the position would be
adjusted to Level E. However, when the restructuring was finalised and
formally communicated, the position remained as part of Exco and graded at
Level F.359

19. Ms Dekker testified that ‘since 2014 I found the working environment at the
PIC to be hostile and inefficient360’, with meeting agendas amended at the
start of a meeting, documents requiring approval standing over for consecutive
meetings and agenda items being added without due documentation or
process. The Exco appointed PWC (Remchannel) to assist with organisational
development, including assisting line managers with job descriptions, job
grading and benchmarking of positions. However, according to Ms Dekker,
the CIO at the time, Dr Matjila, and the CFO, Ms More, were not comfortable
with the grades determined through the process and decided that Exco was
in a better position to do this work themselves. Thereafter the grading of
positions was done based on discussions in Exco, and not through the
Remchannel system, with PWC being removed from the project.361 Ms Dekker
ultimately chose to leave the PIC, forfeiting her Long Term Incentive of about

358
At pages 8-11 of the Transcript for day 17 of the hearings held on 19 March 2019.
359
Para 5 of Ms Petronella Dekker’s statement signed on 26 February 2019.
360
At page 85 of the Transcript for day 8 of the hearings held on 26 February 2019.
361
At pages 88-89 of the Transcript for day 8 of the hearings held on 26 February 2019.

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 R2 million and did not claim any remuneration or settlement package from the
PIC.362

Evidence of Ms Nozamo Petje (Ms Petje)

20. Ms Petje made assertions, comparing her position with that of the two
executives and commented on their remuneration. On Ms Solomon she said:

30. … I am aware of at least one employee whose position was

rendered redundant and she was appointed to a higher position. Her
salary was adjusted to a higher grade. The employee I am referring
to is Ms Rubeena Solomon. She was occupying the position of
General Manager: Investment Management. That position was
inexplicably rendered redundant and she was appointed Executive
Head: Investment Management. As a result of the promotion, Ms
Solomon's salary was increased by a whopping R953 304.21…

30. If Ms Solomon could be promoted and her salary be automatically

adjusted to a higher grade, nothing prevented the same being done
in my favour. In my view, it is irrelevant that Ms Solomon's promotion
and salary adjustment occurred approximately two years after my
demotion. The treatment accorded to Ms Solomon and the one
accorded to me shows that employees are not treated equally within
the PIC.’363

Evidence of Mr Luyanda Ntuane (Mr Ntuane)

21. Mr Ntuane, Executive Head: IT and Chief Technology Officer, testified that
following the restructuring he was appointed EH: IT without any change to his

362
Ibid. page 94.
363
Paras 30-31 of Ms Nomzamo Petje’s statement signed on 19 March 2019.

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 responsibilities but was to report to the CFO and no longer the CEO. He stated
that his working life started to take strain due to unresolved conflict between
the CFO and himself, face to face meetings did not take place, communication
was via email, and he could not get the IT structure finalised or approved
without any explanation. At the same time the CFO consistently made
disparaging comments about IT – inside and outside of meetings.364

22. Mr Ntuane found that his recommendations for system upgrades and
integration were deflected without explanation. In a deteriorating situation,
blame was often laid at the door of IT and ultimately a whistle blower allegation
of favouritism was made against him.365 Investigations were conducted
between 29 March 2016 and 20 May 2016, informal overtures were made to
see what he would accept as a settlement and Mr Ntuane was told by Dr
Matjila that ‘the PIC needed some way to justify the separation agreement.’366
Dr Matjila wrote to him on 30 March 2016, stating, ‘the allegations levelled
against you include, inter alia, allegations of conflicts of interest, in appropriate
conduct and favouritism…and (the PIC) has suspended you pending an
investigation.’ In his statement, Mr Ntuane said, ‘he attended a meeting with
Mr Matjila, wherein he indicated that the investigation was complete but he
would rather not proceed with a disciplinary process. I stated that I had no fear
of any disciplinary process, but the main issue was that he and the CFO do
not want me at the PIC any more’367 which is why they accused him of ‘being
found to have been in possession of confidential proprietary information on
[his] work laptop without authorisation’.368

364
At pages 11-12 of the Transcript for day 11 of the hearings held on 5 March 2019.
365
Ibid. page 23.
366
Para 9.3.9.3 of Mr Ntuane’s statement signed on 5 March 2019.
367
Para 9.3.8 of Mr Ntuane’s statement signed on 5 March 2019.
368
Para 9.3.9.2 of Mr Ntuane’s statement signed on 5 March 2019.

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23. Mr Ntuane said this attitude of the CFO extended to the inconsistent BSC
process and bonus allocation. He stated:

‘8.5.1… I witnessed a number of incidents where salaries were

adjusted for a “select group of individuals”, based on what the CFO
had to say … through collusive behaviour with some of the Executive
Heads.

8.5.2 I witnessed the CFO passing judgement about performance of

staff members, without even knowing their day-to-day operational
responsibilities. This judgement was either negative or positive, based
on whether the CFO liked the employee(s) concerned.’369

24. However, at no stage throughout his suspension related to the above

investigation was there any interaction with his line manager, Ms More. Mr
Ntuane said that her bad behaviour in meetings meant that he did not know
what he would be dealing with at any time. He stated that:

‘at no point was there an indication, neither was I ever found guilty of
sexual harassment or procurement irregularities

… the factors leading to my suspension and separation from the PIC

… She [Ms More: CFO] led a culture that was highly divisive. [and]
[t]he rampant unfairness in salary reviews, adjustments and bonus
allocations were all orchestrated by the CFO’.370

25. Mr Ntuane raised his concern that salaries and bonuses were not fair,
consistent or objective and that an asset manager the size of the PIC was
calculating bonuses and salaries on spread sheets that were being sent

369
Ibid. Paras 8.5.1 - 8.5.2.
370
At pages 27-29 of the Transcript for day 11 of the hearings held on 5 March 2019 and paras 9.4-10.3 of Mr Ntuane’s
statement signed on 5 March 2019.

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 around by email. As head of IT, he found it very strange that this system was
not upgraded. 371 In this regard he also raised his concern that there was no
asset management system of the Isibaya fund, which was operated on spread
sheets making it also susceptible to manipulation and the compromising of
data integrity, given that only the latest version of a spread sheet is able to be
audited.

26. In a subsequent submission, following the testimony of Mr Pholwane, Mr

Ntuane claimed that Mr Pholwane had misled and lied to the Commission
about him, and that if the audited reports were examined they would show that
there ‘were no material audit findings for the whole entity (IT), and the Audit
and Risk Committee minutes show a positive outlook to the IT control
environment’. Mr Chris Pholwane, EH: Human Resources gave voluminous
testimony that was endorsed by both Ms More and Dr Matjila.

Evidence of Mr Christopher Pholwane (Mr Pholwane)

27. With regard to salaries and bonuses, Mr Pholwane referred to a letter from the
Minister of Finance (2014) which instructed that the PIC must obtain
shareholder approval for any salary adjustment above CPI and the awarding
of any incentives – performance or retention bonuses – for executive directors
and senior management. In 2017, the National Treasury said the PIC must
include the bonus pool in the Corporate Plan and Shareholder’s Compact.
This created a concern for the Board and employees about a continuously
reducing bonus pool. This was further aggravated by a National Treasury
instruction in 2018 that 20% of total personnel expenditure will be the amount
of the pool, which resulted in a further reduction of the funds available. 372

371
At page 38 of the Transcript for day 11 of the hearings held on 5 March 2019.
372
At page 53-75 of the Transcript for day 2 of the hearings held on 22 January 2019.

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28. The difference between what the PIC’s remuneration policy provided for and
what the National Treasury’s instructions resulted in, was significant. The
PIC’s provisions for 2015/16 was R116 436 429, while the shareholder
approved R96 369 127; for 2017/18 the PIC’s policy provided for R239 920
660 and that approved by the shareholder was R123 398 800 – nearly half the
amount as per the PIC remuneration policy. Such a severe reduction had a
significant impact on staff morale.

29. Mr Pholwane also testified in relation to the allegations of victimisation in the

PIC, a topic dealt with in ToR 1.12, below. He said that the people who
complained about victimisation, demotion or removal from their positions had
been affected by the restructuring process. He conceded that there was a level
of mistrust and fear prevalent in the PIC at the time of the climate survey,
adding that the survey was conducted shortly after the restructuring process
and there were ‘residual ill feelings’ among employees at the time.373 Mr
Pholwane submitted a statement to the Commission in response to allegations
made in the testimony of Mr Motimele and the PIC Union. In the statement, he
referred to the Molefi Climate Survey that was commissioned after the
restructuring process. Mr Pholwane states in his statement that, ‘the survey
plainly cannot be used as an objective basis to come to a conclusion that there
was a culture of discrimination, unfair treatment, harassment and/or
victimisation at the PIC…’374

30. Mr Pholwane’s testimony covered PIC policies on recruitment and

remuneration and how these were to be applied.

373
At page 6 of the Transcript for day 41 of the hearings held on 28 May 2019.
374
Para 2.8.4 of Mr Christopher Pholwane’s statement signed on 2 August 2019.

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Evidence of Ms Matshepo More (Ms More)

31. In her testimony, Ms More responded to a number of the issues raised.

Distancing herself from any responsibility, notwithstanding that HR reported
directly to her as the CFO. Ms More stated that the HR model did not reside
in her office, and it was the EH: HR, Mr Pholwane, who permitted those who
needed to know, access to the information. Ms More stated that she ‘can’t
refuse a model that does not reside within my team …’375 Ms More also said
that her role, in relation to HR reporting directly to her, was for administrative
purposes only.376

32. On Mr Ntuane’s assertions that there was a reduction in the results of his BSC,
and that this was done while he was on leave and without discussion with him,
Ms More responded by talking about a ‘negative rating’ that was introduced
into his assessment which resulted in a reduction in his BSC. Ms More said
she could not remember whether this was discussed with him or not.377 When
asked about keeping records of her discussions as a CFO and line manager
with her direct report, EH of IT, Ms More said there were no minutes or records
because, ‘ there will never be a decision that’s made, it is in the form of
guidance … I don’t have a single decision that I could say single-
handedly…’.378

33. Ms More provided information on how Mr Brian Manuka (Mr Manuka), a

general manager in the Finance department reporting to the CFO, was
awarded a gross salary increase of almost R1 957 975. The allegations were
that this adjustment was made without any rationale as to why or how it was
determined, and that Mr Manuka and Ms More worked together when they

375
At page 9 of the Transcript for day 46 of the hearings held on 25 June 2019.
376
At page 47 of the Transcript for day 46 of the hearings held on 24 June 2019.
377
Ibid. page 121.
378
At pages 116-117 of the Transcript for day 45 of the hearings held on 24 June 2019.

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 were both employed at Deloitte. In her response Ms More stated that the
increase did not only apply to Mr Manuka and was given as a result of the re-
grading process, which was based on principles and was effected across the
board. She reiterated that there were no issues regarding the increases
because they were awarded as part of the remuneration policy.379

34. With regard to assessing performance, Ms More said that there was a
moderating committee that she was part of that deliberated on performance.
It would, as part of the process, question line managers on performance and
motivation as this pertains to the BSC rating proposed.380 She saw
accountability as being in place and effective because ‘it is sitting in their
balance score card inside their KPI in terms of performance’381, reflecting how
important the BSC was to employees and their remuneration. Clearly for Ms
More, accountability was limited to performance indicators.

35. Addressing the question of the incentive schemes at the PIC, Ms More said
that this was a big issue in the PIC and a serious bone of contention,
acknowledging that ‘the manner that we implement the remuneration policy
incentive has actually caused unhappiness in the PIC’.382 She further admitted
that the issues raised by Mr Muller regarding the LTI that he was due, but not
paid, was correct, and that the unhappiness with the processes had resulted
in the establishment of a union at the PIC.383

36. On the matter of a freeze on new appointments, Ms More stated that this was
done to get everyone to reorganise their priorities, and ‘for every executive
head to go back and review and identify the critical positions so that it’s not

379
At page 125 of the Transcript for day 45 of the hearings held on 24 June 2019.
380
At pages 124-125 of the Transcript for day 45 of the hearings held on 24 June 2019.
381
At page 57 of the Transcript for day 45 of the hearings held on 24 June 2019.
382
At page 6 of the Transcript for day 46 of the hearings held on 25 June 2019.
383
Ibid.

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 just filling up vacancies…’ but ‘the freeze was not due to budget
constraints’.384

Evidence of the National Union of Public Service and Allied

Workers Union (NUPSAW)

37. The National Union of Public Service and Allied Workers Union (NUPSAW)
appeared before the Commission. It is a registered trade union under the
umbrella of the SA Federation of Trade Unions (SAFTU), with a branch
established in the PIC in 2018. In their evidence they stated that:

‘The idea of organising workers within the PIC came about by the
need to change the culture of fear and victimisation… prevalent within
the company. There is also a lack of transparency and … unfair labour
practices when it comes to remuneration and performance, incentive
calculations…’385

38. On remuneration and performance issues, NUPSAW stated that staff

members wrote to the Chairperson of the Board, Deputy Minister Gungubele,
expressing their concerns about the delay in payment of the STI. In the
meeting between the two parties, their evidence stated that ‘at a meeting with
staff held on 21 September 2018, Mr Gungubele revealed that the STI for staff
members is authorised by the PIC’s Board upon recommendation of the
HRRC, and not the Minister of Finance’. This would be in line with the PIC’s
remuneration policy. The level of NUPSAW’s distrust of the PIC’s
management is evident in their statement that ‘management had presented a
narrative that suggested the payment of the staff STI was delayed by the
Minister of Finance (Mr Mboweni) who was unwilling to sign off on staff
bonuses.’ The union stated that, ‘To this day, staff still do not understand the

384
At page 8 of the Transcript for day 46 of the hearings held on 25 June 2019.
385
At page 66 of the Transcript for day 48 of the hearings held on 2 July 2019.

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 shareholder’s involvement in the determination of staff bonuses and require
clarity on the role of National Treasury in this matter.’386

39. With regard to the Long-Term Incentive (LTI), a staff retention scheme for
senior employees only, NUPSAW stated as follows:

‘the LTI process is unclear and dissatisfactory, as staff members who

are conditionally allotted this performance reward to not receive
letters confirming such allotment. This leaves the process open to
undue meddling with the reward amounts to be paid at the time of
vesting. In some cases the policy has been changed and
retrospectively applied to the detriment of those who previously
qualified …’.

40. With regard to the re-grading process, NUPSAW said the ‘process undertaken
was unclear to staff who felt that there were many inconsistencies and a lack
of transparency, with vast discrepancies between employees in similar roles
and grade bands. Many employees were also dissatisfied as their executive
heads could not explain or justify their re-grading. This created much distrust
with the process and Exco . . .’.

Findings

41. The evidence givene to the Commission was from a range of very senior PIC
employees, many of them having attained positions of leadership, including
being Executive Heads of functions and departments. The issues raised,
including the level of non-participation in the climate survey, reflects deep-
seated discontent, mistrust, a strong sense of grievance and being treated
unfairly.

386
At page 2 of the NUPSAW statement dated 2 July 2019.

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42. The lack of transparency in the process followed by the moderation
committee, poor communication to employees and the exclusion of executive
management from the various decision-making and evaluation processes has
led to a breakdown of trust between employees and management, as well as
between executive management, the executive directors and the Board.

43. The responses of those in positions of responsibility for the HR function, both
Mr Pholwane and Ms More, were defensive and dismissive.

44. The actions of the Minister of Finance and National Treasury created
confusion and uncertainty among employees and appear to violate the
remuneration policy of the PIC and its contract with PIC employees.

45. From all of the testimony quoted above and elsewhere in this report, the
Commission finds that there are discriminatory practices with regard to
remuneration and performance awards of PIC employees.

Recommendations

46. Shareholder proposals should be prospective, not retrospective, and the

Shareholder Compact should be agreed on for a defined period, for example
three years, and then reviewed to reflect proposed changes.

47. Shareholder intervention should be fair, taking account of the agreed policies
and agreements that the PIC has in place with its employees.

48. Dates for payment of bonuses, STIs and LTIs should be communicated at the
start of each year to provide the necessary certainty to all employees.

49. The Board of the PIC should ensure greater transparency, fairness and
inclusiveness with regard to salaries, grading, performance criteria and
balanced score card assessments.

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50. Performance balanced score cards should be relevant to the work performed
and the incentive policies and should not be used as a tool or implicit threat to
ensure a compliant or subservient employee.

51. The Board should take steps to rebuild staff morale through fairness in
performance assessments, remuneration and certainty regarding the bonus
policy.

52. The moderating process needs to be transparent, the principles applied clearly
set out, and the outcome, including any changes, whether positive or negative,
timeously discussed with each employee individually.

53. The remuneration and incentive policies of the PIC should be transparent,
clearly communicated and adhered to.

54. The Board of the PIC should institute a new climate survey to be conducted
within a month of the appointment of the new PIC CEO in order to form a base
line from which to measure progress in the organisation.

55. An independent professional body should be commissioned to review the re-

grading process and its outcomes, to be appointed by the Board and to finalise
its report by end April 2020.

56. The Board needs to urgently address the level of misinformation and distrust
that prevails in the PIC.

57. Mr Pholwane should be the subject of disciplinary action for his alleged
improper conduct in falsifying the results of the second climate survey, thereby
misleading his senior management, as well as the Board. If the above
allegations are true, his conduct was dishonest, misleading and seriously
undermined the functioning of the PCI.

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58. It is clear that on Ms More’s watch many of the critical areas so vital to the
functioning of the PIC developed very serious problems. This includes:

58.1. Remuneration;

58.2. Grading;

58.3. Performance evaluation and incentives;

58.4. Work culture experienced by the employees

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TERM OF REFERENCE 1.12:

‘Whether any senior executive of the PIC victimised any PIC employee.’

1. The evidence before the Commission presented by employees and previous

employees was very clear that employees alleged victimisation by senior
executives of the PIC, in particular the former CEO, Dr Matjila, the CFO,
Matshepo More and, to a lesser extent, the Executive Head: Human
Resources, Chris Polwane.

2. The former CEO, Ms More and Mr Pholwane all denied these allegations in their
testimony before the Commission.

3. The fact that there existed a culture of fear and victimisation within the
organisation even before 2015, has been established independently and
objectively by external service providers in what is called a ‘climate survey’. It
was also confirmed in evidence by Mr Vuyo Jack, former PIC Board member,
who initiated an in-depth investigation on behalf of the PIC Board during
2013/2014. In his statement he refers to the survey conducted by Deloitte as
follows:

‘24. Deloitte was commissioned in August 2013 to conduct a survey

of the working conditions at the PIC through staff interviews, 134 staff
members were interviewed. The reason the board commissioned the
survey was because the[re] was mounting tension in various sub-
committees and EXCO.

25. Some of the pertinent findings of the climate survey presented to

the PIC Board were as follows:

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 • Fear culture and not unified;

• Lack of strategic direction;

• Management by fear and poor people management;

• Management does not have employees’ best interest at heart;

• Blame shifting and poor decision-making abilities;

• Do not address problems; and

• Moving goal post.’387 (sic)

4. Mr Diamond Motimele in his evidence referred to the climate survey conducted

in 2017 as follows:

’21. An independent service provider was sourced to undertake this

project. The climate survey was conducted between October 2016
and May 2017. The survey was rolled out in two phases. The first
survey attempt could not attract employees. The participation rate
was very low such that the survey had to be retaken.

22. Despite the assurances with regard to anonymity and

confidentiality of participants, employees were uncomfortable to
participate, citing that they would be tracked through the system and
harsh consequences would follow. It was clear that employees were
not interested in participating and this confirms the prevalence of fear
within the organisation.

387
Paras 24-25 of Mr Vuyo Jack’s statement signed on 4 March 2019.

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 23. The second phase (re-take) was conducted both manually and
electronically between December 2016 and January 2017. Like the
initial survey, the uptake was also very slow. Employees were
concerned that their identity will be exposed and insisted that the
survey questionnaire exclude demographics i.e. (race, gender,
occupational level, tenure etc.). Once more, the above issues
highlighted the exten[t] of fear prevalent within the PIC.

24. On several occasions, as the project was unfolding, I suggested

to my line manager that we needed to engage with CEO with regards
to the observations relating to employees’ poor participation and
perceptions of fear as well as possible victimisation. I sensed a strong
reluctance by my line manager to meet with the CEO which was
surprising considering that issues of organisational culture are within
his purview. For this reason, the CEO needed to be kept abreast of
the developments in this regard and be sensitised of the potential
outcome of the survey and the impact thereof.

25. During various interactions with my line manage regarding work

and related activities, it was my observation that he wanted to instil
fear on me to ensure that his views and opinions around all areas of
work in HR are accepted without question, even though at times they
tended to be contrary to critical corporate governance values and best
practices.’388 (sic)

5. Various senior employees have testified to being victimised by Dr Matjila, Ms

More and Mr Pholwane. These include:

5.1 Mr Ntuane the former head of IT;

388
Para 21-25 of Mr Ramabu Diamond Motimele’s statement signed on 2 July 2019.

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5.2 Ms Menye, the Executive Head of IT;

5.3 Ms Mathebula the present Company Secretary;

5.4 Mr Paul Magula, the former Executive Head of Risk;

5.5 Ms Pamela Phala, former Head of Legal; and

5.6 Mr Diamond Motimele from Human Resources;

to name but a few. What is strikingly obvious is that the individuals listed above
are all senior employees.

6. The modus operandi followed by the alleged perpetrators, in most cases, was
to make use of a so-called whistleblower report accusing the employee of
some or other impropriety. This would inevitably be followed by a disciplinary
hearing and eventual dismissal. The exception was Ms Menye, who was
charged with leaking information to third parties that resulted in the infamous
Nogu/Noku emails accusing the former CEO and CFO of impropriety.

7. The victimisation was direct and/or indirect. The ‘victim would be told to his/her
face that he/she is not wanted in the organisation’ or indirectly by excluding
him/her from meetings or by way of manipulation of remuneration and/or
exclusion from eligibility for short and/or long-term incentives. The other
method used was to promote a more junior employee over the head of his/her
senior, to whom he/she was reporting. This promotion method was used in the
risk and legal department with devastating effect on the morale in the two
departments.

8. In her evidence, Ms Pamela Phala (Ms Phala) stated that she was Executive
Head: Legal Counsel Governance and Compliance, and that due to her refusal
to accept inappropriate instructions, she was undermined and demoted. Ms

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 Phala’s statement reflects her refusal to include a particular firm of attorneys
on a short list to be appointed to a panel that the then CIO (Dr Matjila) insisted
on; and her disagreement with him in signing off on an investment in
Mozambique notwithstanding that the PIC mandate did not permit investing
offshore at the time.389

9. Furthermore, Ms Phala states that in late 2015 at a staff meeting where they
were informed of a restructuring that would take place, she was surprised that
Dr Matjila introduced Mr Ernest Nesane (Mr Nesane) as Acting Executive
Head; Legal. Mr Nesane had been appointed by Ms Phala as a junior lawyer.
‘I continued to manage a corporate legal department under the leadership of
Nesane … who side-lined me, preferring to go directly to my subordinates’.390

10. A serious concern is that a number of the Executive and Board members who
testified before the Commission appeared to be totally unaware of the culture
of fear and victimisation in the organisation. The culture of an organisation is
set from the top, yet a number of the Board and executive directors (the CEO
and the CFO) appeared to be totally out of touch with the prevailing climate of
fear and the culture of victimisation in the organisation. The CEO conceded,
however, at least in respect of the CFO, that she was the main role player
accused of victimisation; that he realised this and made an attempt to ’coach’
her. It is for this very reason that an employees’ union was established at the
PIC and as at September 2019 the union represented more than 60% of the
workforce at the PIC. In the Commission’s view, the probabilities are
overwhelmingly in favour of the employees’ version that there was a culture of
fear and victimisation in the PIC.

389
Para 7.5.1-7.5.2 of Ms Pamela Phala’s statement signed on 28 March 2019.
390
Para 7.7.3 – 7.7.5 of Ms Pamela Phala’s statement signed on 28 March 2019.

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Finding

Senior executives at the PIC abused their positions of trust and responsibility
and victimised employees, contributing to a culture of fear that existed, and to
some extent still exists, at the PIC.

Recommendation

11. The new Board should address the matter urgently and take corrective
measures to rebuild confidence and trust in the PIC executive, Board and
processes.

12. Such measures should include:

12.1. Open discussions on the results of a new climate survey that should be
conducted within three months of the appointment of the new PIC CEO;

12.2. An internal communication programme ensuring awareness among all

staff of signs of bullying, abuse of office and misuse of
promotions/incentives/salary increases or performance assessments to
intimidate employees;

12.3. Providing a safe platform for employees at all levels to raise their
concerns.

12.4. A leadership and management programme for all incumbents who hold
managerial positions to strengthen their skills.

12.5. Implementing a mentorship programme, using both internal and external

mentors, to strengthen leadership throughout the organisation.

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12.6. Ensuring an appropriate coaching programme is in place, and both
mentorship and coaching must be compulsory for all executives and
senior management.

12.7. Putting in place programmes and activities that will build a core
leadership team effective across the different levels of management.

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TERM OF REFERENCE 1.13

‘Whether mutual separation agreements concluded in 2017 and 2018 with

senior executives of the PIC complied with internal policies of the PIC and
whether pay-outs made for this purpose were prudent.’

Introduction

1. The above Term of Reference (ToR) was considered during the Commission’s
hearings and through further supplementary documents that were supplied to
the Commission by relevant parties. Two cases were specifically dealt with
affecting two senior executives, who, at various times, occupied the position
of Executive Head of the Information Technology (IT) department of the Public
Investment Corporation (PIC), namely:

1.1. Ms Menye; and

1.2. Mr Luyanda Ntuane (Mr Ntuane)

2. Given that the ToR specifically mentions the years 2017 and 2018, the
Commission shall inquire into, and make findings and recommendations only
in relation to Ms Menye; and utilise the matter of Mr Ntuane for comparison
purposes. Mr Ntuane left the PIC in May 2016.

3. Before embarking on the details of Ms Menye’s Mutual Separation Agreement

(MSA) with the PIC, various high-level matters regarding human resources at
the PIC have to be dealt with.

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PIC Policies

4. In order to determine if the MSA between Ms Menye and the PIC complied
with internal policies of the PIC and whether pay-outs made for this purpose
were prudent, various high-level policies and procedures have to be
examined.

5. Issues of human resources at the PIC are managed at high levels. They are
handled by the suspended Chief Financial Officer (CFO), Ms More and the
Executive Head of Human Resources (EH:HR), who is currently Mr Pholwane
who reports directly to Ms More. The CEO of the PIC also has a say on HR
matters.

6. The Board’s role with regard to HR is delegated to the Human Resources and
Remuneration Committee (HRRC) board subcommittee. Its terms of reference
include attending to:

6.1. the PIC’s remuneration issues, including remuneration policies affecting

senior management and other employees;

6.2. the approval of the human resources strategy crafted by management; and

6.3. not undertaking any management duties, but acting in an oversight role,
including dealing with the exit of employees. 391

7. The next level of HR governance is found in the Delegations of Authority

document within the PIC (DOA). The key delegations in the DOA are in the
domain of the Chief Executive Officer (CEO) and the EH:HR, where much of
the authority is vested.

391
Section 5 of the Terms of Reference for Human Resources and Remuneration Committee, July 2018

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8. Clause 8 of the DOA covers HR issues and deals variously with matters that
include changes to the organisational structure, recruitment, remuneration
and employee relations. In particular, sub-clause 8.6 deals with termination of
service (TOS) for employees and sub-clause 8.6.1 indicates that any TOS
must have the final approval of the CEO and be agreed to by the EH:HR.

9. Then the HR department follows. It is the key department responsible for

human resources, including implementing the relevant policies in recruitment,
remuneration, performance management and disciplinary procedures. It also
assists line managers in other departments of the PIC with human capital
matters, which are carried out by HR partners specifically allocated to various
departments.

Matters Relating to Ms Menye

10. Having set out the background, the issue of the MSA between Ms Menye and
the PIC is addressed below.

11. During the hearings, the MSA (which relates to the separation of the Executive
Head: Information Technology, Ms Menye, from the PIC) came into focus.

12. Ms Menye was employed by the PIC on 16 November 2016 and was
suspended on 20 November 2017. The MSA between Ms Menye and the PIC
is dated 11 April 2018.

13. The issue of Ms Menye’s MSA was surrounded by controversy – it was also
covered in the media - and was first dealt with by Mr Pholwane in his statement
to the Commission dated 21 January 2019 and during his testimony. Mr
Pholwane stated the following:

13.1. Following the suspension and disciplinary hearing of Ms Menye, and from
the last quarter of 2017 until April 2018, there were attempts to enter into

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 an MSA between Ms Menye and the PIC. This was encouraged by the
Chairperson of the disciplinary hearing, Adv. Nazeer Cassim SC.

13.2. During the disciplinary hearing, the legal representatives of Ms Menye and
the PIC engaged in negotiations and it was finally agreed that an MSA
would be entered into.

13.3. Mr Pholwane said he was in touch with the CEO, Dr Daniel Matjila (Dr
Matjila) during the negotiation process and that Dr Matjila authorised him to
engage the parties on the terms of the MSA. Mr Pholwane confirmed that
he signed the MSA. However, it has been disputed whether he was
authorised to sign it as this was the province of the CEO. As indicated in
paragraph 8 above, clause 8.6.1 of the DOA clearly indicates that only the
CEO can approve a TOS, with the agreement of the EH:HR.392

13.4. In her testimony former board member Ms Zulu said she found it strange
that the settlement with Ms Menye was signed by the Executive Head: HR,
Mr Pholwane instead of the CEO and that according to the DoAs, Mr
Pholwane did not have the authority to sign such an agreement. In
paragraph 15 of her testimony, Ms Zulu testified that ‘We (the Board)
resolved that Ms Menye and Ms Mathebula must be reinstated …’

14. This ToR is thus centred on two issues, namely:

14.1. if the MSA complied with internal policies of the PIC; and

14.2. whether the pay-out made for this purpose was prudent.

392
At page 87 of the Transcript for day 2 of the hearings held on 22 January 2019.

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15. To address how the MSA came about and who initiated it, below are
exchanges between Mr Pholwane and members of the Commission as per
the transcript.

‘ADV JANNIE LUBBE SC: Thank you, Mr Commissioner. The next

issue is whether mutual separation agreements concluded in 2017
and 2018 with senior executives of the PIC, complied with internal
policies of the PIC, and whether pay-outs made for this purpose were
prudent.

MR CHRIS PHOLWANE: Commissioner, if I can just maybe deal with

that…..The mutual agreement generally become an outcome of a
disciplinary hearing, and I think its common cause that in any
disciplinary or a dispute, you might seek for a resolution of that
dispute. So in most cases it will either be advanced by a disputing
party, or it could be initiated by the Chairperson of the hearing….

So the chairperson of the hearing indicated whether the parties are

amenable to resolving the dispute at that point in time...

… I was the employer representative in that case in point, delegated

by the CEO at the time. I then informed and engaged with the CEO
and said CEO – there's a matter before us before we can continue
with the disciplinary hearing that are we amenable to a mutual
separation discussion, as it were.

Then he indicated, Chris, there's no harm in exploring that alternative.

Let’s see how it goes. And from that basis, you know, it was made in
good faith, and both parties participated and voluntarily so, and had

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 legal representation and then the mutual agreement was concluded.’
393

16. As to whether Mr Pholwane was authorised to sign the MSA, the exchange
below refers:

‘ADV JANNIE LUBBE SC: Who signed the separation agreement on

behalf of the PIC?

MR CHRIS PHOLWANE: So I was the employer representative, so I

did sign on that behalf. So I was delegated at the time by the CEO to
the affairs of representing the PIC so I signed it.

ADV JANNIE LUBBE SC: Now can I ask you, Mr Pholwane, since
date of signature of this separation agreement till last night did
anybody at the PIC ask you about your views on the merits of this
agreement?’ 394

17. Mr Pholwane was also engaged on whether he thought the amount paid was
prudent. He indicated that the MSA was precedent setting, as per the
exchange below.

‘MS GILL MARCUS: … this dissatisfaction about this particular mutual

separation agreement. Were there other separation agreements that
had been signed before and what is the issue in this one that has
caused such repercussions with Board and shareholder… surely the
most important question is the terms because you set precedent with
terms.

393
At pages 77-78 of the Transcript for day 2 of the hearings held on 22 January 2019.
394
At page 87 of the Transcript for day 2 of the hearings held on 22 January 2019.

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 MR CHRIS PHOLWANE: So definitely it was (a) precedent settlement
which dealt with the value of 29 months of the guaranteed pay of the
affected individual

MS GILL MARCUS: So they were paid for more than two and half
years?

MR CHRIS PHOLWANE: Yes, that is correct, yes. So I would imagine

from a precedent point of view, so that would be the issue …

The settlement on its own, it’s an outcome of a negotiation between

the two parties where there would be a position expressed and in this
respect there were issues that were tabulated to the employer.
Amongst them was the potential loss of incentives, both short term
and long term, if the employee was to exit the organisation and then
they would also look at the potential to be able to be employed within
a specific period of time, as we all have an appreciation of the
unemployment rate in South Africa and opportunities in respect of
certain skills.’ 395[our emphasis]

18. Mr Pholwane was further engaged on whether the payments were undertaken
in accordance with PIC policies. However, he indicated that there was no
policy on MSAs. He went on to address the issue of prudence of the MSA pay-
out and admitted that it was excessive and had never been done before.

‘CHAIRPERSON: Just to be clear, so according to you, including all

the calculations you mentioned, was this done within the PIC policies?

MR CHRIS PHOLWANE: Ja, within the policies - as I referred to, you

know, from a policy point of view it’s an outcome of a disciplinary

395
At pages 87-88 of the Transcript for day 2 of the hearings held on 22 January 2019.

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 hearing and then you may want to settle. We - you don’t (have) policy
or have something that says that you will have mutual settlement, you
know, as a form of a policy so there’s a decision and a sanction or you
arrive at a certain decision in disciplinary hearings and then you’ll deal
with that.

What probably the Commissioner may want to direct the question is

to (whether this) was prudent? ….Do I, as the head of HR, think that
it’s excessive? Yes I do. As I indicated it was a precedent settlement,
we’ve never had anything like that. We’ve had settlements before and
none exceeding 12 months, if I’m not mistaken so we had one for
about 12 months or so – I mean, for about ten months and six months,
those that I can recall. In some instances less than that period but
none (were) exceeding 24 months. So this would have been the first,
so it is precedent setting.’ 396 [our emphasis]

19. Ms Menye submitted a statement to the Commission dated March 2019. In

paragraph 163 of her statement, she said the following:

‘The total final settlement amount was R7 250 000.00. This settlement
amount included R1 500 000.00 performance bonus. The
performance bonus was paid without any performance evaluation and
adherence to PIC policies.’ 397

20. During her testimony, she expanded on the above issues as follows:

‘I told my legal team to discuss with the PIC legal team. When they
came back to me they said PIC is proposing that they pay me a
settlement of 24 months salary which is equivalent to, I can’t recall

396
Ibid. pages 89-90.
397
Para 163 of Ms Menye’s statement signed on 6 March 2019.

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 equivalent to what the 24 months’ salary and then on top of that they
pay me a performance bonus of five months. So the total amount that
I was paid by PIC is R7.250 million for the duration of 29 months and
that was divided into 24 months of the settlement and the five months
of the performance bonus. [our emphasis]

MR EMMANUEL LEDIGA: You say in (paragraphs) 163 and 164 that

your settlement was carried out not in keeping with the PIC policies -
is that correct?

MS VUYOKAZI MENYE: Yes and the reason why I am saying this

was due to the evidence that was given in this Commission of Inquiry
by the Executive Head of HR.

MR EMMANUEL LEDIGA: Yes.

MS VUYOKAZI MENYE: When you asked him whether was this in

line with PIC policies and he said there is no policy that is…(in)
support of that and I was actually shocked as I was listening to that
and why because he is the same person who signed the settlement
agreement and which policy mandated him to sign the settlement
agreement.

MR EMMANUEL LEDIGA: So it did flout the policies then?

MS VUYOKAZI MENYE: Yes, yes there was no governance process

whatsoever that was followed in terms of this.’ 398 [our emphasis]

21. Mr Pholwane indicated that he was delegated by the then CEO, Dr Matjila, to
negotiate the MSA and he also went on to sign the MSA. This is not in keeping

398
At pages 51-52 of the Transcript for day 12 of the hearings held on 6 March 2019.

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 with the policies of the PIC as he only got a verbal delegation/instruction from
Dr Matjila and not a written one. The exchange below refers:

‘MR CHRISTOPHER PHOLWANE : 'The Chief Executive Officer was

required in writing to delegate to the Executive Head of Human
Resources, Public Investment Corporation, Chris Pholwane, the
authority to sign the settlement agreement with Menye.’ The legal
opinion further goes into other components in terms of what is at
issue. I ’m not sure whether I should look at that.

MS GILL MARCUS: I think an important question in the letter or the

document you’re referring to is 19.4 as head of HR… you received
only verbal instruction or authority to sign the settlement agreement
from Dr Matjila, is that correct?

MR CHRISTOPHER PHOLWANE: That is correct.

MS GILL MARCUS: Would you normally do such a thing without a

written instruction?

MR CHRISTOPHER PHOLWANE: There are instances where – I

think in this one, the values are way too high and I would I agree that
a written instruction would have been required at that time.’ 399

(Emphasis added)

22. Ms Menye went on to say that she should be re-instated as the process
followed in finalising the MSA was not in keeping with PIC policies, as per the
testimony below:

399
At pages 96 the Transcript for day 40 of the hearings held on 27 May 2019.

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 ‘The R7.2 million that they gave me it’s a salary that I could have
earned within a period of two years, hence I am saying that the
Commission must make a determination about this and one of the
things that I’d like the Commission to make a determination about is
to ensure that I am reinstated in my position of an Executive Head of
PIC … taking into consideration the fact that PIC Executive Head of
HR signed… a settlement agreement without any authority or
following any governance processes that are supporting the
settlement agreement that was given to me and actually this
settlement agreement was used as another weapon of victimising one
of the young black females in the country outside of PIC…’400
(Emphasis added)

23. The testimony of Mr Simphiwe Mayisela is also relevant. He was Senior

Manager: Information Security, Risk and Governance at the PIC and was
undergoing a disciplinary process. He stated the following about Ms Menye’s
MSA:

‘The PIC paid the Executive Head of IT a settlement of approximately

R7.25 million, which is equivalent to 29 months’ salary despite her
being with PIC for a period of 18 months. This amount is irregular and
is tantamount to bribery.’401(Emphasis added)

24. It should also be noted that, although in paragraphs 579, 580, 198 and 208 of
Dr Matjila’s statement, he deals with issues relating to Ms Menye, he does not
address the issue of the MSA. Similarly, in her statement, Ms Menye
submitted that she should be re-instated as the process followed in finalising
the separation agreement was not in keeping with PIC policies.

400
At page 53 of the Transcript for day 12 of the hearings held on 6 March 2019.
401
At page 95 of the Transcript for day 11 of the hearings held on 5 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 569 of 794
Matters Relating to Mr Ntuane

25. As discussed above, the aim is not to delve into matters relating to Mr Ntuane,
but to make a comparison between the way in which the case of Ms Menye
and that of Mr Ntuane were dealt with.

26. Mr Ntuane worked at the PIC from December 2012 until his MSA was signed
in May 2016.

27. During his testimony at the Commission, Mr Ntuane made allegations of

victimisation against mainly Ms More.402 Mr Ntuane stated that ‘when my
reporting lines changed to reporting to the CFO, my work life started to take
strain due to ongoing and unresolved conflict between the CFO and
myself.’403During her testimony, and later through an affidavit, Ms More
indicated that Dr Matjila concluded a settlement agreement with Mr Ntuane
even after he was found to have contravened a number of PIC policies,
something that should ordinarily have led to a dismissal.

28. In this instance, the Commission learnt that Mr Ntuane was paid 10 months of
his guaranteed salary; and his agreement was signed by the CEO.

Did the Board Know of the MSA and was it Ratified?

29. Mr Pholwane told the Commission that a joint meeting of the Information and
Communications Technology Governance Committee (ICTGC) and the Audit
and Risk Committee (ARC) (both Board sub-committees) was informed of the
MSA about a week after its conclusion. The memorandum presented to the
Board, written by Dr Matjila, does not request ratification of the MSA and it

402
At pages 34-36 of the Transcript for day 11 of the hearings held on 5 March 2019.
403
Para 8 of Mr Luyanda Ntuan’e statement signed on 5 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 570 of 794
 appears that it was submitted for information purposes only as the MSA had
already been approved and ratified by Dr Matjila. The testimony below refers:

‘MR CHRISTOPHER PHOLWANE: …The terms and conditions of the

agreement were subsequently approved and ratified in writing by Dr
Dan Matjila. In this regard I refer to the submission that was made to
the board in an employee relations report on the 18th April 2018
containing a summary of such terms and conditions attached hereto
marked annexure CP4.404

MR CHRISTOPHER PHOLWANE: … I also followed up in terms of

my submissions of the update to the Board. I think that’s where Dr
Dan has also signed. In other words, one can make inference that that
was therefore a ratification of the agreement itself because the terms
and conditions and the final amount – I mean, the final were indicated
in that report. So that’s the report I referred to that was from the 18
April …405

MS GILL MARCUS: What was the timeline between the approval of

the settlement and tabling to the Board?

MR CHRISTOPHER PHOLWANE: So the settlement was signed on

the 11 April. I tabled the report on the 18 April [2018].’ 406 (Emphasis
added)

404
At page 79 of the Transcript for day 40 of the hearings held on 27 May 2019.
405
At page 96 of the Transcript for day 40 of the hearings held on 27 May 2019.
406
Ibid. page 98.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 571 of 794
Legal Opinion on the MSA

30. Almost a year after the signature of the agreement in April 2018, the Board of
the PIC resolved, in March 2019, to seek legal advice on the MSA. The legal
opinion provided stated that:

30.1. Mr Pholwane was not authorised to sign the MSA; and

30.2. Based on Mr Pholwane’s own version, the payment made to Ms Menye in

terms of the MSA was extraordinary.

31. During his testimony, Mr Pholwane stated the following in relation to the
abovementioned legal opinion:

‘MR CHRISTOPHER PHOLWANE: And thirdly, is the Board, I think

had taken exception particularly to the values. You will recall that a
report to the Board was made in and around the 18 April (2018) earlier
on. So a year later the question surfaced with regards to the
settlement discussion.

When I then gave my reasons they indicated that it is best for the
Board to get a legal opinion on the validity of the settlement
agreement itself. The legal opinion was obtained from Cliffe Dekker,
CDH….’ 407

407
At page 94 of the Transcript for day 40 of the hearings held on 27 May 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 572 of 794
Findings

32. From the inquiry and discussions above, it is found that, by entering into the
MSA with Ms Menye, the PIC did not comply with its internal policies for the
following reasons:

32.1. There was no written delegation of authority for Mr Pholwane to sign the
MSA and a verbal one was not appropriate.

32.2. Mr Pholwane should not have signed the MSA as only the CEO is
authorised to do so.

32.3. This deviation by management did not receive any ratification from higher
bodies of the PIC, in particular the ICTGC and ARC. Though the MSA was
reported to the Board, it did not specifically seek ratification as per the
minutes of the joint-committee meeting that was held a week following the
conclusion of the MSA between Ms Pholwane and the PIC. Instead it was
presented to the Board meeting for information purposes only.

33. In terms of the 29 month guaranteed salary paid to Ms Menye, the amount
was not in accordance with PIC practice as it is significantly above previous
amounts paid.

34. On his own version, Mr Pholwane indicated that the amount was excessive
and out of the ordinary and no evidence to the contrary was offered by others,
including Dr Matjila.

35. Typically, and as confirmed by Mr Pholwane, MSAs signed by corporations

usually would be 6 months’ salary or thereabouts. As such, the MSA between
Ms Menye and the PIC was ‘precedent setting’ and could not be justified.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 573 of 794
36. The CDH opinion confirms the invalidity of the settlement, and the MSA is
found to be invalid. It should not have been concluded and accordingly, Ms
Menye was still supposed to be an employee of the PIC.

37. Dr Matjila breached PIC policies by authorising Mr Pholwane to sign Ms

Menye’s MSA and Mr Pholwane should not have acted on his instructions as
they were not in writing – contrary to the PIC’s policies

38. It should be noted that, subsequent to the Commission’s hearings, and after
seeking legal advice, the (previous) Board decided to reinstate Ms Menye, but
this was not effected as she did not accept the Board’s proposal.

39. However, the PIC has alleged that Ms Menye knew, but did not inform the
PIC, that Dr Matjila was under investigation by the police for corruption and
that she gave super administration rights, especially without limitations on
scope and duration – not in keeping with the PIC IT policies and access rights
policies - to Mr Mayisela who went on to use them for unauthorised purposes.
As such, Dr Matjila said Ms Menye was due to face disciplinary action.

40. The extensive use of disciplinary hearings is disturbing and should be cause
for concern to the Board and the HRRC, particularly given the number of very
senior employees that have been ‘disciplined’, suspended and/or dismissed.

Recommendations

41. It is recommended that the PIC should have a policy on MSAs, which sets out
the process to be followed during the negotiation of an MSA and provide
guidelines for settlements in terms of pay-outs to be made.

42. The PIC must also ensure that when an authority to execute a decision is
delegated, such instruction must be in writing and appropriate to the level of

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 574 of 794
 decision-making required. A verbal instruction on significant matters is not
acceptable practice.

43. Delegations of Authority should be respected and adhered to. If, for any
reason, they are not appropriate, inadequate or in conflict with practice,
amendments should be carefully considered.

44. Due to the fact that the MSA of Ms Menye was invalid, the monies paid to Ms
Menye in terms of the MSA must be returned to the PIC within a month of the
publication of this Report and Ms Menye should be paid her normal
remuneration and benefits from the time she left to the time she resumes
employment at the PIC, should she decide to accept reinstatement.

45. The PIC is to investigate the conduct of Ms Menye in terms of the improper
granting of super-administration rights to Mr Mayisela.

46. The same applies to Mr Pholwane in relation to his alleged improper conduct
in signing Ms Menye’s MSA without the requisite authority.

47. Mr Pholwane’s conduct and role as EH:HR in relation to the allegations of

victimisation against him must be reviewed and concluded within three months
of the publication of this Report.

48. The Board, through its HRRC, must undertake a comprehensive review of the
use of disciplinary processes in the organisation.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 575 of 794
TERM OF REFERENCE 1.14

‘Whether the PIC followed due and proper process in 2017 and 2018 in the
appointment of senior executive heads, and senior managers, whether on
permanent or fixed-term contracts’

Introduction

1. This Term of Reference (ToR) was dealt with during the hearings and arose
from allegations that some PIC executive appointments were not in
compliance with PIC processes. The key allegations centred on issues
affecting two executives:

1.1. Ms Rubeena Solomon (Ms Solomon), who was appointed Executive Head
(EH) of Investment Management from 1 September 2017, and is a senior
executive head; and

1.2. Mr Adrian Lackay (Mr Lackay), who was appointed to the position of investor
relations from 2 April 2018 and is a senior manager.

2. The key allegations were made by two individuals, namely:

2.1. Mr Paul Magula (Mr Magula), who requested the Commission of Inquiry
(Commission) to examine how the two executives were appointed to their
new roles. Mr Magula was the Executive Head of Risk at the PIC until
termination of his employment in April 2018.

2.2. Ms Nomzamo Colleen Petje (Ms Petje), who, in her complaint regarding
victimisation by the PIC, compared her situation with how Ms Solomon and
Mr Lackay were treated.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 576 of 794
3. Mr Christopher Pholwane, the Executive Head: Human Resources, offered
responses to the allegations during his testimony.

The allegations

4. In his statement Mr Magula states that:

‘58. Appointment of certain staff members done without following a

transparent recruitment process.

58.1. Ms. Rubeena Solomon was appointed as an Executive Head:

Investments Support, without approval of organizational structure
changes, advert and interview process. PIC did not have staff
promotion policy unless if I did not know or was established after I was
dismissed.

58.2. Mr. Adriaan Lackay was appointed in the Department of

Communications without an advert and interview process.’408(sic)

5. Ms Petje made similar assertions, comparing her position with that of the two
executives and also commented on their remuneration (paragraph 30-32 Page
11-12 of her statement). On Ms Solomon she said:

30….I am aware of at least one employee whose position was

rendered redundant and she was appointed to a higher position. Her
salary was adjusted to a higher grade. The employee I am referring
to is Ms Rubeena Solomon. She was occupying the position of
General Manager: Investment Management. That position was
inexplicably rendered redundant and she was appointed Executive

408
Paras 58.1-58.3 of Mr Paul Magula’s statement signed on 11 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 577 of 794
 Head: Investment Management. As a result of the promotion, Ms
Solomon's salary was increased by a whopping R953 304.21….

31. If Ms Solomon could be promoted and her salary be automatically

adjusted to a higher grade, nothing prevented the same being done
in my favour. In my view, it is irrelevant that Ms Solomon's promotion
and salary adjustment occurred approximately two years after my
demotion. The treatment accorded to Ms Solomon and the one
accorded to me shows that employees are not treated equally within
the PIC.’409

6. And on Mr Lackay she said:

‘33. The Investor Relations position, which was left vacant during the
restructuring process, was later filled by Mr Adrian Lackay. According to the
documents that were placed before this Commission by Mr Pholwane, Mr
Lackay was initially appointed on an 18-month contract. Some of us were
not even aware that Mr Lackay had been appointed to the position until Mr
Pholwane testified as to the best of my recollection that there was no advert
to this effect. We merely saw Mr Lackay on a daily basis at the PIC. He
attended staff meetings. We wondered why someone who was not an
employee of the PIC attended those meetings. The position was
subsequently advertised on a permanent basis and Mr Lackay was
appointed to it. Surprisingly, Mr Lackay was appointed directly to grade E3.
Mr Lackay's appointment to grade E3 resulted in his salary on that grade
exceeding the salary he was earning on a fixed-term contract by R331
200.00.’410

409
Paras 30-31 of Ms Nomzamo Petje’s statement signed on 19 March 2019.
410
Para 32 of Ms Nomzamo Petje’s statement signed on 19 March 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 578 of 794
7. To understand the processes that were followed, the relevant human
resources policies of the PIC, set out in Mr Pholwane’s statement, are
reproduced below:

‘2.3 Recruitment

2.3.1 Governance

2.3.1.1. The PIC follows the recruitment policy and processes when
sourcing, and appointing employees. Refer to Annexure I for the
Recruitment and Selection Policy.

2.3.1.2. Section 8.2 of the Delegation of Authority governs the

approval process with regards to recruitment remuneration. Refer to
Annexure A for a copy of the Delegation of Authority.

2.3.1.3. The recruitment and selection policy details the following as

it relates to recruitment:

• All the processes that need to be complied with when

recruiting for a vacant position;

• All the processes that need to be complied with when

recruiting an employee who is required to be FAIS
Representative

• All the processes that need to be complied with when

recruiting an employee on a temporary basis and fixed term

• All the processes that need to be complied with when

recruiting a foreign national

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 579 of 794
 • All the processes that need to be complied with when
seconding an employee

• All the processes that need to be complied with regards to

promotions.

2.3.1.4. Sections 5 to 9 of the recruitment and selection policy detail

the steps that need to be followed leading to the interview process.
The following steps need to take place:

Step 1: Vacancy request (refer to section 5 of policy)

Step 2: Advertising the position (refer to section 6 of policy)

Step 3: Shortlisting and screening (refer to section 7 of policy)

Step 4: Psychometric and competency based assessment when

applicable (refer to section 8 of policy)

Step 5: Interview (refer to section 9 of policy).’ 411

Process followed in respect of Ms Solomon

8. The history of Ms Solomon’s appointment as Executive Head goes back to

2015 when the PIC engaged in a restructuring process. The 2015 restructuring
process created major changes in the functioning of the PIC, including
changes to executive and other staff positions. From the documentation
provided by Mr Pholwane, the restructuring process was approved by the
relevant authorities, including the Human Resources and Remuneration
Committee (HRRC), the Board and the Minister of Finance as the shareholder

411
Para 2.3.1 of Mr Christopher Pholwane’s statement signed on 22 January 2019; for additional detail, see also ToR
1.13.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 580 of 794
 representative. Thus, the assertion by Mr Magula that there was no approval
of the restructuring is incorrect.

9. A further review of the structure took place in 2017 and was approved by the
Board and the Shareholder as per the documents provided by Mr Pholwane
during his testimony. This also affected Ms Solomon’s position as Mr
Pholwane indicated:

‘… the position of General Manager: Investment Management was

reviewed and enhanced to Executive Head: Investment Management.
This then meant that the position of GM: Investment Management
was redundant. The incumbent for the GM: Investment Management
position was then absorbed [in]to the position of Executive Head:
Investment Management.’412

10. Approval of this position was addressed in a memorandum by Mr Pholwane

to the Chief Executive Officer, Dr Matjila (Dr Matjila) and Chief Financial
Officer, Ms Matshepo More (Ms More) on 17 August 2017.

11. However, three critical issues emerge from this appointment.

11.1. According to PIC policy, positions for new appointments have to be

advertised to afford suitable candidates an opportunity to apply. Mr
Pholwane said that the PIC does at times opt to give internal candidates a
chance to fill positions before seeking external candidates.

11.2. Typically, the position is advertised, and the subsequent recruitment

process follows as per steps 1-5 of the recruitment and selection process
above. It entails short listing, interviewing and selection of candidates. Mr
Pholwane said Ms Solomons was absorbed into the position on a

412
Para 2.2.2. of Mr Christopher Pholwane’s statement signed on 22 January 2019; for additional detail, see also ToR
1.13.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 581 of 794
 permanent basis and did not present any evidence of an advertising
process.

11.3. The issues of company restructuring and redundancies of positions are

regulated by section 189 of the Labour Relations Act, 66 of 1995, where it
seems to be suggested, in subsection (3)(b), that before proposing
dismissals on the basis of operational requirements, an employer must
consider alternatives, which would include an attempt to employ redundant
employees in alternative positions.

11.4. Section 16 of the Recruitment and Selection policy lays out the process for
creating a career development and progression for employees. Given that
Ms Solomon appeared to be suitably qualified for the position, this could be
interpreted as a promotion as per section 16. But without following the
agreed processes, the approach taken is open to interpretations of
favouritism and exclusion of an opportunity for other internal candidates to
apply for the position. This is all the more so given the significant salary
increase that accompanied the new position.

11.5. The process of appointing executive heads was also addressed by Senior
Manager: Corporate Legal, Ms Pamela Phala (Ms Phala) in her testimony:

‘Shortly thereafter, sometime late in 2015, Dr Dan called a staff

meeting … He indicated that there will be a restructuring within the
company. The positions of Executive Heads were introduced and
Acting Executive Heads were introduced at the meeting. The people
who were heads of departments automatically became acting
Executive Heads. Dr Dan introduced Ernest Nesane as acting
Executive Head Legal … When they advertised for the position, I did

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 582 of 794
 not apply having sensed that Dr Dan and Matshepo clearly did not
want me at the institution. (Emphasis added)’413

12. The increase in remuneration of Ms Solomon of the order of R953 304.21 was
the increase from her previous position to the new one, and as such reflected
the salary level that any incumbent in that position would have been paid.

13. Ms Petje herself was negatively affected by the restructuring as her position
was rendered redundant. She was offered a position as an Environment,
Social and Governance (ESG) analyst and from evidence presented to the
Commission, there could well be, but there is no indication that her managers
offered her the position by following PIC processes of advertising and
engaging in a competitive process, either internal or external.

Process followed for Mr Lackay

14. Mr Lackay was appointed on a permanent basis in 2018 in a position of

Investor Relations in the Corporate Affairs Department. According to the
evidence of Ms Petje, Mr Magula and Mr Pholwane, the association of Mr
Lackay with the PIC commenced and progressed as follows:

14.1. Ms Petje indicated that before being appointed permanently in March 2018,
Mr Lackay had been serving on a fixed term contract for 18 months at the
PIC, effectively as a contractor. Section 13.6 of the Recruitment and
Selection policy says these contracts ‘should follow the normal recruitment
process’, of creating a vacancy, advertising, short listing, interviewing and
finally appointing the successful candidate. Ms Petje queried why this
position was not permanently filled immediately after the 2015 restructuring.

Para 7.7.3 of Ms Pamela Phala’s statement signed on 28 March 2019. Note: Ms Phala was the Head of the Legal
413

Department then.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 583 of 794
14.2. Regarding Mr Lackay’s permanent appointment, Mr Pholwane stated that
policies and processes were followed: the position was created by the
restructuring and human resources processes; an internal advertisement
process was complied with; there was a shortlist and in terms of the scoring
process Mr Lackay was the best candidate on the list of three.

14.3. In terms of the increased remuneration for Mr Lackay, in the order of R331
200.00, the approvals from various bodies incorporated changes in
remuneration for new positions that had been created. Various employees,
including Mr Lackay, were awarded substantial increases in remuneration
that accompanied their new positions and roles. Thus, this appears to have
been within the policy and process.

Findings

15. In relation to the appointment of Ms Solomon as Executive Head Investment

Management, Mr Pholwane indicated that the PIC could absorb employees
without advertising and indeed it has happened with numerous employees. It
would appear from the testimony of Ms Phala above that Mr Solomons could
have been appointed in an active capacity and the position thereafter
advertised as it happened with other EHs. The issue of absorbing employees
appears not to be part of policy and yet there is policy on filling positions which
in this instance appears not to have been followed. Thus, subject to the Board
examining this issue of absorption, we hold that the appointment of Ms
Solomons appears not have followed PIC policies and processes. She was
‘absorbed’ into the position. With no evidence presented to the contrary it is
clear that the position was not advertised, either internally or externally, and a
competitive process was not conducted. The Board should investigate if Dr
Matjila, Ms More and Mr Pholwane breached PIC policies in approving the
appointment of Ms Solomon if the Board concludes it was done irregularly.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 584 of 794
16. The approach followed allowed for an interpretation of special treatment of
some employees and unfair treatment or limiting opportunities for others,
particularly given the substantial remuneration increases that accompanied
such appointments.

17. In relation to Mr Lackay’s appointment, Mr Pholwane has supplied certain

evidence to show that proper processes were followed in creating and getting
approvals for the position (fixed term contract) in which Mr Lackay was
appointed, however no evidence of advertising the position and the
interviewing process was provided. According to PIC policy even such
contracts must go through the full recruitment process as provided for in
Clause 13.6 of the Recruitment and Selection Policy which states “The
appointment of Fixed Term Contractors will follow the normal recruitment
process’’. We conclude that the first appointment of Mr Lackay on a fixed
term contract did not follow PIC processes. It would then appear that the senior
managers who appointed him breached PIC policies.

18. However, the second appointment of Mr Lackay on a permanent basis

followed PIC processes and all the prescribed procedures were followed.

Recommendations

19. The following recommendations are made:

19.1. The PIC has reasonable human resources policies and processes in place,
and senior executives should follow these policies at all times.

19.2. Employees need to be, and be seen to be, treated fairly and equally. The
inconsistent application of the policies has the potential for employees to
feel their careers are limited due to favouritism practised at the PIC.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 585 of 794
19.3. Transparency, openness and visible fair employment and promotion
processes and procedures are essential to ensure an environment of trust.

19.4. PIC HR policies should be reviewed by the Board HRRC on a regular basis.

19.5. The Board’s HRRC should regularly evaluate senior promotions and
appointments to ensure that they comply with policies, procedures and fair
practices.

19.6. In respect of the potentially irregular appointment of Ms Solomon and the

irregular first appointment of Mr Lackay, referred to above, Ms More and Mr
Pholwane, who remain in the employment of the PIC, should be further
investigated and, if appropriate, subject to disciplinary charges

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 586 of 794
TERM OF REFERENCE 1.15

‘Whether the current governance and operating model of the PIC,

including the composition of the Board, is the most effective and efficient
model and if not, to make recommendations of the most suitable
governance and operating model for the PIC for the future.’

1. In order to answer this term of reference, the following must be addressed:

1.1. What the most effective and efficient governance and operating model looks
like.

1.2. What the PIC’s current governance and operating model is.

1.3. Whether the PIC’s current governance and operating model is consistent
with the most effective and efficient governance and operating model.

2. This term of reference is core to enabling lessons on past missteps to be

learnt. It is also key in providing the foundation for a best-in-class future for
fund beneficiaries, stakeholders, government and taxpayers. Why is
governance important? The United Nations in the paper What is Good
Governance, helps explain:

‘The concept of "governance" is not new. It is as old as human

civilisation. Simply put "governance" means: the process of decision-
making and the process by which decisions are implemented (or not
implemented). Governance can be used in several contexts such as

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Investment Corporation Page 587 of 794
 corporate governance, international governance, national
governance and local governance.’ 414

3. The paper goes on to explain that there are eight main characteristics of Good
Governance. Good governance is:

3.1. participatory,

3.2. consensus oriented,

3.3. accountable,

3.4. transparent,

3.5. responsive,

3.6. effective and efficient,

3.7. equitable and

3.8. inclusive and follows the rule of law.

GOVERNANCE

Board’s effective functioning guidelines

4. The 2018 revised ‘Guidance on Board Effectiveness’ published by the

Financial Reporting Council (FRC) with the UK Corporate Governance Code,
emphasises the importance of ‘the way we do things around here’ as being a

414
“What is Good Governance". UNESCAP, 2009

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 588 of 794
 key factor and introduces the requirement for boards to report on purpose,
culture and workforce engagement in their annual report. The Guidance
emphasises that the Board should:

4.1. Establish the company’s purpose, values and strategy.

4.2. Assess and monitor culture to ensure it is aligned with the company’s
purpose, values and strategy.

4.3. Ensure effective engagement with, and encourage participation from,

employees.

5. While employees should be able to raise any matter of concern, companies

need to relook at their whistleblowing policies and procedures.

6. Given the challenges the PIC Board has, and is facing the FRC Guidelines
section on decision-making is worth elaborating on. It states that:

6.1. Well-informed and high-quality decision making does not happen by

accident. Boards can minimise the risk of poor decisions by investing
time in the design of their decision-making policies and processes,
including the contribution of committees and obtaining input from key
stakeholders and expert opinions when necessary.

6.2. Meeting regularly is essential for the board to discharge its duties
effectively and to allow adequate time for consideration of all the issues
falling within its remit. Ensuring there is a formal schedule of matters
reserved for its decision will assist the board’s planning and provide
clarity to all over where responsibility for decision-making lies.

6.3. Complex decisions depend on judgement, but the decisions of well-

intentioned and experienced leaders can, in certain circumstances, be

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 589 of 794
 distorted. Factors known to distort judgement are conflicts of interest,
emotional attachments, unconscious bias and inappropriate reliance on
previous experience and decisions.

6.4. There are ways boards can create conditions that support sound
decision-making, for instance separate discussions for important
decisions that cover steps like concept, proposal for discussion and
proposal for decision.

7. The section also identified risk factors that can result in poor decision-making,
including:

7.1. A dominant personality or group of directors on the board, inhibiting

contribution from others.

7.2. Insufficient diversity of perspective on the board which can contribute to

‘group think’.

7.3. Insufficient attention to risk or excess focus on risk mitigation.

7.4. A compliance mindset and failure to treat risk as part of the decision-
making process.

7.5. Insufficient knowledge and ability to test underlying assumptions.

7.6. Failure to listen and to act upon concerns that are raised.

7.7. Inability to challenge effectively, inadequate information or analysis, and

7.8. Lack of time for debate and truncated debate.

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8. South Africa’s King IV Code was updated in 2016. While it builds on the
previous positioning of sound corporate governance, it also simplifies the
principles and reiterates that good governance is not a tick-box or compliance
exercise but to be the catalyst for ‘a shift from a compliance-based mind set
to one that sees corporate governance as a lever for value creation.’ The new
or enhanced features relate to, amongst other matters:

8.1. Fair, responsible and transparent organisation-wide remuneration

8.2. Responsible and transparent tax strategy and policy

8.3. Balanced composition of governing bodies and the independence of

members of the governing body

8.4. Delegation to management and committees

8.5. Performance evaluation of the governing body as well as of key

management individuals and committees

8.6. Risk governance

8.7. Audit committee disclosures

8.8. Technology and information

8.9. Following a combined assurance model

9. King IV also considers the matter of independent non-executive directors and

defines such independence as, among other things, stating that:

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Investment Corporation Page 591 of 794
9.1. Involvement in the day-to-day management of the company (or its
subsidiary) defines the director as executive, while not being involved in
management defines the non-executive director

9.2. Non-executive directors are independent of management on all issues,

including strategy, performance, sustainability, resources,
transformation, diversity, employment equity, standards of conduct and
evaluation of performance.

10. It also states that an independent director should be independent in character

and judgement and there should be no relationship or circumstances which
would affect or appear to affect this independence. Independence is the
absence of undue influence and bias. It recommends that every board should
consider its size, diversity and demographics to make it effective. Diversity
applies to academic qualifications, technical expertise, relevant industry
knowledge, experience, nationality, age, race and gender. Furthermore,
directors should be individuals of courage, and have the relevant knowledge,
skills and experience to bring judgement to bear on the business of the
company, all of which should be assessed prior to any appointment being
made. It recommends that prior to their appointment the directors’
backgrounds should be investigated, with the nominations committee playing
a role in this process.

11. King IV elaborates on the roles and functions of the various chairs,
committees, reporting and evaluation as well as the establishment of key
committees such as Audit, Social and Ethics, the establishment of committees
responsible for risk governance and remuneration as well as a nominations
committee.

12. Deloitte, in a document entitled Duties of Directors, makes the following points
(also see Legal section below):

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12.1. The Companies Act 71 of 2008 codifies the standard of directors’
conduct in Section 76, and sets a very high bar including personal liability
where the company suffers loss or damage as a result of directors’
conduct not meeting the prescribed standard. The Act makes no specific
distinction between the responsibilities of executive, non-executive or
independent non-executive directors, and the codified standard applies
to all directors. Court cases confirm that a director stands in a fiduciary
relationship to the company even if a non-executive director.

12.2. In terms of this standard a director must exercise powers and perform
functions:

12.2.1. In good faith and for a proper purpose

12.2.2. In the best interests of the company

12.2.3. With the degree of care, skill and diligence that may reasonably be
expected of a person carrying out the same functions and having the
general knowledge, skill and experience of that particular director.

12.3. In essence, the Act combines the common law fiduciary duty and the
duty of care and skill. The codified standard applies in addition to, and
not in substitution of, the common law duties of a director. All directors
are bound by their fiduciary duty and the duty of care and skill.

Board Oversight Responsibilities

13. Deloitte, in its document entitled ‘Developing an effective governance

operating model,’415 states that the board is accountable for oversight of the
governance process, while management is responsible for implementing the

415
2013.

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Investment Corporation Page 593 of 794
 policies and procedures through which governance occurs within the
organisation. Three drivers and expectations that have intensified the need for
improved governance are identified, namely the growth imperative,
organisational size and complexity, and regulatory changes. The board’s
governance role includes responsibility for reviewing corporate strategies,
shaping the culture, setting the tone at the top and promulgating the
organisation’s vision, values and core beliefs. It is expected to oversee senior
management’s collective ownership and individual accountability for
regulatory compliance and risk management. The board is accountable for all
aspects of governance, including decision making authority that codifies who
is responsible for making key decisions; organisational structures that define
and clarify responsibilities for operational, control and reporting processes;
and organisational design that is understood by managers, employees and
external stakeholders. Technology and risk oversight policies are also
included in infrastructure oversight responsibilities.

14. A recent article published by Business Law Today, titled Board Oversight and
Governance: From Tone at the Top to Substantive Checks and Balances 416,
states that post the control breakdowns of various companies there seems to
be a change in thinking, evolving from an approach of focusing primarily on
‘tone at the top’ to one of instituting substantive checks and balances and
considering broader aspects of ethics, values and corporate culture, where
boards may in fact take direct responsibility for the checks and balances
related to the CEO and other members of senior management. A substantive
checks and balances approach addresses the role, responsibilities and
relationships among the key elements and players in an organisation’s
governance, controls and oversight system and recognises ‘that a leader’s
role is one of service rather than entitlement … Experience has shown that

416
H Grace Jr., S Prendergast and S Koski -Gafer, Board Oversight and Governance: From Tone at the Top to
Substantive Checks and Balances, Business Law Today, 14 February 2019. Available at:
https://businesslawtoday.org/2019/02/board-oversight-governance-tone-top-substantive-checks-balances/

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 governing structures which consolidate power and authority into fewer and
fewer hands … often fail to meet conceptual ideals if individuals in power come
to feel entitled to do as they please. Without effective oversight and a system
of checks and balances, conditions are ripe for misconduct’417

15. It is against this development of best practice, globally and domestically, that
the functioning of the Board of the PIC should be measured.

Global Best Practice on Governance

16. The PIC has previously undertaken a global benchmarking exercise - this was
also presented to the Commission, by former PIC board member Mr Vuyo
Jack (Mr Jack).

17. At the PIC Governance Workshop held in May 2019, convened by the PIC
Commission (the PIC Governance Workshop) Mr Jack presented a global
benchmarking exercise previously undertaken by the PIC which can be
summarised as follows418:

PIC NORWAY CALPERS CPPIB OTTP

GPFG

Assets US$144 US$1 trillion US$354 billion US$295 C$193

under billion billion billion
Managem (R2,083
ent trillion)
Date 1911 1990 1931 1966 1990
founded
Employe 372 400 2800 1661 1200
es
Type of Asset Sovereign Pension Fund Asset Pension
entity manage Wealth Manager Fund
r Fund

417
Ibid.
418
Table 12, of the presentation, ‘International Benchmarks of Pension Funds’ of Mr Vuyo Jack’s presentation at the
PIC Commission of Inquiry Workshop.

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 Proportio 70% in- 95% in- Approx. 65% Largely Approx.
n of house house managed in- manage 80% in-
assets 30% 5% external house; assets in- house;
managed external Private Equity house Outsource
in-house managed where it is
vs. externally not
externally efficient or
practical to
maintain
equivalent
skills in-
house
Manage Estimate 5 - 6 cents 61.2 cents per 32.8 cents 67 cents
ment fees d 3 - 5 per $100 $100 per $100 per $100
cents
per
R100
Asset 90% in- 0% in 55% in- 15.5% in- 44% in-
allocation country; country; country; country; country;
In- 10 100% 45% global 84.5% 56%
country- global global global global
Global
split
Size of 10-15 8 13 12 11
Board
Board Deputy Governor of Elected Appointed Board
Chair Minister Central annually by by Minister selects
of Bank Board after chair
Finance members consultatio
n with
Board
IC Y N Y in line with N Y in line
process pension fund with
(Board governance pension
involvem model fund
ent) Y/N governanc
e model
Manage Base N/A Base pay; N/A Base pay;
ment pay; Pay for Annual
incentives Pay for performance; incentive
perform Special day plan;
ance Long-term
incentive
plan

18. Some observations from the comparison contained in the table above are that:

18.1. The board size is generally below 15.

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18.2. In large asset managers, as opposed to pension funds, the board is not
directly involved in the investment process.

18.3. The chairperson of the board is generally not from the government, to avoid
potential political interference.

Legislative and Regulatory Framework Specific to Governance

19. The legislative and regulatory framework governing the PIC in general is
addressed in Chapter II of this report. As such, only those legislative and
regulatory provisions specific to governance will be cited in this section and
reference will be made, where necessary, to relevant provisions contained in
other parts of this report.

The Public Investment Corporation Act 23 of 2004 (PIC Act)

20. The key parts of the PIC Act that address the governance of the PIC are
contained in the following sections:

20.1. Section 2 of the PIC Act establishes the PIC as a juristic person. In terms
of the main object contained in section 2(4), the PIC is to be a Financial
Service Provider (FSP) in terms of the Financial Advisory and
Intermediary Services Act 37 of 2002 (FAIS Act).

20.2. Section 6 of the Act which deals with the appointment of the board of
directors;

20.3. Section 7 of the Act authorises the board to form committees, as is

necessary, and determine their functioning and provides in subsection 3
that ‘any person with expert knowledge of a function of a committee may
be co-opted by such committee on such terms as the board may
determine’.

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20.4. Section 8 deals with the management of the corporation and indicates
that ‘subject to the provisions of this Act, the board must control the
business of the corporation, direct the operations of the corporation and
exercise all such powers of the corporation that are not required to be
exercised by the shareholders of the corporation.’

The PIC Act Amendment Bill, 2017 (Amendment Bill)

21. The Amendment Bill, published in 15 June 2018419, was approved by the
National Assembly (NA) but is yet to be signed into law. It makes some
pertinent changes to the PIC Act, including:

21.1. Providing for a stronger role for the NA in the affairs of the PIC in terms
of oversight and accountability.

21.2. Having a board of 13 (thirteen) members made up of 10 (ten) non-

executive and 3 (three) executive directors, as opposed to the current 15
(fifteen).

21.3. The 10 non-executive directors must not include more than 1 (one)
representative of the National Treasury.

21.4. The Deputy Minister of Finance is to be the Chairperson of the PIC, or

alternatively a Deputy Minister in the economic cluster.

21.5. PIC clients, such as the GEPF and other large clients with more than
10% of assets managed by the PIC, are to be represented on the PIC
board.

419
Published in Gazette No 41704 of 15 June 2019.

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21.6. Representation of 3 (three) members from trade unions. Thus, out of the
10 (ten) non-executive directors at least 7 (seven) are proposed to come
from government, PIC clients and trade unions.

21.7. Ministerial directives, in terms of Section 4, should be tabled before the

NA and depositors first before they become effective.

21.8. The investment strategy has been expanded with much more focus on
areas such as job creation, industrialisation, economic transformation
and bias for local investments.

21.9. There are also transparency requirements in terms of the PIC publishing
details of transactions it undertakes.

21.10. The Minister is also now required to table any proposed Regulations at
the NA and to take into account comments arising therefrom.

The Companies Act 71 of 2008

22. The relevant sections covering the PIC in terms of the Companies Act and
relevant to the Commission are covered in Chapter II of this Report and
discussed in further detail in Chapter V: Next Steps: Fit and Proper/Violations
of FAIS.

The Financial Advisory and Intermediary Services Act (FAIS Act)

and Regulations

23. The PIC is governed by the FAIS Act which essentially regulates the behaviour
of Financial Service Providers (FSPs, as defined in the Act) towards their
clients in order to promote consumer protection. The FAIS Act, insofar as it

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 pertains to the PIC, is also discussed in detail in Chapter V in the section Next
Steps: Fit and Proper/Violations of FAIS.

24. The obligations imposed by the FAIS Act are critical for governance. In
particular, key individuals (as defined in the FAIS Act) are required to possess
the personal character qualities of honesty and integrity, and competence and
operational ability, as defined in the fit and proper requirements – at least to
the extent required of them to fulfil the responsibilities imposed on them by the
FAIS Act.

The Public Finance Management Act 1 of 1999 (PFMA)

25. The relevant sections covering the PIC in terms of the PFMA and relevant to
the Commission are covered in the legislation section of this Report. The key
issue here is that in terms of section 49 of the PFMA, the Board of the PIC is
the Accounting Authority. The general responsibilities of the accounting
authority are set out in section 51 of the PFMA.

The Memorandum of Incorporation (MOI) of the PIC

26. The MOI is a key document that establishes the governance framework at the
PIC and aspects of its contents shall be highlighted in this section.

26.1. Applicable MOI

26.1.1. The evidence presented to the Commission regarding the MOI was
confusing and contradictory, with the PIC itself not able to state which
MOI was in fact approved by the Companies and Intellectual Properties
Commission (CIPC) and in place. In essence, the confusion is about
whether the MOI of 2017 as opposed to the MOI of 2013, should be
taken as the MOI that is in force.

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26.1.2. As discussed in Chapter I of this report, the Commission is of the view
that the 2017 MOI is the MOI that is in force and applicable. Thus, this
issue will not be examined again here.

26.2. Clauses of the MOI applicable to this ToR

26.2.1. Clause 7 of the MOI sets out the composition of the Board:

26.2.2. Clause 7.1.1 states that ‘The Board shall comprise of no less than 10
and no more than 15 directors, who are to be appointed by the Minister
in consultation with Cabinet.’

26.2.3. Clause 7.1.2.1 states that ‘The board shall …comprise executive and
non-executive directors.’ and clause7.1.2.3 states that the board
‘comprises of directors who are appointed from various disciplines to
encompass, amongst others, the financial investment, financial advice
and pension fund sectors.’

26.2.4. Clause 7.1.3 states that ‘the Board shall, with the approval of the
Minister, appoint a suitably skilled and qualified person as the chief
executive officer of the Company.’

26.2.5. Clause 7.1.10 states that ‘The chief executive officer shall make
recommendations to the Board with regard to the appointment of the
Executives of the Company.’

26.2.6. Clause 7.1.11 states that ‘The chief executive officer and the chief
financial officer of the Company shall be appointed as ex officio
executive directors of the Company.’

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Investment Corporation Page 601 of 794
26.2.7. Clause 7.1.12 states that the ‘chief executive officer shall, in
consultation with the Board, appoint the other Executives in accordance
with applicable labour legislation.’

26.2.8. Clause 7.5.1, dealing with the authority of the Board, states that ‘The
management and control of the Company shall be vested in the Board
which shall exercise all of the powers and perform any of the functions
of the Company and manage and direct the business and affairs of the
Company, save as restricted or varied by this MOI, the PIC Act or the
PFMA.’

26.2.9. Clause 7.7 governs the removal of directors and Clause 7.7.1 states
that ‘The Shareholder shall furnish Cabinet with reasons for the
proposed removal of any director in terms of section 71(1) of the Act
[Companies Act].’

26.2.10. Clause 13.1 states that the ‘Board may establish any number of Board
committees and delegate to such committees any authority of the
Board’, and specifically sets out the approach to establishing an Audit
and a Social and Ethics Committee.

26.3. Delegations of Authority (DOA)

26.3.1. The DOA in place was approved by the PIC Board on 29 May 2015 and
delegates extensive powers to ‘persons or bodies.’ It sets out the ‘extent
and nature of such delegations, including limitations attending to those
delegated powers.’ It covers Board Reserved Matters, the Powers of the
CEO and General Principles that apply.

26.3.2. The Board exercises control over the operations of the PIC through a
combination of committees and through the four DOA documents that
are in place.

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26.3.3. The four DOAs which have accordingly been put in place at the PIC are
the:

26.3.3.1. Delegation of authority dated April 2015, which was referred to in

testimony as the Corporate DOA.

26.3.3.2. Delegation of authority for Property Investments dated July 2015

(DOA:PI);

26.3.3.3. Delegation of authority for Listed Investment (Listed Equities, Fixed

Income & Dealing) dated July 2015 (DOA:LI); and

26.3.3.4. Delegation of authority for Unlisted Investments dated July 2015

(DOA:UI).

26.4. Corporate DOA

26.4.1. By way of an outline, the Corporate DOA provides the following - which
seems to suggest a unitary DOA that must be read and understood as
such, and that seems to have been divided into sections A to E for
practical reasons:

‘3.3 This delegation supersedes any prior delegations of

authority and takes effect immediately upon the date of
approval by the Board and the Exco, as applicable;

3.4 The specific delegations pertaining to the PIC are

attached as follows to this Delegation of Authority:

• Corporate Delegation of Authority – attached as Section A;

• Property Investments – attached as Section B;

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Investment Corporation Page 603 of 794
 • Listed Investments – attached as Section C;

• Unlisted Investments – attached as Section D;

o Authorities required for payment processing –

attached as Section E.’

26.4.2. In clause 4 of the Corporate DOA, the following is provided:

‘4. BOARD RESERVED MATTERS

4.1 To the extent that any of the following actions are not within the
powers and authority delegated to the CEO in terms of clause 5 and the
EXCO in terms of its Terms of Reference, none of the following actions
shall be taken by or in respect of the company unless the action in
question is authorised by the Board. The powers of the Board set out
herein also include those powers and duties set out in the Terms of
Reference of the Board’s various committees. In addition, the powers of
the EXCO set out herein include those set out in the Terms of Reference
of the EXCO;

4.2 Any determination of, or amendment to, the management

structure or Board authorities, provided that such approval may not be
unreasonably withheld;

4.3 Approval or amendment by the PIC of the PIC’s strategic

objectives or (to the extent legally permissible) the strategic objectives
of any subsidiary or business division of the PIC;

4.4 Formation of any committee of, or the delegation of any

authority to such committee by the Board, other than as expressly set
out in the MOI;

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 4.5 Establishment by the PIC of any subsidiary of the PIC;

4.6 Recommend to the shareholder(s) for the approval of a

dividend policy and/or the declaration / distribution of any dividends by
the PIC;

4.7 Any material change in the business of the PIC or of any

subsidiary of the PIC;

4.8 Executive and non-executive directors shall be selected,

appointed or removed by the Minister of Finance in consultation with
Cabinet based on recommendations from the Board; and

4.9 The Board only reserves the authority to appoint the PIC’s
auditors who are registered in terms of Section 15 of the Public
Accountants’ and Auditors Act, 1991 (Act No 80 of 1991). The Board
may only make such appointment if the financials are not audited by the
Auditor General. Furthermore, the appointment of the abovementioned
auditors is to be in consultation with the AG.’

26.4.3. Under clause 5 of the Corporate DOA, the general powers of the CEO
are defined. They include that he or she has the day to day responsibility
of managing the business activities pertaining to third party funds. 420
That must, however, be read in the context of the entire DOA which
confine the CEO’s ‘Delegated authority to, and direct members of, PIC’s
management as set out in Sections A-E with respect to any matters that
are within the authority of the CEO.’421 Clause 5, accordingly, confines

420
Clause 5.1.7 of the Corporate DOA.
421
Clause 5.1.8 of the Corporate DOA.

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 the CEO’s powers only to that which has been delegated to him or her
in the unitary DOA (sections A-E).

26.4.4. Clause 6 of the Corporate DOA provides general principles. In clause

6.1 it provides that ‘All approvals as per the detailed delegation (Section
A-E) are subject to those expenses/capital expenditure being in line with
the various approved budgets’ and that ‘It is the authoriser’s
responsibility to ensure the adherence to the budget.’ Importantly, in
clause 6.7.1 and 6.7.2 it provides respectively that:

‘All agreements and contractual arrangements must be

reviewed by the Legal Counsel, Governance and Compliance
department prior to entering into such agreements and/or
arrangements, and instructions to attorneys on the panel will
only be through the legal department of the PIC.’
and
‘All Investment related agreements/transactions/contractual
arrangements shall be signed in terms of a resolution passed
by the delegated committee nominating any PIC representative
to sign the relative agreements/transactions/contractual
arrangements on behalf of the Company, as well as all such
other documents as may be required to give effect to the
finalisation of the agreement/ transaction/contractual
arrangements. Failing which all agreements
/transactions/contractual arrangements can be signed by the
relevant EH GM [sic] and any Category A signatory (as per
Section E).’

26.4.5. The Corporate DOA is clearly an overarching instrument that makes

provision for governance structures of the PIC. In the delegations
section, the Corporate DOA provides, in the first place, that only the

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 Board can finally approve the DOA.422 In line with the Board’s
prerogative to control the strategic direction of the PIC, the Corporate
DOA provides for the final approval by the Board of the long-term
strategy of the PIC423 and vision, mission and values.424

26.4.6. Matters concerning the corporate plan have all been reserved for the
Board, subject to submissions made to the shareholder (i.e. Minister of
Finance).425 Under ‘Financial Plan (Budgets)’, only the Board can finally
approve annual budgets of the PIC, but approvals for more than 2% of
the total expenditure overrun or more than 50% on a specific budget
item must be approved by the ARC.426 The lower budget reallocations
have been delegated to the CEO and General Manager of Finance .427

26.4.7. Under ‘Governance Structures and terms of reference’, which relates to

the establishment of Board committees and those constituted by Exco,
provision is made for the Board’s final approval of board constituted
committees save for the ARC, which requires the shareholder’s
approval.428

26.4.8. The rest of the Corporate DOA makes delegations in respect of statutory
requirements such as the approval of annual financial statements, the
approval of dividend declarations, all of which have been reserved for
the shareholder. In addition, the approval of the dividend policy, the
approval of PIC lease terms, the appointment of service providers for
the supply of contracts greater than R10 million per transaction, all PIC

422
Section 1.1 of the Corporate DOA.
423
Section 2.2 of the Corporate DOA.
424
Section 2.1 of the Corporate DOA.
425
Section 2.3 of the Corporate DOA.
426
Section 2.4.2 of the Corporate DOA.
427
Sections 2.4.3 and 2.4.4 of the Corporate DOA respectively.
428
Section3.1.1 and 3.1.2 of the Corporate DOA.

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 litigation, changes in the organisational structure, the appointment of
first tier executive directors have all been reserved for the Board’s
approval.

26.4.9. The Corporate DOA presents a fairly good mix of reservation of issues
subject to board approval and delegations of authority to Board
constituted committees, Exco, the CEO and Exco constituted
committees to manage the strategic affairs of the PIC.

26.5. Delegation of Authority for Property Investments (DOA: PI)

26.5.1. Save for the approval of financial year end valuations which must be co-
approved by the client, the GEPF, in respect of property investments,
the approval of other annual valuations, domestic acquisitions and
disposals above R7 billion,429 Africa acquisitions and disposals
exceeding US$ 16,5 million, and budget overruns in respect of the
approved capital expenditure budget exceeding 5% or R500 million,
must be approved by the IC. Beyond the approvals cited hereinabove,
much of the delegations under the DOA: PI are entrusted to PIC
executive management either in respective individual capacities or
through Exco constituted committees, predominately to PMC:
Properties.

26.6. Delegation of authority for Listed Investment (Listed Equities, Fixed

Income & Dealing):

26.6.1. The relevant clauses of this DOA are as follows:

429
All acquisitions and disposals above R7 billion but below R12 billion by IC and all acquisitions and disposals above
R12 billion by the board.

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 ‘4.1.1 Fixed income derivative deals (OTC and listed) for nominal
amounts exceeding R10bn (once off), the MPC Listed has final approval
and the CEO must agree beforehand

4.2.1 Money and Capital Markets: Dealings for nominal amounts

exceeding R5bn (once off), final approval rests with the CEO but the
Executive Head, LI must agree beforehand

5.1 All structured investment products exceeding R10bn – final

approval lies with the Investment Committee

5.2 All structured investment products of nominal amounts greater

than R3bn but less than R10bn, final approval rests with PMC Listed.

6.1 South Africa, Africa and offshore strategic investments, (listed)

amounts greater than R10bn, final approval rests with the Investment
Committee

6.2 Strategic investments (listed) for amounts greater than R3bn

but less than R10bn, final approval rests with the PMC Listed and the
CEO, CFO and Executive Head of Risk must agree beforehand

6.10 Deal execution for all listed markets/exchanges outside South

Africa, final approval rests with the PMC Listed and the CEO, while the
CFO must agree beforehand

8.1.1 Purchases or disposals of amounts exceeding 5% of the value

of the equity portfolio, final approval rests with PMC Listed while the
CEO has to agree beforehand

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 8.1.2 Purchases or disposals greater than 3% but not exceeding 5%
of the value of the portfolio, final approval rests with the CEO while both
the CFO and Executive Head, Risk must agree beforehand

10.1 Acquisition of 20% and more in JSE top 100 companies, final
approval rests with PMC Listed, with the CEO, CFO and Executive
Head: Risk required to agree beforehand.’

26.7. Delegations of authority for Unlisted Investments (DOA: UI)

26.7.1. In terms of clauses 1.3, 1.4 and 1.7, the CEO has final approval for deal
pipelines to be included in PPMs to clients, those to be considered by
the PIC and the signing of letters of proposals declined at PMC and FIP.

26.7.2. The relevant extracts of clause 5 are as follows:

‘5.15 Investments greater than R5bn per deal for structured

investment products (SIPS) or mixed assets requires final
approval from the Board

5.18 Final approval from the Board is required for

investments greater than US$500m per deal (SIPS)

5.21 Investments in Unlisted Fixed Income or Debt papers: private

placement from an issuer greater than R10bn also requires board
approval.’

26.8. In effect, the Board does not appear to have any reserved authority
regarding listed investments and has minimal reserved authority regarding
unlisted investments.

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27. The PIC’s Operating Mandate

27.1. There are four aspects to the mandate agreed with the PIC that need to be
considered:

27.1.1. Firstly, the mandate that the clients of the PIC have agreed upon,
including the GEPF (which accounts for 87% of the assets under
management), the Unemployment Insurance Fund (UIF), and the
Workmen’s Compensation Fund (WCC) being the primary funds, and
which govern the investment framework within which the PIC operates.

27.1.2. Secondly, the mandate to ensure the generation of financial returns that
ensures the sustainability of the pension funds and limits the potential
obligation of the state to make good any shortfall, given that the fund is
a defined benefit fund.

27.1.3. Thirdly, particularly through the Isibaya Fund which was established in
1999, to provide ‘finance for projects that generate financial returns
while also supporting positive, long-term economic, social and
environmental outcomes for South Africa’. In practice the Isibaya Fund
focuses extensively on black economic empowerment, which it funds
through private equity and developmental investments and applies this
mandate through a set of earmarked funds for infrastructure,
environmental sustainability, priority sectors that drive job creation,
skills and alleviate poverty – in essence impact investment strategies
and not just ESG.

27.1.4. Fourthly, any mandate that the shareholder, represented by the Minister
of Finance, determines and agrees with the PIC.

27.2. The PIC’s mandate from its clients is discussed in more detail in the section
addressing ToR 1.17, in Chapter III of this report.

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28. The Board of the PIC

28.1. As discussed above, the Board of the PIC is appointed in line with the PIC
Act and the MOI. It should be noted that these documents do not set out the
appointment process of the Board and it is the prerogative of shareholder/s
in South Africa.

28.2. Appointment of the Board

28.2.1. At the PIC Governance Workshop, the Head of Asset and Liability
Management (ALM), a division of National Treasury, Mr Anthony Julies
(Mr Julies), explained the process thus:

28.2.1.1. The Minister engages with the Chairperson of the Board and
receives nominations of new candidates to serve on the PIC Board
for his consideration. This is done in order to promote transparency
as well as Board participation in the process.

28.2.1.2. Once the nominations are received from the Chairperson of the
Board, the ALM reviews the submitted names having due regard
to requirements such as the mix of executive and non-executive
directors as well as the skills, expertise and experience required at
that point in time (taking the Corporate Plan into account).

28.2.1.3. If the ALM division is not in support of the recommended

candidates, it would then identify candidates from the NT database
taking into account the skills gaps (incorporating, inter alia, skills,
experience, competencies, and a mix of gender and race). In this
regard, there is an annual advertisement issued seeking
applications to serve on boards of companies controlled by
National Treasury.

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28.2.1.4. The ALM division will also vet prospective board members,
including their qualifications, references, criminal and credit
checks.

28.2.1.5. An internal memorandum and a Cabinet Memorandum will then be

prepared for the Minister’s consideration recommending suitable
candidates.

28.2.1.6. If the Minister is in support of the recommendation, he/she will

approve and submit the Cabinet Memorandum to Cabinet for
approval.

28.2.2. In this respect, it should be noted that it is not often that a whole board
is appointed at once. Concern has been raised about the above
described process. In particular, the fact that the process is not
sufficiently independent and is susceptible to influence by the nominating
bodies. In this regard, former CEO, Dr Matjila, alleged that Dr Xolani
Mkhwanazi, a current board member, was appointed with ulterior
motives by the Ministry of Finance. This is addressed in the findings and
recommendations.

28.3. Dismissal of the Board of Directors

28.3.1. The Minister is empowered to dismiss members of the Board. A similar

concern to that raised in respect of the appointment of the Board arose
in relation to the dismissal of Board members.

28.3.2. This issue was raised with the PIC and it was stated that the Minister
should at least show cause before replacing a well-functioning board.
During his testimony, former Chairperson of the PIC, Mr Mondli
Gungubele (Mr Gungubele), alluded to this issue and stated that there
must be a specialised process in place governing the removal of a full

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 board. One clause in the MOI governs the removal of directors which
should address this issue:

‘7.7.1 The Shareholder shall furnish Cabinet with reasons for

the proposed removal of any director in terms of section 71(1)
of the (Companies) Act.’

28.4. Appointment of the Chairperson

28.4.1. The choice of the Chairperson is provided for in the Act, the MOI or in
corporate governance guidelines of the PIC. The Chairperson has
traditionally been the Deputy Minister (DM) of Finance. It is noteworthy
that the PIC Act Amendment Bill codifies this tradition.

28.4.2. Throughout the hearings, the majority of the views were against this
practice. Typically, in the corporate sector, the Chairperson is chosen
by fellow directors.

28.4.3. At the hearings, former directors and senior executives of the PIC were
not in favour of appointing the DM, whereas the Congress of South
African Trade Unions (COSATU), in particular, was in favour. Abrupt
changes of Chairperson, as a consequence of for example, a Cabinet
reshuffle, has the tendency to destabilize the PIC.

28.4.4. A suggested solution is that the ‘role profile’ and requisite qualities of a
Chairperson be formalised. Core competencies should include strong
experience and expertise in corporate governance, strategic leadership,
asset management, investments and government policies.

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28.5. Appointment of the Chief Executive Officer (CEO)

28.5.1. The MOI has numerous clauses dealing with the appointment of the
CEO. Clause 7.1.4, says ‘The Board shall conduct the recruitment and
selection process of the chief executive officer, in accordance with the
guidelines issued by the Minister….’ (Emphasis added).

28.5.2. The deliberations at the PIC Workshop indicated that the appointment
of the CEO is coordinated between the Board and National Treasury.

28.5.3. The following process is followed:

28.5.3.1. The Board decides on appointing a CEO.

28.5.3.2. An advert is placed in the media and candidates are invited to

apply.

28.5.3.3. A shortlist is created and final interviews undertaken.

28.5.3.4. The Board sends their proposal for the preferred candidate to the
Minister for a decision.

28.6. At the PIC Workshop and during the testimonies, the general position was
that the Board should manage the process and present to the Minister a
final candidate for ministerial approval. The Minister should show cause if
he/she does not accept the recommendation of the Board.

28.7. Appointment of other senior executives

28.7.1. Some of the key appointments in the executive committee of the PIC
are provided for in the MOI. The key clauses are:

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 Clause 7.1.10: ‘The chief executive officer shall make
recommendations to the Board with regard to the appointment
of the Executives of the Company.’

Clause 7.1.11: ‘The chief executive officer and the chief

financial officer of the Company shall be appointed as ex officio
executive directors of the Company.’

Clause 7.1.12: ‘The chief executive officer shall, in consultation

with the Board, appoint the other Executives in accordance
with applicable labour legislation.’

28.7.2. The MOI that is in place does not make provision for executive posts
that were provided for in the MOI of 2013, such as:

28.7.2.1. Chief Investment Officer (CIO)

28.7.2.2. Chief Operating Officer (COO)

28.7.2.3. Chief Risk Officer (CRO)

28.7.3. The Board approved these changes resulting in a material breach of the
MOI, which breach was only rectified in 2017. It was alleged in
testimonies heard by the Commission, that Dr Matjila did away with
these positions to concentrate power in the position of CEO, something
he has denied.

28.8. The Board Sub-Committees

28.8.1. As explained in Chapter I of this Report, the Board currently has six sub-
committees that execute certain specialist tasks that are core to the
business of the PIC. These sub-committees have delegated authority

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 and operate in terms of well-developed terms of reference and
procedures.

28.8.2. The key views expressed during the hearings, as they relate to the
Board sub-committees and their functions, are as follows:

28.8.2.1. The most visible sub-committee at the PIC is the Investment

Committee (IC), which handles investments within its purview. The
IC has both an oversight and an investment role.

28.8.2.2. The PIC has a combined Audit and Risk Committee (ARC).

28.8.2.3. The Director Affairs Committee (DAC) - National Treasury, as a

Shareholder, appoints the Board.

28.9. Powers of the Board

28.9.1. As outlined above, the Board of the PIC has been granted extensive
powers arising from the PIC Act and the MOI, in addition to those
matters reserved for the Board in terms of corporate governance.

28.9.2. In the light of the evidence heard by the Commission, the

question arises as to whether the PIC has a governing (i.e. oversight)
or a management (i.e. active) Board. During the hearings, the view was
expressed that the Board encroaches on the domain of management.
For example, it has been noted that former Board member, Ms S Zulu,
initiated various documents in a Board meeting that were supposed to
be drafted by Management. This results in potentially conflicting
decisions being taken by the Board. A further example is that of the IC,
where non-executive directors participate directly in decisions on
investments. How does the Board then exercise oversight of the
appropriateness of such decisions by their own members?

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29. Shareholder’s Compact and Corporate Plan430

29.1. Shareholder’s Compact431

29.1.1. The PIC is also governed by means of a Shareholder’s Compact

(Compact) between the Corporation and the Government as the
Shareholder, represented by the Minister of Finance.

29.1.2. The Compact, which is a requirement in terms of Regulation 29.2 of the

Treasury Regulations432, is designed to give the Government/
Shareholder oversight of the PIC. It serves as an annual contract and
represents a legally binding performance agreement between the
Minister and the PIC’s Board.

29.1.3. In terms of Treasury Regulation 29.2.2, the Compact must

document the mandated key performance measures and indicators to
be attained by the public entity, in this case the PIC. The Compact
between the PIC and the Government outlines strategic objectives, the
roles and responsibilities of the Board, including those of the
Shareholder and reporting requirements. A new clause was introduced
into the Compact which stipulates that the Minister should approve
incentives paid to staff members of the PIC.

430This whole section is taken from a presentation made by the head of ALM at the National
Treasury, Mr Julies, at the PIC Workshop.
431
Mr A Julies’ presentation at the PIC Governance Workshop.
432
National Treasury Regulations, April 2001.

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29.2. Corporate Plan (CP)

29.2.1. The CP is a requirement in terms of Section 52 of the PFMA and

Treasury Regulation 29. The CP is a strategic and operating plan that
the PIC presents to the National Treasury for approval.

29.2.2. The CP must cover a period of 3 (three) years and must outline the
following, amongst others:

29.2.2.1. Strategic objectives and outcomes agreed to in the SC;

29.2.2.2. Risk management plan;

29.2.2.3. Fraud prevention plan; and

29.2.2.4. Financial plan – addressing projections of revenue, expenditure,

borrowing and dividend policy etc.

29.2.3. The National Treasury will review the CP to determine the following:

29.2.3.1. Consistency between the PIC’s strategies and financial plans;

29.2.3.2. Alignment of the PIC’s strategy to its mandate and government’s

developmental objectives; and

29.2.3.3. Risks in the implementation of the strategy and risk-mitigation

strategies for the identified risks.

30. The AGM

30.1. The PIC AGM is conducted in terms of Clause 6.8 of the MOI, read with
Section 61(7)(b) of the Companies Act, which requires the PIC to convene

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 an AGM once every calendar year (and no more than 15 (fifteen) months
after the date of the previous AGM).

30.2. In line with Clause 6.8.5 of the MOI, the agenda items, amongst others, are:

30.2.1. A Presentation of the Directors’ Report and the Financial Statements;

and

30.2.2. Resolutions to be effected, i.e. Appointment of External Auditors;

Appointment of Audit Committee; Approval of the Non-Executive
Directors’ fees and noting different Reports, which includes the Social
and Ethics Committee Report.

30.3. The AGM further provides the Minister with an opportunity to engage with
the Board on matters relating to the performance of the PIC as a whole, as
well as to provide strategic direction in terms of the expectations of the
Minister going forward.

EVIDENCE CONSIDERED BY THE COMMISSION

Evidence in respect of the DOAs and MoA (Memorandum of

Agreement)

31. A few examples provided below illustrate the attitude of the PIC to compliance
with the DOA and PIC internal processes, as well as the GEPF’s MoA.

32. Following the PIC investment in Afrisam (where the total investment by the
PIC was R12,6bn in what in essence is a non-performing asset) and the
restructuring that took place in 2013, the GEPF responded to the Afrisam crisis
by ‘imposing a cap of R2bn on the amounts that the PIC could invest in a
single asset in the future. Also, that any investments above that figure had to

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 be approved by the GEPF’433. In essence, the GEPF reduced the MoA
discretion limits.

33. There do not appear to be DOAs approved by the Board prior to the current
ones – Unlisted Investments (October 2015) and Listed Investments (May
2015).; This was compounded by, as Dr Matjila mentioned during his
testimony, that ‘at the time’ there had been a ‘loose [client] mandate’ (sic). This
seems to be supported by Mr Sithole’s testimony regarding the few addenda
to the GEPF-PIC Investment Management Agreement (IMA) first entered into
in 2007. But these do not detract from the proposition regarding the PIC’s
attitude towards the GEPF as a client and the AuM. The GEPF client mandate
agreement is made up of ad hoc addenda refined over time. The PIC took
advantage of the loopholes inherent in a ‘loose mandate’ that had to be
tightened piecemeal over time (a better improvement of the mandate might be
served by revisions contained in a single agreement as is the case with the
UIF), compounded by Dr Matjila’s fast and loose interpretation of the MoA as
exemplified in Ayo.

34. On 26 October 2017, the GEPF wrote to the PIC setting out the Board of
Trustees resolution that the PIC’s investment limit in unlisted investments
required GEPF approval for any single investment above R2bn for unlisted
and property investments, and any amounts above that must be submitted to
the GEPF Board via its investment committee for approval.

35. Mr Sithole specifically stated that, with regard to the Ayo transaction and
notwithstanding the above limitations, the PIC did not involve or inform the
GEPF when it considered and made the investment in Ayo (discussed in
further detail in the case study in Chapter III). Nor did it highlight the investment
in its subsequent reporting to the GEPF but only responded when the GEPF
began asking questions, including about valuation. The PIC contended that

433
Para 80 of Dr Matjila’s statement signed on 15 July 2019.

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 they considered the Ayo investment fell under the listed investment delegation
of authority, a view that Mr Sithole strongly disagreed with and said that while
he could not pronounce on the legality of the action, it was certainly a breach
of faith and trust.

36. With regard to Sekunjalo and the investment in Independent Media (discussed
in further detail in the case study in Chapter III:ToR 1.1), Mr Sithole said the
GEPF was consulted and both the Board and the GEPF’s Investment
Committee expressed their discomfort, but as the PIC was acting within their
mandate they did not interfere with the decision. However, they did advise the
PIC of their discomfort with the investment. Moreover, Mr Sithole regarded the
PIC letter of 16 April 2018 as a material misrepresentation to the GEPF, and
said there should be legal consequences. He concluded that this reflected a
clear indication that the PIC reporting to the GEPF does not accurately reflect
what actually happened.

37. Both Dr Matjila and Ms More confirmed that, notwithstanding the DOA
requirement that, in many instances, agreement between them was to be
obtained prior to a decision being made, they did not do so but said that
meeting in the various committees, such as PMC, met this requirement. When
asked about not contacting Ms More as required prior to the Ayo transaction
approval, Dr Matjila said: ‘Ms More is in a similar situation as I am because
we rely on advice from the technical people as they are the ones who do the
work and make recommendations, so it was not necessary to ask her …’
However, he acknowledged that the DOA was not changed to reflect practice.

38. Dr Matjila’s justification for investing in Ayo is moreover a post facto tailoring
of facts and a dishonest one. He vacillated in relation to what authority he had
been acting on when he signed the Ayo irrevocable subscription form. And
there is no record of any other IPOs subscribed for in the manner he opted to
do in Ayo, ie, without prior PMC approval (PMC2).

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39. In the Steinhoff/Lancaster investment, the original proposal from Mr J Naidoo
was for an investment of R10,4bn, but this was reduced by the PIC to R9,35bn.
When asked the reasons for this reduction, Mr Vusi Raseroka, the PIC official
dealing with Lancaster/Project Sierra, responded: ‘I can only speculate that
the reduction was to enable the transaction to fall within the mandate limit of
the IC … which if exceeded would have resulted in the transaction going to
the full PIC Board for approval’. In his testimony Mr J Naidoo, replying to a
question as whether he was aware that the investment needed to be below
R10bn to proceed without further approvals in the PIC process as determined
by the DOA, said: ‘I took it that the representative of the counterparty was
saying that in order for them to approve the approach, these were the
parameters they could live with (or) they might have to take it to another level
… I was aware that this was as far as they could go.’

40. With regard to the Steinhoff/Lancaster transaction, Dr Matjila confirmed that

they had reduced the amount from R10,4bn to R9,4bn ‘to be in line with the
Investment Committee mandate, so that they were able to approve it … we
could have gone to the Board but it was more convenient for the IC to deal
with the matter at that level’ adding that the Board has never rejected an
Investment Committee decision.

41. Dr Matjila, when asked how he had dealt with the matters raised by the IC
regarding the timing of Ayo and whether (the deal) was in line with the DOA
he replied: ‘I cannot remember … but I remember quite a number of them were
dealt with by the team’.

42. Yet there is a conspicuous material non-disclosure in all reporting memoranda

given throughout from the Board, GEPF and SCOPA regarding the process
followed to approve the deal, about his signing the irrevocable subscription
form before PMC approval. Even after ‘ratification’ Dr Matjila failed to give full
and frank disclosures on the process followed to approve the deal.

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43. A significant number of witnesses raised their concern about time pressures
to meet deadlines that compromised processes, valuations and quality of due
diligences being conducted. This is all the more concerning given that the PIC
is the funder and the entity approached to consider whether to invest or not.
The evidence indicated considerable irregularity, overruling of processes and
improper sequencing of decisions including, by way of illustration, signing the
irrevocable subscription prior to any process in the Ayo transaction 434, in the
name of making a quick decision. There can never be a justification for time
constraints overruling the merits of investment decision-making being
thoroughly interrogated.

Evidence on Ineffective Governance and/or functioning of the PIC

Board

44. Testimony was presented by a number of non-executive members of the

Board in relation to the functioning of the PIC Board. This testimony is set out
in Chapter I of the report and will not be repeated here. The evidence
presented. reflects a wide range of difficulties experienced by the Board.

45. Operating Model

45.1. An operating model can mean many things but according to various
definitions it essentially represents how an organisation delivers value to its

434
For details see the Sekunjalo Case Study in Chapter III of the report.

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 customers or beneficiaries as well as how an organisation actually runs
itself.

45.2. The current operating model, depicted in the diagram below, which was
adopted in 2015 after Dr Matjila became CEO, can best be described as a
centralised operating model:

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45.3. As depicted in the diagram above:

45.3.1. The PIC is a massive and complex organisation with more than R2
trillion in managed assets.

45.3.2. The scale of the operations of the PIC is akin to managing five large
investment management businesses including equities, fixed income
and private equity. On a standalone basis these would be some of the
largest companies in their field.

45.3.3. The businesses are aided by departments that support investments

such Risk, Investment Management and Legal.

45.3.4. Then departments such as finance, human resources (HR), Information

Technology (IT) complete the picture

45.4. Thus, the PIC is an organisation with enormous operations under one roof
and highly concentrated at the top.

46. The current departmental structure of PIC

46.1. The current departmental structure is captured in the diagram435 below:

435
Source: the PIC

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Findings Regarding the Structure:

47. There appears to be a concentration of power at the level of the CEO and
CFO who oversee all decisions. Most of the non-investment departments
report to the CFO given that the COO department was abolished. Thus,
enormous authority, responsibility and power resides with the CFO.

48. In terms of investments, there are Executive Heads, including the powerful
head of listed investments, where close to 90% of the approximately R2 trillion
is managed. This department was managed by Mr Fidelis Madavo who has
since been suspended.

49. Even with investment heads in place the CEO has essentially incorporated the
role of the CIO into that of the CEO and he has the final say on investments.
Previously a CIO would have fulfilled this role, providing the opportunity for an

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 element of checks and balances, but the CIO position was done away with in
the restructuring of 2015.

50. The PIC also has enormous operations in unlisted investments such as impact
investing, private equity and real estate, totaling more than R200 billion.

51. A centralised operating model

51.1. As can be seen from above, the decision-making structures of the PIC are
highly centralised with all the key decisions ultimately residing with the CEO.
In terms of best practice and for a company of the PIC’s size, this model is
unusual.

51.2. This centralisation would have slowed decision making and the speed at
which the organisation could react to events. The PIC itself has recognised
the need to evolve as it has grown bigger and expanded its unlisted
investments. It has thus been exploring a new operating model.

52. A new operating model

52.1. The PIC needs to evolve to the next stage of its development as such, the
PIC has been exploring various operating models and the one(s) below
appear to address some of the key weaknesses of the current operating
model. From the diagram below, the following can be discerned:

52.1.1. The PIC will be a holding company (Hold Co) managing the specialist
business units/branches/clusters.

52.1.2. At the holding company there will then be key positions including CIO,
who set overall investment philosophy and strategy and monitors
investment heads at specialist levels.

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52.1.3. The COO will likewise be at HoldCo and manage all the services that
can be shared with specialist business units, so will be the CFO. COO
activities will include corporate functions such IT and HR.

52.1.4. Risk and investment support will mainly be based at specialist unit level
to support these differentiated asset classes, though a Chief Risk Officer
(CRO) will be appointed at HoldCo to have overall oversight of risk and
compliance across the investment units.

52.1.5. The issue of the executive committee will have to be reassessed and
see how it fits into the new structure.

52.1.6. As noted above it needs to be emphasized that specialist asset classes

are separated and this is where investment decisions are made and
concluded. The CIO will have overall accountability for this and also hold
investment heads accountable.

52.2. In other words, the PIC should determine the best configuration within this
possible new model as to which areas stay within specialist asset classes
and which ones are at shared services level. There must optimal
configuration along vertical and horizontals lines.

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52.3. The next diagram, inserted below, (sourced from the PIC) deals with
governance aspects of the new operating model as opposed to investments
and operations. The key issues are:

52.3.1. There will still be a HoldCo board with various sub-committees.

52.3.2. It is to be noted that the Investment Committee will be mandated

differently as it will not actively take investment decisions but have
oversight on overall investment policy, strategy and investment
performance.

52.3.3. As to governance structures at business unit levels, the structures need

not be statutory in the sense of being subsidiaries. The “internal
boards’’ can be chaired by a PIC board member and even non-PIC and

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 independent board members can be appointed, especially in areas
where investments are dealt with.

52.4. As to which governance structures to choose here the PIC will have to
determine which ones will be optimal, including costs and regulatory issues
involved.

52.5. The structures should also enable the PIC to make decisions more quickly
but still within robust risk management processes. Days of the PIC taking
more than six months to make investment decisions should be consigned to
history.

Source: PIC

53. In summary: The new operating model could be a mixture of separating the
investment units to take autonomous decisions, having optimal configuration
of corporate functions to support these and having an optimal governance
structure at Hold Co and business unit/cluster levels.

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54. On decentralisation, it must be noted that that the new possible operating
model substantially decentralises the operations of the PIC but there could be
disadvantages that will have to be considered and managed.

55. Decentralised Model: Advantages and Disadvantages436

Advantages Disadvantages

▪ Strategic direction vests at HO ▪ Additional governance layers and

possible duplication of
▪ Instills entrepreneurial mindset administrative functions
across business units
▪ Decentralized decision-making
▪ Accountability by business units can result in silo thinking at
expense of a collaborative strategy
▪ Competition for capital requires all
business units to contribute to ▪ Risk to license if compliance not
profitability adhered to and managed with
required oversight within business
▪ Performance and incentives unit
aligned with asset class
characteristics of each business
unit

▪ Allows for specialization and

dedicated expertise and
knowledge

436
PIC Presentation on Future Operating Model, PIC Commission of Inquiry Workshop.

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 ▪ Clarified relationship between
Management, Board and
Shareholder

56. Finally, to illustrate how this operating model works at large asset managers
a case study of Sanlam Investments is provided. This was dealt with at the
PIC Commission Workshop.

57. Case Study: A Decentralised Operating Model – Sanlam Investments

57.1. Sanlam is a 101-year-old business operating in 44 countries across the

globe. Sanlam group runs a decentralised operating model, comprising five
businesses, including the investment cluster. Each business has a clear
mandate to profitably deliver value to its clients.

57.2. The strategy of the investment business is built around growing clients’
wealth and therefore contributing to the economic development and
transformation of the country.

57.3. There is clear delineation of asset management activities to allow for the
smooth running of the business. The CEO of Sanlam Investments (SI) is
responsible for the overall investment business.

57.4. The sub-committees of the Board consist of the Credit Committee, Risk
Committees and relevant Asset Management Investment Committees. It is
the prerogative of the business and the Board to determine the investment
philosophy which spans across Passive management, Active management,
Multi-Manager and Alternative Investment Solutions. However, all four
investment teams operate independently. There is no involvement from the
business (Board and/or Management) in the formulation of investment
process or in investment decision-making.

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57.5. The role of the business is to hire the right investment team, hold them
accountable, and to replace as needed where such teams do not exemplify
the firm’s values or significantly underperform. The investment business
does not have one ‘super’ CIO and the Chairs of the different Investment
Committees effectively play that role. The risk and compliance function is
completely removed from the investment process.

57.6. From an operational point of view, the four investment areas are supported
by a shared services infrastructure consisting of Client Services, Trading,
Reporting, Compliance, Legal, Performance, Risk, Finance, IT and Human
Resources. There is a central COO who oversees the digital strategy,
systems, and the different investment platforms. The shared services model
is cost effective and essential to competing effectively in the market.

58. Investment decision framework that follows

58.1. The investment decision framework is contained in the diagrams that set out
the process followed for listed and unlisted investments, covered elsewhere
in the Report, especially related to transactions, so it will be examined briefly
here.

58.2. From the above discussion and arguments it follows that the PICs
investment decision framework will need to be reassessed. The process is
currently as follows:

58.2.1. The investment decisions flow from the Board and then the investment
committee (IC) depending on the size of the investments.

58.2.2. Then the Fund Investment Panels (FIPs) augment the work of the IC in
specialist roles.

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58.2.3. And then the various portfolio management committees 1 and 2 (PMC
1&2) run by management engage in detailed processes of investment
from deal origination, due dilligence, deal appraisal, investment and
post investment processes.

58.2.4. There was an issue about PIC board members serving on the boards of
investee companies and how the process of appointments was carried
out and also the managing the conflicts of interests.

58.2.5. There was also a problem about taking major decisions, including major
investments decisions, through round robin resolutions, thus resulting
in no good management engagement on such decisions.

58.2.6. Investments were viewed on a stand-alone basis and the cumulative

investments offered to, say, one party were not limited, even in the face
of the party underperforming such as in Sekunjalo group companies.

58.2.7. In terms of investments there was thinking that a closer relationship

needed to be built between the PIC and GEPF and indeed other clients
of the PIC.

58.2.8. The PIC should take an active interest in companies where it holds more
than 50% shareholding (subsidiaries) and large shareholding
(associates) and ensure the companies are well managed.

59. Given the proposed changes the following outcome is possible:

59.1. The FIPs will be subsumed into the specialist business units.

59.2. The PMCs could be kept as the process is, in principle, robust.

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59.3. The restructuring and decentralization could result in the PIC executing
transactions at faster speeds.

60. Operational issues that arose at the Commission

60.1. Various employees of the PIC gave views on the operational shortcomings,
namely:

60.1.1. Risk – Ms Candace Abrahams: identified the key issue as the lack of a
strong risk department with the necessary resources to carry out duties
optimally and changes at the top of the department when EH Mr Paul
Magula was dismissed.

60.1.2. Legal – Ms Pamela Phala/Macheka and Ms Lindiwe Dlamini: identified

the main issue as the instability of the department and quality control in
the department in terms of agreements. It’s EH Mr Nesane resigned
after his statement in the VBS investigation.

60.1.3. PMV, ESG and Operations – including Ms Solomons and others: There
were issues about paper-based systems in PMV and limited traction in
getting ESG adopted broadly in the country.

60.1.4. HR – Vacancies: Mr Pholwane dealt with this. There are wide-spread

vacancies at the PIC and a large number of senior positions are
occupied on an Acting basis, including the CEO and CFO.

60.1.5. Attraction of top talent and proper incentives – Mr Pholwane dealt with
this, the issue of incentives and salary adjustments have become a
bone of contention and this might deprive the PIC of top talent going
forward.

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60.1.6. IT issues and the safety of the PIC systems – Ms Menye and Mr
Mayisela, the IT systems have come under scrutiny due to the leakage
of confidential information. The PIC is consequently taken measures to
strengthen the systems.

60.1.7. The issue of paper-based processes, particularly in the unlisted division,

was raised as a critical issue that needed to be attended to.

61. Other Operational Issues

61.1. Cooling off period: for both Board members and staff, upon leaving the PIC,
should be subject to a ‘cooling off period’, of a reasonable length of time,
whereby they cannot access funding from the PIC and/or do business with
the PIC.

61.2. The transactions undertaken and fees paid by the PIC should be transparent
and made public.

62. Global best practices in operating models

The Commission has interacted with global asset managers on operating

models and other issues and their models are similar to the ones observed with
leading local asset managers including Sanlam Investments discussed above.
Thus the same principles shall apply and there is no need to undertake an
exposition. Some of key global best practices are covered in the Appendix 1,
containing the Governance Workshop Report.

FINDINGS IN RELATION TO GOVERNANCE

63. Confusion as to the role, functioning and responsibilities of the Board prevails.
Non-executive board members have responsibilities and functions that blur
the distinction between the role of a board and that of management.

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64. Non-executive Board members fulfil decision-making functions by serving on,
and chairing, committees that make investment decisions.

65. Non-executive board members serve on the boards of investee companies,

as do executive members, impacting on fiduciary duties, conflicts of interest
and where accountability lies.

66. In a number of instances non-executives (and executives) who have been key
figures in making an investment then serve on that investee company board
(for instance Mr R Morar was Deputy Chairperson of the PIC Board, Chaired
the Investment Committee that considered (and he signed) the resolution
approving the Lancaster/Steinhoff investment, became the PIC representative
on the Lancaster Board and then served on the Board of its Foundation when
it was established).

67. The dependency of the earnings of some non-executive board members from
serving not only on the PIC Board and the required sub-committees, but also
on various other boards and executive committees of the PIC, calls into
question their status as ‘independent’.

68. There is ineffective oversight of decision making and processes by the Board
as they are an integral part of the decisions taken. It is not possible or
appropriate to be part of overseeing decisions and processes that you have
been part of.

69. The Board’s inadequate risk oversight and assessment, as well as approval
of inappropriate investee board representatives, is cause for concern. An
example of this is VBS bank, where the Executive Head: Risk, Mr Magula and
the Executive Head: Legal, Mr Nesane, both of whom assessed and
recommended the investment, then being appointed to serve on the VBS Bank
Board with the disastrous consequences that resulted in the collapse of bank
and the loss of the PIC’s investment. Furthermore, their self-confessed

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 ‘turning a blind eye to what was happening’ in return for being paid millions of
rand is a material indictment of and reputational risk for the PIC.

70. The frequent changes to the Finance Minister, who represents the shareholder
with regard to the PIC, and role of the Chairperson of the PIC, being the
Deputy Minister of Finance, appears to have significantly contributed to
ineffective governance and the deficient functioning of the Board. Moreover,
their appointment to such positions in the PIC was by virtue of the office they
held, whether or not they had the appropriate skills, experience or expertise
with regard to chairing and appreciating the functioning and business of such
a critical organisation.

71. The Shareholder Compact, signed on 7 July 2017, should be reviewed. At

present, it is an annual agreement signed between the PIC and the Minister
of Finance representing the shareholder. The introduction of a clause that
requires the Minister of Finance to sign off on the awarding of incentives to all
staff has contributed to the uncertainty around the bonus pool, the timing of
bonus payments and the quantum thereof. Furthermore, this should be an
agreement that is required to be reviewed every three years, not annually.
This would also align the Compact with the three-year horizon of the Corporate
Plan. The role, expectations and responsibilities of both parties need to be
clearly defined in such a compact.

72. The reliance on Round Robin Resolutions to take major decisions. When
asked whether this was common practice, Dr Matjila replied: ‘we’ve done
many RRRs … the information that is there is enough to make a decision …
where people have issues they could send an email’ and confirmed that in
some instances he would sign a RRR before other required signatories, but
denied that this could be seen as a signal of approval for the transaction. This
approach completely disregards the benefits derived from engagement about

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 decisions to be taken, processes followed or the rigour required to interrogate
thoroughly investment proposals.

73. The violation of the MOI was deliberately condoned by the Board,
notwithstanding the impact it had on the composition of the Board and the
significant enhancement of the power and influence of the two non-executive
directors.

74. Minutes, meetings and record keeping of formal meetings are kept, and are
addressed in ToR 1.5. However, records of meetings and interactions by the
management at various levels are deliberately not kept. The evidence before
the Commission showed repeatedly how who was being met, by whom and
for what purpose was not recorded. This made reference to who was met
when and where, what was discussed and whether any promises or
undertakings were made, impossible to validate.

FINDINGS IN RELATION TO OPERATING MODEL

75. Given the discussion above, various findings can be made on all the sections
on the operating model.

75.1. The PIC is a large and complex that needs to evolve and in a way to be
“broken up” or restructured and also enhance accountability.

75.2. The PIC is like running five large businesses in one and these need to be
delineated properly and managed for efficiency and effectiveness.

75.3. The decision making processes are highly centralised and go all the way to
the top and this clogs the system and needs to change.

75.4. The new operating model should consider decentralised decision making,
changing the structure and having focused management. It should consider

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 the creation of three large specialist investment business units. This will
hopefully result in better investment performance.

75.5. Governance structures at HoldCo and specialist levels will have to be

adjusted to accommodate the new operating model.

75.6. Decentralisation does have some drawback in terms of duplication and extra
costs, but this can deftly be managed.

75.7. The investment decision frameworks will have to change somewhat but the
PMCs should probably stay.

75.8. It is important to note that the new model is likely to be more costly, thus the
PIC will have to fund this through better investment performance, resulting
in increased revenues over time to recoup the costs.

75.9. The following areas were seen as weaknesses at the PIC: Risk, legal and
IT; Paper-based and spread-sheet based systems in PMV, Investment
Operations and Unlisted Investments. In Human Resources, the level of
vacancies, issues with bonuses and acting positions is cause for concern.

75.10. It has also been noted that the PIC outsources a lot of key capabilities and
this might need to be brought in-house. This includes non-complex issues
in the Legal department and also derivatives structuring in the SIPS
department.

RECOMMENDATIONS

RECOMMENDATIONS ON THE OPERATING MODEL

76. As can be realised above from the findings on the operating model the
following key recommendations are made:

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76.1. The old operating model served the PIC well in the past, but it appears to
have run its course as the PIC manages R2 trillion in assets.

76.2. The PIC has been exploring a new model which seems to accord with good
local and international models. The PIC will need to implement a model in
keeping with its future strategies and culture.

76.3. The new model could involve major restructuring and the creation of units
that in time could be managed on an autonomous basis with different sub-
cultures, within a broader HoldCo and some shared services.

76.4. In terms of investments and the discussion above the following

recommendations are made:

76.4.1. The PIC needs to overhaul the way it deals with directors that serve on
investee companies and ensure proper oversight and management of
conflicts of interest. The process of appointment, skills needed and the
fees paid need to examined to safeguard the interests of the PIC.

76.4.2. Round-robin resolutions should be the exception and undertaken only

in rare circumstances, especially for major decisions.

76.4.3. There should be a limit, on a cumulative basis, to how much funds a

sponsor can access from the PIC, especially when the sponsor’s
companies are underperforming.

76.4.4. There should more meaningful engagement between the PIC and its
clients such as the GEPF.

76.4.5. The PIC should ensure that it effectively manages any subsidiaries and
associate companies, should they be created.

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76.4.6. Transactions undertaken and fees paid to advisors should be
transparent and made public.

76.5. The PIC should move to address the following key weaknesses:

76.5.1. Deal with key areas of Risk, Legal and IT, among other functions, and
make them top of the class.

76.5.2. An office of the Legal Counsel, as distinct from the functioning of the
legal department, and that advises the Board and Exco, should be
considered.

76.5.3. It is urgent and important to address the paper-based processes in

Unlisted Investments, PMV and Investment Operations.

76.5.4. Seek more collaboration with stakeholders and achieve more in ESG.

76.5.5. Resolve major HR problems such as acting positions, vacancies and

issues with performance management, bonuses and salary
adjustments.

76.5.6. PIC should in-source key and basic skills, particularly in legal and
derivatives structuring, and outsource only complex matters where
specialist skills are desired.

76.5.7. A cooling off period should be determined, possibly for a 12 month

period, for former directors and staff that prohibits conducting business
with the PIC or an entity established by it.

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RECOMMDNATIONS ON GOVERNANCE

77. Board Composition and Functioning:

77.1. The legislative and regulatory framework governing the PIC should be
amended to implement and/ or achieve the following:

77.1.1. Define nature and responsibilities of the Board as one of oversight and
not executive, in keeping with best practice as outlined in ToR 1.15
above.

77.1.2. Ensure the appropriate Board committees are established with clear
terms of reference and accountability.

77.1.3. Separate the Audit and Risk Committees, establishing a specific Board
Risk committee with clearly defined terms of reference and
accountability to ensure better oversight and understanding of both
critical functions

77.1.4. Formalise requirements for:

77.1.4.1. Technical skills

77.1.4.2. Personal experience, knowledge and expertise

77.1.4.3. Conflicts of interest

77.1.5. Term of office: maximum of 3 terms of three years each, for a maximum
total of 9 years

77.1.6. Develop and put in place appropriate policies for Board and
management, regularly monitored and updated, as they relate to:

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77.1.6.1. Compliance, including whistleblowing policy and raising concerns
procedures

77.1.6.2. Anti-corruption, including polices on political engagement policy;

payments or assistance to public officials policy and procedure and
gifts and entertainment guidelines

77.1.6.3. Intermediaries, to include a review of the PEP policy and third party
due diligence requirements

77.1.6.4. Political or other pressure, in order to ensure ethical and

accountable interaction with all parties, with detailed records of all
interactions being kept.

77.1.6.5. Conflicts of interest

77.1.6.6. Assessing and monitoring culture to ensure it is aligned with the

company’s purpose, values and strategy

77.1.6.7. Effective engagement with, and participation from, employees

77.1.6.8. The development of an overarching governance policy framework

77.1.6.9. Board fees and that such fees form part of the governance policy

77.2. Role of Chairperson:

77.2.1. Formalise ‘role profile’, expertise and personal qualities required

77.2.1.1. Independent and non-executive

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77.2.1.2. Core: Experience and expertise in Pension Funds, finance,
markets as well as governance

77.2.1.3. Term of Office to be the same as that of other non-executive board

members

77.2.2. The Deputy Minister of Finance should not be the PIC Chairperson. This
has caused considerable instability. Skills needed to chair the Board
may well be different from those that the Deputy Minister of Finance
brings. The role of the Chairperson should be defined and the skills and
personal qualities needed, codified in the MOI.

77.2.3. Induction of Board appointees, including clarity of fiduciary duties and

determination of role if sitting on boards of investee companies. There
should be an SLA with investee companies as to the role of Board
members, independence vis-à-vis who is paying Board members, clarity
of policies and expectations

77.2.4. The Board should have the skills that are applicable to PIC’s corporate
governance, strategic and operational requirements. Adding to the list
above, the following have been identified as skills and expertise needed
by the Board and its committees:

77.2.4.1. Corporate governance

77.2.4.2. Corporate strategy and strategic leadership

77.2.4.3. Investment management, also called asset management – these

include areas such as listed investments, private equity,
infrastructure funding, property, actuarial and valuation skills

77.2.4.4. Risk management – investments and corporate

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77.2.4.5. Human Resources

77.2.4.6. Accounting, financial and audit and forensic skills

77.2.4.7. Legal and regulatory skills and perhaps taxation

77.2.4.8. Information technology and its governance and digital

transformation

77.2.4.9. Environmental and Public safety

77.2.4.10. Economic and Social Transformation

77.2.4.11. Economics and economic policy

77.2.4.12. International and Africa skills

77.3. Board selection process:

77.3.1. The process of appointing the Board should reside with the PIC, the
Directors Affairs Committee (DAC), and Board members should then be
approved by the Minister, together with Cabinet. The Board is well
placed to offer the Minister potential Board members with the required
skills.

77.3.2. The PIC, not the National Treasury, should source new directors
through recruitment agencies and placing adverts in media platforms.

77.3.3. The PIC should follow a robust process in selecting Board members in
terms of skills needed and tightly matching these to the individuals
recruited. Thereafter, this process and its outcomes, without impinging
on confidentiality of individuals, should be made public by the Minister

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 and/or the PIC. This is the same process followed for the appointment
of the South Africa Revenue Services Commissioner.

77.3.4. Thus, the selection of the Board should not follow a full public process
in parliament such as that followed by the South African Broadcasting
Corporation (SABC). This is not preferred as it tends to discourage
capable directors who do not want this public exposure or be subject to
political party agendas. .

77.3.5. The appointment of ‘political appointees’ should be avoided as this

might cause political interference at the PIC.

77.3.6. In the event that a full Board, as opposed to rotating members, has to
be appointed, the Minister shall be required to utilise the CEO of the PIC
to take the role of the DAC and the CEO and Minister shall follow the
process outlined above.

77.3.7. Once the Board has been selected, the Board and not the Minister,
should choose its own Chairperson.

77.3.8. The PIC is a long-term investor and it is proposed that the term for
rotation be increased to three years with a maximum of three terms
each.

77.3.9. The choice of the CEO should also follow the current process of the
Board leading the process and offering the selected name to the
Minister to approve. If the Minister rejects the Board’s selection, the
Minister should show good cause for that rejection. The responsibility of
selection must still remain with the Board. The CEO should never feel
indebted to the government of the day or the Minster.

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77.3.10. The removal of directors of the PIC should not be at the whim of the
Minister. Directors should not be apprehensive of or feel indebted to the
Minister. The MOI says the Minister should offer reasons of removal to
the Cabinet. This is not sufficient for the security of tenure of directors
and these reasons should be immediately made public by the Minister.
In the event that the entire Board is removed, the question of institutional
memory arises and needs to be taken account of..

77.3.11. In terms of the Board subcommittees, the finding is that, given the
complexity of the PIC, the Risk and Audit Committees should be
separated and each stand alone.

77.3.12. The Information Communication and Technology Governance

Committee (ICTGC) should be given greater weight in deliberations,
ensure manual systems are replaced and keep modernising the
technology environment of the PIC. It should also deal with digital
transformation.

77.3.13. Given the changes proposed in the operating model, the Investment
Committee will be the most affected of the sub-committees as it will
have to concentrate on an oversight role as opposed to participating in
investment decisions. Investment operations would likely be moved to
specialist business units.

77.4. As indicated above, the powers of the Board to control the operations of the
PIC will have to be revisited should the PIC moves from a management to
a governance Board. The PIC legislation would require the appropriate
amendments, and an extensive framework of governance will have to be in
place to enable this.

78. The PIC Board should concentrate on playing a strong oversight role and
extricate itself from operations, including making investment decisions at the

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Investment Committee. The Board should thus strengthen rules on oversight
and should be a governance not a management board.

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TERM OF REFERENCE 1.16

‘Whether, considering its findings, it is necessary to make changes to the

PIC Act, the PIC Memorandum of Incorporation and the investment
decision-making framework of the PIC, as well as the delegation of
authority for the framework (if any) and, if so, to advise.’

1. Considering the findings in ToR 1.15 above, the following recommendations

are made:

Shareholders compact:

2. The Minister has an arsenal of mechanisms to control and guide the activities
of the PIC in the form of:

2.1. The Shareholder Compact (SC)

2.2. The Corporate Plan (CP)

2.3. The Annual General Meetings (AGM)

3. As a sole shareholder the Minister can influence the PIC by engaging the
Board on topics desired by the Minister and the AGM is the correct setting for
such dialogue and resolution of any issue. It appears that the annual
engagement on the SC is onerous to the PIC and thus it is proposed that it be
undertaken through a medium-term process of a rolling three-year period in
the same way it is done with the national budget. This would also align the
time horizon with the Corporate Plan.

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4. Review the Shareholders Compact to ensure certainty, clarity of roles and
responsibilities and accountability, as well as the time frame within which it
operates.

5. The Shareholder Compact should be engaged with on a 3-year medium-term

basis, rather than on an annual basis, to create greater certainty, enable
envisaged changes to be forward looking, and to lessen the burden on the
PIC.

Memorandum of Incorporation (MoI)

6. It has been stated in Chapter I of this report that the MOI of 2017 shall be
taken as the one that is in force and applicable, thus everything shall follow
from that understanding.

7. The MoI should be evaluated afresh, must be in keeping with GEPF

requirements and the CIO and COO roles should be reinstated

8. Consideration should be given to executive roles at the same level for both
Risk and IT

9. As will be made clearer in the operating model section, the PIC should bring
back the positions of CIO, COO and CRO and this needs to be codified in the
MOI as before. In addition, the CEO, the CFO and CIO should be ex officio
board members as their roles are critical, but the CFO and CIO will still report
to the CEO. The COO’s work could be reported on by the CEO to the Board.

Mandate

10. Clarity on the primary mandate – ensuring adequate funds through investment
and contributions to meet both short and long term liabilities in a sustainable
manner – is well defined. This requires that the GEPF thoroughly review its

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 financial position and the financial progress of the Fund to evaluate the
appropriateness of the investment strategy currently in place, taking account
of the nature and extent of liabilities.

11. There needs to be agreement between the shareholder, the GEPF and the
PIC on what the benchmark return should be to maintain the Fund at a level
agreed between the three parties. This should also help determine the
investment strategy.

12. The secondary mandate – which includes promoting economic development

– should be determined between the shareholder and the GEPF such that the
PIC’s implementation thereof, including through a clearly defined
developmental investment strategy, also meets the requirements of the
primary mandate.

13. Effective monitoring and evaluation of investments should include a clear

definition of what success is at the outset.

Delegation of Authority

14. Revise the DoA to ensure appropriate oversight and escalation

15. Review the reserved powers of the Board in its totality

16. Consider unintended consequences for the Delegations of Authority:

16.1. Did it facilitate Board abdication of responsibility where deference to DoA

took precedence over misgivings?

17. The Board, given changes to governance and the operating model, will have
to revise the Reserved Matters and align them to the new reality.

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18. The DOAs will also change extensively in so far as they cover various actions
and approvals by parties within the PIC

The Recommendations on the Amendment of Legislation

19. There needs to be an urgent redrafting of legislation relating to the PIC. The
current PIC Act – The Public Investment Corporation Act, No 23 of 2004 –
should remain in force until new legislation is promulgated.

20. The drafting of such legislation must take account of the PIC Amendment Bill
that has been passed by Parliament, as well as the findings and
recommendations contained in the report of this Commission.

21. Such a process must ensure wide stakeholder engagement and consultation,
and should be a priority to be completed as soon as possible.

22. The Board of the PIC should not have, as a legal requirement , to include
representatives of labour and depositors such as the GEPF. Every Board
member owes a fiduciary duty to the PIC and does not represent their own
interests on the Board. Thus, proposals in the PIC Amendment Bill on this
issue may need reconsideration.

23. To the extent that the Minister might include the above, the representatives of
Labour and/or depositors should be appointed as individuals and contribute
their experience and expertise in keeping with the needs of the PIC Board.

24. Consideration could be given to a director being appointed from the National
Treasury, as this could assist the Board’s understanding of the Government’s
priorities relevant to the PIC. Should such an appointment be made, it should
not serve as a substitute for formal meetings between the PIC and the
shareholder. There would also need to be clarity as to where fiduciary duties
lie.

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25. In terms of Directives issued by the Minister, they could be tabled in Parliament
for debate, and the Minister take matters raised into consideration. Needless
to say, the decisions should be rational. For example, the directive to
retrospectively reduce pay incentives (bonuses) at the PIC, though well-
intentioned, was detrimental to staff morale at the PIC.

26. In redrafting legislation, the terms of the PIC Amendment Bill should require
the National Assembly to play a stronger role, particularly with regard to
reporting requirements and public accountability. To ensure greater
transparency the PIC should provide more information to the relevant
parliamentary committee and, where appropriate, the National Assembly,
including with regard to strategy, mandate implementation, and performance
on both listed and onunlisted investments. The PIC should ensure that the
actuarial valuation report is presented to the appropriate committee within
three months of its conclusion.

27. The proposal to have PIC clients, such as the GEPF, on its Board will create
conflicts of interest as the GEPF must hold the PIC accountable regarding the
implementation of its mandate and investments the PIC makes.

28. The PIC Amendment Bill expands and makes explicit the investments the PIC
must make such as in manufacturing and local investments. Though well-
intentioned this is not appropriate and, if need be, broad parameters could be
included in the GEPF Law or its mandate to the PIC. For instance, the lack of
more foreign investments by the PIC will harm the portfolio in the long term
and overly expose it to South African country risk – this point has been
corroborated by the GEPF actuary. It needs to be emphasised that as a
pension fund the role of the GEPF, through the PIC, is to generate sustainable
returns to meet the liabilities of the pension fund.

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29. The redrafted PIC Act should consider what must be mandatory for the
Minister to table in Parliament, for instance draft regulations, and must take
into account comments arising from members of Parliament.

30. In terms of the FAIS Act, the PIC is required to meet its obligations in terms of
this Act and the mandates it gets from clients. This in fleshed out in ToR 1.17.

General Recommendations

31. Create the office of Legal Counsel, responsible to the Executive and the
Board, and separate from the legal department, to ensure that the board and
executive operate within the law and best practice at all times

32. Records of meetings, including participants in such meetings, decisions taken

and relevant, material matters should be standard practice and maintained for
both formal and informal meetings

33. Ensure segregation of roles between Board and management to avoid

interference in operational matters (e.g. Ms Zulu’s role and allegations of
favouritism)

34. Ensure independence of non-executive directors and consider what the

percentage of their income is earned from Board fees, and whether their
independence could be compromised by a need to remain in CEO/CFO ‘good
books’ to ensure continued board and committee appointment.

35. Shareholder proposals regarding bonus pools or other HR matters, if not

contained in the Shareholder Compact, should only be prospective, not
applied retrospectively, so as to ensure that contractual agreements with staff
are not disregarded.

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36. The PIC needs to be made future-proof to ensure that it can deliver on its
mandate without undue interference, pressure or attempts at manipulation.

37. It is global best practice that with large asset managers, the CEO does not get
involved in investments decisions. The CEO is thus in a position to hold
investment professionals accountable for investment performance.

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TERM OF REFERENCE 1.17

‘Whether the PIC has given effect to its clients’ mandates as required by
the Financial Advisory and Intermediary Services Act, 2002 (Act No. 37
of 2002) and any applicable legislation.’

Consideration of the Term of Reference

1. In considering this Term of Reference (ToR), the following obligations

contained in the legislative and regulatory framework, set out in chapter III,
above, should be borne in mind. In addition, reference is made to the general
application of the FAIS Act, to the PIC section, in Chapter V, Remedies and
Recommendations, below.

2. As an authorised category I and II FSP, the PIC is subject to, inter alia, the
general Code of Conduct for authorised FSPs and representatives as well as
the Code of Conduct for Discretionary FSPs.

3. Paragraph 5 of the Code of Conduct for Administrative and Discretionary

FSPs, published in 2003, requires the PIC to have signed a mandate with each
client which must contain certain specified provisions with regard to the
rendering of discretionary intermediary services.

4. In terms of compliance by the PIC with relevant provisions of the FAIS Act and
the Codes of Conduct, as set out in chapter II above, the following appears to
be in place:

4.1. The PIC has a signed mandate with each client that contains certain
specified provisions. The PIC’s specimen mandate was approved by the
Registrar at the licencing stage and affords the PIC full discretion

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 regarding the investment decision and choice of financial products in
relation to clients’ investments. The records of the Financial Sector
Conduct Authority (FSCA) indicate that the PIC has entered into full
discretionary mandates with 22 clients. The key clients (depositors) of
the PIC are the GEPF, the Department of Labour Funds, the Workman’s
Compensation Funds, the Unemployment Insurance Fund (UIF), the
Skills Fund, the Department of Justice Guardian Fund and other public
sector funds.

4.2. The PIC has appointed two approved compliance officers, Mr D M

Makonko and Mr N B Nsibande, to comply with the requirement to
establish an independent compliance function. The PIC compliance
officers must comply with the fit and proper requirements.

4.3. In terms of Section 19 of the FAIS Act, the PIC is required to maintain
full and proper accounting records, audited by an external auditor
approved by the FSCA and prepare annual financial statements.

4.4. The PIC has a list of key individuals responsible for managing or
overseeing the activities of the PIC. This should be urgently reviewed
and updated as a number of the individuals so identified are no longer in
the employ of the PIC.

4.5. Key individuals identified are required to possess the personal character
qualities of honesty and integrity, as well as competence and operational
ability, as defined in the fit and proper requirements, in order to fulfil their
responsibilities in keeping with the FAIS Act.

The PIC giving effect to its client’s mandates

5. In considering whether the PIC has given effect to its clients’ mandates, the
focus will only be on the GEPF given that it comprises 87% of the assets under

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 management by the PIC and it is the client that has appeared before the
Commission.

6. In 2007 the GEPF approved an investment policy, stating that:

‘The strategic asset allocation percentages set out below, the solvency
reserve and contribution rate, established through modelling the financial
position of the fund under different scenarios over a 10-year period, balance
the maintenance of a long-term funding level of 100% and minimise
fluctuations in the employer contribution rate. Within these strategic limits, a
diversified Portfolio shall be established’.

The Strategic Asset Allocation Percentages contained in the 2007 GEPF

approved investment policy are as follows:

Proposed Proposed Proposed

lower limit strategic upper
limit
Equities 40% 51% 55%
Domestic listed
Private equity aimed at
infrastructure, social desirable 3% 6%437 9%
investment and B-BBEE
financing (Isibaya Fund, Pan
African Infrastructure
Development Fund, etc.)
Bonds 25% 31% 45%
Property 0% 5% 7%
Cash/money market 0% 5% 10%
instruments

437
In terms of the Financial Sector Charter, 5% should be invested in local targeted investment,

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 Structured investment 0% 2% 3%
products
Total 100.0%

7. The investment policy continues to state:

‘Secondary investment objectives shall include the financing of

emerging sectors of the South African economy and of promoting
economic well-being in Africa generally.

A third objective shall be the development of the capacity and

intellectual capital of the investment management industry in South
Africa by subcontracting portions of the Portfolio for management by
licensed investment managers owned and operated by Black People
or B-BBEE Companies.

In seeking to achieve the aforementioned objectives, the investment

policy shall be directed in a manner that does not cause undue market
impact either on registered exchanges or at a macro-economic level.’
438

8. The GEPF Board of Trustees (BoT) approved an expanded developmental

investment strategy in 2010439. This recognised that the GEPF had a
tremendous opportunity to make investments with positive economic and
social benefits that had not been leveraged to the extent possible. As
fiduciaries of the GEPF, the BoT set out the parameters for this initiative,
including that:

438 A copy of the investment policy is attached as annexure ‘A1’ to Mr Abel Sithole’s statement.
439
A copy of the investment strategy is attached as annexure ‘A2’ to Mr Abel Sithole’s statement.

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8.1. The interests of members and pensioners must always come first;

8.2. The existing frameworks remained valid;

8.3. Returns are important and all investments, whether developmental or

related to the economic crisis, or strategic, should at least maintain
solvency of the GEPF. The strategy states that, ‘all investments must,
together, achieve a required real return …’;440

8.4. The GEPF is not a bail-out fund and it is not the role of the GEPF to take
on the burden of ailing industries;

8.5. The BoT is willing to consider investments that seek to boost economic
development of the country as well as those which help to deal with
social backlogs; and

8.6. The BoT is happy, in principle, to hold strategic assets, but the
investments cannot be strategic only for the State but must also be
strategic for the GEPF.

8.7. The BoT also adopted a four-pillar approach to developmental investing,

namely:

8.7.1. Pillar 1: economic infrastructure;

8.7.2. Pillar 2: social infrastructure;

8.7.3. Pillar 3: environmental investment; and

440
Para 2.4.3 of GEPF Memo, Developmental Investment Strategy, dated 24 February 2010.

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8.7.4. Pillar 4: Enterprise development, black economic empowerment and
job creation.

The Legal Relationship between the GEPF and the PIC

9. In a memorandum prepared by law firms Cliffe Dekker Hofmeyr and Adonisi

Malapane Moletsane & Moloi Inc (AMMM) for consideration by the GEPF 441
(the Memorandum), the following points are made:

9.1. The GEPF entered into an Investment Management Agreement (IMA) in

June 2007 with the PIC, in terms of which the PIC was appointed as an
investment manager of the GEPF and is required to act within the
investment policy of the GEPF. The IMA regulates the relationship
between the two. The IMA and the contents thereof are subject to
legislation and neither the GEPF nor the PIC are entitled to agree to any
terms which are contrary or inconsistent with applicable legislation.

9.2. The IMA stipulates that the PIC acts as an agent for the GEPF and, in
fulfilling its mandate, the actions of the PIC are explicitly limited to the
parameters of the GEPF investment policy, which is outlined in
paragraphs 8 and 8.7 above.

9.3. Clause 3.2 of the IMA states that the PIC, as investment manager, must
‘manage the investment portfolio as a fiduciary in the utmost good faith,
and with the due care, diligence and skill which is to be expected of any
expert investment manager, and generally to act in accordance with the
terms of the IMA at all times’.

9.4. The IMA also sets out the common law duties of an agent that the PIC
has to the GEPF, including to do as instructed, exercise care and

441
A copy of the memorandum is attached as annexure ‘B4’ to Mr Abel Sithole’s statement.

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 diligence and must impart information. This duty requires the PIC to keep
the BoT of the GEPF informed of all material matters concerning the
investment portfolio. The PIC is required to disclose information to the
BoT and not conceal any material information442 relating to the
investment portfolio. A failure to disclose material information will
constitute a breach of the common law duty of an agent to give
information.

9.5. An agent is required to act in good faith, which required the PIC to
manage the investment portfolio of the GEPF in line with the interests of
the GEPF, including the duty not to make secret profits but also to avoid
conflicts of interest. Finally, as an agent the PIC has the duty to account
to the GEPF.

9.6. The PIC, in performing its duties as an investment manager, is liable to

the BoT for breach or damages that arise from the non-compliance with
the mandate. The BoT owes their duties directly to the members of the
GEPF, such duties being set out in rule 4.1.19 of Schedule I to the
Government Employees Pension Law, 1996 (GEP Law)443, including the
duties ‘to ensure that the interests of the members [of the GEPF]… are
protected’, that each trustee ‘avoid conflicts of interest’ and the duty ‘to
act at all times with due care and diligence and in good faith’.

9.7. Setting out consequences of a breach of mandate, the Memorandum

states that where the PIC has acted beyond its mandate, the GEPF is

442
It should be noted that the standard of materiality, especially from an auditing point of view, comprises of issues that
are material by amount and material by nature. Often the latter is not intrinsically considered by people when assessing
‘materiality’. For example, the information about activities within the DoA but not within reasonable fiduciary duty is
equally material to amounts over R2 billion or R10 billion. Thus, information about material activities known by the PIC
but not disclosed to the GEPF would fall foul of this element.
443
Proclamation no. 21 of 1996.

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 entitled to ratify such action or where this is not done the PIC would be
liable for the loss or damages incurred as a result of such action.

9.8. Section 6(7) of the GEP Law, enables the BoT to amend the Investment
Policy in consultation with the Minister of Finance. Any changes must be
approved by the Minister of Finance, and neither party is able to
unilaterally change the investment policy.

EVIDENCE

Exchange of Emails and Correspondence

10. The GEPF sent the then CEO, Mr Elias Masilela (Mr Masilela), copying the
then CIO Dr Matjila, an amendment to the IMA as it related to unlisted
investments, signed by the Acting Principal Officer, Mr Oliphant on 3
November 2011. It states that the GEPF had reviewed its investment strategy
to introduce new asset classes and markets in an effort to further diversify the
portfolio and pursue opportunities in new markets. The GEPF would also
make a greater allocation towards unlisted investments. Given this, the BoT
of the GEPF felt a need to enhance the investment processes, particularly
around unlisted investments.

11. The letter stated that:

“Going forward the fund would prefer to make an allocation to specific

unlisted investment strategies under the PIC on specific motivation for
the strategy and on a commitment basis. This approach will lead to a
multiple closed fund approach as opposed to the current open
mandate…this approach will require more governance structures”. 444

444
At page 2, Letter to Mr E Masilela, 3 November 2011.

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12. It states further that:

“… greater reliance will be placed on the PIC as the strategic partner

to bring forward proposals on different strategies and funds, of which
the GEPF would consider and commit on a commercial basis … The
GEPF Board has agreed to pursue and propose to the PIC the above
approach in an effort to deal with the current weaknesses, and has
further agreed to pay market related fees so that the appropriate
governance structures can be put in place and that there be greater
alignment of interest between the fund manager and the GEPF … the
GEPF Investment Committee under this model would play the role of
an advisory board for all the Funds with a mandate to review conflicts,
performance and valuations.“445

13. The letter concludes:

“All unlisted investments greater than R200 million should be

submitted to the GEPF for approval, as the GEPF board would like to
manage its investment risks towards large investments better. This
limit applies to all unlisted investments including property”.446

14. A series of emails that express the GEPF’s concerns regarding certain PIC
investments and requesting further information and explanation appear to
indicate a lack of confidence and deficit in consultation and flow of information
between the PIC and the relevant GEPF committee. Some of the
correspondence to this effect is cited in the paragraphs that follow.

445
Ibid. pages 3 - 4.
446
Ibid. page 5.

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15. The Principal Executive Officer, Mr Abel Sithole (Mr Sithole), in a letter to Dr
Matjila dated 26 October 2017, reads:

‘The Board of Trustees (the Board) of the Government Employees

Pension Fund (GEPF) resolved the following on 20 October 2017 with
regards to the PIC’s investment limits in Unlisted Investments:

1. The PIC is required to seek approval from the GEPF for any
single investment above the R2 billion for unlisted and
property investments. Investments above the R2bn limit
must be submitted to the GEPF Board via the GEPF’s
Investment Committee for approval.

2. The following principal terms regarding investment limits of

the Private Placement Memorandums (PPMs) which were
approved in 2016 are still applicable:

a. A maximum 30% of aggregate Capital Commitments

(for each sub-fund) in any single investment;

b. Single Obligor: maximum 30% of aggregate Capital

Commitments (for each sub-fund) in any single
counterparty, sponsor or obligor.

Notwithstanding these terms, any single investment above the R2

billion is subject to the approval by the GEPF.

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 This resolution revokes any previous investment limits set by the
GEPF Board of Trustees for the PIC with regards to investments in
the GEPF’s unlisted and property investment portfolios.’ 447

16. An email from Mr Deon Botha, dated 19 March 2018, sent to Mr Madavo and
others, copied to Dr Matjila, reads:

“I had a call from GEPF just now, they want a detailed report on the
Ayo transaction please. The report should also indicate how this
transaction relates to the previous transactions with Sekunjalo
especially the INMSA transaction.” 448

17. On 19 March 2018, Ms Linda Mateza (Ms Mateza), Head of Investments and
Actuarial Services at the GEPF, sent an email to Dr Matjila, copying Mr Sithole
and Dr Renosi Mokate (GEPF Chairperson), with the subject line ‘Ayo
Technology Solutions, Sekunjalo, AEEI’, that reads:

‘I‘m sure you have seen the media reports relating to the PIC’s R4.3
billion [investment] into Ayo Technology Solutions and the
relationships between various entities including Sekunjalo and AEEI.
Please provide an explanatory memo to the GEPF, outlining the
details relating to these transactions.

There are also questions of governance, if the media reports are to

be believed, as it appears that the proper due diligence and approvals
processes were not followed.

In the same publication, there was an article about Project Sierra and
Project Blue Buck. We are concerned, in particular, about the

447
A copy of the letter is attached as annexure ‘A3’ to Mr Abel Sithole’s statement.
448
A copy of the email is attached as annexure ‘A4’ to Mr Abel Sithole’s statement.

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 suggestion that the PIC ignored a recommendation from its own Risk
department and went ahead with the transaction.

We would like clarification on both matters.’449

18. An email dated16 April 2018, from Ms Mateza to Dr Matjila, reads:

‘In addition to our previous enquiry (below), we have read a number

of articles in the press regarding Sagarmatha Technologies and the
funding thereof.

We’d like the PIC to clarify and provide comprehensive information to

the GEPF regarding all GEPF investments in companies linked to
Sekunjalo Investment Holdings. This request is urgent.’ 450

19. On 23 January 2019, Dr Mokate, Chairperson of the BoT, wrote to Mr

Gungubele as follows:

‘The Government Employees Pension Fund (GEPF) is extremely

perturbed by the recent announcement by the PIC that it has
suspended its Executive Head of Listed Investments, Mr Fidelis
Madavo and the Assistant Portfolio Manager, Mr Victor Seanie,
following a preliminary investigation report that reflects the flouting of
governance and approval processes with respect to the Ayo
Technology Solutions transaction.

The PIC Executive team had assured the GEPF on numerous

occasions and in correspondence that correct governance processes

449
A copy of the email is attached as annexure ‘A5’ to Mr Abel Stihole’s statement.
450
A copy of the email is attached as Annexure ‘A6’ to Mr Abel Sithole’s statement.

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 were followed with respect to the Ayo Technology Solutions
transaction. The GEPF views this as a serious breach of trust.

The breach of the trust relationship between the GEPF and PIC will
be discussed at a GEPF Board meeting shortly. The GEPF will
communicate the outcome of the aforementioned discussion and
possible actions required to rebuild the trust relationship with the
PIC’.451

20. Subsequent developments with regard to the Ayo transaction were

communicated to the GEPF in June 2019, indicating that the PIC had issued
a summons, dated 29 May 2019, against Ayo in the Cape Town High Court
with the PIC claiming to recover the invested funds in the amount of R4,3
billion. The PIC’s claim is premised on two principles: misrepresentation on
the part of Ayo when the transaction was concluded and legality, on the basis
that the PIC’s internal processes were not properly followed and/or complied
with, which should nullify and invalidate the transaction.

Testimony of Mr Sithole, Principal Executive Officer of the GEPF

21. In his testimony before the Commission on 15 July 2019, Mr Sithole said that
the GEP Law states that the primary role is to protect the benefits of its
members and pensioners by safeguarding their retirement benefits through
proper administration and prudent investment. Moreover, benefits are
guaranteed by the State. The Law prescribes that the BoT must consult the
Minister of Finance on any changes to the investment policy, which he must
approve.

22. The GEPF is managed by a BoT of 16 (sixteen) members, each with an

alternate, 8 (eight) appointed by the Government and 8 (eight) represent

451
A copy of this letter is attached as Annexure ‘A10’ to Mr Abel Sithole’s statement.

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 pensioners and members. The investment strategy uses a liability-driven
approach that takes into consideration expected future benefit payment, the
actuarial position and other long-term objectives as well as the risk to the
overall solvency of the GEPF. It understands that success cannot be isolated
from the development of South Africa as any constraints on economic growth
will have an impact on the GEPF.

23. The GEPF has a developmental investment policy statement that refers to
investments that deliver both financial and social returns, allocating 5% of the
total portfolio of R1,8 trillion for developmental investments, such that socially
responsible development is possible but not at the expense of returns,
believing that both can be achieved.

24. The most recent asset and liability management assessment was done in
2016, generating an optimal strategic asset allocation that is still awaiting the
Minister of Finance’s recommendations. Mr Sithole advised that the IMA is
under review, led by an independent consulting firm with completion expected
in about two years.

25. Mr Sithole specifically dealt with the Ayo Technology investment, stating that:

25.1. The PIC did not involve or inform the GEPF when it considered and made
the investment;

25.2. It did not highlight this investment in its subsequent reporting to the
GEPF;

25.3. The PIC only began responding when the GEPF raised questions,
including about the valuation of the investment; and

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25.4. The PIC stated that they considered that the Ayo investment fell under
the Listed Investment mandate and therefore did not require to be
reported on.452

26. Mr Sithole stated in his testimony that:

“I do not agree with this … It is my respectful submission that if on the

effective date and during the interim period before listing the funding
arrangements are legally classified as unlisted or accounted for as
such, it is not clear why the funding arrangement will be considered
to be listed. In my opinion it should have fallen under unlisted
investments and therefore [at R4,3bn] be above the R2 billion limit of
unlisted investments beyond which the PIC needs to involve the
GEPF.”453

27. Mr Sithole said he could not pronounce on the legality of the action taken by
the PIC, but it was certainly a breach of faith and trust and ‘the PIC’s position
that the investment did not need the GEPF’s approval is incorrect’.454 Referring
to the letter quoted in paragraph 19 above from Dr Mokate to the PIC of 23
January 2019, he said the GEPF gave instructions to senior counsel to
understand what its rights were with regard to the events surrounding this
investment. On 3 June 2019, the PIC sent a further memorandum to the GEPF
stating that it has proceeded to issue summons against Ayo. However, Mr
Sithole raised the concern that the PIC apparently issued the summons on
behalf of both the PIC and GEPF, stating that ‘to the best of my knowledge no
one at the GEPF with the requisite authority authorised the joining of the GEPF
as a plaintiff’.455

452
At page 75 of the Transcript for day 54 of the hearings held on 15 July 2019.
453
Ibid. pages 77 – 78.
454
Ibid. pages 79 – 80.
455
Ibid page 86.

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28. Mr Sithole confirmed that there had been difficulties holding various essential
meetings, including with the Minister of Finance and the PIC Board,
particularly given the number of times the Minister of Finance had changed
over recent years.456 This has resulted in difficulties in getting the required
approvals finalised. He stated that the GEPF, if necessary, can take action as
there is no obligation to only work through the PIC. Furthermore, more could
be done with regard to monitoring and giving effect to scheduled meeting
arrangements.

29. A number of additional points made by Mr Sithole include:

29.1. The GEPF had not been party to nor had sight of the fees paid by the
PIC to various parties such as advisors, and is reviewing the fee structure
issue as it relates to Unlisted Investments.

29.2. The GEPF should be able to match the limits applicable to private
pension funds, citing the example of the investment limits of 30%
offshore and the 10% unlisted/private equity provision.

30. Addressing the Sekunjalo investments, including that made in INMSA, he

confirmed that the GEPF was consulted and both the Board and the
investment committee expressed their discomfort and advised the PIC
accordingly. However, as the PIC was acting within their mandate the GEPF
did not interfere with the decision.

31. Regarding the Ayo investment, Mr Sithole referred to the PIC letter of 16th
April 2018, referred to in paragraph 18 above, as a material misrepresentation
to the GEPF and that there should be legal consequences. He stated that this

456
At page 26 of the Transcript for day 54 of the hearings held on 15 July 2019.

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 also reflects a clear indication that the PIC reporting to the GEPF does not
accurately reflect what actually took place.

32. Mr Sithole stated that he was unaware that the PIC was not operating in
keeping with its MOI. In this regard, the following exchange took place:

‘ADV JANNIE LUBBE SC: Mr Commissioner, I have a couple of brief

questions and I will make an agreement with Mr Sithole that we can
deal with it in five minutes. I will be brief in my questions and I have
agreed with him that he will be very brief in his response. Mr Sithole,
my first question is, were you aware that the PIC may have been
acting for many years not within the Memorandum of [Incorporation]
of the company?

MR ABEL SITHOLE: No, counsellor. We were not.’457

33. On 2 December 2019 Mr Sithole, on behalf of the GEPF, provided a

supplementary statement to the Commission. In it he re-emphasised that both
the GEPF and PIC are separate legal entities, with the PIC ‘an independent
corporation with its own governance and a shareholder.’ He drew attention to
the view that ‘there is very limited scope for a client to inform/dictate the
governance structures and processes with the corporation and the relationship
between the corporation and its shareholder[s].’ He underlined that the GEPF
has worked hard to ensure alignment for the best interests of its members. He
concluded with the view that if the situation were to change whereby the GEPF
would be called on to foster change in the PIC, then “the GEPF would have to
be a shareholder to engender [such] change”.

457
At page 120 of the Transcript for day 54 of the hearings held on 15 July 2019.

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Investment Corporation Page 674 of 794
Findings

34. The FAIS Act, Section 8(10)(a) states that where a provider is a corporate …
that provider must at all times be satisfied that every director, member, trustee
or partner … complies with the requirements in respect of personal character
qualities of honesty and integrity as set out in the fit and proper requirements.
From the evidence of Mr Sithole the conclusion can be drawn that Dr Matjila
did not meet the fit and proper qualities of honesty and integrity with regard to
providing accurate information to the GEPF, with particular reference to the
Ayo Technology transaction.

35. There is a section of this report that specifically addresses findings on Dr

Matjila, particularly related to perceptions of his honesty and integrity. Drawing
out one example is germane here. Dr Matjila ran a parallel investment process
for Ayo, which was probably kept secret from his colleagues (based on for
example, testimony of Ms More). Dr Matjila personally provided an irrevocable
undertaking to purchase 29% of Ayo for R4.3 billion in this parallel process.
There is scope to question his integrity when he stood by as two colleagues
in his reporting line (Executive Head of Listed Investments, Mr Fidelis Madavo
and the Assistant Portfolio Manager, Mr Victor Seanie) were found to have
flouted governance and approval processes with respect to the Ayo
Technology Solutions transaction (see para 51), while he knew of the 4
December 2017 letter.

36. It is unclear whether the register of representatives has been regularly

updated and if those currently listed (at the time of looking at the website) are
all still in the employ of the PIC.

37. The imperative as set out in the IMA to make ‘prudent’ investments appears
to have been largely disregarded. Too many examples seen so far reflect this
lack of prudence, including but not limited to investments in:

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Investment Corporation Page 675 of 794
38. Erin: investing hundreds of millions of US dollars into oil exploration on the
African continent where, according to testimony, in general there is only a 20%
success rate.458 Additionally, agreeing to a further guarantee against the
advice of the PIC internal expert and notwithstanding the fact that the investee
company was technically insolvent and did not own the oil leases/licences in
the first place. The PIC lost all investments made, around US$330 million.

39. Ecobank: the GEPF owns 13% of the shares with a current market value of
R1,78 billion. Since this is a dollar investment the basis of consideration
should be dollar returns so as to remove the impact of rand fluctuations. The
latter is important since investment risk taken here is international equity risk
not currency risk, which could be hedged out and exists independent of the
equity investment risk. The returns on investment in US dollars were negative
over all periods since investment in 2012 to March 31, 2019, with a negative
yield overall of -6,48%.

40. In terms of achieving the GEPF investment policy objectives, explained in

paragraph 6 above, Ayo and the potential Sagarmatha investments breach
this requirement since they could be seen to have caused ‘undue market
impact’. The Ayo transaction is an instructive example: where incredible
revenue growth forecasts were the background for a share that had a tangible
net asset value of 11.1 cents and a listing price of 4300 (R43). Reasonable
review, in all circumstances would question that as an almost insurmountable
obstacle for investment at that price.

41. Notwithstanding paragraph 8 above, the PIC was often used as a bailout fund
for connected insiders and also a bailout fund for bad investments made by
the PIC, for example, the investments in SacOil, Erin and possibly others. It is

458
At page 85 of the Transcript for day 37 of the hearings held on 20 May 2019.

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Investment Corporation Page 676 of 794
 important to note that the Commission has not done an exhaustive review of
all transactions.

42. The investment in Steinhoff through a single individual of an amount that at

February 2019 stood at R11.6 billion, and not able to be serviced, in order to
obtain a board seat and influence (indirectly) governance, according to Dr
Matjila, is a further example of a disastrous investment that ultimately was only
going to vastly enrich one individual. The details of this transaction are
expanded on in Chapter III: ToR 1.1.

43. That fact is that in the period December 2017 to December 2018, 41%459 of
the total Unlisted Investments (worth approximately R123 billion), are on
watch, under-performing or in distress and not servicing their loans. Those in
distress and not servicing their loans make up 29% of the 41%, cited above.
This does not reflect the GEPF mandate which requires that ‘Returns are
important…all investments, whether developmental or related to the economic
crisis, or strategic, should at least maintain solvency of the Fund … “all
investments must, together, achieve a required real return”.’460

44. Included in the distressed entities are INMSA, Sakhumnoto, S&S both loan
and equity and SSIH (Ascendis).

45. The cavalier attitude of Dr Matjila to the above investment performance

demonstrates an insufficient commitment to the prudence requirement. An
example of this is noted when during his testimony, he stated:

459
PMV Deal Performance Classification, attached as an annexure to Ms Rubeena Solomon’s statement.
460
Para 2.4.3 of GEPF Memo, Developmental Investment Strategy, dated 24 February 2010.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 677 of 794
 ‘The Commission is here dealing with almost 2% of the portfolio (in
unlisted investments) … You can add them all… you are not going to
exceed probably R30bn at best … the total figure could be R40bn’.461

46. At this point, when evaluating materiality and prudence, it is important to note
that the use of percentages obfuscates the numerical size of the funds in
question. R40 billion exceeds a full year’s state contribution by National
Treasury to the pension fund which has averaged R37.7 billion a year and
comes in around 64% of total contributions. All of this makes the ability to
absorb write offs and losses precarious which, by definition, is the opposite of
prudence. Any 2% capital loss, when the fund is potentially not fully solvent
(in terms of the actuarial valuation reflecting the funding level of long-term
liabilities), is a significant loss to what should be capital reserves or a buffer.

47. The repeat investments that have been made with particular individuals or
companies – single name risk - indicates a tolerance of cumulative risk that
raises the question as to whether the PIC has deliberately structured the
internal risk management function and process to be ineffective. At present,
each deal is considered in isolation, irrespective of how many other deals have
been applied for by the same individual or entity, approved/not approved or
how they are performing, so that there is little assessment or consideration
given to the total risk profile or exposure on a cumulative basis. This ‘deliberate
structuring’ approach also enabled the favouring and repeated enriching of or
providing opportunities for the same people via different investments and also
often ignored the imperative for ‘broad based’ investments, contained in the
GEPF mandate.

48. The review of the IMA by an independent consulting firm, expected to be

completed in two years according to Mr Sithole, reflects a lack of urgency on
the part of the GEPF to ensure the PIC/GEPF agreement takes account of the

461
At pages 78 and 80 of the Transcript for day 58 of the hearings held on 23 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 678 of 794
 changing economic and asset management environment or the challenges of
governance that the GEPF/PIC are facing. Such a review should produce an
interim report by no later than end June 2020, following which the next steps
should be determined.

49. The principal terms regarding investment limits of the Private Placement
Memorandums (PPMs) which were approved in 2016, that a maximum 30%
of aggregate Capital Commitments (for each sub-fund) in any single
investment, bears deep consideration for future detailed review. A statistically
anecdotal review (i.e. the transactions that have been reviewed by the
Commission) shows multiple breaches of this resolution of a maximum capital
commitment as defined as the sum of debt and equity. Examples include
Sacoil with an 86% stake and Daybreak being wholly owned. Further work
should be undertaken to ascertain whether there was intentional subversion
of this requirement. For example, the Erin equity investment stood at 30% but
then a guarantee was used to enable Erin to obtain loan financing from a
corporate bank. One way to read this, in substance (while not legal form) since
Erin was technically insolvent, was that the PIC made a direct capital injection
taking its capital contribution, independent of legal form, above the 30% mark.
What was the extent, if any, of deliberately using loan funding, guarantees and
derivatives to optically circumvent this requirement?

50. Should the stakeholders in this complex relationship between GEPF and PIC
wish to consider a change in approach, whereby the GEPF is called on to take
direct responsibility and accountability for activities within the PIC, then a new
conversation should be started to evaluate if the GEPF should have a material
shareholding in the PIC would be of benefit.

Recommendations

It is recommended that:

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Investment Corporation Page 679 of 794
51. The PIC Board and the GEPF BoT need to jointly determine their purpose,
role, relationships, nature and frequency of meetings to rebuild trust and
confidence, and then ensure that appropriate interaction at the required level
actually takes place. As an example, this could be achieved via a neutral party
facilitation process whereby each side’s requirements and expectations are
gathered and consolidated. Then a collaborative session should be held to
formalise roles and responsibilities (“the what”) as well as defining new ways
of work (“the how”). The facilitator would combine the outcome for final
approval on both sides that would then become a foundational operating
model between asset managers and clients. It is recommended that this be
initiated as soon as possible. This must be given highest priority and be
concluded within three months of the appointment of the new PIC CEO.

52. The IMA between the GEPF and the PIC of 2007, as well as the Addendums
of 2013 and 2016, should be reviewed in their entirety with a focus on returns
expected, management and governance. Particular attention should be paid
to the effectiveness or otherwise of the GEPF Investment Committee’s
functioning as the Advisory Board of the various sub-funds and its primary
function of reviewing the PIC’s compliance to investment objectives and
mandate as well as to monitor and review performance. This should inform
the mandate given to the independent consulting firm currently undertaking a
review, and the timeline for completion should be significantly shortened
without compromising quality.

53. The GEPF should ensure it has the required skills, resources and expertise to
check and challenge the PIC. The ability of the GEPF to deeply understand
the various portfolios will ensure that they have the capacity to fully challenge
and review investments, including losses incurred.

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Investment Corporation Page 680 of 794
54. Consideration should be given to removing ‘annual total value of approved
transactions’ as a balanced-scorecard key performance indicator (KPI) as it
prioritises deal flow over risk/returns.

55. The PIC should establish a compliance coordinator and develop a compliance
charter by no later than June 2020. There needs to be demonstrable
consequences for individuals and teams, and steps taken if there is a lack or
breach of compliance. The specifying of the role requirements and creation of
this area within the PIC second line of defence should be completed within 6
months of the publication of this report.

56. There is the need to better understand the interplay between investment
returns, net contributions or withdrawals and, crucially, consideration of the
cost to the country of on-going and historic funding for the clients out of debt,
not savings.

57. Adequate benchmark and returns hurdles set by the GEPF (and other clients)
for the PIC must take into account the actuarial net present liability.
Benchmarks should be set at a level to ensure actuarial solvency and aim to
prevent any need for an increase in government/employer annual
contributions. This approach is important so as to remove any non-balance
sheet liabilities in the national accounts which are, in reality, a tax on future
generations.

58. The setting of investment hurdles must robustly take into account risk appetite,
loss capital buffers and the ability to absorb major capital losses, net
contributions and actuarial liabilities.

59. The BoT resolution of October 2017 with regards to the PIC’s investment limits
in Unlisted Investments, which requires the PIC to seek approval from the
GEPF’s Investment Committee for any single investment above the R2 billion
for unlisted and property investments should be reviewed to take account of

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Investment Corporation Page 681 of 794
 cumulative investments that are made. Such investments may in total exceed
the R2 billion cut off, but individually fall within the limit set.

60. The role of advisors and the approach to financial engagement thereof must
be reviewed and strict commercial boundaries must be codified. This is an
essential and immediate requirement. The new approach must be transparent;
competitive; have mechanisms for public check and challenge; limit fees paid
to value received and most importantly must recognise that the PIC, as the
largest role-player in the private sector capital markets, should take
advantage, in the right way, of its sectoral importance to drive value creation
from its advisors for its clients.

61. In addition to the above recommendations, consideration should also be given

to:

62. Developing formalised sub-strategies for example an Offshore Strategy and a

Broad -Based Black Economic Empowerment (B-BBEE) Strategy.

63. A review of the overall scope of all investment strategies and limits that could
unlock value by setting boundaries and narrowing focus. The current wide-
ranging objectives allow for different investment cases to underpin
investments, which reduces comparability and the connection to strategy.

64. There should be a strict discipline to put in place formal house views that are
tracked with a matrix of measures for objectives.

65. The use of a separate entity/dedicated fund involved with B-BBEE and a
transformation mandate.

66. The Shareholder Compact should contain a service level agreement that sets
timelines within which the Minister of Finance is required to deal with matters

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Investment Corporation Page 682 of 794
 as they affect the PIC, for instance the asset and liability management
assessment finalisation.

67. Formal arrangements should be in place to regularise meetings between the

three key role players, namely the Minister of Finance as Shareholder
Representative, the GEPF and the PIC.

68. Transparency within the PIC which would eliminate room for impropriety by
removing the GEPF’s and the PIC’s ability to be less than forthcoming with
investment decisions and losses.

69. On the other side of the ledger, it would make plain any market
outperformance and that should enable solid fund management returns to be
rewarded at a level comparable to the private sector.

70. In the form of, for example, a daily publishing of the market value of the listed
portfolio at that day’s close of business. This should be broken down per each
investment. Unlisted investments should be valued regularly and the valuation
updated online approximately every six months, three months in arrears. The
timelines need to ensure that publishing such information does not create
investor panic in the investee which is imperative in an unlisted investment.

71. The full suite of internal daily risk reporting could be published.

72. Full disclosure on the ultimate beneficial owners of investments in which the
PIC participates. The ultimate beneficial owner would in every instance need
to be a natural person or listed entity. This would make any potential financial
crime significantly more difficult and would ensure transparent exposure of
which individuals are benefiting from PIC support.

73. Improving discipline in respect of always creating clarity about the true
participants in any investment or activity. Specifically, clarity of the role/s of

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 683 of 794
 the clients, for example the GEPF and the PIC legal entity. Much of the time,
the specific legal entities are not clear in both documentation and discussion,
leading to potential confusion as to what PIC means. For example, does it
mean the PIC as asset manager or the PIC as agent for GEPF or the PIC itself
(i.e. when PIC takes a position alongside the client in the hypothetical situation
of the PIC owning 20% and taking the remaining 80% as asset manager for
the GEPF, while the PIC also runs “x” day-to-day as a representative for all
shareholders).

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Investment Corporation Page 684 of 794
CHAPTER IV RESPONSIBILITY AND ACCOUNTABILITY

DR DAN MATJILA, CEO

1. Dr Matjila submitted a 225 (two hundred and twenty-five) page testimony to the
Commission. He testified for numerous days and the transcript runs to hundreds
of pages, covering questions and responses.

2. It should be noted that the evidence discussed below is not intended to be

comprehensive, but rather to highlight certain conduct of Dr Matjila in relation to
the Ayo transaction and other matters related thereto. This Report should be
read holistically and thus reference must be made to the other transactions and
findings discussed throughout this Report.

Dr Matjila’s credibility as a witness

3. The transactions relating to Ayo and Sagarmatha (see case studies) have
been relied on, amongst other things, in reaching the findings which will be set
out further below.

4. Dr Matjila stated the following in relation to the AYO transaction:

‘In my position as the CEO I was not involved with the analysis of the
investment potential of opportunities presented to the PIC. I therefore
requested Executive Head: Listed Investments, Mr Madavo to look
into the opportunity … He led the Ayo investment process from the
PIC side … My understanding was that the draft PLS was shared with
the PIC even before it was finalised to allow the PIC to begin its
internal investment processes. The postponement of the PMC
meetings scheduled for 6 and 13 December 2017 added to the

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Investment Corporation Page 685 of 794
 pressure of meeting the deadline for the subscription which was by
17h00 on 15 December 2017.’ 462

5. In the Ayo transaction the dates and sequence of events are important.

6. In his testimony before the Commission, Dr Matjila stated that by 14 and 15

December 2017 all due diligence processes and reports had been prepared
and submitted as per the appraisal report and annexures. He said:

‘On 14th December 2017 Mr Molebatsi approached me with the Ayo

subscription form in hand, and asked me what we should do as the
deadline was the next day. It was then impossible to organise another
meeting of the PMC at such short notice … I had to make a judgement
call on whether the PIC should conclude the Ayo transaction or not …
I suggested to Mr Molebatsi that he sign and I co-sign the subscription
form but subject to the understanding that I would request the PMC to
regularise the transaction at the first available opportunity. Molebatsi
and I then signed the subscription form. In signing, I acted as the CEO
of the PIC and a key individual, while Mr Molebatsi was Acting
Executive Head of Listed Investments, also with full authority to
sign’.463

7. Dr Matjila stated that the subscription form was already signed by Mr

Molebatsi for 20% (twenty percent) of the shares, and that he decided that this
should be changed to 29% (twenty-nine percent), taking up the full share offer.
The subscription form they signed on 14 December 2017 reflected the price
of R43.00 (forty-three Rand) per share for 29% (twenty-nine percent) of Ayo.

462
Paras 416-417 of Dr Matjila’s statement signed on 17 July 2019.
463
Ibid. paras 440 - 441.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 686 of 794
 The impact of this is to immediately discredit Dr Matjila’s assertion that Mr
Madavo ‘led the Ayo investment process from the PIC side’.

8. Dr Matjila stated that the final Pre-Listing Statement (PLS) did not contain any
differences from the draft PLS and therefore the information upon which the
share purchase was made did not differ from the information contained in the
final PLS. (Note the draft PLS would not have had the Limited Assurance work
signed off by the auditors.)

9. When asked by his advocate, Adv Alexander Roelofse (Adv Roelofse),

whether he was involved in the financial information provided regarding the
investment to be made in Ayo, Dr Matjila said he was not, and confirmed that
the price of R43.00 per share was what was recommended to the Portfolio
Management Committee (PMC), and was the information placed before him
at the PMC meeting of 20 December 2017.

10. When asked by Adv Roelofse if he was saying that all these numbers were
derived from the final PLS and not the draft PLS, and if he had all the financial
information required to make the decision before signing the irrevocable
subscription form on 14 December 2017, Dr Matjila confirmed that they were
derived from the draft PLS, and that only the Environmental, Social and
Governance (ESG), Legal and Risk reports were being finalised. He further
stated that there ‘are no material issues, as in an IPO the biggest component
of the work is around valuation which the team had concluded and were happy
with’.464 He further confirmed that the due diligence was performed on the draft
PLS.

11. Contradicting Dr Matjila’s testimony, Non-Consumer Industrials: Assistance

Portfolio Manager, Mr Victor Seanie (Mr Seanie) stated that ‘there was no
valuation done on Ayo prior to 2018, let alone a sensitivity analysis, which was

464
At page 95 of the Transcript for day 59 of the hearings held on 24 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 687 of 794
 engineered around beginning May 2018 when the Investment Committee
requested information about the Ayo investment’.

12. The final PLS was received by the PIC at 14:42 on 14 December 2017, after
the irrevocable subscription form was signed earlier the same day. The final
PLS was received 10 days after the IRREVOCABLE LETTER OF
UNDERTAKING had been provided to the Board of Directors of AEEI.
Throughout his testimony, Dr Matjila referred to the signing of the irrevocable
subscription form on 14 December 2017, and stated that he had made his
decision based on the final PLS. There are no indications that a reconciliation
was considered on the draft versus the final PLS, although it was repeatedly
stated that there was no material difference between the two.

Concerns related to circumvention of the required investment

process

13. Dr Matjila spent a number of days testifying on the various Sekunjalo Group
investments before the Commission. A considerable amount of evidence was
led, including through Dr Matjila’s own advocate, Adv Roelofse, on the
specifics as they related to the Ayo transaction. Discussions centred on the
signing of the irrevocable subscription form on 14 December 2017, who played
what role in the decision to invest, and who in the specially convened PMC
meeting that was to approve/ratify the decision knew, or was assumed to
know, that the irrevocable subscription form had been signed on 14 December
2017.

14. Evidence in this regard was heard from former Chief Financial Officer, Ms
Matshepo More (Ms More), who chaired that particular meeting, at which Dr
Matjila was present. Neither of them, though the CEO and CFO, advised the
meeting that the irrevocable subscription form had been signed prior to
approval. Ms More’s testimony to the Commission was that she did not know

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 688 of 794
 at the time that an irrevocable subscription form had been signed by Dr Matjila,
but she goes on to accuse Mr Seanie of fraudulent behaviour for deliberately
not disclosing that information, notwithstanding that the most senior person in
the PIC, Dr Matjila, was also present and said nothing. It is unclear if she was
aware of the 4 December letter of irrevocable undertaking, covered below.

15. The information that has come to light during the Commission hearings
indicates that an improper process, outside of legal mandate, was followed by
Dr Matjila in respect of this transaction.

16. It has now emerged that the evidence and testimony submitted by Dr Matjila
regarding the Ayo investment is untrue. This finding is based on the following:

16.1. In the letter dated 4 December 2017 to the Board of Directors of AEEI,
headed IRREVOCABLE LETTER OF UNDERTAKING which he signed
as CEO on behalf of the PIC, Dr Matjila, inter alia, states:

‘4. The PIC confirms its irrevocable commitment and undertaking to

subscribe for 99,782,655 (ninety nine million seven hundred eighty
two thousand six hundred fifty five) ordinary shares at R43.00 per
share at a total value of R4 290 654 165 (four billion two hundred
ninety million six hundred fifty four thousand one hundred sixty five)
which is equal to 29% of the issued shares in Ayo as set out in the
Pre-Listing Statement to be issued by Ayo pursuant to the Listing.

5. The irrevocable undertaking and commitment to subscribe for the

shares set out herein will lapse and be of no further force and effect if
the Listing does not occur by no later than 01 May 2018.

8. This irrevocable undertaking contains all the provisions agreed to

by us with regard to the subject matter of this irrevocable undertaking

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Investment Corporation Page 689 of 794
 and we waive the right to rely on any alleged provision not contained
in this irrevocable undertaking.’(sic)

17. By signing the above letter to the Board of Directors of AEEI on 4 December
2017, prior to a PMC meeting to approve the transaction, Dr Matjila acted
improperly and in breach of the PIC’s processes for transactions under listed
investments. In approving this transaction, Dr Matjila also acted beyond the
scope of his Delegation of Authority which does not provide for CEO discretion
for a R4,3 billion ‘investment’.

18. This letter was not provided to the Commission by Dr Matjila or his legal team,
nor was any reference made to its existence. This is evidence of his broader
unreliability as a witness whose failure to mention crucial points fundamentally
changes the narrative. Throughout his testimony, Dr Matjila stated that he
relied on the PIC deal team to do the work and is guided by their expertise
and recommendations, yet he decided to make a significant investment prior
to team input, for instance on valuation or results of due diligence, or the
completion of PIC processes and not disclosing this letter to the deal team.

19. It is our view further, regarding whether the PMC meeting of 20 December
2017 was to ratify or approve the Ayo transaction, that Dr Matjila’s response
was disingenuous. When asked by the Commission why ‘there should have
been an attempted ratification if ratification and approval mean the same
thing’, Dr Matjila replied: ‘I mean the effect is the same’.465 While Dr Matjila
stated that the 20 December 2017 meeting was to ratify a decision that had
already been taken – a meeting at which he was present and was chaired by
Ms More – the meeting in fact approved the transaction. In his written
submission Dr Matjila states that ‘the intention of the meeting of 20 December
was always to approve …’466, yet when asked why he did not clarify to the

465
At page 37 of the Transcript for day 60 of the hearings held on 25 July 2019.
466
Para 484 of Dr Matjila’s statement signed on 17 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 690 of 794
 meeting that the deal had already been done and it was not approval post
event, but ratification, Dr Matjila said ‘I did not see any need at the time …’.

20. The evidence placed before the Commission supports the finding that the
meeting of 20 December 2017 could only have been to ratify a decision
already taken, that decision being the approval of the transaction. Such
conduct is not in accordance with the PIC’s processes with respect to
transactions under listed investments.

21. The process that ought to have been followed when dealing with a proposed
transaction under a listed investment is as follows:

The Public Investment Corporation (PIC) receives

applications for funding through unsolicited
applications from clients or advisors, referrals by
other funding institutions or strategic partners, Initial
Public Offerings and Book Builds and Rights Issues

Upon receipt of an application, the Investment Team

prepares a scoping report requesting approval for the
application to be referred for due diligence. The
Scoping Report in effect contains the initial Due
Diligence of the Transaction Team.

The scoping report is submitted to the Executive

Head for review and approval to be submitted, via the
Company Secretary, to the Portfolio Management
Committee of Listed Investments (PMC1)

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Investment Corporation Page 691 of 794
 PMC1 will either approve or decline the request for the
referral of the proposal for due diligence

If PMC1 approves the request, the Investment Team

will request the Executive Heads of Risk, Legal and
Environmental, Social and Governance (ESG) divisions
for resources to assist with the due diligence for the
proposed transaction

Each team prepares independent reports focused on

their area of expertise. These reports broadly cover
commercial, financial, technical and operational, legal
and regulatory, and ESG areas.

The Investment Team also prepares an appraisal report

recommending either an approval or rejection of the
investment. This Report is prepared concurrently with
ESG, Risk and Legal are prearing their reports.

The appraisal report is reviewed and signed off by the

Executive Head: Listed Investments before it is
submitted to the Portfolio Management Committee
(PMC2)

The appraisal report will be accompanied by

independent reports from ESG and Risk and Legal
(signed off by their Executive Heads) and incorporate
the due diligence findings and the controls to be
implemented to mitigate any risk identified during the
due diligence.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 692 of 794
 PMC2 will consider the four reports and deliberate on
the matter. PMC will either approve or decline ir or
refer it back to be reworked.

If the proposed transaction does not fall within PMC2's

Delegation of Authority, it will be approved for onward
transmission to a higher Committee (either the
Investment Committee or the Board)

If the transaction is approved, the Company Secretariat

will prepare a resolution to be signed off by the
Chairperson, who will be the CEO or another designated
person. The contracting phase will then begin. This
phase varies dpeending on the nature of the investment.

22. The information that has come to light during the Commission hearings, when
compared to the above process, indicates that due process was not followed.
Firstly, by sending the letter of 4 December 2017 to the Board of Directors of
AEEI undertaking that the PIC would subscribe for 29% (twenty nine percent)
of the share capital of AYO and confirming the price that would be paid per
share, prior to PMC2 approving the transaction, Dr Matjila circumvented the
prescribed process for authorising a listed transaction.

23. Secondly, although Dr Matjila undermined the importance of this step in his
testimony, the reports compiled by ESG, Risk and Legal were not finalised
when Dr Matjila signed the irrevocable subscription form on 14 December
2017, let alone when he signed the 4 December 2017 letter. As such, a
substantial component of the necessary due diligence was overlooked.
Moreover, whatever Dr Matjila’s actual regard for the importance or otherwise
of specific elements of the process like ESG, Risk and Legal, the process is
clearly set out and obligatory, and he did not have the authority to override,
bypass or ignore the process.

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24. Moreover, as Dr Matjila stated above, ‘in an IPO the biggest component of the
work is around valuation which the team had concluded and were happy
with’.467 Yet Dr Matjila, by his own admission above, did not interrogate the
valuation. In secretly making an irrevocable commitment in his letter of 4
December, that included that the price would be R43 per share, he acted in
such a manner that in bypassing processes secretly, he acted improperly.

25. Thirdly, the PMC Listed Investments and PMC2 were not given the required
information or reports to consider (the scoring report and the appraisal report
accompanied by the relevant supporting documents, respectively) prior to a
decision being taken in relation to the Ayo transaction i.e. the PIC was already
bound by an irrevocable subscription undertaking as early as 4 December
2017.

26. It is of further concern, although not explicitly provided for in the process
outlined above, that the approval was granted based on a draft PLS and that
when this matter did come before the PMC, they were not made aware of the
fact that this transaction was already approved, and only ratification was being
sought. Furthermore, as Dr Matjila dealt with this transaction as ‘listed’, and
therefore did not obtain GEPF approval in keeping with the R2 billion limit
(discussed in further detail in ToR 1.17), the forecasts contained in the draft
were subject to Limited Assurance, which was only provided on the final PLS.
As there was no reconciliation between the draft PLS and the final PLS (see
para 10 above), no reliance could be placed on the assurance work
performed. It was also too late as the share purchase commitment made by
Dr Matjila, ten days earlier, was irrevocable.

27. The problematic nature of this transaction is compounded by information that

has recently come to light regarding Ayo, which includes the pre-determined
share price at the time of listing, the decline of the share price to just above

467
At page 95 of the Transcript for day 59 of the hearings held on 24 July 2019.

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 the downside protection level for the short period that it was in place, and the
current share price; the recent withdrawal of the auditors from four companies
in the Sekunjalo Group – African Equity Empowerment Investments Limited
(AEEI), Ayo, Independent News and Media South Africa (Pty) Ltd (INMSA)
and Premier Fishing;

28. With regard to the Sagarmatha transaction, which was running parallel with
the Ayo investment decision-making process in the PIC, it is noted that Dr
Matjila stated that Sekunjalo approached the PIC in September 2017 with a
proposal to restructure the loans (relating to INMSA) due and payable to the
PIC and thereby provide the PIC with an exit from INMSA through an
investment in Sagarmatha, and dependent on a listing of Sagarmatha with a
significant investment from the PIC. This was agreed to by the PMC listed
investments, but with the proviso that the exit from INMSA was not linked to
the listing of Sagarmatha and that the PIC Investment Committee confirmed it
had an appetite for the transaction.

29. Dr Matjila said that ‘one of the suspensive conditions of the agreement was
the successful listing of Sagarmatha which ultimately never happened and
therefore the agreement never became operational and lapsed’.468 The listing
price was set at R39,62 (thirty-nine Rand and sixty-two cents) per share,
though the PIC internal valuation was R7,06 (seven Rand and six cents) per
share. Again, this valuation discrepancy is of great concern. Even though the
members of the GEPF appear to be the intended victims, the real victim is the
South African taxpayer: all member benefits are guaranteed by government
and are thus protected and thus if there was to be underfunding, there would
have to be a transfer of funds from the fiscus to the fund at some point to make
up the shortfall.

468
Para 407 of Dr Matjila’s statement signed on 17 July 2019.

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30. Mr Molebatsi’s statement was that ‘…in our submission to PMC we had
highlighted that our fair value was much lower at R7,06 compared to
Sagarmatha’s IPO asking price of R39,62. In addition we outlined that part of
the capital raised from the IPO would be used by Sagarmatha to buy PIC’s
shares in and loan claims against Independent Media and Sekunjalo
Independent Media…’ 469 – in essence the PIC using new GEPF funds firstly
to finance its own exit from the failing INMSA and secondly to effect a cover
up of the extent of the losses attributable to INSMA (even as more funds were
being proposed for investment in the same group of companies).

31. Mr Molebatsi stated that, in his view, Dr Matjila had continued negotiations
with Sekunjalo without the knowledge of the team, and had proposed that:

‘…we submit a new PMC document, the salient features of the deal
that was reached being that the PIC would subscribe at Sagarmatha’s
originally requested listing price of R39,62 for R3bn worth of shares.
In addition, Sagarmatha would issue PIC a Call Option of R1 on
enough shares so as to give us an average price of R8.50 per share.
In effect the PIC would be receiving exposure to Sagarmatha at a
lower price (R8.50) than the IPO price on the same day that other
subscribers would be paying the full price (R39.90).’470

32. In his response to the above, Dr Matjila said: ‘this is just one of the proposals
that I put forward to the PIC which I communicated directly to the team so that
they could consider if it was DoAble …’. 471

33. The differentiated pricing proposed at the listing of Sagarmatha is clearly

market manipulation and would not have been tolerated by the Johannesburg

469
Para 60 of Mr Molebatsi’s statement signed on 11 March 2019.
470
Ibid. Para 69
471
At page 29 of the Transcript for day 59 of the hearings held on 24 July 2019.

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 Stock Exchange (JSE) if they were aware that this was happening. When
questioned during his testimony, Dr Matjila clearly recognised this was not
acceptable behaviour.

34. In this regard, Mr Molebatsi said: ‘The CEO wanted this transaction
[Sagarmatha] to be presented to PMC…and so in that…particular situation it
was an instruction.’ 472

35. This is yet another example that contradicts Dr Matjila’s evidence that he relied
on the PIC deal team when making investment decisions. Mr Molebatsi’s
statement indicates that the deal team itself had the view that Dr Matjila
negotiated parallel to their work, dealing directly with Sekunjalo Chairperson,
Dr Iqbal Survé (Dr Survé).

36. Mr Tatenda Makuti (Mr Makuti), the PIC Legal Advisor for Listed Investments,
testified that, ‘there was a potential breach of regulations under the FSB/FSCA
specifically Section 4(2)(f) of the [Financial Markets Act, 19 of 2012] (FMA) by
Sagarmatha in that they acted as if shares were already listed at the time when
the draft PLS was forwarded to the PIC’. 473 According to the PLS, Sagarmatha
was ‘conditionally listed by the JSE’, but it was not listed. 474

37. Mr Makuti stated that when he had finished his draft legal report he was
informed that a share purchase agreement between Dr Matjila and
Sagarmatha had already been concluded in December 2017. Furthermore, he
established that the firm of attorneys whose name appeared on the agreement
actually acted for Sagarmatha and not the PIC and testified that, ‘We still do

472
At page 24 of the Transcript for day 14 of the hearings held on 12 March 2019.
473
Para 25 of Mr Makuti’s statement signed on 18 March 2019.
474
Ibid. Paras 27 -28.

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 not know if the document was reviewed by external legal counsel as is
normally the process before an agreement was signed’.475

38. It should be noted that paragraph 16 of the DOA states that ‘All agreements
and contractual arrangements must be reviewed by the Legal Counsel,
Governance and Compliance department prior to entering into such
agreements and/or arrangements.’

39. The JSE cancelled the IPO on 12 April 2018. Dr Matjila said: ‘The PIC would
have taken the decision not to go ahead on the same day or the day before
that’. The due listing date was 13 April 2018. Despite the Commission
requesting sight of documentation of the PIC making the decision not to
proceed with the transaction, and the communication to Sekunjalo/Dr Survé
that the PIC was not going to proceed with the investment into Sagarmatha,
nothing has been provided.

Dr Matjila’s disregard for established PIC approval, decision-

making and other internal processes

40. The following extract of the Transcript for Day 54, relating to the Tosaco
Energy transaction was relied on in reaching our findings:

‘ADV JANNIE LUBBE SC: On the other hand you have the evidence
of Mr Mseleku that it was an accidental meeting because he followed
you into a boardroom where Mr Mulaudzi was present.

DR DANIEL MATJILA: With Mr Mseleku, that’s true. He didn’t know

that Mr Mulaudzi will be at the PIC until I told him that Mr Mulaudzi is
here to also ask for a binding letter of expression of interest.

475
Ibid. Para 33.

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 ADV JANNIE LUBBE SC: My recollection of your evidence Dr Matjila,
is that I think you said to Mr Mseleku or Mr Mulaudzi, just correct me,
but one of the two you said to I cannot give you a letter on your own.
Was that your evidence?

DR DANIEL MATJILA: No, I said I will never give them a letter of

expression of interest, binding letter of expression.

ADV JANNIE LUBBE SC: On their own.

DR DANIEL MATJILA: No. Not on their own a letter of expression of

interest, binding letter of expression of interest.

ADV JANNIE LUBBE SC: Was it never mentioned and I’ll have to
check the recording that to one of them you said, you cannot have
this letter on your own.

DR DANIEL MATJILA: No, I don’t remember saying, on their own

because they were there for a letter of expression of interest and I
indicated to them that I cannot issue a letter of expression of interest,
binding letter of expression of interest to any of them at that time in
the process.

ADV JANNIE LUBBE SC: And if I remember correctly, you did not
invite Mr Mseleku to walk with you to where Mr Mulaudzi was waiting
for you?

DR DANIEL MATJILA: After telling Mr Mseleku that I’m going to meet

now Mr Mulaudzi he said to me he wanted to also hear that I’m going
to deliver the same message to Mr Mulaudzi. That’s why he then
followed me.

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 ADV JANNIE LUBBE SC: What did you respond to that?

DR DANIEL MATJILA: I didn’t respond.

ADV JANNIE LUBBE SC: Did you invite him to come with you?

DR DANIEL MATJILA: I didn’t invite him to come to me, I mean to

follow me, he just followed that’s all.

ADV JANNIE LUBBE SC: So the meeting between the two was quite
accidental?

DR DANIEL MATJILA: You can argue that it was accidental. They

were there at the same time so I mean I used the opportunity to make
them meet.

ADV JANNIE LUBBE SC: And within a brief moment of time they
shook hands and said we’ll go into this together?

DR DANIEL MATJILA: I can’t recall what happened but it would have

been moments later that they wrote to us that they’ve agreed to meet
if not several hours I can’t remember exactly when they formerly wrote
to us to say they’ve agreed to merge. I think it was a letter that they
formally wrote to us.’476

41. This testimony illustrates a complete disregard for transparency, formal

process and proper governance. It also illustrates the implicit understanding
of Dr Matjila that his influence, status and power enable him to direct activity
without having to detail specifics. It is not reasonable or acceptable business
behaviour for a CEO to leave a meeting and be followed by the participant in

476
At pages 130-132 of the Transcript for day 54 of the hearings held on 15 July 2019.

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 that meeting into the next meeting without some implicit or unspoken
understanding. Dr Matjila also testified that he was thinking that the two (Mr
Mseleku and Mr Mulaudzi) should combine forces even if he did not say so,
and it is incredulous that his thinking can manifest into reality through accident,
‘and within a brief moment of time’. Simply put, the testimony is not credible.
And at the same time, it shows how real decision making was effected, and
that it was effected outside of the PIC governance processes despite a surfeit
of those processes bordering on bureaucracy.

42. Dr Matjila denied being a ‘powerful man’ yet by engineering the combination
of the CIO and CEO roles and with only the CEO and CFO as executive
directors, he had the position, authority and influence to make his role
significantly more powerful than any other.

43. Dr Matjila was aware that the Investment Committee always led the Board’s
investment decision-making process.

‘MS GILL MARCUS: …I’d just like to follow up that last question.
Because I would have thought in governance terms it would be [of]
concern that as you have said earlier Dr Matjila unless I
misunderstood you that the original amount of R10.4 [billion] was
reduced by to R9.4 [billion] precisely to ensure that it was within the
investment committee mandate. And therefore the question that you
then followed it up with was that, well it wouldn’t matter really if it went
to the board because the board responds to the investment committee
recommendation. Are you saying the board’s oversight of these
investments which is a key function of that board as it’s currently
structured, is a rubber stamp?

DR DANIEL MATJILA: No, not necessarily Commissioner.

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 MS GILL MARCUS: But it would be if you as you have just said that it
would make no difference because the board - it would have been the
same thing because the board would listen to the investment
committee’s recommendations. So there’s no interrogation of it. No,
there is a lot of interrogation Commissioner ... (intervenes)

MS GILL MARCUS: Then why would you avoid the board

interrogation?

DR DANIEL MATJILA: I mean the Commissioners mustn’t get me

wrong. There is interrogation but there’s never been a moment where
the investment committee recommends something to the board and it
doesn’t happen. I can’t remember you know that those things they
exist. Not that the board doesn’t apply its mind Commissioner.

MS GILL MARCUS: And Dr Matjila, you say you don’t have power.

DR DANIEL MATJILA: Sorry. I say Commissioner, I beg you.

MS GILL MARCUS: Dr Matjila and you say you don’t have power, that
a board has never rejected an investment committee decision.

DR DANIEL MATJILA: But I’m not the investment committee,

Commissioner. I’m just a member of the Investment Committee.’ 477

44. It is beyond stretching credulity to believe that the CEO who is CIO and one
of only two executive directors is just a voice at the table. As leader of the
organisation, the CEO is from where all employees take actual and implied

477
At pages 104-105 of the Transcript for Day 55 of the hearings held on 19 July 2019

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Investment Corporation Page 702 of 794
 direction. He is not simply ‘just a member of the Investment Committee’. Dr
Matjila underplays his true role.

45. Linked to this observation, is a consistent pattern in Dr Matjila’s testimony

where he takes no individual accountability for material errors, mistakes or
failures. As CEO/CIO and an ED he has no place to claim successes only and
not missteps.

Dr Matjila highlighting political pressure as a serious concern and

his misconduct in relation thereto

46. Dr Matjila stated that in his time as CIO he experienced a great deal of
pressure from senior politicians of most political parties, influential people in
various fields, and business people who felt that their business ventures
deserved to be financed by the PIC. When asked what steps he took to
manage the problem, his response was that ‘the biggest protection for [the
organisation] has been process’.478 He confirmed that, notwithstanding the
pressure, he would meet people – including Ministers and other politically
exposed persons (PEPS) – on his own, did not keep a record of who he met
nor a note or minute of such meetings, nor did he advise anyone else in the
PIC regarding what was discussed, requested, offered, proposed or
committed to. Moreover, even in retrospect, he did not think a more formal
process or arrangement was necessary or appropriate, even when in the
fullness of time it became clear that the ‘PIC processes’ were not sufficient to
protect the organisation.

47. When asked whether it was improper or unethical for a Minister of State, in
particular the former Minister of Intelligence, to call the CEO of the PIC to a
meeting at an airport without any indication of the purpose of the meeting or

478
At page 79 of the Transcript for day 51 of the hearings held on 9 July 2019 and paras 88, 89, 104, 143 and 144 of
Dr Matjila’s statement signed on 17 July 2019.

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 who would be present, Dr Matjila said he saw no problem with this conduct.
When, in this instance, he was asked as the PIC to help a Ms Pretty Louw (Ms
P Louw) and a second woman (unnamed in his testimony) – Ms P Louw
subsequently being part of the allegations made in anonymous emails – Dr
Matjila replied: ‘I’ve met ministers not only at the airport, some at their places
for convenience. I don’t see anything unethical about meeting a cabinet
minister’. 479

48. The above response is disingenuous at best. The issue at hand is not a
meeting with a cabinet minister per se, but the circumstances, demands,
discussions, records and outcomes of such meetings as they relate to the
responsibilities of the PIC and any impropriety or undue pressure that might
have occurred. Further, he confirmed that he would attend such meetings on
his own, and that there would be no record or note of the meeting as they were
‘just preliminary discussions’, but he and the counterpart would be the only
ones who would know the meeting took place, what was said or promised, and
what follow up was to take place. Moreover, as Dr Matjila indicated above that
he would not know what the meeting was about, how would he know they
would be ‘preliminary discussions’, or if such ‘preliminary discussions’ could
place him in a compromising or invidious position.

49. Dr Matjila appeared oblivious of the ramifications regarding reputational risk

for himself and the PIC, notwithstanding the damage the allegations in the
anonymous emails did to him personally and to the PIC as a whole.

50. This is further illustrated by Dr Matjila forwarding requests for financial

assistance by Congress of South African Trade Unions (COSATU) and the
ANC to recipients of PIC investments – Mr Mulaudzi and Mr Mseleku in this
instance (See the Tosaco transaction as it affects Kilicap and Sakumnotho) –

479
At page 29 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 to consider. Dr Matjila confirmed that Mr Mseleku advised him that he had
donated R1m as a result of the request, saying:

‘I mean we didn’t have a policy that says I can’t relay requests of

certain individuals to people who are able to assist them or
organisations that are able to assist them … they could have said
no’.480

51. The following is an extract from the Transcript for Day 55 that followed
questions regarding the solicitation of donations for the ANC and Cosatu. A
reasonable person would not give any credence to the assertion that the CEO
of the PIC, who enables funding and fee payments in the ordinary course of
running a +R2 trillion asset manager, is merely sharing the information of the
ruling party and its tripartite partner looking for funding. This logic is borne out
in that Mr Mseleku made a R1 000 000 contribution shortly thereafter. The
‘quid pro quo’ in action shows that the implicit message was both clear and
understood. Similarly, with the R300 000 donated by Mr Muluadzi to a
beneficiary, unknown to him.

‘ADV JANNIE LUBBE SC: I’m not trying to criticise you Dr Matjila, I
know it’s a hot seat that you occupy. But don’t you think it’s improper
for the CEO of the PIC to send out such request to business people
in this country?

DR DANIEL MATJILA: Commissioner, I was just responding to a

request and I was not for enforcing them you know I was just
responding. To me I mean we didn’t have a policy that says I can’t
relay request of certain individuals to people who are able to assist
them or organisations that are able to assist them.

480
At page 33 of the Transcript for day 55 of the hearings held on 16 July 2019.

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 ADV JANNIE LUBBE SC: You see the perception out there in the real
world is that the PIC just assisted Mulaudzi and Mseleku with funding
the entities and now shortly thereafter Mulaudzi pays 300 000 rand
from his own pocket on your request to assist. And Mseleku makes a
million rand contribution to the ANC based on a request from or a
message from the CEO of the PIC.

DR DANIEL MATJILA: They could have said no, they had a choice it
was not an instruction, Commissioner.

ADV JANNIE LUBBE SC: Thank you.’481

52. And responding to the comment: ‘So the perception of Mr Muluadzi, as per his
evidence, that a request from Dr Dan is like an order’, Dr Matjila said he did
not agree with that. Yet those who gave evidence before the Commission
stated that they advised Dr Matjila of donations made or assistance provided,
in particular both Mr Mseleku and Mr Mulaudzi. Furthermore, Dr Matjila did not
simply pass on requests from political parties and other influential entities for
funding, but actually followed up on such requests, as is evident from email
exchanges between him and certain individuals to whom the requests had
been relayed. (Copies of such emails are available.)

53. The CEO of any organisation should never excuse behaviour – mistaken,
unintentional or intentional – on the basis of whether there is a policy in place
or not. It is also the responsibility of both the CEO and the Board to ensure
that appropriate policies are in place. Furthermore, if the CEO does not take
ownership and responsibility for judgement calls and defers to compliance,
then that CEO is setting a tone that says anything is allowed if it is not
expressly illegal or barred via policy.

481
At page 33 of the transcript of day 55 of the hearings held on 16 July 2019.

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54. In these particular instances, the question that arises is, why would anyone
follow up on a ‘relayed request’ if it was just a process of information sharing?
The act of “following up” strongly implies that there is an expectation that the
request would be complied with and that Dr Matjila would want to know that
this was the case.

Whistle Blower Concerns

55. Several testimonies from staff alluded to the deep perception that the
Whistleblowing process was not to be trusted. With some staff taking issues
directly to the Police and other insiders using the James Noku email route, it
seems clear that there was no faith in this mandatory process. The Protected
Disclosure Act protects employees and workers who blow the whistle; and
requires management to foster a culture facilitating the disclosure of
information by employees and workers relating to criminal and other irregular
conduct in the workplace in a responsible manner.

56. The following testimony is significant:

‘MS GILL MARCUS: Then just one other question. Would be, in terms
of the whistle blower reports Mr Magula said you’d asked for all
reports to be sent to you irrespective – including the ones that involved
yourself, that internal audit should provide all of those reports to you,
is that correct?

DR DANIEL MATJILA: I’ve asked for all the reports and the reason
why I’ve asked for all the reports is because I was concerned that
there are certain matters that are not brought to my attention and
some of the issues were raised in this Commission, you know, which
were not brought into my attention and it was just to satisfy myself that

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 all matters have been reported or all matters that have been reported
by the whistle blower are being attended to.

MS GILL MARCUS: Thank you.’482

57. In a separate dialogue the following is noted

CHAIRPERSON: This… You know, these terms of reference that we

have. There is one relating to – I think it is either the very first one or
the next one – that relates to the question. Where the PIC instead of
investigating what was revealed by the Whistle-blower, it rather
investigated who is the person who gave that information, relating to
you and what you would allegedly have done. What do you say to
that, if anything?

DR DANIEL MATJILA: I think, Commissioner. It really depends how

you see this person. You know. If you see them as a Whistle -blower,
then probably the PIC should have investigated these issues that the
Whistle-blower is raising. But in any case, those have been
investigated by senior counsel. And subjected to the investigations.
But we also argued that we do not believe this is a Whistle -blower,
because they are very malicious. They can say anything. And you can
see some of the allegations and it is… Ja.

From where I sit, I could not believe they can be called Whistle-
blowers. They can be given the status of a Whistle -blower. In my
view. You know. It is just something that someone that is just being
malicious and really throwing as much mud as possible and hoping
that something will stick in the process. That is how I see it. Because
the Whistle-blowing process within the PIC, is properly defined and I

482
At page 43 of the Transcript for day 58 of the hearings held on 23 July 2019.

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 am sure the employees know about it. There is a hotline. There is the
board. There is even Treasury. If you want to work outside the PIC
through shareholders. So there are all kinds of ways of reporting the
issues in a more, I would say, dignified way, than just splashing out
emails in the manner that we have seen. And using the media to
support this. You know.

CHAIRPERSON: And in your endeavours to secure the IT system and

the information of the PIC, did that entail checking or inverted
commas, the people are saying you were spying on them. Sort of
checking on people, rather than looking at ways of securing the IT
system. That is what the spying allegation comes from.483

58. In the circumstances, it would appear that there was an excessive focus on
tracing the source of the e-mail.

Dr Matjila’s cavalier and dismissive approach to the scale of loss

or assets at risk

59. Dr Matjila stated repeatedly that the main function of the PIC is to deliver asset
management services to its clients, manage their portfolios and generate
returns. During his testimony, he stated the following:

‘In a big portfolio of about R2 trillion, when you deliver outperformance

for a client of 252 basis points on a five year rolling number you are
the best. The Commission is dealing with almost 2% of the portfolio.
98% of the portfolio is doing exceptionally well. If you add up all the

483
At pages 147-148 of the Transcript for day 57 of the hearings held on 22 July 2019

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 problem transactions you are not going to exceed R30bn at best …
the figure could be R40bn divided by R2 trillion …’484

60. In essence, his response was dismissive of concerns raised and the fact that
the R40bn is roughly equivalent to the amount government contributes
annually to the GEPF. Moreover, given that the losses primarily occurred in
the investments made through the Isibaya Fund, the R40bn should be
measured against the R123 billion that the PIC has invested through the
Isibaya Fund, 41% of which is at risk, on watch, under-performing or non-
performing.

61. Using percentages masks the size of the monies involved. While it is
recognised that even with the best processes and due diligence, losses and
bad investments will occur, the issue at stake here is the failure to follow due
process, making investments without the required rigour and authorisation,
not always ensuring that conditions precedent are met and inadequate post
investment monitoring.

62. The mandate of the PIC from the GEPF, when approving a developmental
investment strategy in 2010, states that the interests of members and
pensioners must always come first and that ‘all investments must, together,
achieve a required rate of return …’.485

63. The GEPF Statutory Actuarial Valuation as at 31 March 2018, conducted by

Alexander Forbes, estimated that the present value of future liabilities are
covered by the assets on a range from 108,3% (well above the critical
minimum funding level of 90% at which point government would be obliged to
increase its contribution to the Fund, but showing a deterioration in recent
years) to 75,5% being the ‘stricter liability measure’. On the stricter measure,

484
At page 77-80 of the Transcript for day 58 of the hearings held on 23 July 2019.
485
Para 2.4.3 of GEPF Memo, Developmental Investment Strategy, dated 24 February 2010.

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Investment Corporation Page 710 of 794
 the Fund is about R583 billion short of its liabilities. In the 2017/18 financial
year, the employer contribution to the GEPF was R45.3 billion, employee
contribution was R25,1 billion and investment income was R72 billion, giving
a total income of R142,4 billion.

64. Thus, improving investment returns is critical to ensure that there is no future
requirement to increase government contributions, especially as the
government is borrowing to fund total expenditure, including that contributed
to the GEPF.

65. Mr Sithole, recognising all of the above, nonetheless stated that, ‘The fund’s
assets grew by 8.3% during the 2017/18 financial year, going from R1,7 billion
to R1,8 billion. This growth is a vote of confidence in how the pension fund is
managed and how the funds are invested.’486 Mr Sithole, in para 23.3, states
further that ‘although large in rand terms, and every rand counts, the unlisted
portfolio comprises less than 5% of the GEPF’s assets managed by the PIC.
A significant part of the unlisted portfolio is performing well …’

Findings

66. Throughout the testimony, Dr Matjila displayed the following characteristics:

66.1. Evasiveness: Dr Matjila has been repeatedly economical with the truth, not
disclosing material information, relationships or interactions with
counterparties which were relevant to the decisions taken, and justifying his
actions even when the outcomes thereof were questionable.

66.2. A selective view of accountability: In retrospect the restructure appears

engineered to concentrate power into the hands of the CEO and CFO while
simultaneously merging the role of CIO into CEO. The consequence of this

486
Para 23.2 of Mr Sithole’s statement signed on 15 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 711 of 794
 concentration of organisational power left the two executive directors in de
facto control of the organisation. Dr Matjila failed to take accountability when
the outcome was bad and did not hesitate to take the credit when the
outcome was good. The lack of accountability and responsibility for
decisions taken, and their negative outcome, also displayed itself in Dr
Matjila’s tendency to use committee decisions in a way that disguises his
role (as CIO and CEO)

66.3. A disregard for the legislative and regulatory framework which the PIC is
required to operate within, including the Companies Act 71 of 2008
(Companies Act), the PIC’s Memorandum of Incorporation (MOI) and the
GEPF mandate.

66.4. A tendency to ride roughshod over the established approval and decision-
making processes, using a combination of process, influence, fear and
dictatorial fiat.

66.5. Perceived breach of the Protected Disclosures Act 26 of 2000

66.6. Doing repeat deals with individuals and/or their entities, even where no
value has been proven from the first deals. Examples of this include the
transactions concluded with Mr Jayendra Naidoo in Steinhoff and Lancaster,
MMI, Ascendis, INMSA and various other entities owned and/or controlled
by Dr Iqbal Survé. These actions of the CEO carry great financial risk for the
PIC.

66.7. A disregard for established rather than hypothetical enhanced value. An

apparent insensitivity to the risk profile required to build/maintain actuarial
solvency of the GEPF where shortfalls must eventually be financed by the
taxpayer.

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Investment Corporation Page 712 of 794
66.8. A consistent behaviour, when interacting with potential investees, or
meeting without anyone else present, of not keeping records or minutes or
any written audit trail of such interactions. This constitutes a breach of Dr
Matjila’s fiduciary duties in that he failed to do the following while adopting
a consistent practice of accepting and hosting meetings without anyone else
from the PIC being present:

66.8.1. keep records or minutes of material conversations and decisions; and

66.8.2. as CEO and Executive Director, ensure that the appropriate control
environment for record keeping is maintained throughout the
organisation when interacting with potential investees.

66.9. Highlighting political pressure as a serious concern but defending his

practice of meeting such parties without anyone else from the PIC in
attendance, keeping no record of these meetings, and holding such
meetings outside of the PIC premises. This is further compounded by the
finding that Dr Matjila directly solicited donations for COSATU and the ANC
from individuals whose companies the PIC has invested in.

66.10. Distancing himself from significant fee payments to financial service

advisors, and hiding behind the corporate veil, notwithstanding the need for
both actual and optical propriety in both substance and form. He also
claimed no knowledge of fees paid to such parties, while recognising that
the building of professional black asset managers and intermediaries
formed part of what he saw as a success. However, in reality the benefit
was for a few people only, but those who were ‘chosen often reaped
significant financial rewards. In building this transformed professional
cohort, there is no indication of a structural evaluation metric that was put in
place to pre-determine what a measure of success would look like. This
gives rise to the perception (and reality) of access to the PIC and significant

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Investment Corporation Page 713 of 794
 fee income for privileged insiders, who were, in a number of instances,
previous employees of the PIC.

66.11. Taking a deliberate decision to keep transactions below the level that would
require reference to a higher decision-making body, for instance the
investment in Steinhoff/Lancaster (referred to above) whether the IC or the
Board. This constitutes a subversion of governance.

66.12. Disregarding the advice of experts when such advice did not align with his
desired outcome such as in the Sagarmatha and Erin transactions. This is
dealt with in detail in the case studies in Chapter III.

66.13. Failure to adequately exercise his CEO responsibilities with regard to the
organisational, legal, regulatory, human resource and operational
frameworks relevant to good governance and client mandates. This is
reflected in the various terms of reference and case studies presented.

66.14. Failure to ensure that risk was managed at an appropriate level, raising the
question of whether this was the result of a deliberate structural and capacity
weakness by design, while maintaining the perception of an operational risk
management system (when in fact it was unfit for purpose).

RECOMMENDATIONS

67. In relation to the misconduct set out above, the GEPF/PIC/Government as

shareholder should institute an appropriate investigation as to whether Dr
Matjila violated the FAIS Act requirements of honesty and integrity as well as
of “fit and proper” given that he was a Key Individual in the PIC.

68. The Commission, in ToR 1.1, considered and made findings that need to be
given effect to regarding whether Dr Matjila:

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Investment Corporation Page 714 of 794
 68.1. Violated any other legislation applicable to the PIC, including the PFMA;

68.2. violated any rules, listing procedures or other requirements of the JSE;
and/or

68.3. breached the Protected Disclosures Act in his endeavours to find out who
the whistle-blower/author/s of the anonymous emails were.

69. The PIC to give consideration to whether any personal liability is attached to
the conduct of Dr Matjila, including with regard to any fruitless and wasteful
expenditure which, if found to be the case, would make Dr Matjila liable to
make the loss to the PIC whole.

70. Where money has been lost or investments made where the funds provided
have not been used for the intended purpose, this must be identified,
quantified and recovered.

71. Demonstrating a lack of due diligence and care, Dr Matjila breached his
fiduciary duties when approving investments into insolvent and technically
insolvent companies, for example Erin. Consequently, the appropriate steps
need to be taken.

72. The Independent Regulatory Board for Auditors (IRBA) to open an

investigation into the Limited Assurance work performed on the Ayo Prelisting
Statement given that the extreme revenue forecasts were clearly very
aggressive. For example, the 2018 actual comprehensive income achieved
R148 million compared to what was forecast (R764 million) reflects a
significant under performance.

73. Responsibility and Accountabilty of Mr Rajdhar: the Commission has noted

with concern the financial losses and breach of processes that have emanated
from the unlisted investments arena, including in the Developmental

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 715 of 794
 Investments. Numerous investments that resulted in undue losses for the PIC
occurred during the time when Mr Rajdhar was the EH: Developmental
Investments. As the the head, Mr Rajdhar needs to be held responsible and
accountable for this problematic division - not only Dr Matjila. Thus, it is
recommended that the PIC Board should thoroughly investigate Mr Rajdhar
for any impropriety and negligence arising from the transactions dealt with at
the Commisison that did not follow processes and/or resulted in financial loss.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 716 of 794
CHAPTER V – RECOMMENDATIONS AND REMEDIES

RECOMMENDATIONS FOR NEXT STEPS REGARDING

INVESTMENT LOSSES AND THOSE AT RISK

1. Term 1.15 in the Commission’s Terms of Reference asks whether ‘the current
governance and operating model of the PIC, including the composition of the
Board, is the most effective and efficient model and, if not, to make
recommendations on the most suitable governance and operational model for
the PIC for the future.’

2. In addressing ToR 1.17 it is noted that 41% of the R123 billion of Unlisted
Investments are on watch, under-performing or not servicing loans (non-
performing loans). Elsewhere in the portfolio, there are assets where there is
scope for enhancing value as well as capital sitting in insolvent entities. For
the purposes of this report these investments will be called Investment Capital
at Risk (ICAR). From a Finance lens, much of this ICAR would be termed
“Distressed Assets”.

3. The total ICAR is a significant portion of the portfolio, both in quantum and
relative to the AuM. This observation is important because Dr Matjila
repeatedly stated that the losses and write-downs are not significant relative
to the fund size.

4. An element of the current model is that investments are grouped and managed
in various portfolios, such as “Listed Investments” or “Property” or “Unlisted
Investments” to name just three. A possibility when consideration is given to
a more efficient model for the PIC in the future is to create a bifurcated fund
to house the Investment Capital at Risk and manage this portfolio to achieve
the best financial outcome for the PIC’s clients, based not on the initial
business or investment case, but rather on the best future-looking approach.

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Investment Corporation Page 717 of 794
5. A current model for this is the “good bank/bad bank” or “Non-Core Operations
Model”. For the purposes of this report the usage of bank will be substituted
by asset management, with reference to the PIC, specifically. What takes
place is that the asset manager looks at the funds being managed and divides
the assets into two categories. Into the “bad” column go the investments at
risk, the investments on the watch list and all troubled assets, such as non-
performing loans as well as illiquid investments where an exit strategy is
regarded as challenged. It is possible that even non-strategic investments that
have been marked for exit could also be allocated into this category. The
remaining assets are the “good” assets which represent the on-going
investment profile at the core of the fund, optimised for solvency regarding the
pension obligations. Hence another way of referring to this approach is “core”
and “non-core”.

6. The Bank for International Settlements paper, (BIS Policy Paper, No. 6 –
August 1999), “Bank restructuring in practice” provides an instructive
summary in this circumstance. The Paper starts with an overview by John
Hawkins and Philip Turner. The germane points from that paper are
summarised as follows. While the Paper is focussed on Banks, the same
principles can apply to the Asset Manager (PIC). The summary has been
flexed to apply those principles overlaid onto the situation of the PIC.

7. A structural choice available for remediation of the current situation is to

consider the separation of ICAR from the unimpaired assets of the existing
AuM. Compared to outright liquidation, the case for leaving the assets with
the originating manager is that the PIC knows the borrower and investees.
Additionally, it gives space and resources for the optimal realisation of these
assets rather than write downs and unnecessary loss-making divestment.
Where there is a credit relationship it may allow for this to be rehabilitated
when the loan is eventually repaid.

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Investment Corporation Page 718 of 794
8. The argument for ‘carving out’ the ICAR is that the managers who originated
the deals may be less objective than new managers who would consider the
investment afresh and would be differently-incentivised. Given that there have
been many examples of continuing to lend to delinquent borrowers, and
sometimes blindly investing new funds to keep “zombie” investments alive, the
non-core operation is expected to be dispassionately objective in the approach
it takes and in the options it considers.

9. Furthermore, an Asset Manager preoccupied with managing legacy

investments may become very risk-averse, with less time or inclination for new
investing as it works out the ICAR. Specifically, were the core and non-core
to remain in the same portfolios, the PIC may also find itself constrained by
constant consideration of political imperatives over investment imperatives for
the troubled assets. It is easier to give separate transparent goals if different
people are charged with the on-going asset management operations and the
resolution of ICAR.

10. The BIS authors note that there is also a case for not moving all ICAR away
from the bank (asset manager). The logic, applicable to the PIC as well, is
that it is desirable for the PIC to maintain and enhance experience with work-
out procedures and expertise on how to engage with watch-list investments.
The non-core unit need not be separate from the performing investments in
that they would still be part of each of the Client portfolios as before. Also, the
non-core management team should be part of the new Exco. This level of
integration will mean that the skills acquired and developed would remain with
the PIC and would support knowledge and skill sharing, independent of the
carved-out portfolio.

11. The BIS highlights that:

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Investment Corporation Page 719 of 794
 ‘…particularly when cronyism and corruption have been significant
causes of the problems in banks, it is important that the [non-core unit]
operates in a very transparent and objective manner. While some staff
will come from banks to bring their experience of loan problems, many
will come from outside the domestic banking system. They may be
organised into project groups managing a specific cluster of
connected assets.

The [non-core unit] should be structured with appropriate incentives

so that management and staff seek a fairly quick resolution rather than
unnecessarily prolonging the life of the [non-core unit] to protect their
own jobs. A further category of incentive may be needed to induce key
staff to stay when the [non-core unit] is nearing the end of its
operations.’487

12. In addition to segregating the ICAR within the parent funds’ balance sheets, a
‘non-core’ structure permits specialised management with sole focus on
optimal management of these non-core assets. The approach allows the core
portfolios that are performing to expectations to concentrate on their core
investment approaches, while the “non-core” entity can be dedicated to the
maximisation of value from the high-risk assets.

13. In the course of the Commission’s investigative work and the public hearings,
multiple individual transactions, loans and investments were noted where
there were apparent signs of financial stress leading to the various clients,
particularly the GEPF and the UIF, of the PIC having to absorb capital losses.

14. It is proposed that the Board and the Exco determine a set of conditions that
defines non-core investments. Then, an exercise should be conducted to
scrutinise the entire portfolio of assets against this set of conditions. All assets

487
At Page 70 of the BIS.

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Investment Corporation Page 720 of 794
 that are found to be “non-core” using the pre-agreed definition should be
identified as potential ‘non-core’. Given the subjective nature of the exercise
and fluid circumstance specific to each asset, it would be ideal for the PIC
Board and the Exco to work through this list to agree on assets that are on the
margins of the set criteria to be either excluded if felt to be core or included if
felt to be non-core, yet not completely matching the pre-determined
conditions. These assets should be proposed to be ring-fenced as non-core
and managed separately.

15. Management and the Board should agree a high-level approach to be taken
to realise optimal value through time, and should also define up-front what
time horizon the non-core portfolio has before it is liquidated. This step is
essential so that timeline and end for the working out of non-core investments
should be stipulated. This date must be mutually agreed on per asset at the
outset. Reasonable performance that clearly determines what success looks
like should also be defined ab initio, in order to create clarity on what would
be regarded as success so as to frame the activities for the managers of the
non-core portfolio.

16. Given that the purpose of the “bad bank” is to focus on optimal ways to de-risk
and free up time and energy for the sustainable future-focussed funds, it is
essential to ensure the non-core portfolio work out is time-limited. It is
suggested that the categorisation and approach be aligned to the perspectives
of the clients.

17. At this point the non-core investments should be hived off to the managers of
non-core. This team should be dedicated to the work-down of this fund and
should report separately to the governance and executive structures with a
direct line to the Board.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 721 of 794
18. Given the history, the high-visibility and sensitivity of some of these
investments there should also be specific scrutiny on material divestments/exit
strategies to ensure the interests of the clients are held paramount and other
impacts are managed delicately and thoughtfully.

19. A primary concern is that investments are not optimised or exited in a way that
benefits a select few on the basis of influence and not profit/optimal financial
returns or best solution for resolution of the problems besetting that asset. For
example, fixing the balance sheet and installing appropriate management
seems to have turned Daybreak Farms around. It would be most unfortunate
if, for example, investments that can be turned around or salvaged are sold
for less than they are worth, possibly to connected insiders or simply allowed
to fail. Similarly, it should be avoided where the required management action
is not executed effectively and a sub-optimal price is realised due to lack of
appropriate effort by the “non-core” management team.

20. It is imperative that this team’s areas of focus should include, but not be limited
to, the following:

20.1 Fixing balance sheets;

20.2 installing appropriate management;

20.3 ensuring sufficient transparency and governance;

20.4 ensuring that value is restored where possible to maximise returns when
exiting the investment.

21. These areas of focus will help avoid a situation where sub-optimal prices are
realised, and they will support monitoring of the performance and appropriate
actions/efforts of “bad bank” managers.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 722 of 794
22. Concerted management action and attention can often enable turn-arounds
to be effected. This requires the right investment of all forms of capital
(especially entrepreneurship, funding and labour).

23. Part of the solution looking to the future is to reconsider the existing
organisational approach so that it will now take into account the historic vested
interests and ensure the funds’ members’ needs are held paramount. It is
essential, in the process of realising maximum value of the “non-core” assets,
that focus for the ICAR is placed on, but not limited to, the following:

23.1 Stabilising and strengthening of balance sheets.

23.2 Installing appropriate skilled and incentivised management.

23.3 Enshrining transparency and dedication to good conduct at all times.

23.4 Fostering a culture of constant and consistent reputational risk

management.

23.5 Ensuring that value is restored where possible to maximise returns when
exiting the investment is imperative.

23.6 Focusing on appropriate due diligence for partners and acquirers to guard
against any accusations of preferential treatment for connected parties.

24. It is also essential that all of these actions remain transparent in the public
sphere to ensure past mistakes are not repeated. Several times in testimony
before the Commission, reference was made to “School Fees” (Dr Matjila Day
55,19-07-2019), meaning that in investing not all investments are going to
make a profit and the combined expertise within the asset manager improves
by learning from mistakes. The corollary maxim should be that “School Fees
are only paid once”. These actions and considerations will help avoid a

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 723 of 794
 situation where sub-optimal prices or returns are realised, as well as
effectively monitoring the performance and appropriate actions/efforts of “bad
bank” managers.

25. Many investments are not performing at their maximum valuation due to
insufficient active management, operational involvement and oversight. Thus,
the teams in the non-core fund would need to have the appropriate resources
to realise optimal value. For example, there must be the authority and
resources provided to hire specialist management or consultants, as well as
the commitment for additional capital that is clearly targeted for turnaround
operations to enhance investment profits or reduce losses. The information
provided to the Commission, including from its own team’s investigations,
have shown a pattern for assets to underperform, then sub-optimal
management approaches that are not ideal to turn around the investment with
the end result of the investee requiring some form of bail-out, often via an
additional capital injection.

26. This behaviour cannot continue and, at the same, there must be caution to not
make choices that reject the favourable along with the unfavourable by
ceasing to inject capital that would turn around a good underlying business.

27. Specific examples have arisen during the Commission’s investigations

including that of Erin Energy.488 In this instance the view of the Commission is
that it is essential for the PIC to actively take steps to maximise return on
whatever remaining capital value still exists, such as the oil rigs. In addition,
the economic interests of the facility extended to Erin by Mauritius Commercial
Bank and guaranteed by the PIC (on behalf of the GEPF) were taken over
directly by the PIC, and any rights thereunder should be actively sought out.

488
See the Erin Energy case study in Chapter III.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 724 of 794
28. There needs to be a detailed analysis comparing investment returns with the
actual losses written-off, impaired or potentially impaired. This analysis should
also take into account the inherent riskiness of the original investment to
consider what legal implications there are relative to considerations such as
fiduciary duty to pensioners/taxpayers.

29. A comprehensive review of the PIC approach to Risk Measurement and

Management as an Investment Manager is urgent and imperative. This needs
to consider, at the least, risk measurement pre-deal and portfolio; Model Risk;
Credit Risk; Country Risk; Currency Risk if applicable to the investment;
Concentration Risk and Client Risk Appetite setting; Risk Reporting for PIC
itself e.g. Regulatory and Operational Risk; Breaches, Condonation and Pre-
approved Deviations (waivers); Reputational Risk as well as the management
of short term volatility versus a 10-year investment approach.

30. As an advance-funded scheme, the GEPF should hold sufficient assets to

cover the estimated liabilities it will have to meet future and current retirees,
estimates being actuarially calculated based on various assumptions. The
estimated present value of future liabilities are covered by the assets on a
range from 108,3% to 75,5% - the range being “best estimate basis” through
to the “stricter liability measure”. On the stricter measure the Fund is about
R583bn short of its liabilities. In the 2017/18 financial year, the employer
contribution to the GEPF was R45,3bn, employee contributions R25,1bn and
investment income was R72 billion giving a total income of R142.4 billion,
against an outflow of benefits paid of R94.9 billion (National Treasury Budget
Review 2019). When comparing previous actuarial reports with the most
recent one, the funded position of the GEPF has deteriorated in recent years,
primarily because of the growth of benefits and lower than expected
investment returns.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 725 of 794
31. The Alexander Forbes GEPF Statutory Actuarial Valuation as at 31 March
2018 shows that the minimum funding level declined from 115.8% (2016) to
108.3% (2018) while the long term funding level declined from 79.3% (2016)
to 75.5% (2018). Thus the pre-funding level of the Fund remains well above
the critical minimum funding level of 90%, at which point government would
be obliged to increase its contributions to the Fund. In terms of the GEPF
mandate, the Fund’s rules state that employer contributions should be
sufficient to ensure that the Fund is able to meet its obligations at all times,
subject to a minimum funding level of 90%. This can therefore be viewed as
the primary funding objective of the Fund. The Funding Policy of the Fund also
stipulates that the Board of Trustees should strive to maintain the long-term
funding level at or above 100%. The long term funding level equalled 75,5%,
and therefore it does not meet its long term funding objective at the valuation
date.

NEXT STEPS: FIT AND PROPER / VIOLATIONS OF FAIS

“AB Asset Management is a specialist active investment manager that provides

an extensive range of South African and international investment products and
services to institutions, advisory clients and individuals. Our clients include
pension funds, central banks, sovereign wealth funds, insurers, foundations,
financial advisers and individual investors, and the strategies and funds offer
exposure to major asset classes, across a wide range of sectors and regions.

The mission of AB is to understand the expectations of their clients and exceed

their expectations and investment returns that they require over the long term.”

This is an extract from the mission statement of an asset manager listed on the
JSE, which illustrates the business of an asset manager.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 726 of 794
Introduction

32. As set out earlier in this Report, the Commission has had extensive hearings
and received a plethora of evidence. Following these hearings, the
Commission has made a number of findings of fact which appear in Chapter
III of this Report.

33. It is not the responsibility of the Commission to engage in a detailed analysis

of the legal consequences of any wrongdoing by particular persons, as
evidenced in the findings of fact. In addition, the absence of adequate
resources and the limited life span of the Commission preclude it from
undertaking that hugely complex and time-consuming task. Accordingly, that
would, in the case of criminal conduct, be the function of the relevant law
enforcement agencies of the State. In the case of recoveries arising from
losses or damages sustained by the PIC it, as appropriately advised, would
be required to institute the necessary remedial actions.

34. It is, however, required of the Commission to provide context, on the basis of
its factual findings, to categories of wrongdoing that necessitate the institution
of criminal prosecution and / or civil action.

35. For the purposes of providing such context and guidance, the Commission
must of necessity:-

35.1 analyse the purpose and role of the PIC;

35.2 identify the duties and responsibilities of those who direct and manage
the business and affairs of the PIC; and

35.3 identify certain of the duties and responsibilities of third parties who deal
with the PIC as represented by its directors, managers or employees.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 727 of 794
The Statutory Nature of the PIC and its Business

36. The founding statute of the PIC is the Public Investment Corporation Act No
23 of 2004 (the PIC Act).

37. In terms of section 2 of the PIC Act the PIC is established as a juristic person
and the Registrar of Companies is directed to register the Memorandum of
Incorporation and Articles of Association of the PIC in terms of the Companies
Act. Accordingly, the provisions of the Companies Act, 71 of 2008 (the
Companies Act), apply to the PIC.

38. It is important to observe that, in terms of section 2(4) of the PIC Act, the main
object of the PIC is to be a financial services provider in terms of the Financial
Advisory and Intermediary Services Act No 37 of 2002 (the FAIS Act).

39. It is further of great importance that, in terms of section 6 of the PIC Act :-

39.1 the Minister of Finance must, in consultation with Cabinet, determine and
appoint the members of the board; and

39.2 the members of the board must be appointed on the grounds of their
knowledge and experience, with due regard to the FAIS Act, which,
when considered collectively, should enable the board to attain the
objects of the PIC.

40. In terms of section 8 of the PIC Act, the board must control the business of the
PIC, direct the operations of the PIC and exercise all such powers of the PIC
that are not required to be exercised by the shareholders of the PIC.

41. Very importantly, in terms of section 9 of the PIC Act, the PIC must, in terms
of the FAIS Act, obtain authorisation from the Registrar referred to in section
2 of the FAIS Act, as a financial services provider.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 728 of 794
42. Again, by way of background, the PIC Act also makes provision for the
investment strategy to be adopted by the board of the PIC.

Regulation of the PIC under the FAIS Act and the duties and
responsibilities of the directors and officers of the PIC in terms of
the FAIS Act

43. As set out above :-

43.1 the PIC is registered as a Financial Services Provider (FSP) with the
Financial Sector Conduct Authority (FSCA), with FSP number 19777;

43.2 the PIC has listed a certain number of persons as representatives on its
FSP licence and has appointed certain key individuals. Further, the PIC
has appointed two compliance officers to ensure that the PIC and its
representatives and key individuals comply with the FAIS Act and the fit
and proper requirements in terms of the FAIS Act;

43.3 as a juristic entity, the manner in which the PIC’s compliance with the fit
and proper requirements will be measured, will be through the personal
behaviour or conduct of its directors, members, trustees, partners or key
individuals. If the Registrar is satisfied that a director, member, trustee
or partner of the PIC does not comply with the fit and proper
requirements in respect of personal character qualities of honesty and
integrity, the Registrar may suspend or withdraw the PIC’s FSP licence.

General Application of the FAIS Act

44. The FAIS Act came into full effect on 30 September 2004. The purpose of the
FAIS Act is to promote consumer protection through the regulation of advisory

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 and intermediary services in respect of financial products (collectively,
‘financial services’) by FSPs489.

45. Section 7(1) of the FAIS Act prohibits any person490 from providing advice or
rendering intermediary services unless that person is registered as an
authorised FSP, or listed as a representative of an authorised FSP on the
licence of that FSP. A person who is furnishing advice or rendering
intermediary services must therefore make an application for authorisation as
an FSP. If successful, the person will be issued a licence under section 8 of
the FAIS Act, subject to the requirements imposed by the Registrar with which
that person and its key individuals and representatives must comply.

46. To meet the consumer-protection imperative, the FAIS Act imposes

requirements on FSPs to ensure, among other things, that consumers receive
proper financial advice, that they are provided with sufficient information to
make informed investment decisions and that they are dealing with fit and
proper advisors and intermediaries. These requirements are termed the
determination of Fit and Proper Requirements for financial services providers
and their representatives (the fit and proper requirements).

47. The fit and proper requirements for each of the categories of FSPs, key
individuals and representatives are –

47.1 personal character qualities of honesty and integrity;

47.2 good standing;

489
Van Wyk., K., Botha, Z., and Goodspeed, I Understanding south African Financial Markets (2012) 4 ed page 73
490
“Person” means any natural person, partnership or trust, and includes –
(a) Any organ of state as defined in section 239 of the Constitution of the Republic of South Africa, 1996 (Act No 108
of 1996);
(b) Any company incorporated or registered as such under any law; and
(c) Any body of persons corporate or unincorporated.”

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47.3 competence;

47.4 continuous professional development;

47.5 operational ability; and

47.6 financial soundness.

48. Section 8(10)(a) of the FAIS Act states that where a provider is a corporate or
unincorporated body, a trust or a partnership, that provider must at all times
be satisfied that every director, member, trustee or partners, who is not a key
individual in the provider’s business, complies with the requirements in respect
of personal character and qualities of honesty and integrity, as set out in the
fit and proper requirements.

49. If the Registrar is satisfied that a director, member, trustee or partner does not
comply with the fit and proper requirements in respect of personal character
qualities of honesty and integrity, the Registrar may suspend or withdraw the
licence of the provider (section 10(b) of the FAIS Act).

50. Section 9(2) of the fit and proper requirements further stipulates that
compliance with section 8(1) of the fit and proper requirements (honesty,
integrity and good standing) by a person that is not a natural person must be
demonstrated through its corporate behaviour or conduct and through the
personal behaviour or conduct of the persons who control or govern that first
mentioned person or who is a member of a body or group of persons which
control or govern that person, including directors, members, trustees, partners
or key individuals of that person.

51. Before an applicant applies for authorisation as an FSP (referred to in

paragraph 45 above), it must ascertain whether it needs to appoint and

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 nominate a key individual(s) and a compliance officer (appointment of key
individuals and compliance officers will be dealt with below).

52. If the applicant FSP is a partnership, trust or corporate or unincorporated body,

the application for registration must be accompanied by additional information
to satisfy the Registrar that every person who acts as a key individual of the
applicant FSP complies with the fit and proper requirements for key individuals
in the category of FSPs applied for to the extent required in order for such key
individual(s) to fulfil the responsibilities imposed by the FAIS Act.491

53. Once an application for authorisation (to act as an FSP) has been approved,
section 8A of the FAIS Act obliges an FSP, key individual(s) representative(s)
and key individuals of the representative(s) to continue to comply with the fit
and proper requirements.

Application of the FAIS Act to the PIC

54. The FAIS Act, as with most consumer protection legislation, adopts a
functional approach to regulation. As such, if the PIC is giving ‘advice’ (as that
term is defined in the FAIS Act) and/or rendering ‘intermediary services’ (as
that term is defined in the FAIS Act), then the PIC would be required to be
registered as an authorised FSP.

55. In addition, section 4 of the PIC Act lists the main object of the PIC as being
an FSP in terms of the FAIS Act. In order to achieve its objective (as set out
in section 4), the PIC must ensure that it is registered as an FSP under the
FAIS Act.

491
In terms of section 6A(1) of the FAIS Act, the Registrar must determine the requirements that financial service
providers, key individuals and representatives of the FSP must comply with.. These requirements are termed the
Determination of Fit and Proper Requirements for financial service providers and their representatives. The
requirements set the honesty and integrity, competency and operational ability requirements for all FSPs, key
individuals and representatives.

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56. The PIC must furthermore comply with the fit and proper requirements.

57. On 6 December 2005, the PIC was approved by the Registrar as a Category
I and II FSP.

58. A category I FSP is an FSP which offers advice and renders intermediary
services, but without discretion (i.e. the client must instruct the FSP to make
the investment). As a category I FSP, the PIC may be requested to provide
input into the clients’ mandates in relation to asset class allocations, with a
view to assist the client in achieving its investment objectives, but the ultimate
decision to invest is that of the client.

59. A category II FSP is an FSP which renders intermediary services of a

discretionary nature regarding the choice of a particular financial product. As
a category II FSP, the PIC is authorised to make investment decisions (buy or
sell asset classes) on behalf of clients.

60. The authorisation of the PIC, as stipulated in paragraph 58, allows it to render
financial advisory, intermediary and discretionary intermediary services to
clients in respect of the financial products listed below :

60.1 Category I FSP :

60.1.1 participatory interest in a hedge fund;

60.1.2 shares;

60.1.3 money market instruments;

60.1.4 debentures and securitised debt;

60.1.5 warrants, certificates and other instruments;

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60.1.6 bonds

60.1.7 derivative instruments;

60.1.8 participatory interests in a collective investment scheme;

60.1.9 long-term deposits; and

60.1.10 short-term deposits.

60.2 Category II FSP – Discretionary FSP:

60.2.1 participatory interest in a hedge fund;

60.2.2 shares;

60.2.3 money market instruments;

60.2.4 debentures and securitised debt;

60.2.5 warrants, certificates and other instruments;

60.2.6 bonds

60.2.7 derivative instruments;

60.2.8 participatory interests in one or more collective investment

schemes;

60.2.9 long-term deposits; and

60.2.10 short-term deposits.

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61. As an authorised FSP, the PIC is subject to, inter alia, the general Code of
Conduct for authorised FSPs and representatives as well as the Code of
Conduct for Discretionary FSPs.

62. Paragraph 5 of the Code of Conduct for Discretionary FSPs requires the PIC
to have signed a mandate with each client which must contain certain
specified provisions with regard to the rendering of discretionary intermediary
services. The PIC’s specimen mandate was approved by the Registrar at
licensing state and affords the PIC full discretion regarding the investment
decision, and choice of financial products in relation to clients’ investments.
The records of the FSCA indicate that the PIC has entered into full
discretionary mandates with 22 clients.

Compliance Officers

63. The PIC has the responsibility of ensuring compliance with the FAIS Act and
the fit and proper requirements. As such, the PIC must ensure that an
independent compliance function exists or is established (as part of its
obligation to manage the risks of its business) and establish and maintain
procedures to be followed by the PIC or any representatives concerned.

64. In compliance with section 17 of the FAIS Act (Compliance officers and
compliance arrangements) the PIC has appointed two approved compliance
officers, namely Mr D M Makonko and Mr N B Nsibande, who are responsible
for–

64.1 oversight of the PIC’s compliance function;

64.2 monitoring compliance with the FAIS Act by the PIC and its
representative(s); and

64.3 liaison with the Registrar.

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65. The PIC’s compliance officers must comply with the fit and proper
requirements, however, there seems to be no reference in the fit and proper
requirements to compliance officers. Instead, the qualifications and
experience of compliance officers in respect of financial services business had
been determined under BN 51 in GG 40785 of 13 April 2017.

Audit and accounting requirements

66. In terms of section 19 of the FAIS Act, the PIC is required to maintain full and
proper accounting records (brought up to date monthly), prepare annual
financial statements and cause such statements to be audited by an external
auditor approved by the FSCA.

Key Individuals

67. As the PIC is an incorporated body, it must have a key individual(s). The
requirement also applies to the PIC’s representatives insofar as such
representatives are incorporated bodies.

68. Key individuals include natural persons, responsible for managing or

overseeing, either alone or together with other such responsible persons, the
activities of the PIC, or of a representative of the PIC. The PIC has appointed
the following key individuals 492:-

68.1 Ms Melissa Breda (class of business – investments);

68.2 Mr Sholto Dolamo (class of business – not shown on FSCA website);

68.3 Mr Fidelis Madavo (class of business – investments);

492
A copy of the list of key individuals as shown on the FSCA website.

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68.4 Dr Daniel Mmushi Matjila (class of business – short-term and long-term
deposits, structured deposits and investments);

68.5 Mr Lebogang Molebatsi (class of business – short-term and long-term

deposits and investments); and

68.6 Mr Leonardus Smit (class of business – short-term and long-term

insurance and investments).

69. Key individuals are required to possess the personal character qualities of
honesty and integrity, and competence and operational ability, as defined in
the fit and proper requirements – at least to the extent required of them to fulfil
the responsibilities imposed on them by the FAIS Act.

Representatives

70. The PIC must maintain a register of representatives (and key individuals of
such representatives, where applicable), which must be regularly updated and
be available to the Registrar for reference or inspection purposes. The PIC
must also ensure that its representatives are listed as such on its FSP licence.

71. The FSCA records indicate that the PIC has a total of 85 representatives. 493
The PIC is responsible for the actions of its representatives and must ensure
that each of its representatives meets the relevant fit and proper requirements
(unless exempted in terms of the FAIS Act). We set out a summary of the
relevant provisions in the fit and proper requirements insofar as they relate to
all representatives in Schedule 2 of the FAIS Act.

493
The list of representatives according to the FSCA records is available on the FSCA website.

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Debarment and suspension and withdrawal of licence

72. In terms of section 14 of the FAIS Act, if the PIC is satisfied that a key individual
or representative of the PIC no longer meets the fit and proper requirements,
or has failed to comply with any provision of the FAIS Act in a material manner,
the PIC must debar the key individual or representative from rendering
financial services.

73. In addition, since the PIC is a corporate, the failure by the PIC and its key
individuals to meet, or continue to meet the fit and proper requirements (as
applicable to the PIC and its key individuals) could also lead to the suspension
or withdrawal of the PIC’s licence by the Registrar ( see section 9 of the FAIS
Act ).

Exemptions under the FAIS Act

74. The Registrar has the power to exempt any person or category of persons,
including key individuals and representatives, from any applicable provision of
the Act (which includes the regulations, rules or codes of conduct, any notices
given, and any determinations made by the Registrar) either on the Registrar’s
own initiative or on application by an FSP (section 44 of the FAIS Act).

75. The FAIS Act however, unlike similar legislation in other jurisdictions, does not
have a sophisticated investor exemption. While specific exemptions exist in
respect of certain categories of clients, pension funds are specifically excluded
from the exemptions.

76. As such, there are no specific exemptions applicable to the PIC.

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Regulation of the PIC in terms of the Public Finance Management
Act, no 1 of 1999 (PFMA) and the duties and responsibilities of the
directors of the PIC in terms of the PFMA

77. The PIC is an institution to which Schedule 3(2) of the PFMA is applicable.

78. In terms of section 49 of the PFMA, the board of the PIC is its accounting
authority.

79. In terms of the PFMA, very onerous duties are imposed on the board of the
PIC as its accounting authority. In this regard section 50 of the PFMA reads
as follows –

’50. Fiduciary duties of accounting authorities –

(1) The accounting authority for a public entity must –

(a) exercise the duty of utmost care to ensure reasonable

protection of the assets and records of the public entity.

(b) act with fidelity, honesty, integrity and in the best interests of
the public entity in managing the financial affairs of the public
entity;

(c) on request, disclose to the executive authority responsible for

that public entity or the legislature to which the public entity is
accountable, all material facts, including those reasonably
discoverable, which in any way may influence the decisions or
actions of the executive authority or that legislature; and

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 (d) Seek, within the sphere of influence of that accounting
authority, to prevent any prejudice to the financial interests of
the state

(2) A member of an accounting authority or, if the accounting authority

is not a board or other body, the individual who is the accounting
authority, may not –

(a) act in a way that is inconsistent with the responsibilities

assigned to an accounting authority in terms of this Act; or

(b) use the position or privileges of, or confidential information

obtained as, accounting authority or a member of an
accounting authority, for personal gain or to improperly benefit
another person.

(3) A member of an accounting authority must –

(a) disclose to the accounting authority any direct or indirect

personal or private business interest that that member or any
spouse, partner or close family member may have in any
matter before the accounting authority; and

(b) withdraw from the proceedings of the accounting authority

when that matter is considered, unless the accounting authority
decides that the member’s direct or indirect interest in the
matter is trivial or irrelevant.’

80. Section 51 of the PFMA provides as follows :-

’51. General responsibilities of accounting authorities

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 (1) An accounting authority for a public entity –

(a) must ensure that that public entity has and maintains –

(i) effective, efficient and transparent systems of financial

and risk management and internal control;

(ii) a system of internal audit under the control and direction

of an audit committee complying with and operating in
accordance with regulations and instructions prescribed
in terms of sections 76 and 77; and

(iii) an appropriate procurement and provisioning system

which is fair, equitable, transparent, competitive and
cost-effective;

(iv) a system for properly evaluating all major capital

projects prior to a final decision on the project;

(b) must take effective and appropriate steps to –

(i) collect all revenue due to the public entity concerned;

and

(ii) prevent irregular expenditure, fruitless and wasteful

expenditure, losses resulting from criminal conduct, and
expenditure not complying with the operational policies
of the public entity; and

(iii) manage available working capital efficiently and

economically;

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 (c) is responsible for the management, including the safeguarding,
of the assets and for the management of the revenue,
expenditure and liabilities of the public entity;

(d) must comply with any tax, levy, duty, pension and audit
commitments as required by legislation;

(e) must take effective and appropriate disciplinary steps against

any employee of the public entity who –

(i) contravenes or fails to comply with a provision of this

Act;

(ii) commits an act which undermines the financial

management and internal control system of the public
entity; or

(iii) makes or permits an irregular expenditure or a fruitless

and wasteful expenditure;

(f) is responsible for the submission by the public entity of all

reports, returns, notices and other information to Parliament or
the relevant provincial legislature and to the relevant executive
authority or treasury, as may be required by this Act;

(g) must promptly inform the National treasury on any new entity
which that public entity intends to establish or in the
establishment of which it takes the initiative, and allow the
National Treasury a reasonable time to submit its decision prior
to formal establishment; and

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 (h) must comply, and ensure compliance by the public entity, with
the provisions of this Act and any other legislation applicable
to the public entity.

If an accounting authority is unable to comply with any of the responsibilities

determined for an accounting authority in this Part, the accounting authority
must promptly report the inability, together with reasons, to the relevant
executive authority and treasury.’

The Duties and Responsibilities of the Directors of the PIC in terms

of the Companies Act

81. Since the PIC is a company governed by the Companies Act, its directors and
managers have all the duties and responsibilities applicable in terms of the
Companies Act, to the extent applicable to State owned companies, and the
common law to directors of a for profit company.

82. The duties of the directors of companies derives for the most part from
sections 76 and 77 of the Companies Act and the common law. The
provisions of sections 76 and 77 of the Companies Act are essentially a precis
of the common law.

83. These duties are traditionally grouped into two categories –

83.1 fiduciary duties; and

83.2 the duty of care, skill and diligence.

84. Insofar as concerns the fiduciary duties of directors the following are included–

84.1 the duty to act honestly and in good faith;

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84.2 in the best interests of the company;

84.3 to avoid conflicts;

84.4 to avoid usurping corporate opportunities;

84.5 not to use fiduciary information for the directors’ own benefit;

84.6 to act with an independent judgement;

84.7 to act within their powers; and

84.8 to act for a proper purpose.

85. The duties of care, skill and diligence which is set out in section 76(3)(c) is to
exercise their powers and perform their functions –

‘with the degree of care, skill and diligence that may reasonably be
expected of a person –

(i) carrying out the same functions in relation to the

company as those carried out by that director; and

(ii) having the general knowledge, skill and experience of

that director.

86. The aforegoing is subject to the business judgement test.

87. An examination of the case law indicates the true nature of the character of
fiduciary responsibilities. In Canadian Aero Service Limed v O’Malley (1974)
40 DLR (3d) 371 (SCC) Laskin J held :-

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 ‘An examination of the case law in this Court and in the Courts of other
like jurisdictions on the fiduciary duties of directors and senior officers
shows the pervasiveness of a strict ethic in this area of the law.’

88. In a recent judgement of the Federal Court of Australia in the case of

Australian Securities and Investments Commission v Healey494 the role, and
responsibilities, of directors was thoroughly evaluated. The following
passages from the judgement are particularly instructive :-

‘A director is an essential component of corporate governance. Each

director is placed at the apex of the structure of direction and
management of a company. The higher the office that is held by a
person, the greater the responsibility that falls upon him or her. The
role of a director is significant as their actions may have a profound
effect on the community, and not just shareholders, employees and
creditors.’; and

‘The case law indicates that there is a core, irreducible requirement of

directors to be involved in the management of the company and to
take all reasonable steps to be in a position to guide and monitor.’

89. It is important to observe that in the case of the PIC the directors have all the
duties that directors of, for example, a trading or industrial company, would
have. However, in the case of directors of the PIC, being an asset manager
which, by virtue of the provisions of the FAIS Act, is itself subject to extremely
onerous fiduciary and other duties, the directors of the PIC have the
consequence that the proper discharge by them of their duties imposed in
terms of the Companies Act obliges them to ensure that the PIC complies with
its onerous fiduciary duties imposed in terms of the FAIS Act.

494
[2011] FCA 717.

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90. An important question relates to the determination of the duties and
responsibilities of management and officers of a company as opposed to
directors. In this regard in Gower’s Principles of Modern Company Law, Sixth
Edition, it is stated as follows:

‘Thirdly, these duties, except in so far as they depend on statutory

provisions expressly limited to directors, are not so restricted but
apply equally to any officers of the company who are authorised to act
on its behalf and in particular to those acting in a managerial
capacity.’495

91. In an earlier edition, the learned author states that the aforegoing sentence
was approved by the Canadian Supreme Court in Canadian Aero Services Ltd
v O’Malley (1973) 40 D.L.R.

92. However, the learned author in the Ninth Edition of Gower’s Principles of
Modern Company Law re-examines this same question. In this regard it is
stated as follows: –

‘However, it can be asked whether the fiduciary duties apply as a

matter of common law to the senior managers of the company who
are not directors. In Canadian Aero Services Ltd v O’Malley the
Canadian Supreme Court approved a statement from an earlier
edition of this book that directors’ duties apply to those “officials of the
company who are authorised to act on its behalf and in particular to
those acting in a senior management capacity”. That view has not
been adopted expressly in any English court. Moreover, it is clear
that, in principle, the employment relationship is not a fiduciary
relationship, so that it would be inappropriate to apply the full range of
directors’ duties even to senior employees. However, this proposition

495
At page 600.

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 is subject to a number of qualifications. First, a senior employee who
does in fact discharge the duties of a director may be classed as a de
facto director, under the principles discussed above. Secondly, the
courts have held that, as a result of the specific terms of an
employee’s contract and of the particular duties undertaken by him or
her, a fiduciary relationship may arise between employee and
employer, even in the case of employees who are not part of senior
management, though the fiduciary duty may be restricted to some part
of their overall duties. The view of the Canadian Supreme Court is
not inconsistent with these developments, since it too was derived
from an analysis of the functions of the employees in question as
senior management employees, though there will be scope for
argument on the facts of each case about how extensive the fiduciary
aspects of the employee’s duties are. It goes without saying that,
should a senior manager place him – or herself in an agency
relationship with the company, then the normal fiduciary incidents of
that relationship would arise. Thirdly, the implied and mutual duty of
trust and confidence which is imported into all contracts of
employment can in some cases operate in the same way as directors’
fiduciary duties. This is particularly the case in relation to competitive
activities on the part of an employee or the non-disclosure by senior
managers of the wrongdoing of fellow employees and in some cases
their own wrongdoing.’496

93. It follows, that for all intents and purposes, senior managers and officers of
companies are effectively bound by the same duties and responsibilities as
are applicable to directors.

496
At page 515.

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Application of Various Other Statutes

94. The conduct revealed in the findings of fact may give rise to a violation of a
number of other statues including :-

94.1 Financial Intelligence Centre Act 2001;

94.2 Broad-Based Black Economic Empowerment Act 2003 (particularly

fronting);

94.3 Prevention and Combatting of Corrupt Activities Act 2004;

94.4 Prevention of Organised Crime Act 1998; and

94.5 Preferential Procurement Policy Framework Act 2000.

Governance

95. The findings of fact set out in earlier Chapters of this Report manifest a
significant breach of governance in the management of the affairs of the PIC.
The implications of mismanagement of the PIC from a governance point of
view are dealt with in Chapter III, under terms of reference 1.2 and 1.15,
relating to governance. In particular, it is important to take steps relating to
the governance of the PIC so as to ensure that there will not be a recurrence
of the manifest failures of governance which have been described in earlier
Chapters of this Report.

Application of the Legal Principles to the findings of fact

96. It is necessary to apply the legal principles set out in paragraphs 0, 0 , 0 and
0 above, to the findings of fact, for the purposes of determining persons, or

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 categories of persons, that have committed wrongdoing which gives rise to
criminal or civil consequences.

97. Before applying the legal principles to the findings of fact, it is appropriate to
provide some context. As appears from the findings of fact, there was a
significant failure of governance and a pervasive disregard for compliance with
the relevant legal duties and responsibilities of the directors and managers. It
is always lamentable when this occurs in the case of any company, but even
more so when the company concerned is an asset manager of the scale and
significance of the PIC. It is self-evident that the PIC is an institution of
fundamental importance. This arises from a number of factors including :-

97.1 the PIC is the repository of a significant part of the nation’s savings. Its
beneficiaries, being State employees and their dependants, look to the
PIC for their financial security; and

97.2 the PIC is a significant investor and provides funding for new and
established ventures and assists in underpinning the stability of the JSE.

98. It follows, that in implementing the recommendations set out hereunder the
observations set out in paragraph 97 above must feature prominently.

99. Insofar as it concerns criminal consequences it will be necessary for the State
law enforcement officials to consider the findings of fact in the light of the
relevant legal principles identified in this Chapter to determine whether it would
be appropriate to prosecute individuals who have been involved in acts which
may give rise to criminal wrongdoing.

100. Insofar as it concerns wrongdoing which has caused loss or damage to the
PIC it will be necessary for the PIC to evaluate the wrongdoing arising from
the findings of fact and to institute appropriate actions to recover any such loss
or damages.

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Recommendations

101. It is accordingly recommended that this Report should be forwarded to –

101.1 the relevant State law enforcement officials to consider the findings of
fact in the light of the relevant legal principles identified in this Chapter
to determine whether it would be appropriate to prosecute individuals
who have been involved in acts which may give rise to criminal
wrongdoing; and

101.2 the PIC to evaluate the wrongdoing arising from the findings of fact and
to institute appropriate actions to recover any loss or damages that may
have been incurred.

102. Although it does not appear to the Commission that there is any deficiency in
the laws regulating the business of the PIC and, in particular, the conduct of
its directors and officers, it is appropriate for this Report to be submitted to the
FSCA to consider the adequacy of the laws regulating the PIC, its directors
and officers.

103. The measures required to address the failures in governance are contained in
the sections relating to Governance, specifically ToRs 1.15 and 1.16.

104. Consideration should also be given to the institution of actions for the recovery
of benefits received by third parties who were complicit in the wrongdoing of
directors or managers of the PIC in the breach of their duties to the PIC.

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THE PIC AND TRANSACTION ADVISORS

PIC and Transaction Fee Framework497

105. On 6 December 2018, the Standing Committee on Public Accounts met with
the Deputy Minister of Finance, Mr Mondli Gungubele, in his role as
Chairperson of the PIC, as well as a number of the Directors and Executive
team of the PIC. Mr David Maynier, a DA Member of Parliament, asked at the
Standing Committee on Public Accounts about Mr Nana Sao’s advisory fees.
Mr Maynier asked specifically about the transaction costs in the Vodacom
transaction, arguing that the fees the advisors received didn’t equate to the
work they undertook and, at the same time, questioned the PIC’s selection
process and transparency thereof.

106. In a PIC document entitled Framework: costs relating to Unlisted Investments,

Para 5.6 states that ‘these payment of fees and receipt of restructuring fees
has, since 2018, become a bone of contention amongst various stakeholders,
notably PIC Clients, PIC’s recently appointed Board and the Minister of
Finance’ Mr Tito Mboweni.

107. The document sets out the PIC’s policy framework in dealing with advisors,
including in 7.1 (a) Advisory Fees: This fee may be payable by the PIC or
sometimes may be shared with other parties in relation to a particular loan or
equity deal. It is intended to cover due diligence costs, legal costs, fund raising
costs of a debt arranger, amongst others.

108. Covering broad guiding fee principles in paragraph 6, it states that:

497FRAMEWORK: COSTS RELATING TO UNLISTED INVESTMENTS. PIC document of 1

December 2019 submitted to the Commission

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 6.1 ‘PIC must in all instances act in the best interest of its clients, in good
faith and fully disclose all material facts in relation to transaction costs,
expenses and fees incurred to its clients and any fees received by
itself resulting from a transaction funded by its clients.

6.2 The Treating Clients Fairly principle is paramount as it relates to

Transaction Costs.

6.3 Except Asset Management Fees, Facility Agent’s Fees, Property

Development Fees and Monitoring Fees, all other fees received by
PIC shall be for the benefit of the PIC Client.

6.4 Treatment of costs and fee income shall in all instances comply with
and be governed by provisions of the PIC’s Client mandates and
where this guideline is in conflict with the PIC Client mandates, the
mandates shall prevail.

6.5 PIC must clearly distinguish between costs and fee income for its own
account and those for its client’s account.

6.6 Cost management and value for money principles must always be
applied and adhered to where transaction costs, expenses and fees
are involved and such paid must be commensurate to the services
provided;

6.7 As far as possible PIC shall attempt to recoup costs from investee
companies or borrowers or from other parties to the extent such
parties benefit from work undertaken by PIC.

6.8 In the absence of a compelling case, whenever there are two options
available to delivering a product or service on behalf of the Client the
least cost alternative will be chosen.

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 6.9 Whenever costs are incurred in relation to a transaction in the Unlisted
Investments space it will either be for the account of PIC or PIC’s
Client or the borrower or investee. To the extent possible, these costs
should be passed on the borrower or investee or recouped from them.
In certain cases Advisory Fees and Due Diligence Costs may be
capitalized to the funding instruments or written-off or recovered
directly from the investee.’

109. The Commission, in considering its terms of reference and the role played by
various advisors, as well as the significant fees incurred in the transactions
that involved the PIC, undertook an investigation into the matter and
interviewed a number of advisors who had been involved in transactions either
on behalf of the PIC and/or investee companies. A limited number of advisors
were spoken to directly. There is reference in the different case studies to the
role and fees of other transaction advisors, for instance the
Steinhoff/Lancaster deal.

110. The transaction advisors spoken to were Mr Nana Sao, Mr Dan Mahlangu, Mr
Kingdom Mugadzi and Ms Anushka Bogdanov, while there was some
interaction on the matter with both Deutsche Bank and Nedbank. This section
will cover two examples, and the four advisors interviewed each provided a
written statement to the Commission.

Mr Nana Sao

111. Mr Sao’s involvement with the PIC was through deals involving MTN Nigeria,
Kenyan Electricity Generating Company Limited (KenGen), an Angolan
government bond, Vodacom and Sakhomnotho. He was paid directly by the
PIC for three of the transactions namely MTN Nigeria, KenGen and the
Angolan government bond, where Sao Capital’s fees averaged 1.10%, which

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 is an industry norm. Cumulatively, he earned R50.34 million from all three PIC
deals.

112. In 2015, the South African government sold 13.91% of its stake in Vodacom
to the PIC to help fund its R23 billion allocation to Eskom.

113. Mr Sao approached Dr Matjila in 2016 with a suggestion to purchase Vodacom

shares. Dr Matjila responded by advising him of a consortium called Inkanyezi,
a B-BBEE group that was interested in buying shares on behalf of the GEPF.
Inkanyezi was led by Romeo Khumalo who was Vodacom Tanzania’s COO.
Mr Sao was asked by Mr Koketso Mabe, an employee of the PIC at the time,
to work with Inkanyezi given his experience in deal structuring and raising
capital. He agreed and led the execution of the deal on behalf of Inkanyezi.

114. After the selection process, Mr Sao heard rumours that people connected to
the Inkanyezi Consortium were fronts for politicians. This prompted the
commission of an external company, Control Risk, by Sao Capital and
Barclays Africa, who were both working on the transaction, to perform a due
diligence on Inkanyezi.

115. The Control Risk report revealed that politically connected people were behind
the deal, but there was no conclusive link between them and members of the
consortium. The Control Risk report was sent to Mr Koketso and Dr Matjila,
and all agreed that the transaction should be cancelled.

Findings

116. There is no evidence that the PIC’s process of appointing professional

advisors was followed. Mr Sao approached Dr Matjila with a proposal to
purchase Vodacom shares. Dr Matjila connected him with the consortium,
Inkanyezi. According to the PIC’s DoA, if the transaction exceeds R30 million,
three general managers and an executive head should be the first to approve

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 the transaction. Thereafter, approval is sought from the CEO and CFO and
then the final decision is made by the Investment Committee. At least three
advisors should be recommended. In this case there was only one advisor,
Sao Capital, and no process followed in making their appointment.

117. Outsourcing the running of an RFP process is questionable and this should
be done directly by the PIC.

118. Sao Capital was apparently not paid for their work, despite incurring over R5
million in costs associated with the transaction. They had expected to be paid
once the deal was concluded.

Recommendations

119. The DoA should ensure that the PIC CEO should not be authorised to simply
appoint an advisor.

120. Policy and approved due process must be clear and followed at all times to
ensure a fair selection process of an advisor in a transaction.

121. The allegations and findings in the Control Risk Report (above para XX) must
be further investigated by the PIC.

122. If there are substantive allegations of corruption involving an investee

company, the PIC should immediately investigate and, where applicable, take
legal action.

123. The PIC should ensure that funds allocated are used for their agreed purpose,
in this instance payment of transaction fees that were provided for in the
agreement.

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Sakhomnotho

124. Around mid-2015, Mr Sao was approached by Mr Sipho Mseleku, the CEO of
Sakhumnotho, who he had first encountered when he was employed by
Goldman Sachs. Sakhumnotho is a 50% shareholder in Tosaco 2 1. Sao
Capital was appointed by Sakhumnotho Goup Holdings (Pty) Ltd in 2015 to
prepare an independent valuation report in relation to a potential transaction
where Sakhumnotho, as one of the bidders, was contemplating acquiring
91.8% of the shares in Total South Africa Consortium (Pty) Ltd (Tosaco).498

125. Even though Sakhumnotho did not sign the original advisory mandate the
mandate stipulated that Sao Capital would be paid a transaction fee equal to
1% of the gross value of all shares or other similar securities acquired pursuant
to the transaction. This amounted to about R17 000 000 (Seventeen Million
Rand). The 1% was a verbal agreement between Sakhumnotho represented
by its CEO, Mr Sipho Mseleku and Mr Nana Sao. The other competing bidder
for the aforementioned 91.8% stake in Tosaco was an entity called Kilimanjaro
Capital (Pty) Ltd (KiliCap).

126. In August 2015, Mr Mseleku informed Mr Sao that Sakhumnotho was merging
its bid with that of KiliCap, creating a new consortium called Kilimanjaro
Sakhumnotho Consortium (Kisaco). Once the joint KiliCap/Sakhumnotho
Consortium was selected as the preferred bidder, Sao Capital was side-lined
and had no further involvement. Mr Mseleku told Mr Sao that Sakhumnotho
no longer had funds to pay for the advisory services Sao Capital rendered,
and reneged on the verbally agreed upon 1% of the transaction value (R17
million). According to Mr Mseleku, the inability to pay was due to a lack of
availability of funds from the PIC for transaction costs. Mr Mseleku requested

498
See the TOSACO case study in Chapter III.

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 Sao Capital to agree to a reduced fee of R5 million, about 30% of the R17
million previously (verbally) agreed upon.

127. In October 2015, Sao Capital became aware that the PIC had fully funded the
new consortium and had made available R100 million for the purpose of
settling transaction costs relating to the Tosaco transaction. Sakhumnoto
received R50 million (half) of the amount paid by the PIC, with KiliCap
receiving the other half. However, Sao Capital was only paid R5 million by
Sakhumnontho.

Findings

128. The role of advisors in determining the valuation of the transaction has a direct
bearing on the fee they ultimately earn. The PIC therefore needs to ensure
there is a thorough and appropriately skilled process, followed with absolute
integrity, in the valuation process to ensure it does not overpay.

129. Sao Capital settled for R5 million even after learning that the PIC had paid
Sakhumnotho R50 million to cover their alleged transaction fee.

130. The PIC funds, allocated ostensibly to cover transaction costs, appear to have
not been used for the stipulated purpose.

131. There was no signed contract between Sakhumnotho and Sao Capital.

132. There was no evidence presented to the Commission of an invoice from

Sakhumnoto to the PIC setting out all transaction costs, as should normally
be provided prior to any payment of such costs.

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Recommendations

133. The PIC must ensure that greater attention is paid to the valuation of an entity
and that such a determination is made with the essentials skills, independence
and thoroughness required.

134. Valuation determinations must be a key feature of all approval processes and
thoroughly interrogated.

135. Proper, detailed documentation on transaction costs incurred must be

presented to the relevant authority in the PIC, and be validated prior to any
payment of such claims.

136. Given the information provided by Mr Sao, appropriate legal steps must be
taken by the PIC to recover the monies paid in transaction fees that were not
used for the intended and approved process.

Mr Dan Mahlangu (Mr Mahlangu)

137. Mr Mahlangu is the CEO of BNP Capital (Pty) Ltd, which changed its name to
Pholisani Mahlangu. He said the name of the company was changed because
his business partner, Ms Mathebula, left the company in 2017. However, the
fact is that the Financial Services Board (FSB) had suspended BNP Capital’s
company licence.

138. Mr Mahlangu was appointed by KiliCap as its financial advisor after BNP
Capital was specifically nominated by the PIC to KiliCap. Mr Mahlangu had
been exposed to the PIC in various roles. In 2006, he worked for the PIC in
the private equity team, looking after their funds of funds. He also sat on the
board of the Royal Bafokeng Holdings as a representative of the PIC. In 2010,
he left the PIC to form BNP Capital.

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139. Mr Mahlangu said he was introduced to Mr Mulaudzi (KiliCap) by Mr Rajdhar,
who indicated that KiliCap ‘would need to get someone to assist them package
the transaction’.499

140. The mandate letter BNP signed with KiliCap required BNP to run with the
entire management of the share purchase, and BNP would earn a fee of 2%,
excluding VAT, of the capital raised, i.e. R1,7 billion. In turn BNP engaged
other service providers to assist with both legal and financial due diligences,
to be paid on the same terms as BNP. The Sakhumnotho consortium engaged
Sao Capital, led by Mr Nana Sao, for the same purpose.

141. In his affidavit, Mr Mahlangu states that ‘the introduction of the new consortium
and advisor meant that BNP Capital fees were reduced to R17 million, from
the initial R34 million as [per] the signed mandate letter. Both KiliCap and
Sakhumnotho … [were to] pay their respective advisors’.500 After the
successful fund raising, Mr Mulaudzi advised BNP to send an invoice for R1
million, VAT inclusive, to a company named AVACAP.

142. BNP enquired about the balance of its fees, but was only told that some of the
money was going to be paid later. KiliCap also indicated to BNP that they
would pay the two service providers that provided legal and financial due
diligence directly.

143. BNP has since been unsuccessful in its efforts to get the balance of the fees
owed, being paid only around 6% of the expected fee as per the mandate
letter.501

499
Para 4.1.2 of Mr Mahlangu’s statement signed on 1 October 2019.
500
Ibid. para 4.1.11 – 4.1.12.
501
Ibid. para 4.1.18.

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Nedbank

144. Nedbank was the transaction advisor for the Tosaco transaction as Calulo, the
main shareholder of Tosaco 1, appointed Nedbank Capital to act as its
exclusive investment bank and corporate advisor.

145. The Commission issued a subpoena to Nedbank on 18 July after receiving

unsolicited WhatsApp messages between Mr Tapiwa Shamu, a Nedbank
employee responsible for the Tosaco transaction on behalf of Total SA, and
Mr Lawrence Mulaudzi. In the messages Mr Shamu requests a R400 000 loan
from Mr Mulaudzi (IP364791MULAUDZI 400,000.00 22DEC16). There is also
evidence of Mr Shamu passing on various other transactions that were
presented for consideration to Nedbank to Mr Mulaudzi, and that the R400
000 that was transferred from Mr Mulaudzi’s account to went to Ms Sandra
Shamu, Tapiwa Shamu’s wife.

146. This appears to be a highly irregular relationship given that Mr Mulaudzi,

through KiliCap, was a bidder for the purchase of the shares in Tosaco and
Mr Shamu was the advisor to Tosaco.

147. Circumstantial evidence shows that Mr Shamu played a significant role in

ensuring that Mr Mulaudzi and the KiliCap/Sakhumnotho Consortium won the
Tosaco bid. He had a personal and professional relationship with Mr Mulaudzi,
Mr Mseleku and others. Mr Shamu also participated in the bidding process as
a member of the selection team and would have been in a position to influence
the decisions taken by the Total team.

148. After this irregular relationship and payment (as above) was brought to the
attention of the relevant Nedbank officials, Nedbank suspended Mr Shamu,
who resigned shortly thereafter.

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Kingdom Mugadza

149. Kingdom Mugadza’s name appears in the many text messages that circulated
in WhatsApp groups. In these messages, Mr Mugadza is said to be ‘a
transactional advisor who is used by the Leaders and ANC Ministers…’ He
was an employee of Old Mutual, which was one of the first major financial
institutions to get involved in the renewable energy REIPPP programme. At
the time, the PIC was not involved in renewable energy and, as an expert, Mr
Mugadza requested Old Mutual to enable him to work with the PIC to help it
establish their renewable energy fund.502

150. There was no contract between Old Mutual and the PIC, even though Mr
Mugadza was provided with a work station at the PIC. After a presentation to
the PIC’s Mr Radjah and Dr Matjila, Dr Matjila asked why he didn’t start his
own firm with the backing of the PIC. Mr Mugadza subsequently resigned from
Old Mutual and started an Energy Fund. The former CFO of the PIC, Ms
Albertinah Kekana, left the PIC to join him. However, the fund was shut down
due to contractual issues with the PIC. Ms Kekana moved on to work at the
Royal Bafokeng Holdings, while Mr Mugadzi started Tirisano in 2011.

151. Tirisano was involved in selling SAB Miller shares to the PIC, facilitating
workshops between the PIC and AB InBev. It also was in discussion with the
PIC about a supply chain empowerment fund and was well placed to facilitate
the acquisition of Distell shares from AB Inbev by the PIC, where it originated,
structured and executed the sale of Distell to the PIC by AB InBev in a closed
bidding process.

152. Before the Distell deal went public, Mr Mulaudzi requested an urgent meeting
with Mr Mugadzi. Mr Mulaudzi wanted information regarding the Distell deal,

502
Para 3.1 – 3.3 of Mr Mugadzi’s statement.

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Investment Corporation Page 761 of 794
 the situation deteriorated, Mr Sello Motau became involved and Mr Mugadzi
felt his life was in danger.

153. One of the conditions set by the Competition Commission before its approval
of the acquisition of Distell was that the PIC would sell at least 10% of its
acquired Distell shares to a B-BBEE entity. As the shares had just been
purchased and since Tirisano believed that they had not yet made sufficient
returns, it recommended that the PIC delay the said B-BBEE deal.

154. At the beginning of September 2015, Mr Sello Motau, an Executive Director

of Theko Capital which he founded in 2009, discussed with Dr Matjila a
possible investment in the Export Trading Group (ETG). This links back to Mr
Mahlangu (above) who said he had done some due diligence work together
with Deloitte on ETG (Export Trading Group). He advised Dr Matjila that ETG
could be a strategic fit for the PIC’s pan-African investment strategy and could
be used as a platform for PIC investments in the rest of the continent since
ETG operated in 26 other African countries.

155. The local ETG team requested that Mr Motau and his team provide them with
a letter of support for the funding proposal from the PIC. Mr Motau advised the
Commission that in the second half of 2015 he was considering an equity
investment in Profert Holdings, which was one of the leading suppliers of
agricultural inputs in the Southern African Development Community (SADC)
503, and that ETG was also interested in an investment in Profert.

156. In his evidence before the Commission Mr Motau stated that his ‘involvement
with the PIC in so far as it relates to the Karan Beef transaction is in an

503
Para 50 of Mr Motau’s statement signed on 21 May 2019.

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 advisory capacity rather than on an equity participation as alleged in the said
‘James Noko’ email’.504 (Sic.)

157. Mr Motau’s investment idea relating to ETG was well received by Dr Matjila
and Mr Motau submitted a proposal to Dr Matjila on 7 September 2015. On 10
September 2015, Wellington Masekesa, Dr Matjila’s Head of Office who was
responsible for driving the African investment strategy, gave Mr Motau a letter
signed by Dr Matjila for a non-binding Expression of Interest. The potential
investment in ETG was presented to the Portfolio Management Committee
(PMC1) for approval to commence with the due diligence review processes.
Deloitte and Norton Rose Fulbright were approved as service providers by the
PIC to perform financial/tax and legal due diligence reviews, respectively.

158. In October 2015, the PIC deal team introduced Theko Capital to Tirisano
Partners as a transaction advisor to work with the teams from the PIC - Theko
Capital, Deloitte and Norton Rose - in order to coordinate the investment
process on behalf of all parties. Tirisano was represented by Mr Mugadza,
Lauren Rawlings, Lilian Oyando and Tafadzwa Mhlanga in all aspects of the
proposed transaction.505 On 19 October 2015 they received an Engagement
Letter from the PIC that set out the funding arrangements. Theko was to be
responsible for the payment of any fees and expenses, capped at R10 million,
which could be capitalised. The original engagement letter from the PIC had
proposed transaction costs be capped at US$5 million.

159. According to Tirisano, they are not on the PIC database, and no transactional
advisor internal process as per the PIC policy was followed.

160. Mr Motau states that, ‘[a]fter the submissions to PMC2 were updated, the PIC
team stopped responding to Theko’s correspondence … After numerous

504
At page 48 of the Transcript for day 38 of the hearings held on 21 May 2019.
505
Ibid. page 96.

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Investment Corporation Page 763 of 794
 attempts I met with the PIC …[and was told] that the deal had been approved
by PMC2 for presentation at the next IC meeting with the condition from PMC2
to remove Theko from the deal since we have no agricultural experience …
[and] they will run a process to bring another consortium or partner to take the
ten percent (10%) previously agreed to be allocated to Theko. I was very
shocked to learn about this proposed approach’.506

161. However, there were conflicting reports of what actually took place.

162. According Mr Mugadza’s statement, on 16 February 2016, Mr Motau was

invited to a meeting by Tirisano Partners, for what they termed ‘ETG check
out brief’.507 In the meeting Mr Mugadza informed Mr Motau that the PIC has
decided to proceed with the transaction without Theko.

163. After on-going interaction with the PIC to try to resolve the matter, Mr Motau
(para 105 of his statement) said that ‘after submission of information a meeting
was arranged by Dr Matjila’s assistant (presumably Mr Masekesa) between
Theko and Tirisano Partners (who were the PIC’s transaction advisor) for 6
March 2018. In that meeting Tirisano Partners, represented by Mr Mugadza,
informed us that the shareholding structure for the implementation of the
transaction had changed (and) Theko will now be allocated 1,0%
shareholding, and that 9,0% of ETG equity stake shall be allocated to a new
B-BBEE consortium which Tirisano was currently working on formalising. This
was unacceptable to Theko.

164. Mr Motau concludes that ‘It is concerning that the PIC can express an interest
in a transaction, go as far as conducting FICA processes and getting the
necessary internal approvals, and then at a later stage at their own discretion

506
At pages 101-102 of the Transcript for day 38 held on 21 May 2019.
507
Ibid. Page 102.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 764 of 794
 decide to remove a sponsor to include their preferred sponsor … this opens
the door to favouritism and gate keeping’.508

Findings

165. PIC processes to appoint advisors were not followed.

166. The PIC reportedly introduced a specific transaction advisor, namely Tirisano
Partners, to the parties involved.

167. Conflicting accounts of events and commitments prevail, without a clear

record of meetings held and decisions taken.

168. There is a consistent pattern of a lack of clarity of the terms of engagement

and non-compliance with PIC procurement processes.

169. The imposing/recommending specific advisors for potential investees to use

is highly questionable and inappropriate.

170. That the PIC recommends and/or appoints certain advisors for multiple
transactions is improper and inappropriate.

Recommendations

171. A detailed investigation should be initiated by PIC management (potentially

with the support of appropriate governmental prosecuting bodies) to create an
exhaustive list of all fees paid over R5 million since 2014. This list must then
be interrogated to aggressively initiate legal processes of recovery where
appropriate.

508
Para 118 of Mr Motau’s statement signed on 21 May 2019.

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Investment Corporation Page 765 of 794
172. The PIC Board must ensure transparent processes are in place that prevent
arbitrary changes and decisions that can lead to perceptions, real or
otherwise, of abuse, gate keeping and favouritism.

173. The Board must ensure that there is a comprehensive, inclusive and fair
process to appoint advisors for different transactions according to their
relevant skills and expertise.

174. The Board must ensure that an effective monitoring and reporting system is in
place with regard to the appointment, role, fees and accountability of advisors.

175. Where advisors are appointed or recommended by the PIC, an appropriate

assessment should be made of the work performed prior to any
subsequent/repeat appointment.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 766 of 794
RECOMMENDATIONS ON DIVIDEND POLICY

1. In the 2018 financial year, the PIC paid R80 million to government in the form
of dividends. The Government Employees Pension Fund (the GEPF / the
Fund) Statutory Actuarial Valuation, conducted by Alexander Forbes, as at 31
March 2018, shows that the minimum funding level declined from 115.8%
(2016) to 108.3% (2018), while the long-term funding level declined from
79.3% (2016) to 75.5% (2018).

2. The primary funding objective of the GEPF is to ensure that employer

contributions should be sufficient to ensure that the Fund is able to meet its
obligations at all times, subject to a minimum funding level of 90%, at which
point government would be obliged to increase its contributions to the Fund.
At present, this is well funded and the minimum funding level stands at
108.3%. However, the Funding Policy of the GEPF also stipulates that the
Board of Trustees should strive to maintain the long-term funding level at or
above 100%. Thus, standing as it does at present at 75.5% means that the
GEPF does not meet its long-term funding objective as at the valuation date
of 31 March 2018.

3. The Dividend Policy of the PIC (October 2016) states that:

‘2.1 The shareholder expects an appropriate return on the equity

invested in its business enterprises. However, unlike publicly listed
companies, ownership rights in Government Business Enterprises are
not ready (sic) tradable.

2.2 This necessitates a policy mechanism to secure the interests of

the government as a shareholder and to provide a strong incentive for
the Board and Management to focus on enhancing the value of the
PIC.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 767 of 794
 2.3 The objective of the dividend policy is to:

Enhance the transparency of, and accountability for, financial

performance of the PIC; and

Recognise the opportunity costs associate[d] with Government’s

equity’ [as the PIC is 100% State Owned]

4. Paragraph 4 of the Dividend Policy covers the Legislative Framework:

‘4.1 The legal framework governing the Dividend Policy is based on the
following prescripts and guidelines:

The PIC Act, No 23 of 2004

Companies Act 71 of 2008

PIC Memorandum of Incorporation

The PIC approved Delegation of Authority’

5. Paragraph 5 of the Dividend Policy considers the Companies Act 71 of 2008

(Companies Act), and sets out the process required for payment of a dividend
and for the requirements of the Companies Act to be met. In essence, the PIC
“…must pass the Solvency and Liquidity test, as set out in section 4 of the
Companies Act, before a dividend can be declared.

6. Paragraph 6 of the Dividend Policy sets out the general principles, including
that dividends are to be declared at the Annual General Meeting (AGM) of the
PIC, based on the approval of a dividend resolution by the PIC Board; and
that the Board will approve that dividends be declared if the Companies Act

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Investment Corporation Page 768 of 794
 conditions and all of the PIC dividend declaration requirements have been
met.

7. The PIC dividend requirements are broken down into two sections: PIC
Sustainability Ratio Targets and Client Sustainability Ratio Targets.

8. The first part of the policy requires the PIC Sustainability requirements to be
met, which are:

8.1. Net income must be more than R0

8.2. Net income over revenue must be more than 10%

8.3. Management fees over cost to company must be more than three times

8.4. Management fees over other costs must be more than four times

8.5. Management fees over all liabilities must be more than two times; and

8.6. Cash reserves over other costs must be more than two times.

9. Once all the above requirements have been met then the PIC Sustainability
requirements have been met.

10. The second part of the requirements that need to be met are:

10.1. Fund ratios for a three-year rolling period must be more than 100%

10.2. Preferred returns, the hurdle rate for a five-year rolling period must be
more than 0%; and

10.3. The fund must generate alpha.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 769 of 794
11. Once all the above requirements have been met, then the Client Sustainability
requirements have been met.

12. Paragraph 7 of the Dividend Policy sets out the amount to be excluded from
dividends, with the PIC applying a ‘Residual Dividend Policy’, as it relies on
internally generated income to finance new projects. As a result, the declared
dividend amount must come out of the residual, or leftover, profits, after
excluding all projected capital requirements and unrealised profits in the year,
in which dividends are declared.

13. Paragraph 7.2 of the Dividend Policy states that ‘The PIC shall make a transfer
of profits to the Non-Distributable Reserve (NDR) on an annual basis
regardless of the conditions of a dividend being met or not met’. In paragraphs
7.3 and 7.4 the following is stated:

‘7.3 The PIC will transfer to the NDR the sum of:

One year budgeted capital expenditure; and

Unrealised profits and losses.

7.4 The Non-Distributable Reserves are not available to be declared

as a dividend to the Shareholder. The directors may use the funds to
fund future capital expenditure of the PIC, therefore ensuring the
financial sustainability of the Company.’

14. The Dividend Policy further outlines the application of the dividend policy, the
calculation of dividends, and deviation from the dividend policy.

15. The Board of the PIC proceeded to pay dividends to the Shareholder in
keeping with the Dividend Policy and as approved on an annual basis by
resolution of the Board. In May 2017, the Board Resolution of 29 May 2017

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 770 of 794
 confirms that the PIC paid an interim dividend of R20 million for the financial
year ended 31 March 2017, and declared a final dividend of R60 million to the
Shareholder for the financial year 2016/17. The resolution authorising the
payment of a R20 million interim dividend was approved at a shareholder
meeting on 10 March 2017, in terms of Section 60 of the Companies Act, and
signed by the Shareholder representative, Minister of Finance, Mr Pravin
Gordhan. The final dividend of R60 million was approved by the Board of
Directors, at a meeting held on 29 May 2017, and signed by Deputy Minister
Sfiso Buthelezi as Chairman of the Board of Directors.

16. In his testimony, Dr Matjila said that:

“The PIC has been trying to revise the dividend policy to ensure that
the PIC does not pay dividends directly from management fees, but
pays dividends on value adds such as outperformance and other
corporate initiatives. Discussions with National Treasury have not
yielded any results because this issue was not a priority for National
Treasury”.509

Findings

17. The PIC has a Dividend Policy in place and has paid dividends in keeping with
the requirements of the Companies Act. However, noting the continued
decline in the short term funding level, and taking account of the Funding
Policy of GEPF, which also stipulates that the Board of Trustees should strive
to maintain the long term funding level at or above 100%, and that this
currently stands at 75,5% which means that this does not meet its long term
funding objective as at the valuation date. In view of the above, the quantum

509
Para 164 of Dr Matjila’s statement signed on 17 July 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 771 of 794
 of dividend payments in March 2017 and May 2017 by the PIC to the
Shareholder is questionable.

18. The mandate of the PIC is to act in the best interests of its clients; it is not to
maximise profits. Essentially, by paying dividends from management fees
charged to the GEPF and other clients, an indirect tax is imposed on PIC’s
clients.

19. The payment of a dividend raises the question as to whether this is being done
to convey to the Shareholder that the PIC is in fact functioning extremely well
and is thus able to afford to pay a dividend?

Recommendations

20. The Board of Directors of the PIC should review the Dividend Policy, which
has not been reviewed since it was adopted in 2016.

21. The Board of Directors of the PIC should review the budget, including required
capital expenditure and the staff complement and remuneration, to ensure the
funding requirements are adequate.

22. The Board of Directors should discuss an appropriate policy to comply with
Section 46 of the Companies Act with the Shareholder, taking into account
that the PIC mandate is not driven by profitability as an objective, and the
imperative to maintain funding levels of the GEPF and other Funds under
management of the PIC.

23. If the fees charged to PIC clients, particularly the GEPF which has the
responsibility of managing civil service pension funds, result in profits such
that a dividend can be paid to the Shareholder, then the budget of the PIC
needs to be reviewed to see that the PIC is functioning optimally with adequate

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 772 of 794
 funding. Alternatively, the management fees charged to clients should be the
subject of assessment and review.

Note for information

24. The PIC business model can be summarised as follows:

The PIC invests funds as

allocated by clients.

The clients pay management

fees to the PIC.

Management fees are the major

source of the PIC’s income that
finances its operations.

25. The PIC’s main source of income is management fees, charged on the market
value of AuM. PIC charges fees below market rates at an average of
approximately 3 to 5 basis points. Although the below-average market fees
reflect the captive client base, the PIC continues to deliver investment
performance which compares well with that of active asset managers in the
private sector. Other sources of income include board fees, where employees
are nominated as directors on investee companies, and investment income
which the PIC receives from surplus corporate operations funds that have
been invested.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 773 of 794
LIFESTYLE AUDITS

26. As a result of the allegations of corrupt activities made in the

Nogu/Noko/Leihlola emails, the Commission engaged the auditors
PricewaterhouseCoopers Advisory Services (Pty) Ltd, Johannesburg to
conduct lifestyle audits and background checks on the following directors of
the PIC:

26.1. Mr Mondli Gungubele Non-executive and Chairman;

26.2. Ms Sibusisiwe Zulu Non-executive;

26.3. Ms Dudu Hlatshwayo Non-executive;

26.4. Dr Dan Matjila Executive; and

26.5. Ms Matshepo More Executive.

27. In undertaking this task, PwC performed certain procedures. The procedures
are set out in the affidavit of Mr Lionel van Tonder, a director of PwC:

‘Procedure performed

The following procedures were performed with regard to lifestyle audit

conducted:

i. Reviewed documentation provided by the individuals;

ii. Using Global Intelligence tools conducted detailed searches on the

individuals;

iii. Liaised with financial institutions in South Africa;

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 774 of 794
 iv. Requested additional bank statements identified (if any);

v. Performed analysis on the bank statements received; and

vi. Consulted with the individuals.’

28. The findings and conclusions of the lifestyle audits are contained in the
individual reports on the five directors, which are annexed to Mr van Tonder’s
affidavit.

29. The Evidence Leader, Adv. Jannie Lubbe SC, placed the following on record
relating to the findings of the lifestyle audit:

‘In general Mr Commissioner and members the finding was that there
was no indication of any criminal conduct regarding any of these
individuals and he [Mr van Tonder] couldn’t find any substance and
you will recall that one of the main reasons for… requesting these
lifestyle audits was the allegations contained in the Nogu emails
implicating some of these people [as] receiving exorbitant amounts of
money from transactions within the PIC. So what he can state and
what I can place on record is there is no evidence of any criminal
conduct and there’s no evidence of any substantiating the implications
in the emails by Nogu.’510 (Sic).

30. Although the Commissioners had sight of the contents of the report of the
lifestyle audits, the reports remain confidential. They were intended only for
the use of the Commission and National Treasury. The reports, therefore, do
not form part of the Commission’s final report.

510
At page 5 of the Transcript for day 62 of the hearings held on 13 August 2019.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 775 of 794
31. With regard to the report on Ms Zulu, PwC noted what appears to the
Commission to be some serious discrepancies, particularly relating to the
purchase of certain fixed property at Umhlanga Rocks, KwaZulu/Natal in 2016.
The property was purchased through a Trust which was set up by Ms Zulu, for
a consideration of R6 700 000. At issue is the source of the moneys used to
pay the purchase price. After she had testified before the Commission, Ms
Zulu was invited to the Commissioners’ chambers where she was requested
to explain the discrepancies. She undertook to provide the Commission with
a written explanation but failed to do so. The legal team, according to a verbal
report to the Commissioner, subsequently invited her on more than one
occasion to provide the Commission with the explanation, but she still failed
to do so.

32. Given the allegation in the ‘James Noko’ email of 28 January 2019, it was, in
the Commission’s view, imperative for Ms Zulu to provide the explanation or
clarity requested by the Commission. Subsequent investigations conducted
by the Commission’s legal team (Evidence Leaders) have established that the
information relating to the source for the purchase price of the property as
given to PwC by Ms Zulu might not be true.

33. In Addition, it is noted in the report that Ms Zulu received seven (7) payments
of R100 000 each during the period 30 August 2018 to 5 December 2018 from
her ‘romantic partner, Mr Mulaudzi’. She is reported as having stated that the
payments ‘were for various things’, which she proceeded to mention. Mr
Mulaudzi was a leading figure in both the Ascendis and TOSACO transactions
discussed elsewhere in this report.511

511
See the Case Studies in ToR 1.1.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 776 of 794
Recommendation

34. In view of the serious nature of the discrepancies alluded to above, coupled
with the results of further investigations conducted by the Commission’s legal
team, the Commission feels obliged to recommend that the discrepancies
indicated in Ms Zulu’s lifestyle audit be further investigated.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 777 of 794
CONCLUSION

1. The government, as the guarantor of last resort for the obligations to the
GEPF, recognises that a failure of the PIC or any significant investments for
the GEPF exposes it to substantial financial vulnerability, as is stated in
Proclamation 30 of 2018, through which the President established the
Commission.

2. The Commission, through public hearings and the consideration of written

testimony from a broad range of witnesses, has concluded that, among other
things, there has been substantial impropriety at the PIC, poor and ineffective
governance, inadequate oversight, confusion regarding the role and function
of the Board and its various sub-committees, victimisation of employees and
a disregard for due process.

3. The report outlines the above through the 17 terms of reference addressed in
this report as well as specific illustrative case studies. The findings show that:

4. While the PIC has, in many instances, sound policies, processes and
frameworks, in many instances these were not adhered to, deliberately by-
passed and/or manipulated to achieve certain outcomes. However, there are
definite gaps and shortcomings in existing policies. There is a need to review
existing policies and ensure that a comprehensive policy framework is put in
place that includes, but is not limited to, policies as they relate to PEPS,
intermediaries, whistle blowing, compliance, IT security, record and document
keeping.

5. Legislation, mandates and standard operating procedures were repeatedly

violated, including the requirements for directors, both executive and non-
executive, to be ‘fit and proper’ and to conduct themselves, at all times, with

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 778 of 794
 honesty, integrity and in the best interests of their clients. The Commission
recommends that legislation governing the PIC be reviewed and drafted
afresh. This must take account of the Amendment Bill currently before the
President for his consideration, as well as the existing PIC, PFMA and FAIS
legislation as well as the findings and recommendations of this Report.

6. The dual mandate of both the PIC and the GEPF to ensure the short and long
term funding levels match the long term liabilities was considered. The GEPF
mandate relating to addressing economic developmental goals was not
always adhered to. There must be a clear definition of what success looks like
when investing in unlisted entities.

7. The Board was found to be divided and conflicted. The involvement of non-
executive directors in transaction/investment decision making structures of the
PIC rendered their oversight responsibilities ineffective, if not absent. Their
independence is questionable, particularly as, together with executive and
senior staff members, NEDS are also appointed to serve on the boards of
investee companies.

8. The Board essentially was a rubber stamp for the decisions driven by Dr
Matjila. It repeatedly abdicated its responsibilities in deference to delegations
of authority, even in instances when it expressed concern about a particular
investment.

9. The Commission found that there was both impropriety and ineffective
governance in a number of investments. This was compounded by the
dishonesty of and material non-disclosure by Dr Matjila, both during his
evidence at the Commission and in decision-making processes regarding
various transactions.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 779 of 794
10. The lack of diligence to ensure that conditions precedent (and post) were
enforced or adhered to, particularly prior to the transfer of funds, has resulted
in considerable losses for the PIC with debts not being serviced.

11. There are clear instances where the Commission found that directors and/or
employees benefited unduly from the positions of trust that they held.

12. Repeat investments with a small number of entities, frequently represented by

a single individual, (for instance the Lancaster/Steinhoff transactions), reflects
poor risk assessments, particularly with regard to cumulative exposure, and
the repeat opportunity for enrichment of single individuals. This does not
reflect the mandate of the GEPF or the objectives of the PIC to invest in broad-
based black economic empowerment.

13. Fees reportedly paid to advisors, who, in a number of instances were

recommended to investee companies by the PIC, were on a number of
instances found to be well above the industry norm. Moreover, payment was
made without detailed invoices as to costs incurred, for instance legal advisors
contracted to work on a transaction, and were not necessarily actually paid to
the advisors.

14. There were discrepancies in a number of instances where committed

investment amounts were increased during the approval process, and where
conditions for the investment were altered to weaken or subordinate the
interests of the PIC.

15. The lifestyle audits conducted by PWC at the request of the Commission
found, in the instance of Ms Zulu, questionable behaviour and a significant
flow of funds to her account. This should be the subject of further investigation.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 780 of 794
16. Dr Matjila’s requests to provide financial assistance or make contributions to
individuals, organisations and political parties reflects his abuse of office and
the ability to exert undue influence over investee companies.

17. The role of the Shareholder, coupled with the frequent changes to the Minister,
Deputy Minister and consequently the Chairperson of the PIC, created
instability and a vacuum of leadership at the helm of the PIC. Moreover, the
retrospective instructions given to the PIC regarding remuneration and bonus
pool caps created uncertainty among staff, confusion about what policies
applied, and undermined the contractual obligations that the PIC had with
staff.

18. The Commission found that the CFO and the Executive Head: HR used
various means to give effect to victimisation of staff, many of whom were in
very senior positions. Allegations by a number of staff of trumped up charges
against them so as to enable disciplinary processes to take place were
credible. Promotions, lack of assignments or tasks, assessments of the
balanced score card and salary scales all formed part of a systematic pattern
of control, intimidation and victimisation.

19. IT systems, including controls around security, were the subject of

considerable evidence in the light of the allegations contained in the various
anonymous emails. Of critical importance for remedial action is the urgent
requirement to ensure that the IT systems covering all unlisted investments
are automated. The fact that these investments are managed by a manual
system using spread sheets, which means that only the latest entries can be
audited, is cause for grave concern given how open this is to manipulation of
data and records. There is an imperative to ensure sufficient funding is
available to upgrade systems and maintain the highest standard of security of
access to data and the data itself.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 781 of 794
20. The Commission expresses its sincere appreciation to the Evidence Leader,
Advocate Jannie Lubbe (SA), for his sterling work in enabling the Commission
conduct its investigations fairly in a particularly challenging environment. We
extend our thanks to the investigators, legal team and support staff for their
tireless efforts, professionalism and diligence. Special mention must be made
of two members of staff, namely Ms Lizzy Sibi, for taking on the huge
responsibility of making travel and accommodation arrangements for the
Commissioners and making their lives and work easier by organising their
documentation in appropriate files; and Ms Gcobisa Mdlatu, who ably took on
the task of organising and keeping the record, statements and annexures
available for easy access to the Commissioners. A big thank you goes to Mr
Daniel Buntman, who was released by Absa at no cost to the Commission, for
his sterling work and contribution in the preparation of this report.

21. We also extend our appreciation to all those who bore witness and gave
testimony at the hearings of the Commission. We know this took personal
courage and determination to not only stand for what is right, but to stand
against what is wrong. Many of you testified at great personal cost -
emotionally, physically and with the real risk of victimisation and loss of
employment. Others faced threats to the lives of their families as well as their
own.

22. We also express our appreciation to the management of Armscor for providing
spacious office accommodation from which the Commission directed its
operations; and to the Tshwane Metropolitan Municipality for providing their
Council chambers for the Commission’s hearings. Our appreciation also goes
to the media houses who ensured that their journalists attended the hearings
of the Commission and thereby keeping the nation informed about the
process.

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 782 of 794
GLOSSARY

The Memorandum of Incorporation of the Public

Investment Corporation signed on 26 April 2013
2013 MOI

3 Laws Capital 3 Laws Capital South Africa (Pty) Ltd

AAC Asset allocation Committee

AEEI African Equity Empowerment Investments Limited

AfDB African Development Bank

AGM Annual General Meeting

AIR Annual Integrated Report

ALM Asset and Liability Management

AMAGP Association for Monitoring and Advocacy of Government

Pensions

Amended MOI The Memorandum of Incorporation of the Public

Investment Corporation signed on 30 March 2017

Amendment The PIC Act Amendment Bill, 2017

Bill

ANA African News Agency (Pty) Ltd

ANC African National Congress

ARC Audit and Risk Committee established in terms of section

94 of the Companies Act

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 784 of 794
 AuM Assets Under Management

Ayo Ayo Technology Solutions Limited

B-BBEE Broad-Based Black Economic Empowerment (B-BBEE)

BBC Black Business Council

Board Board of Directors of the Public Investment Corporation

BoT Board of Trustees

BSC Balance score card

BTSA British Telecom-South Africa

C2C Coast2Coast Capital

CalPERS California Public Employees’ Retirement System

Calulo Calulo Investments (Pty) Ltd

CEO Chief Executive Officer

CFO Chief Financial Officer

CIO Chief Information Officer

CIPC Companies and Intellectual Property Commission

Commission Commission of Inquiry into allegations of impropriety

regarding the Public Investment Corporation

Commission’s Commission’s Rules of Procedure

Rules

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 785 of 794
 Commissioners The Commissioner, Judge Mpati and his assistants, Ms
Gill Marcus and Mr Emmanuel Lediga

Compact Shareholder’s Compact (Compact)

Companies Act Companies Act 71 of 2008, as amended from time to time

COO Chief Operating Officer

COSATU Congress of South African Trade Unions

Corporate Plan
CP

CRO Chief Risk Officer

CSI Corporate Social Investment

DAC Directors Affairs Committee

DD Due Diligence

DM Deputy Minister

DOA: PI Delegations of authority for Property Investments

DOA:LI Delegations of authority for Listed Investments

DOA:UI Delegations of authority for Unlisted Investments

DoAs Delegations of authority

DOJCD Department of Justice & Constitutional Development

DPW The Department of Public Works

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 786 of 794
 DSTT Deal Screening Task Team

ECTA Electronic Communications and Transactions Act, 25 of

2002

EDCON Edcon Holdings Ltd

EH Executive head at the PIC

Erin Erin Energy Limited

ESG Environmental, Social and Governance

ETG Export Trading Group

Evidence Adv Jannie Lubbe SC

Leader

EXCO Executive Committee

FAIS Act Financial Advisory and Intermediary Services Act 37 of

2002

FATF Financial Action Task Force

FAWE Fruitless and wasteful expenditure

FEDUSA Federation of Unions of South Africa

FICA Financial Intelligence Centre Act 39 of 2001

FIPss Fund Investment Panels

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 787 of 794
 FMA Financial Markets Act, 19 of 2012

FRC Financial Reporting Council

FSCA Financial Services Conduct Authority

FSP Financial Services Provider

GEP Law Government Employees Pension Law, 1996

GEPF Government Employees Pension Fund

HFM Harith Fund Managers

HGP Harith General Partners

Hold Co Holding Company

HR Human Resource

HRRC Human Resources and Remuneration Committee (a PIC

Board subcommittee)

HSIST Harith Share Incentive Scheme Trust

IAD Internal audit department

IC Investment Committee

ICT Information and Communications Technology

ICTGC Information and Communication Technology

Governance Committee

IMA Investment Management Agreement

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 788 of 794
 INMSA Independent News and Media South Africa (Pty) Ltd

INMSA Independent News and Media South Africa (Pty) Ltd

IPO Initial Public Offering

IPS Indefinite Period Shares

IRR Internal Rate of Return

ISF Irrevocable Subscription Form

IT Information Technology

IT Use Policy Information Technology Use Policy

JSE Johannesburg Stock Exchange

JVH Jurgens van Huyssteen

KiliCap Kilimanjaro Capital (Pty) Ltd

KISACO Kilimanjaro Sakhumnotho Consortium (Pty) Ltd

KPI Key performance indicator

Lereko Lereko (Pty) Ltd

LMA Loan Market Association

LTI Long term incentives

MCB Mauritius Commercial Bank

Minister Minister of Finance, at various times

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 789 of 794
 MMI Matome Maponya Investment Holdings

MOI The Memorandum of Incorporation of the Public

Investment Corporation

MSA Mutual separation agreement

MST Mobile Satellite Technologies (Pty) Ltd

NA National Assembly

NDR Non-Distributable Reserve

NEDs Non-executive directors

NEHAWU National Education, Health and Allied Workers’ Union

NT National Treasury

NUPSAW National Union of Public Service & Allied Workers

OML Oil Mining License

PAIDF/PADF Pan African Infrastructure Development Fund

PDA The Protected Disclosures Act 26 of 2000

PE Price Earnings Multiple

PEPS Politically Exposed Persons

PEPSS FIP Private Equity, Priority Sector, Small Medium Enterprise

Fund Investment Panel

PFMA Public Finance Management Act 1 of 1999

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 790 of 794
 PIBS Permanent Interest Bearing Shares

PIC Public Investment Corporation

PIC Act Public Investment Corporation Act 23 of 2004

PIC IT To be defined

PLS Pre-listing statement

PMC Portfolio Management Committee

PMC-LI Portfolio Management Committee (Listed investments)

PMC-UI Portfolio Management Committee (Unlisted investments)

PMV Portfolio Management and Valuation Department

PMV Portfolio Monitoring and Valuations

POPCRU Police and Prisons Civil Rights Union

PPM Private Placement Memorandum

Premier Fishing Premier Food & Fishing Limited, renamed later renamed
Premier Fishing and Brands Limited, part of the
Sekunjalo group of companies

Proclamation Proclamation 33 of 2018

33

Prop FIP Property Fund Investment Panel

Protected Protected Disclosures Act 26 of 2000, as amended from

Disclosures Act time to time, see also PDA

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 791 of 794
 PSSME - FIP Priority Sectors, Small and Medium Enterprises Fund
Investment Panel

RCF Revolving credit facility

RCFA Revolving Credit Facility Agreement

Regulations Published in Government Gazette No. 42076 of 3

December 2018

RRR Round Robin Resolution

Rules Published under ‘General Notices’ in Government

Gazette No. 42157 of 15 January 2019

SACTWU South African Clothing and Textile Workers Union

SAFTU South African Federation of Trade Unions

Sagarmatha Sagarmatha Technologies Limited, part of the Sekunjalo

group of companies

Sakhumnotho Sakhumnotho (Pty) Ltd

SAPS South African Police Service

SEC Social & Ethics Committee established in terms of

regulation 43 of the Regulations promulgated under the
Companies Act

Secretary of the Adv Phuti Setati

Commission

SEIES FIP Social and Economic Infrastructure and Environmental

Sustainability Fund Investment Panel

SENS Stock Exchange News Service

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 792 of 794
 SI Sanlam Investments

SIH Sekunjalo Investment Holdings (Pty) Ltd

SIM Sekunjalo Independent Media

SIP Structured investment product

SIPS Private Equity and Structured Investment Products

SNG Sizwe Ntsaluba Gobodo

SNH Steinhoff International Holdings

SPV Special purpose vehicle

SSNIT Social Security and National Insurance Trust of Ghana

STAR Steinhoff African Retail Limited

STI Short Term Incentives

ToR Terms of Reference

TOS Terms of Separation

TOSACO Total South Africa Consortium (Pty) Ltd

TOSACO Retail TOSACO Retail (Pty) Ltd

Total Total South Africa (Pty) Ltd

UDM United Democratic Movement

UIF The Unemployment Insurance Fund

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 793 of 794
 Venda Building Society Mutual Bank
VBS

VINs Vehicle Identification Numbers

WBP PIC Whistle-Blowing Policy

WCC Workmen’s Compensation Fund

Report of the Judicial Commission of Enquiry into Allegations of Impropriety at the Public
Investment Corporation Page 794 of 794
 1

REPORT ON PROCEEDINGS
OF THE PIC INQUIRY
WORKSHOP
17th – 19th May 2019
CONTENTS

INTRODUCTION.................................................................................................................... 5
CHAPTER 1: PIC LIMITED IN CONTEXT ........................................................................... 7
CHAPTER 2: PIC CLIENT INVESTMENT MANDATES ................................................... 11
Overview ........................................................................................................................... 11
The Client Mandating Process .......................................................................................... 12
The Nature of Pension Funds ........................................................................................... 12
Government Employees Pension Fund (GEPF) ............................................................... 13
The Compensation Fund and the Compensation Commissioners Portfolio ................... 15
Developmental Investments ............................................................................................. 18
CHAPTER 3: INVESTMENTS AND INVESTMENT PROCESSES ..................................... 19
Performance Overview ..................................................................................................... 20
Investment Philosophy ..................................................................................................... 21
Role of the Investment Committee in Investment Process ............................................. 21
Investment Policies and Framework ................................................................................ 22
Integration of ESG in the Investment Process ................................................................. 23
Deconstructing the PIC Assets under Management ........................................................ 26
Listed Investments............................................................................................................. 28
Internally managed listed investments......................................................................... 28
Externally managed listed investments ........................................................................ 29
Unlisted Investments......................................................................................................... 32
Unlisted investments process ........................................................................................ 34
Direct Property .............................................................................................................. 35
Private Equity ................................................................................................................ 36
CHAPTER 4: PIC OPERATING MODEL ............................................................................ 38
PIC Current Operating Model .......................................................................................... 38
Case Study 1: A Decentralised Operating Model ............................................................. 41
CHAPTER 5: GOVERNANCE PROCESSES AT THE PIC .................................................. 44
Legal Framework ............................................................................................................... 44
Current Board Nomination and Selection Process .......................................................... 46
PIC Current Investment Decision Making Framework and Delegation of Authority... 47
Proposed Governance Model ............................................................................................ 47
Board Composition ............................................................................................................ 47

1|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 Board Selection .................................................................................................................. 48
Delegation of Authority .................................................................................................... 48
Executive Roles.................................................................................................................. 48
Remuneration .................................................................................................................... 49
Investment Governance and Structure ............................................................................ 49
Outsourcing of Investments .............................................................................................. 50
Investment Committee Composition ............................................................................... 50
Transparency and Reporting............................................................................................. 51
Case Study 2: Global Benchmarking................................................................................. 52
Appendix A: Unemployment Insurance Fund (UIF) ........................................................... 54
Appendix B: Compensation Fund Credit Risk Management............................................... 60
Appendix C: Duties of the Investment Committee at PIC .................................................. 61
Appendix D: Best Practice in Unlisted Investments ............................................................ 63
Appendix E: Best Practice in Private Equity and Private Markets in ROA........................ 66
Appendix F: Best Practice in Unlisted Property in ROA .................................................... 68
Appendix G: Best Practice in Listed Equities in Rest of Africa ........................................... 70
Appendix H: BEE Deal Structuring ...................................................................................... 71
Appendix I: Building Public Trust ........................................................................................ 72
Appendix J: Other Lessons .................................................................................................... 74
Appendix K: Global Benchmarking ...................................................................................... 75

2|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
LIST OF TABLES

Table 1: Evolution of the PIC Mandate .................................................................................. 7

Table 2: PIC in context............................................................................................................ 8
Table 3: Top 20 Private Sector Asset Managers ranked by Total AUM as at 30 June 2018 . 9
Table 4: Composition of PIC Client Base ............................................................................. 11
Table 5: Compensation Fund Investment Strategy .............................................................. 17
Table 6: Compensation Fund: Actual Asset Allocation compared to Strategic Target ....... 17
Table 7: PIC Split of Total Assets by Asset Class.................................................................. 26
Table 8: Composition of the PIC Unlisted Investment Portfolio ........................................ 33
Table 9: Assets still to be injected into the economy from approved projects ................... 35
Table 10: Minimum Criteria for Investments into Unlisted Properties.............................. 36
Table 11: Decentralised Model: Advantages and Disadvantages ......................................... 40
Table 12: Comparison of Key Parameters against Peers ...................................................... 52
Table 5A: UIF Investment Strategy as at 31 March 2019 .................................................... 55
Table 6A: UIF Investment Strategy for Unlisted Assets as at 31 March 2019 .................... 56
Table 7A: UIF Actual Asset Allocation compared to Strategic Target as at 31 March 2017
................................................................................................................................................ 56
Table 8A: UIF Actual Asset Allocation compared to Strategic Target as at 31 March 2018
................................................................................................................................................ 57
Table 9A: A Breakdown of the UIF Assets Under Management by Asset Class (R’bn) ..... 58
Table 1B: Bonds in Aggregate: Investment Mandate Limits in Bond Instruments ............ 60
Table 2B: Counter Parties: Mandates Limits in terms of Bond Credit Risk Rating ............ 60
Table 3B: Money Market: Mandate Limits........................................................................... 60
Table 4B: Counter Parties: Mandate Limits in terms of Credit Risk Rating ....................... 60

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LIST OF FIGURES

Figure 1: Portfolio Returns versus CPI+3.5% target over the past 24 months ................... 16
Figure 2: PIC Performance over 1, 5 and 10 Years across Clients as at 31 March 2018 ..... 20
Figure 3: Delegation of Authority Framework .................................................................... 23
Figure 4: PIC Integration of ESG in Investment Process..................................................... 24
Figure 5: Summary Recommendations for ESG Integration ............................................... 25
Figure 6: Split of Assets Between Internally Managed and Externally Managed Assets ... 26
Figure 7: Split of Assets Between Internally Managed Equity and Bond funds ................. 26
Figure 8: Split of Externally Managed Assets by Asset Class ............................................... 27
Figure 9: Split of Local Listed Equities by Strategy .............................................................. 27
Figure 10: 4-Factor Investment Process for Enhanced Index Fund .................................... 29
Figure 11: Multi-manager Investment Approach and Key Pillars of Alpha Generation ... 30
Figure 12: PIC Manager Selection Process ........................................................................... 30
Figure 13: Composition of the PIC Unlisted Portfolio ........................................................ 33
Figure 14: Comparison of Listed Assets against Unlisted .................................................... 33
Figure 15: Isibaya Investment and Decision-Making Process ............................................. 35
Figure 16: PIC Current Operating Model ............................................................................ 39
Figure 17: Proposed Model: A Decentralised Model across Asset Classes Specialisation .. 40
Figure 18: Proposed Model: Maintains Independence of Subsidiaries with Holdco
oversight ................................................................................................................................ 41
Figure 19: Proposed Investment Decision-Making Structure ............................................. 43
Figure 20A: Performance of UIF Fund against the Fund benchmark ................................. 57
Figure 21A: Breakdown of the UIF Parastatal Bond Instruments....................................... 58
Figure 22D: The Decentralised Organisational Structure.................................................... 63
Figure 23F: STANLIB Unlisted Property Investment Process ............................................ 68
Figure 24I: GPFG Governance Model .................................................................................. 73

4|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 INTRODUCTION

Sources and Scope

This report has been prepared by Muitheri Wahome at the request of the PIC Commission
of Inquiry. The report synthesizes the discussions and presentations given at the PIC
Inquiry Workshop held on 17th – 19th May, 2019 at Irene Country Lodge (see Annexure A
for Programme of the PIC Commission of Inquiry Workshop). I would like to thank
Messrs. Tshepo Pule and Mark Davids of Peo Risk Management and others who assisted
me in the preparation of this report.

The report follows the key Terms of Reference of the PIC Commission of Inquiry, namely:
1. PIC’s clients and investment mandates
2. PIC’s investments and investment processes
3. PIC’s strategy and operating model
4. Governance processes at PIC

Accordingly, Chapter 1 briefly sets the PIC in context both in terms of its role and
importance in South Africa and globally. Chapter 2 addresses the role of asset owners in
the investment mandate setting process and the nature of pension fund as a legal entity
separate from the employer, members and dependents. Chapter 3 examines the PIC’s
investment processes across listed and unlisted investments. Chapter 4 covers operating
models and lessons to be learnt from South Africa and from the world’s biggest sovereign
wealth fund. Chapter 5 concludes with the lessons learnt coming out of the Workshop
with a focus on governance practices.

Limitations of the report

In preparing this report, I have relied solely on the discussions and presentations given at
the PIC Inquiry Workshop. Therefore, I have neither sought to, nor been obliged to verify
their accuracy. While the information is believed to be reliable, I make no representations
or warranty as to the accuracy of the information and accept no responsibility or liability
for any error, omission, or inaccuracy of such information.

The report summarizes the major points that emerged from the presentations and is not
intended to be a detailed review or official record of all potentially relevant mandate,
governance, strategic, operating model and investment issues from the PIC Inquiry
Workshop.

Muitheri Wahome
June 2019

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6|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 CHAPTER 1: PIC LIMITED IN CONTEXT

1.1 The Public Investment Corporation Limited (“PIC”) has a demonstrated track
record of over 100 years, a feat matched by very few asset managers globally. The
predecessor to the PIC, the Public Debt Commissioners, began its work in 1911 and
was incorporated in 20041 becoming the Public Investment Corporation Limited,
with the South African government as its sole Shareholder. Since its inception, 108
years ago, the organization’s mandate and approach to investing has evolved (see
Table 1) to include local and offshore, public and private markets. The move to
corporatize the organization was deemed a critical step towards bolstering its
investment skills and agility and to strengthening the PIC’s ability to execute its
mandate.

Table 1: Evolution of the PIC Mandate

Political era Roles Asset classes
1910-1961 § Public Debt Commissioners established Fixed income
Union of South Africa 1911
§ Manages surplus and trust funds
§ Debt management
1961-1994 § Assets under management: R1.6bn, 1961 Fixed income
Republic of South Africa § Public sector pension fund management Money market
§ Budget deficit funding
§ Renamed Public Investment
Commissioners in 1984
1995- § Becomes Public Investment Corporation Equity, Inflation-linked
Democratic era Limited in 2004 bonds, Offshore, Africa,
§ Economic growth, development and Developmental,
transformation goals Infrastructure
§ Reshaping the asset management industry
by supporting black-owned investment
firms
§ Funding black economic empowerment
§ ‘Lender of last resort’ to troubled SOEs

1.2 The PIC Board represents the interest of the Shareholder and is currently chaired
by the Deputy Minister of Finance. The PIC has access to regulators, legislators and
political heads of the country. As a state-owned corporation, it is audited by the
Auditor General and is required to report to Parliament per the terms of the Public
Finance Management Act of 1999. The PIC is registered with the Financial Sector
Conduct Authority (FSCA) as a financial services provider and is regulated under
the Financial Advisory and Intermediary Services Act of 2002. In addition to its
fiduciary duty to its clients, the PIC has an additional mandate from its Shareholder

1
PIC Act of 2004 replaced the PIC Act of 1984

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 to contribute to the economic development of South Africa2 and therefore open to
be influenced by political considerations.

1.3 The PIC is the largest domestic asset manager in South Africa with ZAR2.083
trillion (US$144 billion) in assets under management (AUM) as at 31st March 2018,
which represents 42% of South Africa’s GDP. It has a diverse client base with 23
institutional public sector clients, each with different obligations and stakeholders
that represent divergent interests and focus. The Corporation is profitable and pays
dividends to its Shareholder.

1.4 The PIC has tremendous financial clout in South Africa given it manages the
investments of the largest pension fund in the country, the Government Employees
Pension Fund (GEPF), which ranks in the top 20 pension funds in the world on the
basis of AUM3. The PIC is therefore integral to the financial well-being of millions
of South Africans, and a significant driver of the overall economic prospects of the
nation. How then the PIC manages public trust is fundamental.

1.5 Since 1995 to 2018, the PIC’s AUM has grown by a multiple 22 times, or a compound
annual growth rate (CAGR) of approximately 14%, driven mainly by the
performance of the local equity and bond markets during that period.

1.6 The PIC matches up well with both the life insurance sector and the collective
investments schemes (unit trusts) in terms of aggregate AUM and far exceeds private
pension market by AUM (see Table 2).

Table 2: PIC in context

1995 2018
ZAR (bn) ZAR (bn)
PIC AUM* 94.2 22 times 2,083
AUM (% of GDP) 12.3% 42.7%

INSTITUTIONAL INVESTORS AUM

(sector totals)
Life insurance 408 2,816
Private pensions 112 1,224
Unit trusts 34 2,195
Source: PIC, ASISA, SARB *AUM - Assets under Management

1.7 The Corporation is significantly larger than its leading private sector peers by AUM
and is more than three times the size of the biggest local asset manager, the Old
Mutual Investment Group South Africa (OMIGSA). Table 3 shows the Top 20 South

2
PIC Integrated Report 2011, p.4
3
Pensions & Investments/ Willis Towers Watson 300 Analysis Year September 2017, p.39

8|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 African private sector asset management firms as ranked in the Alexander Forbes
Annual Retirement Fund Survey for comparison.

Table 3: Top 20 Private Sector Asset Managers ranked by Total AUM as at 30 June 2018

Source: Alexander Forbes Annual Retirement Fund Survey. Figures in Rand millions.
*AUM as reported in the Alexander Forbes AUM survey June 2018 – Ranking are based on the Total AUM figures. Please note that due
to standardization methodology, numbers may be overstated.

1.8 The PIC in aggregate owns almost one-third of South African government bonds,
more than half of government issued inflation-linked bonds, and more than 10% of
the publicly traded equities by value on the JSE Securities Exchange. Further, the
PIC is critical to South Africa’s economic development and transformation goals
given it is one of the biggest investors in economic and social infrastructure and
black economic empowerment funding through the Isibaya fund. A key component
of the organization’s vision is to be a leader in impact investments targeting both a
financial and social return.

1.9 Today, the PIC is a hybrid entity: it is effectively both an asset manager and a
manager-of-managers (multi-manager). It is the largest passive (index tracking)
asset manager in the country and plays an influential role in financial markets as
well as capital allocation in the asset management industry through its asset
manager selection role, where it allocates assets to black-owned investment firms
and others. Given this transformative role, there is a further compelling and
legitimate public interest in the way the PIC is managed.

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10 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 CHAPTER 2: PIC CLIENT INVESTMENT MANDATES

No. 41979 GOVERNMENT GAZETTE, 17 OCTOBER 2018

The Commission must enquire into, make finding, report on and make
recommendations on the following:

1.17 Whether the PIC has given effect to its clients’ mandates as required by the
Financial Advisory and Intermediary Services Act, 2002 (Act No. 37 of 2002) and any
applicable legislation.

Overview

2.1 The PIC manages assets exclusively for the public sector and has a diverse range of
clients including pension and provident funds, social security and guardian funds.
The GEPF accounts for almost 90% of the assets managed by the PIC (see Table 4
below for the composition of the PIC client base). The PIC levies a management
fee to its clients which is a fixed percentage of the assets under management. The
PIC does not earn performance fees.

Table 4: Composition of PIC Client Base

Client Allocation (%)

Government Employees Pension Fund (GEPF) 87.12%
Unemployment Insurance Fund (UIF) 7.53%
Compensation Commissioner (CC) 2.02%
Compensation Commissioner Pension Fund (CP) 1.12%
Association Institutions Pension Fund (AIPF) 0.77%
Other* 1.44%
Total 100.00%
Source: PIC

2.2 The Compensation Commissioner Pension Fund4 was the only PIC client that
presented at the Inquiry Workshop, although the Unemployment Insurance Fund
(UIF) submitted a presentation as part of the record (see Appendix A). The GEPF is
expected to present in due course at the Commission on its mandate to the PIC and
on the role of the Trustee Board in the client mandating process. The following
section is therefore based on the discussions at the PIC Inquiry Workshop following

4
The Compensation Fund Investment Portfolio Performance, 17 May 2019

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 presentations by the Compensation Fund, the PIC5 and an independent legal
expert6, without access to the terms of the GEPF’s mandate.

The Client Mandating Process

2.3 It is a client’s responsibility to determine their fund’s objectives, its investment

philosophy and other elements of its investment strategies, and to decide the
strategic or long-term asset allocation, which is the most important determinant of
investment performance. The investment policy statement documents the
approach to investments. This is codified in the investment mandate agreed with
the fund manager.

2.4 Typically, the investment mandate documents the client’s risk preference,
performance objectives including benchmark and return targets, and investment
time horizon. It also specifies among other things, the manager strategy, the extent
of manager discretion allowed, when special approvals are required from the client,
any restrictions, the investment universe, reporting frequency, proxy voting policy,
responsible investment policy, conflict of interest policy, hedging policy, brokerage
commission policy, the fee structure etc.

2.5 In the event of a breach of its investment mandate, the PIC is expected to send a
letter to its clients detailing the breach and the reasons for it.

The consequences of a breach for a typical asset manager can range from an
interdiction against the manager on the basis of improper conduct, a cancellation of
the asset management agreement, or a claim for damages and a clawback of fees paid
to the asset manager. Transactions concluded by an asset manager in breach of its
duties may be void or voidable and the asset manager’s FAIS license may be
withdrawn. (This does not apply to the PIC).

The asset manager and or its senior employees may also be found guilty of criminal
offences if they violated section 2 of the Financial Institutions (Protection of Funds)
Act of 2001. 7

The Nature of Pension Funds

2.6 Pension funds are special purpose legal entities through which people make
provisions for retirement. Most pension funds in South Africa are regulated under
the Pension Fund Act of 1956. A few are exempt: these include the GEPF, the Post

5
PIC: A look at the investments and their processes, 17 May 2019
6
Legal framework within which the PIC is required to exercise investment powers on behalf of the GEPF Memo
by Rosemary Hunter, 17 May 2019
7
Pension Fund Investments: Legal Framework by Rosemary Hunter

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 Office Retirement Fund, the Telkom Pension Fund, and the Transnet Pension, all
of which are legal entities established by their own particular statutes, and to which
the State has, or has had, substantial direct and contingent financial exposure.

2.7 Pension funds are important vehicles for the provision of social security. They form
a critical part of the way in which the state fulfils its constitutional obligation to
provide social security benefits. This can be through an occupational fund where
employees together with employers contribute to savings by allocating a portion of
their remuneration to the pension fund.

2.8 To encourage South Africans to save for retirement, the government provides tax
incentives on the contributions to pension funds, which has boosted the level of
participation in occupational funds in South Africa relative to the rest of the world.
In 2017, over 3.17 million people received tax deductions on contributions at a cost
of R73 billion or approximately R21,5008 per taxpayer to the fiscus.

2.9 Pension funds have their own interests which can be entirely separate from the
interests of their members, the employer, and the dependents of members. The
board of a fund must exercise the powers which belong to the fund to deliver the
pension benefits in the very long-term. How the assets are invested to meet future
liabilities is therefore an important consideration.

Government Employees Pension Fund (GEPF)

2.10 The GEPF is a defined benefit, balance of cost, pension fund to which the
components of the national and provincial governments, in their capacities as
employers of its in-service members, are required to contribute at rates determined
from time to time with due regard to the results of triennial valuations of the fund.
The Fund collects contributions and pays benefits when they fall due, thereby
fulfilling the purpose of the pension fund to its members and beneficiaries. As the
largest client to the PIC and by virtue of its sheer size, a failure of the PIC, or by
extension, a failure of any significant investments made on behalf of the GEPF
would expose the South African government to material financial vulnerability.

2.11 The GEPF Board is required to determine its investment policy(ies) in consultation
with the Minister of Finance and may not make any changes to that policy without
the Minister’s approval. The Minister, who has the right to appoint half of the GEPF
Board members, also has a veto right over changes to the GEPF’s investment policy
that may negatively impact the Government’s financial obligations towards the
Fund as the guarantor of the defined benefit fund. The GEPF Board is not expected
to have expert knowledge on all aspects of the pension fund and may take on and

8
Legal framework within which the PIC is required to exercise investment powers on behalf of the GEPF Memo
by Rosemary Hunter, p.7

13 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 rely on expert advice as needed. It can also delegate the management of the
investments to professionals. The Fund’s long-term objectives published on its
website are: (1) To provide members and their dependents with the benefits
promised in the Rules. (2) To target the granting of full inflationary increases to
pensions, subject to affordability.(3) To keep the employer contribution rate as
stable as possible, with any changes to the employer contribution rate being
introduced gradually. The GEPF Board has appointed the PIC to manage the assets
of the Fund.

2.12 As a registered Financial Services Provider (FSP), the PIC is governed by the
Financial Advisory and Intermediary Services Act of 2002 (FAIS) which is designed
to protect consumers of financial products and services. FAIS also applies to the
FSP’s representatives, or any person who gives financial advice or who provides an
intermediary service (e.g., the collection of premiums). The FAIS General Code of
Conduct for FSPs requires them to render financial services honestly, fairly, with
due skill, care and diligence in the interests of clients and the integrity of the
financial services industry and to avoid conflicts between interests and duties.
Similarly, the Financial Institutions (Protection of Funds) Act of 2001 requires
financial institutions to act with utmost good faith and exercise proper care and
diligence in the affairs of their clients.

2.13 The GEPF Board is responsible for ensuring the pension assets are invested in
accordance with the investment mandate, which is jointly agreed with the PIC. The
investment mandate which formalizes the relationship and expectations of both
parties therefore becomes the reference point for ongoing performance monitoring
and evaluation.

2.14 The GEPF aims to ensure financial sustainability into the future while having a large
exposure to the South African economy. The GEPF’s long-term asset allocation
requires 90% invested in South Africa across equities, bonds, property, with the
majority of assets invested on the JSE Securities Exchange. The balance of 10% is
split equally between offshore investments and in the rest of Africa ex-South Africa.
This allocation is modest in comparison to other FSCA regulated funds that can
invest up to 30% outside of South Africa.

2.15 Part of the PIC mandate from its clients is to invest in private equity, infrastructure,
direct property, and impact investments to varying allocations based on the client
mandate. The GEPF has publicly stated its intention to increase its allocation to
developmental investments in due course. These investments aim to stimulate
economic growth and transformation. This is in recognition that without adequate
infrastructure, a fundamental requirement of a growing economy, the Fund’s
investments in the other parts of the economy could be compromised e.g., if goods
cannot make it to the ports, or there is insufficient electricity to power the economy,
this hampers growth. The GEPF Board therefore has the right to preview unlisted

14 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 transactions above certain thresholds so that its Board or investment committee, in
the context of its investment framework can consider and approve such
transactions. Currently, transactions above R2 billion9 are required to be submitted
for final approval. The PIC’s investment activity must therefore be aligned with
client mandates, relevant regulations and risk objectives.

2.16 Importantly, developmental investment is not philanthropy or grant funding: it

must generate a financial return.

The Compensation Fund and the Compensation Commissioners Portfolio

2.17 The Compensation Fund shared insights into their investment strategy and policy
that forms the basis of the investment mandate as well as the performance of their
two funds. The Compensation Fund is a Schedule 3A public entity of the
Department of Labour, established under the terms of Section 15 of the
Compensation for Occupational Injuries and Diseases Act as amended. The main
objective of the Act is to provide compensation for disabilities caused by
occupational injuries or diseases sustained or contracted by employees or for death
resulting from such injuries or diseases and provide for matters connected
therewith.

2.18 The Compensation Fund has appointed the PIC as its sole asset manager to manage
and administer investment portfolios on behalf of the Compensation Fund. The
Compensation fund sets out the responsibilities of the PIC which include:
• Implementing the investment strategy as mandated by the Fund
• Providing reports for monitoring purposes and preparation of the management
accounts by the Fund

2.19 The Compensation Fund collects premiums from employers and invests them with
the PIC according to its investment policy, as approved by the Director General of
the Department of Labour. The investment objectives that have been agreed
between the PIC and the Compensation Fund as part of the investment mandate as
follows:
• Primary objective – to ensure capital preservation of all assets
• Secondary objective – to ensure that after providing for the liabilities of the
Fund, that the investment growth is sufficient to cover the future benefit
improvements.
• The investment return objective is to achieve returns in excess of headline
inflation plus 3.5% over a rolling two-year period.

2.20 The Compensation Fund has two investment portfolios managed by the Public
Investment Corporation (PIC) which are:

9
PIC Commission of Inquiry Workshop 2019 Legal Framework, Presentation by Lindiwe Dhlamini, p.17

15 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 1) The Compensation Commissioner’s (CC) portfolio
The purpose of the CC portfolio is to provide for all benefits and expenses yet to be
paid in respect of accidents that happened before the valuation date of the reserve
fund.

2) The Compensation Pension portfolio (CP).

CP portfolio’s purpose is to provide for future pensions and Constant Attendance
Allowance (CAA) payments that had been granted before.

Figure 1 shows portfolio returns on the two portfolios versus the investment target of
inflation plus 3.5% over the past 24 months.

Figure 1: Portfolio Returns versus CPI+3.5% target over the past 24 months

Portfolio Return vs CPI+3.5% target over past 24 months

10,00%
8,20% 8,20%
8,00% 7,33%
6,67%
6,00%
Returns

4,00%

2,00%

0,00%
CC CP
CPI+3.5% Target Portfolio Return

Source: Compensation Fund

Note: Past performance is not an indicator of future performance

Table 5 shows the asset class ranges and limits per asset class as set out in the investment
strategy. The PIC can take short-term tactical asset allocation decisions within the
minimum and maximum asset allocation ranges, which the investment team reviews
quarterly.

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Table 5: Compensation Fund Investment Strategy
Asset Classes Min. SAA Max. Benchmark10
Range Range
Bonds (Nominal and Inflation Linked Bonds) 55% 59.5% 62% 50% ALBI/ 50% CILI
Equities 20% 23% 27% FTSE/JSE SWIX
Developmental Investments 5% 10% 10% Case by case basis
Unlisted Property 2.5% 2.5% 5% IPD Index
Cash & Money Market 3% 5% 10% STEFI Composite
Total 100%
Source: Compensation Fund

2.21 To determine if assets are being managed in compliance with policies and
procedures and if the PIC is in compliance with the mandate requires clear
reporting so that a client can understand the investment performance. Without
detailed attribution of asset class performance, it is not possible to identify which
investments had added or detracted value overall and effectively monitor
compliance with investment policies. The Compensation Fund highlighted internal
data challenges in reconciling, assessing and compiling long-term investment
performance due to internal staff changes.

2.22 An analysis of the actual asset allocation and the strategic (long-term) asset
allocation shown in Table 10, for example, shows that the asset mix is not in line
with the Strategic targets, with allocations to cash, unlisted property and
developmental assets outside of the determined ranges. The majority of assets are
invested in government bonds and money market instruments, and the investment
mandate has credit risk limits as set out in the Public Finance Management Act
Treasury Regulation 31.3.2 (see Appendix B).

Table 6: Compensation Fund: Actual Asset Allocation compared to Strategic Target

Asset Classes Actual Strategic Target Range

Bonds (Nominal and Inflation Linked Bonds) 60% 59.5% 55% - 62%
Equities 21% 23% 20% - 27%
Developmental Investments 3% 10% 5% - 10%
Unlisted Property 0% 2.5% 2.5% - 5%
Cash & Money Market 16% 5% 3% - 10%
Total 100% 100%
Source: Compensation Fund

10
ALBI: All Bond Index;
CILI: Composite Inflation Linked Index;
SWIX: Shareholder Weighted Index;
IPD: Investment Property Databank Index;
STEFI: Short-Term Fixed-Interest Composite Index

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Developmental Investments

2.23 When appraising developmental assets, the Compensation Fund looks at financial
performance against expectations as well as social impact. In 2019, of the 17
developmental investments made on behalf of the Fund, 8 were performing in line
with expectations, 6 were distressed with low prospects of recoverability of the
Fund’s investment and 3 were underperforming with significant variance to
budgeted revenue, governance failure and breach of contract. The high number of
distressed and potentially unrecoverable assets are a red flag and suggest that a
careful review of the investment processes undertaken by the PIC may be required
to determine if there has been either misconduct or non-compliance with the client
mandate and guidelines.

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 CHAPTER 3: INVESTMENTS AND INVESTMENT PROCESSES
No. 41979 GOVERNMENT GAZETTE, 17 OCTOBER 2018

The Commission must enquire into, make finding, report on and make
recommendations on the following:

1.1 Whether any alleged impropriety regarding investment decisions by the PIC in
media reports in 2017 and 2018 contravened any legislation, PIC policy or contractual
obligations and resulted in any undue benefit for any PIC director, or employee or any
associate or family member of any PIC director or employee at the time.

3.1 The PIC presented its investment process and performance at the PIC Inquiry
Workshop11. This section summarizes the different processes used to manage the
PIC’s assets. It is important to note that the GEPF mandate was not available to
participants at the Inquiry Workshop. As such, participants could therefore not
comment on the question of whether any of the PIC’s investment decisions under
consideration by the Commission were made in breach of any of its investment
mandates. This is an issue into which the Commission itself will have to separately
address.

11
PIC Investment Framework Strategy Process & Performance across all asset classes, May 2018

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Performance Overview

3.2 The PIC is focused on delivering attractive risk-adjusted returns in order for its
clients to meet their obligations. The institution has produced results broadly in-
line with or above the relevant benchmarks for its clients over the past 10 years.
Figure 1 shows PIC investment performance for its respective clients relative to
benchmarks over different periods ending 31st March, 2018.

Figure 2: PIC Performance over 1, 5 and 10 Years across Clients as at

31 March 2018

PIC has largely delivered good performance over time

1,00
0,80
Relative Performance %

0,60
0,40
0,20
0,00
-0,20
-0,40
-0,60
GEPF UIF CF CP AIPF
10 years 5 years 3 years

Source: PIC
Note: Past performance is not an indicator of future performance
Relative performance: Returns above benchmark

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Investment Philosophy

3.3 The PIC investment philosophy is underpinned by two broad objectives: namely
generating financial returns and sustainable Environmental & Social Governance
(ESG) impact. This approach is supported by a risk management framework that is
embedded in its organizational and decision-making structures. The PIC believes
that a focus on the following six principles contributes to value-added performance.

a. Risk management: The efficient use of risk budget by avoiding risks that do not
provide commensurate returns and targeting a low volatility portfolio
b. Diversification: Well diversified portfolios to produce a stable distribution of
returns
c. Time horizon: Investment strategies will generally be long-term in nature and
will avoid ad hoc decision-making based on short-term factors
d. Market efficiency: Markets differ in degree of efficiency at macro, sector and
asset level. Investment strategies will reflect a mix of active and passive
investments, with passive investments being overweight in more efficient
markets
e. Valuation & analysis: Valuation and analysis based on fundamentals generally
produce superior return/risk results. Investment strategies will focus on
fundamentally based processes.
f. Cost: Cost management adds significant value to production of excess return.
Investment strategies will actively seek to minimize overall transaction costs.

(Source: PIC Integrated Report 2018)

Role of the Investment Committee in Investment Process

3.4 The PIC Board has established various committees to assist it in discharging its
duties and responsibilities. The Investment Committee (IC) was established to
provide oversight and decision-making in respect of all investment activities. The
primary purpose of the IC is to assist the Board in discharging its statutory duties
and oversight responsibilities in relation to listed and unlisted (including direct
property) investment activities.

3.5 The IC is comprised of a majority of Independent, Non-Executive Board Directors.

Detailed information of the responsibilities and duties of the IC are found in
Appendix C. Additionally, the team structure and the role of the IC from Old
Mutual Investment Group (OMIG) in South Africa can be found in Appendix D for
comparison.

3.6 By contrast, industry practice shared at the Inquiry Workshop demonstrated a far
more flexible and decentralized approach to investment decision-making at large
asset management firms. At OMIG and Sanlam Investments, for example, the

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 Boards have overall responsibility over governance, policies and oversight but no
direct role in investment decision-making which is decentralized to respective
investment committees. Both aim to create environments that encourage risk-
taking and do not only evaluate performance, particularly in the case of evaluating
a negative outcome but also carefully weigh the processes undertaken to get to a
particular outcome.

3.7 Unlike the PIC, both had more than one Investment Committee (IC) as different
skill sets are required for listed, unlisted, and multi-manager investments. There
was a CIO or other officer with visibility across the different ICs to ensure a
consistent approach was taken, and to avoid layering on risks. In addition, this
ensured that there was enough capacity to review the volume of transactions.
Capacity constraints within the PIC were identified as an area of weakness, which
led on occasion to governance processes being compromised. Capacity constraints,
made worse by recent staff turnover across the investment team, was raised as a
matter that needs urgent attention.

Investment Policies and Framework

3.8 All investment transactions at the PIC are subject to various policies, as well as
appropriate ESG frameworks, all of which are based on international best practice
and are aligned with applicable legislation and regulations.

3.9 The PIC has an approved Delegation of Authority (DOA) framework in place,
delegating responsibilities for different transactions to a variety of role-players in
the investment divisions (i.e., Listed, Unlisted, and Property Investments), as well
as to employees in Risk Management, Legal, Compliance, Corporate Affairs, and
Investment Management. The DOA also outlines the powers of the Board, its
committees, and those of the Executive Directors.

3.10 The designated process includes rigorous interventions at various stages of the
investment process include independent investment reviews and reports, which are
considered alongside the investment appraisal report from Risk, Legal and ESG
teams. Recent media coverage suggests that investment allocation and approval
processes have not always been followed as prescribed.

3.11 The Investment Committee has a number of sub-committees that deal specifically
with specialist investments. Figure 3 shows the composition of the Investment
appraisal committees in more detail. The PIC approval committees that preside over
investment considerations comprise of the Portfolio Management Committee
(PMC), the Fund Investment Panels (FIP) which cover direct property, private
equity, priority sectors and small medium enterprises and social and economic
infrastructure and environment sustainability, the Investment Committee and the

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 Board. Depending on the size of the transaction, the investment proposal can go to
the PMC, FIP or to the client for approval.

Figure 3: Delegation of Authority Framework

Source: PIC

Integration of ESG in the Investment Process

3.12 The PIC is a signatory to the UN Principles of Responsible Investments (UN PRI)
and the Code for Responsible Investing in South Africa (CRISA). It believes that a
strong commitment to the highest standards of business ethics and sound corporate
governance is essential to creating long-term value for clients. The PIC ESG
investment practices are guided by policies specific to the different asset classes
including listed equities, fixed income, public entities/SOEs, and unlisted
investments. Figure 4 illustrates how ESG is integrated in the investment process.

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Figure 4: PIC Integration of ESG in Investment Process

Source: PIC

3.13 The PIC’s responsible investing activities, which have been integrated with its
investment process include:
• Conducting ESG quality reviews
• Exercising voting rights (proxy voting)
• Liaising with investee companies
• Influencing the ESG landscape through shareholder activism

3.14 As the largest single investor in the public markets, the PIC policies around
corporate governance and shareholder engagement, gives the corporation
significant influence and import in the South African market.

3.15 Best practice recommendations shared at the Inquiry Workshop that can promote
sustainability practices are shown in Figure 5.

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Figure 5: Summary Recommendations for ESG Integration

Source: Robecco Institutional Asset Management N.V.

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Deconstructing the PIC Assets under Management

3.16 As at 31st March, 2018, the PIC assets under management were ZAR 2,083 trillion.
The PIC had a staff complement of 372, of whom 188 (50.5%) are investment
professionals. Although not directly comparable, Old Mutual Investment Group
(OMIG) in South Africa has a staff complement of 112 just in its unlisted
investments team, of whom 72 (65.2%) are investment professionals.

3.17 The following tables and charts provide insight into how assets at the PIC are split
at different levels including by asset class, internally vs. externally managed, and by
geography.

Table 7: PIC Split of Total Assets by Asset Class

LISTED UNLISTED
ZAR bn % ZAR bn %
Equities (Internal) 832* 39.94% Private equity 21 1.02%
Bonds (Internal) 692 33.20% Impact investing 49 2.35%
Listed Funds (External) 194 9.32% Property 47 2.26%
Cash 112 5.38% Africa unlisted 6 0.30%
Global Equities 91 4.38%
Global Bonds 21 0.99%
Africa ex. ZA 18 0.86%
1,959 94.07% 123 5.93%
Source: PIC Integrated Report 2018
*Includes Listed Properties

Figure 6: Split of Assets Between Internally Figure 7: Split of Assets Between Internally
Managed and Externally Managed Assets Managed Equity and Bond funds

73% of total assets are managed Internal assets are split roughly
internally equally between listed equities
and bond mandates

559
(27%)

47%
53%
1,524
(73%)

Internal (ZAR'bn) External (ZAR'bn) Equity Bond

Source: PIC Integrated Report 2018

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Figure 8: Split of Externally Managed Assets Figure 9: Split of Local Listed Equities by
by Asset Class Strategy

9% of total assets are invested 82% of total local listed equities

with external managers are benchmark cognisant
171
18%
AuM (ZAR'bn)

18%
64%
17
5
Index tracker Enhanced index
Local Equity Local Fixed Local Property
Income Active (External)

Source: PIC Integrated Report 2018

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Listed Investments

Internally managed listed investments

3.18 A larger portion (53%) of the internally managed listed equity assets are managed
passively through (1) tracker fund and (2) enhanced index strategies. A tracker fund
is an index fund that tracks a broad market index or a segment thereof. These funds
seek to replicate the holdings and performance of a designated index. Tracker funds
are designed to offer investors cost efficient exposure to an entire index.

3.19 The PIC uses an index tracking strategy to replicate the holdings and performance
of the Shareholder Weighted Index (SWIX) at a maximum tracking error of 0.5%.
Passive investments account for 64% of the total local listed equity mandates at the
PIC (see Figure 9). Strong equity markets have resulted in good investment returns
for the passive investment strategy.

3.20 This type of investing is widely employed by some of the largest asset managers
across the globe. For example, BlackRock, which is the largest money manager in
the world, makes use of index tracking as part of their core offering. Other examples
include the likes of Satrix in South Africa and the Norwegian Sovereign Wealth
Fund who use index tracking to gain exposure to the broader market at a low cost.

3.21 On the other hand, an enhanced index fund follows a strategy that seeks to enhance
the returns of an index by using active management of the weightings of holdings
for additional return. The PIC uses an enhanced index strategy on 18% of the total
local listed equity assets at a maximum tracking error of 1.5%.

3.22 This portion of the portfolio is managed in recognition that financial markets can
be inefficient due to behavioral biases that can cause divergences between a
company’s fundamental value and its market price. Figure 10 illustrates the 4-
Factor investment process used to identify stock opportunities for the enhanced
index fund. The 4 factors include competitive advantage and quality, stewardship
and ESG, uncertainty and risk, and valuation.

3.23 The remaining 18% of the local listed equity mandates is managed on an active basis
and is discussed in the next section. Almost half of the internally managed assets
(47%) are allocated to bonds. These assets are also managed passively to track the
holdings and performance of the All Bond Index (ALBI) and the Composite
Inflation Linked Index (CILI). Both these strategies employed for equities and
bonds have historically been successfully managed and have achieved their long-
term objectives.

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 Figure 10: 4-Factor Investment Process for
Enhanced Index Fund

Source: PIC

Externally managed listed investments

3.24 The PIC outsources the investment management of 22% of its total listed assets
across various asset classes. This includes local equities, local fixed income, local
properties, offshore equities, and offshore bonds.

3.25 The team uses a specialist multi-managed approach to manage all external local
assets (see Figure 8), which is higher maintenance to build and design than a fully
passive approach. Clear processes are required for manager research and selection,
portfolio construction, and monitoring and review.

3.26 The aim is to create robust solutions by adhering to portfolio construction principles
of diversification and risk management. The stringent selection and monitoring
processes employed by the team ensures that the portfolio meets the criteria of a
well-constructed solution.

3.27 The PIC combines qualitative factors, including diversity of styles and philosophy
with quantitative risk factors. Figure 11 shows the Multi-manager investment
approach including the types of strategies used as well as the key pillars of alpha
generation. Allocating resources in the right asset classes, and portfolio rebalancing
are additional crucial factors required to generate sustainable value-added returns.

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 Figure 11: Multi-manager Investment Approach and Key Pillars of Alpha Generation

Multi-Strategy Investing

Value Growth Systematic

Strategies Strategies Strategies
Price/ Passive/
Deep Quality Macro Relative
GARP Growth Earnings Volatility Smart
Value Value Value Value
Momentum Beta
More Value bias Less Value bias
(Momentum/
Growth Strategies)

Key Pillars of Alpha Generation

Portfolio Manager Monitoring

construction selection results

Source: PIC

3.28 The due diligence process incorporates Environmental Social and Governance
(ESG), risk, and legal assessments. The managers are appointed through a request
for proposal (RFP) process. The PIC then selects managers and creates a reserve list
of managers that is researched and monitored regularly. This enables the PIC to act
quickly should the need for a manager change arise. Figure 12 demonstrates the
PIC manager selection process.

Figure 12: PIC Manager Selection Process

Source: PIC

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3.29 The selected managers manage their respective portfolios on an active basis relying
on analytical research, forecasts, and their individual judgment and experience in
making their investment decisions. This type of investing has a specific goal of
outperforming a designated benchmark index or target return and therefore comes
at a higher cost. External listed equity asset managers manage assets on an active
basis with a maximum tracking error of 8%.

3.30 The offshore equities are currently managed passively although the GEPF mandate
allows the PIC to invest in different investment strategies. The global portfolio has
an 80% allocation to developed markets and 20% to emerging markets. The offshore
bonds have a 70% allocation that is passively managed with 30% allocated to
actively managed strategies.

3.31 The PIC as it is currently structured, does not have the necessary in-house skills and
resources to manage offshore assets; it therefore makes sense to appoint global
managers to invest its clients’ offshore assets.

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Unlisted Investments

3.32 Unlisted investments as at 31 March 2018 were ZAR 123 billion or 6% of the PIC
assets under management. The charts and tables in this section demonstrate the
breakdown of the unlisted assets at the PIC.

3.33 The PIC has significant influence in the private equity, infrastructure, and impact
investment arenas in South Africa by virtue of being an important source of risk
capital given its scale. Indeed, the PIC is frequently the first investor to fund new
investment arenas e.g., the Renewable Energy IPP program (REIPP), where the
PIC’s early efforts were important in catalysing significant local and international
investor participation in the renewable energy sector.

3.34 Unlisted investments are investments into shares of companies or assets that are not
traded on the open market, which makes them harder to sell than publicly listed
investments. One of the capital pools available is private equity sourced from
individual investors and institutional funds.

3.35 The rationale for investing in unlisted assets makes sense for several reasons:
a. For diversification benefits and improving client risk-adjusted returns;
b. Opportunities to invest in economic sectors not accessible through listed
investments;
c. Listed investment activities comprise the exchange secondary paper only as
opposed to the creation of new assets;
d. Active investor by targeting sectors and opportunities that contribute and
stimulate economic growth;
e. Overall portfolio diversification given lower correlation with public market
returns reduces portfolio volatility; and
f. Affords crowding-in ahead of and alongside other investors to support
development investment opportunities that would otherwise not attract public
market funding.

The Isibaya Fund

3.36 The Isibaya Fund accounts for over 60% of the PIC’s unlisted investments (see Table
8). Impact investing accounts for the largest allocation at 40%, followed by private
equity at 17% and Africa 5%.

3.37 Impact investing strategies have gained significant support as a viable means for
generating positive financial returns while addressing pressing social and
environmental challenges. In 2018, the size of global impact investing capital was
estimated at US$502 billion, accounting for less than 1% of more than US$80 trillion

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 invested in the global equity markets. In contrast, total assets available locally for
impact investing are estimated at 2.6% of the total financial assets in South Africa12.

Table 8: Composition of the PIC Unlisted Investment Portfolio

Portfolio Sub-portfolio ZAR bn %
Isibaya Private equity 21 17%
Impact investing 49 40%
Africa ex. ZA 6 5%
Unlisted Property Property 47 38%
Totals 123 100%
Source: PIC Integrated Report 2018

Figure 14: Comparison of Listed Assets Figure 13: Composition of the PIC Unlisted
against Unlisted Portfolio

ZAR 123 billion is invested in Isibaya accounts for 62% of

unlisted assets unlisted assets
5%
6%
17%

38%

94% 40%

Private equity Impact investing

Listed Unlisted Property Africa unlisted

Source: PIC Integrated Report 2018

12
Impact Investing: Global trends and the South African Experience Presentation by IDC May 2019

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3.38 Private equity in the Rest of Africa requires a high level of active management with
continuous investor contact and engagement required. To harness the African
growth opportunity, a localized approach and perspective in key focus countries is
crucial as the best quality deal flow often requires local relationships in the
respective markets. The PIC looks to collaborate and partner with other investors
in this regard. See Appendix E for best practice in African private equity
investments.

Unlisted investments process

3.39 The following principles anchor the decision-making process for unlisted
investments:
§ Investment strategies are based on detailed, well researched, in-house analysis –
linking top-down macro-economics, global, structural, and thematic investment
trends to attractive opportunities in local sectors;
§ Targeted investment returns and social returns are not mutually exclusive.
However, no compromise is made for social return over an economic return;
§ ESG principles must be incorporated in the investment decision-making process;
§ Central to the PIC investment philosophy is the requirement to invest in a
manner that is additional i.e., catalyzes economic growth, with the intention of
directing other investor funds towards impact investing;
§ The PIC invests directly in new and existing enterprises as well as through the
use of intermediaries such as external fund managers and retail intermediaries;
§ B-BBEE principles must be applied in all investments, including operational
involvement of BEE-funded parties;
§ The PIC must be represented on Boards of companies in which it has significant
shareholding to ensure stringent governance principles are applied as well as
alignment of strategic objectives with the principle objective of transformation
at shareholder level;
§ Investments may comprise of a combination of senior loans, mezzanine funding
and equity instruments.

3.40 Once the deal is complete, the investment is taken over by the Portfolio Monitoring
and Valuation (PMV) team. The PMV team is the biggest team in the business and
it is responsible for on-going monitoring of the investments in the portfolio. By
contrast, at Old Mutual Alternative Investments, the team that originates the deal,
executes the deal and is accountable for the performance of the investment until its
eventual exit from the portfolio. There is a high level of deferred compensation and
gains are booked over time ensuring that there is an alignment of those individuals
to the outcomes that they are expected to deliver. Figure 15 in the following page
shows the PIC investment and decision-making process.

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Figure 15: Isibaya Investment and Decision-Making Process

Source: PIC

3.41 The unlisted portfolio represents continual investment of capital into the South
African economy to stimulate growth. Table 9 shows a summary of assets still to be
injected into the economy from approved projects as at 31st March, 2018.

Table 9: Assets still to be injected into the economy from approved projects
% of Total AUM % of unlisted Committed Invested Undrawn
assets (ZAR bn) AUM investments investments commitment
(ZAR bn) (ZAR bn) (ZAR bn)
5.93% 123.5 100% 153.9 126.9 27
Source: PIC Unlisted Investments Schedule

Direct Property

3.42 The PIC invests in unlisted property as the asset class provides diversification and
has qualities that can enhance the returns of a diversified portfolio. It also delivers
social impact as it (1) promotes enterprise development, (2) supports targeted,
preferential procurement, and (3) creates employment. See Appendix F for best
practice in unlisted property investments from a large asset manager in South
Africa. Table 10 outlines the minimum criteria for investments into unlisted
properties at PIC.

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Table 10: Minimum Criteria for Investments into Unlisted Properties
Retail centres § Assets measuring minimum 10,000m2
§ At least 70% national tenants’ representation
§ Preference given to townships and other under-developed areas
Office buildings § Assets measuring 5,000m2 and more
§ Avoid multi-tenanted buildings unless it is government department or
agencies
§ Preference given to government and SOCs
§ 60% pre-let
Industrial buildings § Assets measuring at least 3,000m2 or more in developing nodes and/or
industrial parks
§ Avoid multi-tenanted buildings
§ 100% pre-let
Specialised buildings § Minimum investment size of approximately R 100 million
§ Direct investment or into a fund
Portfolio of buildings § Thorough due diligence conducted to avoid unsustainable buildings,
short-term leases or unfavorable expiry profile
Source: PIC

3.43 Risk management in choosing investments in unlisted property is part of investment

process and is accompanied by independent reports from Risk, ESG, and Legal
teams. The approach follows a customary 5-step approvals process which can get
up to 7-steps depending on the size and nature of the transaction.

(1) Deal origination

(2) Initial analysis & deal screening
(3) First Portfolio Management Committee (PMC) properties – due diligence
(4) Detailed due diligence process
(5) Final PMC properties – Approval/recommendation (less than ZAR 250 million)
(6) Properties Fund Investment Panel (FIP) approval/recommendation (greater
than ZAR 250 million, less than ZAR 7 billion)
(7) Investment Committee (IC) approval/recommendation & Board approval
(greater than ZAR 7 billion)

Private Equity

3.44 The PIC makes direct and fund-of-fund private equity investments in South Africa
and the rest of Africa. The corporation has a long history of investing in fund-of-
funds, a strategy that invests money in portfolios of individual private equity fund
managers, having made 18 different investments totaling ZAR 5 billion over 13
years, without any loss of capital. The principal investment rationales are access to
a deeper pool of investing talent (without the strictures around compensation and
retention if in-house), and access to certain investment strategies/vehicles/mandates
that are easier to effect in a smaller, focused asset manager, and transformation of
the private equity arena. The key internal focus is then how best to strengthen
internal oversight role, evaluate options and the manager selection process.

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3.45 The PIC’s ability to make direct private equity transactions in South Africa and the
rest of Africa has come into public scrutiny following a number of contentious
transactions recently brought to light at the PIC Commission Inquiry Workshop.
In particular, internal governance and investment decision-making structures that
have enabled financing of non-commercial deals, as well as the corporation’s
internal structure and limited or stretched capacity to evaluate, make and monitor
direct unlisted investments have raised concerns. The process of deal origination
and review were identified at the Inquiry Workshop as an area of concern.

3.46 Various presenters at the Inquiry Workshop shared Best Practice in unlisted
investments – private equity, direct property, black economic empowerment
funding and investing in Africa.

3.47 A few points of note highlighted include:

§ All potential transactions need to be evaluated on their own merits and only
undertaken when the underlying economics and other key, consistently applied
deal criteria make sense;
§ Deal origination, deal review and deal proposals should be undertaken by the
investment team and the Board/Business should not interfere with the process.
It is important to have the top structuring teams and investment professionals
who can originate, evaluate and structure transactions;
§ To succeed in direct unlisted investing, there has to be clear alignment of
interests whereby investment professionals are invested in the funds that they
make decisions on. Investment professionals must be there for the long-term,
and measured by the returns they deliver at exit. To earn performance fees, the
funds have to make an appropriate return in excess of the targeted hurdle rates;

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 CHAPTER 4: PIC OPERATING MODEL

No. 41979 GOVERNMENT GAZETTE, 17 OCTOBER 2018

The Commission must enquire into, make finding, report on and make recommendations on
the following:

1.15 Whether the current governance and operating model of the PIC, including the
composition of the Board, is the most effective and efficient model and, if not, to make
recommendations on the most suitable governance and operational model for the PIC
for the future.

PIC Current Operating Model

4.1 There are many proven global and local business models for large, publicly-owned
or oriented investors like the PIC. Any model must be relevant for the
organization’s size, current and future needs, complexity of its mandates, and for
the South African context. The PIC should be at the forefront of investment ideas
and thought, good practice and generated returns in South Africa and beyond.
Irrespective of the business model, the key success factors are, among other things,
good quality leadership, the right leadership and governance structure, a clearly
articulated and consistently applied strategic framework and investment processes,
and a culture that underpins the various mandates of the organization and embodies
its public-facing responsibilities.

4.2 The PIC is in the process of reviewing its operating structure and internal
discussions are underway to determine what operating model to adopt. Currently
under consideration is a business unit structure versus a holding company/
subsidiary company structure. The current model is shown in Figure 16 in the
following page.

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 Figure 16: PIC Current Operating Model

Source: PIC

4.3 The PIC is in the process of reviewing its operating structure and internal
discussions are underway to determine what operating model to adopt. Currently
under consideration is a business unit structure versus a holding company/
subsidiary company structure.

4.4 The business unit structure envisages an organization with a clear separation of
business units. This operating model is deemed more cost effective than the holding
company or subsidiary company structure as the corporation would maintain a
single Board structure that the business unit heads would report to rather than each
unit having its own board of directors. Figure 17 in the following page shows the
decentralized business unit structure that is currently favored and under discussion.

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 Figure 17: Proposed Model: A Decentralised Model across Asset Classes Specialisation

Source: PIC

4.5 Table 11 summarizes the advantages and disadvantages of the decentralized model.

Table 11: Decentralised Model: Advantages and Disadvantages

Advantages Disadvantages
§ Strategic direction vests at HO § Additional governance layers and possible
§ Instils entrepreneurial mindset across business duplication of administrative functions
units § Business units might have overlapping
§ Accountability by business units mandates resulting in duplication
§ Competition for capital requires all business § Decentralized decision-making can result in
units to contribute to profitability silo thinking at expense of a collaborative
§ Performance and incentives aligned with asset strategy
class characteristics of each business unit § Risk to license if compliance not adhered to and
§ Allows for specialization and dedicated managed with required oversight
expertise and knowledge
§ Clarified relationship between Management,
Board and Shareholder

Source: PIC Presentation on Future Operating Model, PIC Commission Inquiry Workshop

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 Figure 18: Proposed Model: Maintains Independence of Subsidiaries
with Holdco oversight

Source: PIC

4.6 The case studies below summarise key lessons on operating and governance models
and investment decision-making structure drawn from a sophisticated local investor
and shared at the Workshop.

Case Study 1: A Decentralised Operating Model

4.7 Sanlam is a 101-year-old business operating in 44 countries across the globe. Sanlam
group runs a decentralized operating model, comprising five businesses, including
the investment cluster. Each business has a clear mandate to profitably deliver value
to its clients.

4.8 The strategy of the investment business is built around growing clients’ wealth and
therefore contributing to the economic development and transformation of the
country.

4.9 There is clear delineation of asset management activities to allow for the smooth
running of the business. The CEO of Sanlam Investments (SI) is responsible for the
overall investment business.

4.10 The sub-committees of the Board consist of the Credit Committee, Risk Committees
and relevant Asset Management Investment Committees. It is the prerogative of
the business and the Board to determine the investment philosophy which spans
across Passive management, Active management, Multi-Manager and Alternative
Investment Solutions. However, all four investment teams operate independently.
There is no involvement from the business (Board and/or Management) in the
formulation of investment process or in investment decision-making.

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4.11 The role of the business is to hire the right investment team, hold them accountable,
and to replace as needed where such teams do not exemplify the firm’s values or
significantly underperform. The investment business does not have one ‘super’ CIO
and the Chairs of the different Investment Committees effectively play that role.
Risk and compliance function is completely removed from the investment process.

4.12 From an operational point of view, the four investment areas are supported by a
shared services infrastructure consisting of Client Services, Trading, Reporting,
Compliance, Legal, Performance, Risk, Finance, IT and Human Resources. There is
a central COO who oversees the digital strategy, systems, and the different
investment platforms. The shared services model is cost effective and essential to
competing effectively in the market.

4.13 Key lessons from sophisticated local and global investors:

§ The CEO role is responsible for the overall management of the business.
Supportive organizational and decision-making structures allow the executive
space to exercise judgement and objectivity, which is necessary to run a
successful business;
§ Teamwork and collaboration within businesses is what gives a business the
competitive edge;
§ Structure is important but it is not the panacea. The organization must have the
right people and be managed properly;
§ Remuneration is critical and it must be competitive to attract and retain top
talent;
§ Independent ICs can focus purely on what is the best risk-adjusted outcome for
the client. Visibility into each sector area allows for more transparency around
investment outcomes, and for course-correction if needed;
§ A strong corporate culture is central to the long-term success of an asset
manager.

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Case Study 2: Investment decision-making structure

4.14 A key principle of investing is to define a framework which defines and allocates
responsibilities to the right levels and groups and identifies how much and which
risks to take. Figure 19 below shows a proposed investment decision-making
structure.

Figure 19: Proposed Investment Decision-Making Structure

Source: International Benchmarks of Pension Funds, presented by Vuyo Jack. PIC Commission of Inquiry

43 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 CHAPTER 5: GOVERNANCE PROCESSES AT THE PIC

No. 41979 GOVERNMENT GAZETTE, 17 OCTOBER 2018

The Commission must enquire into, make finding, report on and make recommendations on the
following:
1.16 Whether, considering its findings, it is necessary to make changes to the PIC Act,
the PIC Memorandum of Incorporation in terms of the Companies Act, 2008, and the
investment decision-making framework of the PIC, as well as the delegation of
authority for the framework (if any) and, if so, to advise on the possible changes.

Legal Framework

5.1 The PIC is governed by the PIC Act of 2004 and its Memorandum of Incorporation
(MOI). The PIC operates in a highly regulated environment and is required to
comply with the Financial Advisory and Intermediary Services Act of 2002 (FAIS),
the Companies Act of 2008, and the Public Finance Management Act of 1999
(PFMA). Figure 20 shows the corporation’s overarching regulatory framework.

Figure 20: PIC Overarching Regulatory Framework

PIC

Source: PIC Legal Framework PIC Commission of Inquiry Workshop 2019

5.2 The PIC Act read in conjunction with the MOI provides the framework within
which the PIC Board operates. The Act states that the Board may establish such
committees as it deems fit, consisting of Directors as it considers necessary in order
to discharge of its duties. The PIC governance structure is shown overleaf on Figure
21 on the following page.

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 Figure 21: PIC Governance Structure

Source: PIC Investment Framework, Strategy, Process & Performance across all asset classes. PIC Inquiry Workshop May 2019

5.3 The PIC Board is responsible for appointing the CEO and retains more than a
strategic and oversight role. For example, the PIC Board can instruct the investment
committee what to invest in. Non-Executive Board members sit in the investment
sub-committees, including:
§ the Equity Priority Sector and the Small, Medium Enterprise Fund Investment
Panel;
§ the Social and Economic Infrastructure and Environmental Sustainability Fund
Investment Panel;
§ the Property Fund Investment Panel; and
§ the Investment Committee,

where they participate in investment decision-making.

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5.4 The PMC (unlisted investments) has the authority to approve all transactions
relating to investments in the rest of Africa up to maximum threshold of ZAR 500
million13. This contrasts with best practice in the asset management sector where
Board members are neither represented on the Investment Committee nor directly
participate in the workings of the investment teams.

Current Board Nomination and Selection Process

5.5 The PIC currently does not have a fully constituted Board, after the Board was asked
to resign by the Minister of Finance, following conflict and reported dysfunction on
the Board to the detriment of the corporation. The interim arrangement is that the
Board stay in place until a new Board is constituted.

5.6 The Minister of Finance, in consultation with Cabinet appoints the Board that
comprises no less than 10 and no more than 15 directors, including the CEO who
reports to the Board. Current practice is the Deputy Minister of Finance chairs the
PIC Board. Section 6 (3) of the PIC Act states that members of the Board must be
appointed on the grounds of their knowledge and experience with due regard to the
FAIS Act14. The skill set required of the Board is therefore covered in various pieces
of legislation. The GEPF has no representation on the PIC Board.

5.7 The Chairperson of the PIC Board (the Deputy Minister of Finance) also chairs the
PIC Directors Affairs Committee, which submits nominations of candidates to
National Treasury for appointment by the Minister of Finance. The nominations
are then reviewed by the Asset Liability Management (ALM) division, taking into
account the requirements – the mix of executive and non-executive directors, skills,
expertise and experience required at that point in time. If none of the candidates
are deemed eligible, the ALM division selects candidates from the National Treasury
database, which the directorate maintains and updates annually from persons that
have expressed an interest in becoming directors of state-owned entities in response
to its annual advert. Once there is list of suitable candidates, it is given to the
Minister of Finance who has the prerogative to decide who to appoint. It appears
that Cabinet can also nominate a person outside of the process. It was noted that
the current process of selection has inherent weaknesses and may not result in the
selection of individuals with appropriate investment and commercial experience.

13
PIC Legal Framework by Lindiwe Dlamini. PIC Commission of Inquiry Workshop 2019, p.11
14
PIC Legal Framework by Lindiwe Dlamini. PIC Commission of Inquiry Workshop 2019, p.7

46 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
PIC Current Investment Decision Making Framework and Delegation of Authority

5.8 It is the responsibility of the PIC Board to ensure that the objectives of the PIC are
attained.

5.9 The PIC has an approved delegation of authority (DOA) framework for the Board
and management in accordance with relevant legislation. The current DOA
delegates responsibilities for different transactions to various governance structures
and outlines the powers of the Board, its committees and officials to approve
transactions and related unlisted investment activities. In most instances, the DOA
only provides for the CEO to sign agreements and ancillary documents.

5.10 The PIC currently runs a centralised operating model with significant concentration
of decision-making responsibility, power and influence in the hands of the CEO and
the CFO. They sit on the Board as Executive Directors, they sit in investment
committees and serve on the Boards of Investee Companies. The PIC does not have
a Chief Operations Officer (COO) or a dedicated Chief Investment Officer (CIO).
The CEO performs the role of the CIO, although certain investment functions
report to the CFO. This is in contravention of the PIC Act Memorandum of
Incorporation, which prescribes roles for a CEO, Chief Investment Officer (CIO)
and (COO) and is also in contrast to the approach taken by many global fund
managers. The current management structure therefore lacks adequate executive
support for an organisation of its size and complexity, creating undue pressure on
executives required to make timely and sufficiently informed decisions

Proposed Governance Model

5.11 As a public institution the PIC has to manage internal and external stakeholders
that want to influence, advise or put constraints on the Corporation. In theory, it
is a long-term investor, in practice short-term performance matters. Strategic asset
allocation has a longer-term focus, but investment opportunities can be fleeting,
which calls for agility. There is no perfect structure or governance framework to
navigate the different stakeholders and multiple time frames. The proposed
recommendations outlined below for consideration cover areas where the current
practice could be reviewed so as to ensure the success and sustainability of the PIC
into the future. Of critical importance is to create an environment that gives the
PIC the best possible conditions for the successful discharge of its client and
Shareholder mandate.

Board Composition

5.12 The Board should encompass the right expertise required to play an effective
oversight role including (actuarial, asset management, general business, legal, audit

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 and risk expertise) that can advise on investment-related issues. It should have
broad competence in asset management and business. As the PIC is a global investor
and asset management is a global industry, the Board should include individuals that
bring global investment industry experience and perspective.

5.13 Further, the Board should have appropriate representation of key stakeholders, such
as key clients and trade union representatives who also meet the minimum board
competency requirements.

Board Selection

5.14 An independent PIC Board Chairman with a significant background and

demonstrable track record in investments or business rather than an Ex Officio
chairperson was proposed by the participants.

5.15 The appointment of Board members should in future reside with the Board
Nominations Committee of the PIC. Board terms should be staggered, defined in
term and duration, and key board committees and composition clearly codified.

5.16 In the current unique situation, it is recommended that the Chair in consultation
with the new CEO and Minister of Finance work together to create the new Board.

Delegation of Authority

5.17 Amend the PIC Memorandum of Incorporation (MOI)to give effect to the strategic
objectives of the PIC.

5.18 Define clear delegation of authority, with clear escalation methodology to ensure
accountability of Executives. The Corporation’s governance framework allows the
PIC to review the policies, processes, frameworks and guidelines that govern its
unlisted investment activities from time-to-time to ensure that they are relevant
and take into account the operating model and mitigate existing and new
operational risks.

Executive Roles

5.19 Separate the CEO and Chief Investment Officer (CIO) roles.

5.20 The CEO must administratively manage the Corporation; the CIO, however, retains
direct responsibility for the investment functions. There must be a clear separation
of business issues (e.g., administration, operations, stakeholder engagement) from
investment allocation issues. This separation must exist in theory and be rigorously
and consistently applied in practice.

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5.21 Appoint a Chief Operating Officer (COO) to free up the CEO from operational
responsibilities and allow the CEO to focus on the overall strategy and external
stakeholder management. The CEO and by extension, the senior management,
should exemplify the PIC’s values that put clients first and align the interests of the
organization with the client.

5.22 Appoint a Chief Risk Officer (CRO) to focus on the corporation’s overall risk profile,
and report directly to the Risk Committee of the Board. Risk and compliance
functions report to the CRO.

Remuneration

5.23 Implement variable remuneration that is linked to individual and team performance
as well as overall contribution to achieving client and firm objectives, subject to
profitability and growth.

5.24 Ensure alignment of incentive structures e.g., appropriate key performance

indicators at each level, meaningful deferred compensation as a percentage of total
compensation with a long vesting period, ability to clawback compensation in the
event of inappropriate behavior/gross incompetence etc.

5.25 Emphasize non-financial benefits that the organization offers (such as the ability to
influence markets, broad scope of learning possibilities, and an opportunity to make
a meaningful difference to South Africa) that can help attract and retain quality
staff. The PIC ‘halo’ should be a key draw and PIC should position itself and
demonstrate to potential candidates that it is the place to either have or launch a
successful career in asset management in South Africa.

Investment Governance and Structure

5.26 The Board’s role shall be restricted to an oversight role for the PIC and ensuring
that the overall strategic and governance frameworks are in place. The Board is
responsible for ensuring the right policies are in place and that investment processes
and governance structures are respected and consistently applied.

5.27 The Investment Committee (IC) shall be solely responsible for approving all
investment opportunities relating to client assets. All investment decisions of the
Investment Committee are binding.

5.28 The PIC should put in place clear rules that govern the composition of the
Investment Committee, its tenure, and process for onboarding new members.

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5.29 The PIC should appoint a CIO or Head of Investments that has oversight over the
different investment mandates, broader propositions and overall accountability by
ensuring that the PIC delivers on its client mandates within the articulated risk
parameters.

5.30 The PIC should appoint experienced senior investment professionals reporting to
the CIO to head up the listed, unlisted, and multi-manager areas as different skillsets
are required for each. Each area should have decision-making power in order to
allow for timely decision-making. There should be an identifiable person(s) with
whom accountability rests at each decision-making stage.

5.31 There should be a clear set of performance metrics for the CIO and his direct
reports, with an incentive structure that aligns and underpins the key PIC
objectives.

Outsourcing of Investments

5.32 The experience of other sophisticated global investors shows that getting access to
the best people, opportunities, and ideas matters significantly more to investment
performance and is more efficient than building out investment capability in all
areas.

Investment Committee Composition

5.33 The Investment Committee (IC) must include a majority of independent, competent
individuals with deep investment knowledge and, integrity that understand their
fiduciary roles.

5.34 The IC chairperson shall be independent.

5.35 The IC should include a mix of asset class specialists with deep domain knowledge
as well as generalists with expertise that cuts across sectors in order to evaluate
opportunities and appropriate correlation of asset class returns and risks.
Individuals should have at least ten years’ experience in core domain expertise, and
ideally with portfolio management experience across the business cycle (i.e.,
bull/bear markets).

5.36 Based on global best practice, it is recommended that the IC be comprised of five to
nine members. This will ensure both requisite, broad-ranging experience
(investing, risk, regulatory and compliance) is present without compromising the
quality and pace of decision-making.

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5.37 Diversity of experience, opinions, and views are important to the quality of
decision-making.

Transparency and Reporting

5.38 Transparency is important to managing and bolstering public trust and confidence.
Public funds have to be well governed because they have the potential to strengthen
or destroy public trust in important public institutions. This is established foremost
by an active, public reporting stance.

5.39 The PIC should consider providing greater disclosure of investments, without
jeopardizing deals, on a public register to promote transparency and build trust.

5.40 The CIO shall provide a quarterly Investor Letter to the Board (and potentially other
key stakeholder representatives e.g., Minister of Finance, National Treasury,
members of the public) that will enumerate key holdings/rationales, absolute and
relative performance, investment outlook and any material changes to the PIC or
its mandates. This can have a valuable stakeholder education role and help build
trust.

5.41 The PIC shall provide clients reporting in accordance with the investment mandate
requirements that specifies risk-taking strategy, performance objectives, evaluation
horizon and reporting frequency etc.

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Case Study 2: Global Benchmarking

Table 12: Comparison of Key Parameters against Peers

PIC NORWAY CALPERS CPPIB OTTP
GPFG
Assets under US$144 billion US$1 trillion US$354 billion US$295 billion C$193 billion
Management (R2,083
trillion)
Date founded 1911 1990 1931 1966 1990
Employees 372 400 2800 1661 1200
Type of entity Asset manager Sovereign Pension Fund Asset Manager Pension Fund
Wealth Fund
Proportion of 70% in-house 95% in-house Approx. 65% Largely Approx. 80%
assets managed 30% external 5% external managed in- manage assets in-house;
in-house vs. house; in-house Outsource
externally Private Equity where it is not
managed efficient or
externally practical to
maintain
equivalent
skills in-house
Management Estimated 3 - 5 5 - 6 cents per 61.2 cents per 32.8 cents per 67 cents per
fees cents per R100 $100 $100 $100 $100
Asset 90% in- 0% in country; 55% in- 15.5% in- 44% in-
allocation country; 100% global country; country; country;
In-country- 10 global 45% global 84.5% global 56% global
Global split
Size of Board 10-15 8 13 12 11
Board Chair Deputy Governor of Elected Appointed by Board selects
Minister of Central Bank annually by Minister after chair
Finance Board consultation
members with Board
IC process Y N Y in line with N Y in line with
(Board pension fund pension fund
involvement) governance governance
Y/N model model
Management Base pay; N/A Base pay; N/A Base pay;
incentives Pay for Pay for Annual
performance performance; incentive plan;
Special day Long-term
incentive plan
Source: “International Benchmarks of Pension Funds” presented by Vuyo Jack. PIC Commission of Inquiry Workshop. N/A – Not
available.

For deeper understanding of the different international peers, refer to Appendices I and K.

52 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 APPENDICES

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Appendix A: Unemployment Insurance Fund (UIF)

1. The Unemployment Insurance Fund did not attend the PIC Inquiry Workshop
although they did submit a presentation as part of the record.

2. The Unemployment Insurance Fund (UIF) was established in terms of Section 4(1) of
the Unemployment Insurance Act, 2001 (Act 63 of 2001), as amended; the act
empowers the UIF to register all employers and employees in South Africa. The
Unemployment Contributions Act, 2002 (act 4 of 2002) empowers the SARS
Commissioner to collect monthly contributions from both employers and employees.
The UIF is financed by a dedicated tax on the wage bill.

3. The PIC manages approximately R154 billion in assets under management for the UIF
(US$10 billion) as at 31st March 2018, which represents about 7.2% of the PIC assets
under management.

4. The purpose of this act is to provide for the payment of contributions to the benefit of
the UIF and to provide for the procedures for the collection of contributions. The UIF
contributes to the alleviation of poverty in South Africa by providing short-term
unemployment insurance to all workers who qualify for unemployment related
benefits.

5. The UIF must be used for the payment of benefit in terms of the act and the
reimbursement of excess contributions to employers. In addition, the UIF is used for
the payment of remuneration & allowances to members of the UI Board and its
committees and any other expenditure reasonably incurred and relating to the
application of this act

6. The UIF has appointed the PIC as its asset manager to manage and administer
investment portfolios on its behalf. The UIF with the assistance of its externally
appointed actuarial consultant and externally appointed investment advisor sets out the
responsibilities of its asset manager, the PIC.

7. The process the UIF follow in the formulation of the investment mandate is as follows

§ Role of the UIF externally appointed actuary

§ Actuary performs an asset and liability modelling exercise annually - as at 31
March
§ Actuary performs, from a solvency and assessment management (SAM)
perspective, an assessment of the Reserves and Capital of the UIF.
§ Actuary performs a Free Capital study

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8. Role of the PIC and UIF externally appointed investment advisor
§ The above three reports are supplied to the PIC and the externally appointed
investment advisor. The PIC and the externally appointed investment advisor
interpret the results of the reports with the aim of reviewing the efficiency of
the UIF’s current investment mandate versus the results of the above reports.
§ If there is a requirement for any changes to the mandate by the PIC and/or the
externally appointed investment advisor, a proposal will be provided to the UIF.
§ Any new proposal or proposals for changes to the mandate from the PIC and/or
the externally appointed investment advisor, will be compared and if there are
any inconsistencies, these will be workshopped by the parties.
§ Any amendments to the mandate, if required, will be presented to the UIFs
governance structures for approval
§ The mandate is submitted to the PIC for implementation

9. Table 5A shows the asset class ranges and limits per asset class as set out in the
investment strategy.

Table 13A: UIF Investment Strategy as at 31 March 2019

Min. Max. SAA - SAA -

Asset Class SAA Benchmark15
Range Range 2018 2017

Nominal Bonds 13.0% 23.0% 33.0% 26.5% 27.5% ALBI

Equity 20.0% 28.0% 30.0% 24.0% 24.0% CSWIX (ex SAPY)
Inflation Linked Bonds 16.0% 26.0% 36.0% 28.0% 30.0% CILI
Cash & Money Market 1.0% 5.0% 15.0% 10.0% 5.0% STeFI
Listed Property 1.0% 2.0% 5.0% 2.5% 2.5% SAPY
Unlisted Property 1.0% 6.0% 8.0% 5.0% 5.0% IPD (Customised)
MSCI Africa (ex
African Investments 0.0% 0.0% 2.0% 0.0% 2.0%
ZA)
Foreign Equity - Emerging
2.0% 2.0% 5.0% MSCI EM (ex ZA)
Markets
4.0% 4.0%
Foreign Equity - Developed MSCI ACWI (ex
0.0% 8.0% 10.0%
Markets ZA)
Total 54.0% 100.0% 144.0% 100.0% 100.0%

Source: UIF

15
ALBI: All Bond Index
CAPPED SWIX: Capped Shareholder Weighted Index
CILI: Composite Inflation Linked Index
STeFI: Short-term Fixed Interest Composite
SAPY: SA Listed Property Index
IPD: Investment Property Databank Index (PIC Customised/CPI+5%)
MSCI EM: MSCI Emerging Market Index
MSCI ACWI: MSCI All Country World Index

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Table 14A: UIF Investment Strategy for Unlisted Assets as at 31 March 2019

Min. SAA - Max. SAA - SAA -

Benchmark
Asset Class Range 2019 Range 2018 2017

Unlisted Property 1.0% 6.0% 8.0% 5.0% - IPD (Customised)

High Social Impact Funds 0.0% 2.0% 4.0% - - >15% social Return
Socially Responsible
15.0% 20.0% 25.0% 20.0% 20.0% CPI+3.5%
Investments
Project Development To be agreed on a project
0.0% 2.0% 3.0% - -
Partnership Fund (PDP) by project basis
Total 16.0% 30.0% 40.0% 25.0% 20.0%

Source: UIF

10. An analysis of the actual asset allocation and the strategic (long-term) asset allocation
in the years 2017 and 2018 are shown in shown in Tables 7A. The majority of assets are
invested in government bonds and money market instruments, and the investment
mandate has credit risk limits as set out in the Public Finance Management Act
Treasury Regulation 31.3.2 (see Appendix A).

11. During the year 2018, the range of allocation to most asset classes were significantly
reduced. For Equity and Bonds from a range of 20% down to a range of only 4%; this
would force a much closer and active management of the asset classes to avoid breaches
of limits.

Table 15A: UIF Actual Asset Allocation compared to Strategic Target as at 31 March 2017

Strategic
Asset Classes Actual Range Benchmark
Target
Nominal Bonds 27.5% 27.5% 20% - 40% ALBI
Equity 21% 24.0% 10% - 30% Capped SWIX (Ex SAPY)
Inflation Linked Bonds 28.0% 30.0% 20% - 40% CILI
Cash & Money Market 10% 5.0% 1% - 10% STeFI
Listed Property 4% 2.5% 0% - 5% SAPY
Unlisted Property 0% 5.0% 1% - 7% IPD (Customised)
African Investments 0% 2.0% 0% - 5% MSCI Africa (ex ZA)
Foreign Equity 3% 4.0% 0% - 10% MSCI EM Index (ex ZA)
Total 100.0%

Source: UIF

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Table 16A: UIF Actual Asset Allocation compared to Strategic Target as at 31 March 2018

Strategic
Asset Classes Actual Range Benchmark
Target
Nominal Bonds 25% 26.5% 24% - 28% ALBI
Equity 19% 24.0% 22% - 26% Capped SWIX (ex SAPY)
Inflation Linked Bonds 28.5% 28.0% 26% - 30% CILI
Cash & Money Market 9% 10.0% 8% - 12% STeFI
Listed Property 3% 2.5% 1.5% - 3.5% SAPY
IPD index (PIC
Unlisted Property 0% 5.0% 1% - 7%
Customised/CPI+5%)
African Investments 0% 0% 0% - 0% MSCI Africa (ex ZA)
Foreign Equity 3% 4.0% 2% - 6% MSCI EM Index (ex ZA)
Total 100.0%

Source: UIF

12. Figure 20A shows portfolio returns on the UIF versus the Funds internal benchmark
over the past 24 months to 31 March 2018 and 31 March 2017.

Figure 20A: Performance of UIF Fund against the Fund benchmark

Portfolio Return vs Benchmark

10%
- 24 months

8%

6%
Returns

4%

2%

0%
31-Mar-18 31-Mar-17
UIF Benchmark

Source: UIF
Note: Past performance is not an indicator of future performance

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Table 17A: A Breakdown of the UIF Assets Under Management by Asset Class (R’bn)

Asset Class 31-Mar-17 31-Mar-18

Government Bonds 61,074,066 74,096,806
Parastatal Bonds 13,297,800 13,695,882
Other Bonds 2,256,889 514,985
Money Market and Cash Instruments 13,817,397 15,118,587
Domestic Equity Instruments 35,244,034 36,613,362
Foreign Equity Instruments 4,658,660 4,784,929
Unlisted Social Investment Instruments 6,446,480 9,721,377
Total 136,795,326 154,545,928

Figure 21A: Breakdown of the UIF Parastatal Bond Instruments

Distribution of parastatal bond instruments

Trans Caledon
Tunnel Denel; 11%
Authority;
11% Development
Bank of SA;
Transnet; 10%
8%

IDC; 7%

ROADSA; 11%
ESKOM; 40%

Source: UIF

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Developmental Investments

13. The UIF has included in its mandate to the PIC a strategic allocation of 30% to unlisted
investments. This allocation has evolved since 2017 when the allocation was 20% and
was referred to as Socially responsible investments. It was changed to Unlisted
Investments in 2019 and its strategic allocation was increased to 30%. The Socially
Responsible Investment component is still included at 20%, however, it now also
includes an allocation of Unlisted Property (6%), a High Social Impact Fund (2%) and
a Project Development Partnership Fund (PDP) (2%).

14. The Project Development Partnership Fund (PDP) was establish by the PIC and the
UIF to fund early stage, investable projects, opportunities or innovations in key and
targeted economic sectors. These include, Agribusiness and Bioscience, Mining and
Beneficiation, Energy and Related sectors, Manufacturing, Information
Communication Technologies, Social Infrastructure, Water and Waste, and Financial
and Related services. A strong focus of the fund will be to drive woman and youth-led
entrepreneurs. The PDP Fund seeks to invest directly into the economy to contribute
to South Africa’s socio-economic objectives, such as job creation, inclusive growth and
transformation; whilst generating financial returns.

15. As at the 31 March 2018, the SRI initiatives of the UIF have facilitated a total of 23 442
permanent and temporary jobs in the South African economy in the following sectors:

Table 10A: Job creation

Sector Number
Agriculture 5 572
Economics 12 266
Environmental 293
Social 5 311
Total 23 442

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Appendix B: Compensation Fund Credit Risk Management

Credit Risk – as per PFMA Treasury Regulation 31.3.2

Table 18B: Bonds in Aggregate: Investment Mandate Limits in Bond Instruments

Instrument Max. limit per issuer

Government Bonds (RSA Bonds and/or Government Guaranteed, etc.) 70% to 100%
Other Bonds (Corporate, Parastatals, Securitisation, etc.) 0% to 30%
Source: Compensation Fund

Table 19B: Counter Parties: Mandates Limits in terms of Bond Credit Risk Rating
Subject to the following restrictions based Lower Bound Upper Bound SAA Limit
on the total value of the portfolio
Sovereign obligations of the Republic of 70% 100% 100%
South Africa
AAA - rated bonds with South African 0% 50% 40%
Government guarantee
AAA- rated bonds without South African 0% 25% Unallocated
Government guarantee
AA - Rated Bonds 0% 25% 20%
A- Rated Bonds 0% 15% 10%
BBB – Rated Bonds 0% 5% 2.5%
Source: Compensation Fund

Table 20B: Money Market: Mandate Limits

Bank Recommended Range (%)
ABSA 0% - 40%
Firstrand 0% - 40%
Investec 0% - 20%
Nedbank 0% - 40%
Standard Bank 0% - 40%
Other 0% - 20%
Source: Compensation Fund

Table 21B: Counter Parties: Mandate Limits in terms of Credit Risk Rating
Subject of the following restrictions based on the Lower Bound Upper Bound
total value of the portfolio
Republic of South Africa 70% 100%
AAA – rated issuer with SA Government 0% 30%
guarantee
AAA – rated issuer without SA Government 0% 10%
guarantee
AA – Rated issuer 0% 10%
A – Rated issuer 0% 5%
Source: Compensation Fund

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Appendix C: Duties of the Investment Committee at PIC

1. The IC operates in line with approved Terms of Reference (TOR), DOA Framework
and policies which are reviewed on an annual basis. The responsibilities and duties of
the IC are to:

1.1 Ensure that investments, disposals and acquisitions (listed, unlisted and
properties) are in line with the PIC’s overall investment strategy;

1.2 Ensure that appropriate due diligence procedures are followed when acquiring
or disposing of investments;

1.3 Ensure that investments/divestments are in the best interest of clients,

increase shareholder value and meet the PIC’s financial and ESG criteria;

1.4 Make recommendations to the Board concerning further action about

investment/divestment opportunities;

1.5 Give due consideration to the relevant provisions of the Companies Act, read
in conjunction with the Companies Act Regulations, the PIC Act, the
approved DOA Framework, King IV, competition laws and any other
legislation and regulations;

1.6 Monitor performance of the investments, at least on a quarterly basis;

1.7 Review and evaluate policies and procedures that PIC Management has
implemented to monitor compliance with client mandates;

1.8 Oversee the implementation of client mandates by reviewing PIC

Management’s quarterly reports, including but not limited to, the regulatory
requirements under the FAIS Act, the PFMA and the Financial Markets Act,
2012 (Act 19 of 2012);

1.9 Report quarterly to the Board on issues relating to the investment of funds
under management;

1.10 Consider and approve investments, acquisitions and divestments in line with
the approved DOA Framework;

1.11 Review the deal approval process, policies and criteria on an annual basis;

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 1.12 Ensure that risk management is incorporated in all investment
recommendations and decisions;

1.13 Approve the criteria and process for the selection of external investment
managers and notify the Board of approvals;

1.14 Approve the process for establishing the mandates of external investment
managers;

1.15 Approve the process for monitoring external investment managers;

1.16 Evaluate performance of external investment managers;

1.17 Make recommendations to the Board, which it deems appropriate, on any

area within its authority where action or improvement is needed; and

1.18 Perform such other investment-related functions as may be determined by

the Board from time to time.

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Appendix D: Best Practice in Unlisted Investments

1. Old Mutual Alternative Investments (OMAI) is an investment firm that specializes in

investing in private equity, infrastructure and impact investments, collectively
described as alternatives. They have AUM of R58 billion across 21 funds with over 188
underlying portfolio companies. The unit has a team of 112 employees of which 73
(65%) are investment professionals. The decentralised organizational structure at
OMAI is as follows:

Figure 22D: The Decentralised Organisational Structure

Source: OMAI

2. The type of investments that they undertake in the alternatives space include:
(1) Infrastructure: transport, renewable energy, power generation, communication
infrastructure development
(2) Private equity: direct and fund of funds approaches
(3) Impact funds: government-supported and private sector projects for social
development e.g., schooling and housing

3. In acknowledgement of the broader African growth opportunity, Old Mutual has

offices in several locations across the continent in recognition that the best quality deal
flow often requires local relationships in the respective markets.

Example 1: SA Infrastructure Fund (IDEAS FUND)

5. There is segregation between the professional team that originates the potential
transactions and the investment committee that approves the deals. In a team of 57,
there are nine investment professionals on the SA Infrastructure fund (three
Investment Directors, five Investment Principals and one Associate) with the rest
serving in operating and other support capacities.

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6. Composition of the investment committee: Comprised of the Chair who is
independent with over 30 years’ investment management experience, three senior
individuals from the investment team with 10-20 years’ experience and three
members representing investors (professional investment managers) with 10-20 years’
experience.

Example 2: Impact Fund (EDUCATION TEAM)

7. There is segregation between the professional team that originates the potential
transactions and the investment committee that approves the deals. In a team of 34,
there are four investment professionals (one Investment Principal, two Senior
Investment Professionals and one Analyst).

8. Composition of the investment committee: Independent chair with over 20 years’

investment and credit experience, three members representing investors with 10-20
years investment management experience, and one independent member who is an
Actuary with over 15 years’ experience.

Key lessons:

16. Decentralized decision-making: The 21 funds are not managed by one team, and
therefore there are several different investment-making structures in place.

17. OMAI has clearly defined levels of responsibility and accountability across the
investments business. Levels of investment professionals include Analysts, Associates,
Principals and Investment Directors. They are supported by Administration, Finance,
Legal, Risk, Compliance, Human Resources, Investment Technology etc.

18. Deal origination, deal review and deal proposals are done by the investment team.

19. There is more than one Investment Committee (IC) so that there is enough capacity to
review the volume of transactions. In addition, the skills needed to review private
equity, infrastructure and impact investing are different. All transactions are approved
at the ICs.

20. This means that the way the ICs are constructed is very important. Each IC must have
enough independence, skills, and the voice of the investment team who proposes the
deals and is held accountable for the investment outcome. The Chair of the IC and the
majority of the board is independent with deep investment and commercial experience.

21. Investment decisions are made by unanimous consensus.

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22. Old Mutual aims to create an environment that encourages risk-taking and does not
only evaluate outcomes but also carefully weighs the process undertaken to get to a
particular negative outcome.
23. Hiring top talent gives the firm a competitive edge.

24. Business (Board/senior management) does not get involved in investment decision-
making rather has a broader oversight role.

25. The Chief Risk Officer is responsible for compliance and risk functions. This team sits
outside of the investment function.

26. At Old Mutual Investment Group (OMIG), the Board has overall responsibility over
governance, policies and oversight but no direct role in investment decision-making
which is decentralized to respective investment committees.

27. Investment Committee (IC) membership demonstrates a combination of independence,

skill and expertise in infrastructure investments. IC members earn a flat fee for being
part of the committee.

28. There is clear alignment of interests whereby investment professionals are invested in
the funds that they make decisions on. The CEO/MD is not involved in any of the
investment making platforms; their main responsibility is to run the business.

Presentation by:
Khaya Gobodo, Old Mutual Investment Group

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Appendix E: Best Practice in Private Equity and Private Markets in
ROA16

1. Strategy, selection of markets, defensible sectors, deal size, deal stage, equity size (sweet
spot):
§ Proven businesses, with adequate scale, EBITDA profitability, revenues of USD
10m+
§ Early stage businesses/ venture, post revenue, pre-EBITDA with clear path to
profitability
§ Ability to absorb follow-on funding rounds with exit visibility

2. Value creation/ portfolio management:

§ Identification of consistent institutionalising activities (operations/ management
information systems/ governance)
§ Articulation of key strategic & commercial value drivers which can unlock growth
& profitability through responsible investments

3. Deal selection, strategy led, relationship based (proprietary/ intermediated):

§ Knowledge of the management team, understand their strengths, weaknesses,
personal and professional drivers and working style
§ Viability of the market & consumer growth (B2B/ B2C): Burrow beneath the
business models and understand the business

4. Local and Regional Presence/ Oversight:

§ 54 Countries > 5 regions > Pan-Regional, selection based on common language, ease
of cross border business engagement, similar drivers of growth
§ Fast growing cities, well connected regions

5. Trusted Partners/ Ensure alignment of interest:

§ Access to transactions through co-investment rights of funds
§ Own staff housed with partner funds
§ Referral compensation for deal origination/ management
§ Own diverse staff in-house and on-plane

6. Appropriate Team Composition – building the next generation with experienced

proven teams with market experience/ networks/ reputations with the right standards
and culture:
§ Investment skills
§ Operational skills
§ Industry/ thematic skills

16
Rest of Africa

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7. Investing in the Entrepreneur, growing the Management:
§ Identify what the true management requirements are for the stages of the business,
hire well and incentivise based on the strategic plan

8. Structuring well:
§ Mix of internal gearing and equity, aligned with the capital needs of the business
§ Allows for better downside protection, get cash out early and hedges against
currency volatility without needing a significant equity exit
§ Ensure strong minority rights, remaining an active investor on all key decisions
(M&A/ key staff decisions/ large capex spend), anti-dilution and influencing exit
negotiations

9. Currency management:
§ Seek to naturally hedge with dollar-based sales
§ Actively monitor currency assumptions during portfolio management
§ Understand price elasticity to balance market share and profitability

Presented by:
Geetha Tharmaratnam, The Botswana Public Officers Pension Fund (BPOPF)

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Appendix F: Best Practice in Unlisted Property in ROA

1. African property markets are not homogenous. The African direct property market
offers investors an opportunity for higher return at higher risk and it important to
understand the different market dynamics. The direct property market is highly
illiquid. Low secondary trading means there is poor price discovery. In addition, a
significant amount of work is therefore required to establish ownership and title.

I. To mitigate the risks, an experienced team and a presence on the ground is required.

II. Investors need to determine the right investment approach in each market and buy
carefully. It is important to tailor the approach to the type and size of project and
have the requisite property development, property management and fund
management skills, which can be in-house or outsourced.

III. At conceptualization, it is important to identify the region, or country, type of

property, the risk and returns of the different market segments (industrial, office,
hotels) and selecting the property in the fund within a set framework.

2. Direct property capabilities

Asset Management Property Management Project Development

§ Capital raising § Lease management § Opportunity identification –
§ Investment allocations § Accounting and reporting what to build, where?
§ Acquisitions and disposals § Operations, risk § Concept design – how to
§ Maximising net income management build it?
§ Maximising capital values § Property marketing § Construction – the build
§ Utility management

Source: STANLIB

Figure 23F: STANLIB Unlisted Property Investment Process

Source: STANLIB

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3. Alignment of interest between Manager and Investor

Manager commitment: Regulation of successor and predecessor funds and time spent on
each
Term of Fund: Time for capital raising versus management, divestment, extensions,
approval mechanisms
Management fee: Reasonableness of fee versus cost, wage structure. Regulations to establish
calculation basis
Carried interest: Manager’s economic rights to share in profits, order to pay out,
communication of accrual
Reinvestments: Recommended conditions (time and quantity) under which Manager
makes investments
Investment related fees: Clarity on nature and origin of fees paid directly or indirectly to
Manager/ related entities
Set up and operating expenses: Regulations to clearly specify what quantities. Fund
placement fees are always excluded
Co-investments: Transparency regarding the criteria by which the opportunity is offered,
and any additional fees
Reporting: Frequent, timely reporting is essential for transparency and control over
Manager’s activity

4. Fund governance

Board practices: Separate roles of CEO and board chairman, experienced directors, diversity
of backgrounds
Advisory/ supervisory committee: Conflict of interest resolution, setting valuation
methodology
Manager removal: Investors maintain right to remove manager for cause, with no fees paid
beyond removal
Key man clause: Consequences of departing key staff, replacement, notifying investors
Investment policy: Clearly defined investment strategy, sector/ geographical/ sponsor
limits, prohibited transactions
Financing polity: Policy on the use of credit facilities, reasons, restrictions, and impact of
fund IRR
Modification of fund terms: Flexibility to adapt to changing circumstances, with material
modifications subject to approval
Investment committee: Investments and divestments decided by IC, comprising of key staff
ESG policy: ESG factors considered and recorded at every stage of the investment process

Presented by:
Patrick Mamathuba, STANLIB Asset Management

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Appendix G: Best Practice in Listed Equities in Rest of Africa

1. Investec have been investing listed asset classes in the rest of Africa since 2004

2. Alpha generation
§ Managing a substantial team, combined with generalist and specialist including
financials, resources, economist and credit specialist

3. Including boots on the ground where analysts are regularly flying into countries

4. Philosophy
§ Only invest in companies that are profitable already, as opposed to promise of
profit in the future
§ Avoid being contrarian on the continent, this is a hard lesson that has to be
learned

5. Have to have people on the ground, this is a non-negotiable

Key lessons

6. Blue sky story spun by charismatic CEOs is not worth it. Invest in profitable
companies now

7. Management that are strong operationally and embrace innovation

8. Must understand the macroeconomic risks

9. Spend time in the country

10. Be patient

Presented by:
Thabo Khojane, Investec Asset Management

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Appendix H: BEE Deal Structuring

Key lessons

1. All potential transactions need to be evaluated on their own merits and only
undertaken when the underlying economics and other key, consistently applied deal
criteria make sense.

2. Lending banks assess the risk on BEE deals with reference to the risk of the underlying
company as this is the source of all potential repayment proceeds. Size and stability of
cashflows from the underlying business as well as the quality of the management and
asset base or security are important considerations.

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Appendix I: Building Public Trust

Overview of the Norwegian Government Pension Fund Global (GPFG)

1. The Norwegian Government Pension Fund Global (GPFG) is the largest sovereign
wealth fund in the world with assets under management of $1 trillion. The GPFG is
managed by NBIM, a special division of the Norwegian Central Bank. The fund invests
the country’s oil income into listed markets with the aim of achieving the highest
possible long-term financial return within an acceptable level of risk. Oil and gas were
discovered Norwegian continental shelf in 1969 with production starting in 1971. For
the first 25 years, all the revenue generated from the oil and gas sector was simply spent
and in some years, more was spent than earned. In time, the need to manage and save
petroleum income to transform the finite natural resource into a permanent source of
financial wealth for future generations, led to the creation of the Government
Petroleum Fund in 1990, with the first net transfer to the Fund occurring in 1996. In
2006, a strategic political decision was made to rename the fund the Government
Pensions Fund Global to encourage a stronger sense of ownership and awareness from
the population of the country.

2. The fund invests all of its assets outside of Norway. Ninety-nine percent of the assets
are managed passively in indices worldwide, largely in-house by a comparatively small
investment team of 400. There is very little room for discretionary decisions, but
specialist consultants are brought in when their expert knowledge is required.
Approximately 70% of the assets are invested in equities and 30% are invested in bonds.
The Fund displays it full assets under management in real time on its website including
all investments with current market values, which is possible as the Fund invests mainly
in listed markets. Any changes to the GPFG’s mandated strategy go through a well-
defined process to ensure that they are anchored in line with broader societal
considerations as follows:
1. Appointment of national and international experts to assess and make
recommendations on the proposed change
2. Report is made public via a public hearing system
3. Based on the hearings and on the recommendations, Minister of Finance
makes a recommendation to Parliament
4. Parliament then has another hearing
5. Based on this hearing and the recommendation from the experts, a decision is
made and executed.

3. At present, the most important decision facing the government is where the GPFG
should be based inside the central bank or in a separate independent organisation with
its own dedicated board given the complexities of running such a fund17. Figure 24I in
the following page illustrates the GPFG governance model.

17
“Norway wealth fund’s former chief hits out at governance,” by Richard Milne, Financial Times May 27, 2019

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 Figure 24I: GPFG Governance Model

Source: Presentation made on behalf of the Norwegian Ministry of Finance

Key lessons

4. Transparency is important to managing and bolstering public trust and confidence.

Public funds have to be well governed because they have the potential to strengthen or
destroy public trust in important public institutions. This is established foremost by an
active, public reporting stance.

5. No changes are made to the strategic asset allocation changes to the Fund without
expert advice.

Presentation by:
Paal Bjornestad - Norwegian Embassy, Pretoria

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Appendix J: Other Lessons

1. A key principle of investing is to define a framework which defines and allocates

responsibilities to the right levels and groups and identifies how much and which risks
to take.

2. In theory, the natural timeframe for many institutional investors is long-term but in
practice, short-term performance often matters, and not only in terms of actual results
but in a grounding in the process that resulted in the particular results.

Presentation by:
Stephan Meschenmoser, BlackRock

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Appendix K: Global Benchmarking

1. California Public Employees' Retirement System (CalPERS) is the largest pensions fund
in the United States of America, with over 2,800 employees, US $354 billion in assets,
and is a defined benefit fund. Board members are elected by members or Ex officio
members or appointed by the State of California. Ex Officio members are political
appointees and only entitled to sit on the Board because of their office, hence the clear
political involvement in the fund.

2. In 2014, CalPERS went through a huge scandal on its governance, when the CEO was
involved in racketeering and since then the Fund has taken several steps to fix the
issues, with a major focus on transparency.

3. The PIC can learn from their mistakes by strengthening transparency, and internal
controls through governance and investment process improvements.

4. Two other Canadian based funds are the Ontario Teachers’ Pension Plan (OTPP) which
looks after the pension funds for teachers and has about C$193 billion in assets, and the
Canadian Pension Plan Investment Board (CPPIB) which manages about US $295
billion, with a mandate to provide a universal foundation for all Canadian workers in
retirement. Both are governed by strong legislation which insulates them from political
interference.

Overview of CalPERS (California Public Employees' Retirement System)

5. CalPERS was established by State legislation in 1931 and its governance code vests
significant authority in the CalPERS Board, including the management and control of
the particular retirement systems, programs and plans. These are governed and
overseen by a 13-member Board of Administration. The Board President and Vice
President are elected annually by members of the Board in an open session at the first
meeting of the Board for the term of one calendar year. CalPERS Board of
Administration consists of 13 members who are elected, appointed, or hold office ex
officio. Six are elected from CalPERS members. Three appointed members - two
members are appointed by the Governor of the State of California and one public
representative appointed by the Speaker of Assembly and the Senate Rules Committee.
Four ex Officio members, State Treasurer, State Controller, Director of California
Department of Human Resources and a representative from State Personnel Board.
CalPERS board subcommittees include:
§ Board Governance Committee;
§ Finance and Administration Committee;
§ Investment Committee;
§ Pension and Health Benefits Committee;
§ Performance and Compensation Committee; and,

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 § Risk and Audit Committee

6. In terms of transparency, when CalPERS meetings take place, they are governed by
California's Bagley-Keene Open Meeting Act. All meetings of the Board and its
committees are open to the public with only certain few exceptions. Among other
things, the Act requires that CalPERS provide members of the public with an
opportunity to address the Board before or during the discussion of each agenda item
(three minutes per speaker). Strategic investment decisions are held behind closed
doors but the minutes of the meeting are made available once the investment has been
made.

7. CalPERS investment committee is made up of all the members of the board and reviews
investment transactions and investment performance and also establishes investment
policy and strategy. More than 65% of the CalPERS investments are outsourced to
external asset managers. Calpers is the only investor in this case study that has a
developmental imperative to develop and invest with emerging asset managers, defined
as newly established or relatively small sized firms in terms of assets under
management. This is a political imperative and there seems to be a will to do so. The
CalPERS Board has delegated significant authority regarding investments to the
professional staff of the CalPERS investment office. That office and its staff are led by
the CalPERS Chief Investment Officer ("CIO"). The role of the CIO is very well defined
in the CalPERS governance manual as well as the delegation of authority given to the
CIO. In addition, any role that is given a delegation of authority has to sign for that
authority and is obliged to escalate any instance where they are hampered in the
execution of that authority. Each investment division is led by a Senior Investment
Officer ("SIO") who reports to the CIO.

Overview of the OTPP (Ontario Teachers’ Pension Plan)

8. OTPP was founded in 1990 and has 1,200 employees in Toronto, London and in Hong
Kong, and invests its assets globally and across a spectrum of sectors. It is a defined
benefit pension plan which covers almost all certified teachers employed in education
in Ontario. It is governed by the Teachers’ Pension Act and Ontario Pension Benefits
Act, the Federal Income Tax Act, and laws in the various jurisdictions in which it
invests and operates. Ontario Teachers’ Federation (OTF) representing teachers and
the Ontario government representing the employer are the plan’s joint sponsors and re
equally responsible for ensuring the pension plan has enough money to meet its long-
term obligations. In addition, they appoint experienced, professional experts to the
pension plan’s board. Through a six-member Partners' Committee, the sponsors jointly,
set benefit levels, establish the contribution rate paid by working teachers (which is
matched by the Ontario government and other designated employers), decide how to
address funding shortfalls or use surplus funds when they arise. Members of the
Partners' Committee do not sit on the plan's independent Board.

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9. OTTP has an eleven-member board, appointed by the Ontario Teachers’ Federation
and the Ontario government with the mandate to oversee the management of the
pension plan. Each of the Ontario government and the OTF appoint five Board
members and, together, they select the chair. The board is independent and oversees
management of the pension fund and administration of the pension plan. Board
members are professionals with financial and governance expertise and are typically
drawn from the fields of accounting, actuarial science, banking, business, economics,
education, information technology and investment management.
The OTTP board subcommittees include:
§ Investment Committee,
§ Audit & Actuarial Committee
§ Governance Committee
§ Human Resources & Compensation Committee
§ Succession Committee
§ Operational Risk Committee
§ Benefits Adjudication Committee.

10. The OTTP Investment Committee includes all the board members. The Investment
Committee of the board reviews and approves the risk budget annually, monitors
overall investment risk exposure, and reviews and approves risk management policies
that affect the total portfolio, as well as new investments that result in significant risk
exposure. The Plan uses risk budgeting to allocate active risk across the investment asset
classes. The active risk budget is presented to the Board annually for review and
approval. Each investment department is responsible for managing the investment
risks associated with the investments they manage within the active risk budget
allocated to them. The OTTP report publicly on their investment performance on an
annual basis following the end of each calendar year.

Overview of the CPPIB (Canadian Pension Plan Investment Board)

11. “Aligned with our independence from any government, the Act sets no expectations or
directions on economic development, social objectives or politically based directives.
As a result, we are able to invest with an unambiguous focus solely on the interests of
CPP contributors and beneficiaries.” - CPPIB-Annual report 2019

12. The Canadian Pension Plan was created in 1966; however, its successor vehicle, the
CPPIB was created in 1997 by an act of parliament (the CPPIB Act) to manage and
invest the Canadian Pension Plan assets. The CPPIB has assets of US$295 Bn, 1,661
employees based in Toronto, London, Hong Kong, New York, Sao Paulo, Mumbai,
Sydney and Luxembourg. The CPPIB currently invests more than 80% of its assets
outside of Canada (vs. only 35% in 2006), and anticipates its assets to grow to US$600
billion by 2030.

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13. The CPPIB Act has safeguards against any political interference. CPPIB operates at
arm’s length from federal and provincial governments under the oversight of an
independent, highly qualified professional Board of Directors. CPPIB management
reports not to governments, but to the CPPIB Board of Directors. Amendments to the
legislation that governs CPPIB, require agreement by the federal government plus two-
thirds of the provinces representing two-thirds of the population. The CPPIB Act holds
the Board of Directors and management accountable for their performance under a
rigorous public accountability regime which includes accountability to the federal and
provincial Finance Ministers who serve as the stewards of the Canadian Pension Plan.

14. The CPPIB Board is comprised of 12 directors, including the Chairperson. The
Governor in Council shall, on the recommendation of the Minister, made after the
Minister has consulted with the board of directors and the appropriate provincial
Ministers of the participating provinces, designate one of the directors as Chairperson.
Directors are appointed by the federal Finance Minister in consultation with the
participating provinces, and with the assistance of a nominating committee. The
nomination process is designed to ensure that only those with expertise in investment,
business and finance are appointed to the Board.
CPPIB board subcommittees include:
§ Governance Committee
§ Investment Committee;
§ Audit Committee
§ Risk Committee (Established in 2018)
§ Human Resources and Compensation Committee

15. Risk and audit committees were split in 2018. The Board holds a public meeting once
every two years in each participating province to discuss the Board’s most recent annual
report and to give interested persons an opportunity to comment on it.

16. The CPPIB manage most of their assets in-house. The investing function within CPPIB
is structured via the following investment departments:
§ Total Portfolio Management (TPM)
§ Capital Markets and Factor Investing (CMF)
§ Active Equities (AE)
§ Credit Investments (CI)
§ Private Equity (PE)
§ Real Assets (RA)

Presentation by:
Vuyo Jack, Empowerdex

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79 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 GLOSSARY OF TERMS

Active Management
Refers to a portfolio management strategy where the manager makes specific investments
with the goal of outperforming an investment benchmark index or target return

Assets
means the investments comprising or constituting a portfolio of a collective investment
scheme and includes any income accruals derived or resulting from the investments in the
portfolio which are held for or are due to the investors in that portfolio

Authorised financial services provider or provider

means a person who has been granted an authorisation as a financial services provider by
the issue to that person of a licence under the Financial Advisory and Intermediary Services
Act

Benchmarks
means a standard point or reference against which things maybe compared or assessed

Beneficiaries
means people who gains benefit from something, especially a trust or will or in the case of
retirement funds a widow's or orphan's benefit from the deceased member's Fund or those
who were usually dependant on the deceased member for maintenance before he/she died

Board
in relation to a pension fund, means the board of the fund referred to in the Act

Board member
means any member of a board of management of a fund

Breach
means an act of breaking a Law, agreement, or code of conduct

Chairperson
means a person in charge of a meeting, company or other organization

Collective investment scheme

means a scheme, in whatever form, including an open-ended investment company, in
pursuance of which members of the public are invited or permitted to invest money or
other assets in a portfolio

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Conflicts of Interest
occur when a party which is in a position to make decisions which affect other
stakeholders, has other vested interests which conflicts with the interests of the
stakeholders, and is therefore unable to take effective decisions in the best interests of the
other stakeholders

Contributions
The amounts paid or payable by a member and/or his or her employer to the fund, in terms
of the rules of the retirement fund.

Defined benefit fund

A fund, which is not a defined contribution fund, in which the rules specify the benefits to
be paid, usually based on years of service, membership and on final salary or final average
salary and where the employer ordinarily undertakes to finance the balance of the cost,
after allowing for member contributions, if any.

Defined contribution fund

A fund where the rates of contributions of both the member and employer are specified in
the rules and where benefits relate directly to contributions received, together with
interest or bonuses arising from the investment performance of the fund.

Expert advisors
means a person who is very knowledgeable about or skillful in a particular area

Fund return
in relation to the assets of a fund, means any income (received or accrued) and capital gains
and losses (realised or unrealised) earned on the assets of the fund, net of expenses and tax
charges, associated with the acquisition, holding or disposal of assets; or

Index
means a weighted average of securities listed on an exchange or a number of exchanges,
with full membership of the World Federation of Exchanges, and published by such
exchange or exchanges representing a statistical indicator providing a representation of the
value of the securities which constitute such index: Provided that the composition of such
an index meets the same level of diversification as contemplated in the Notice

Investment
means money put into financial schemes, shares, or property with the expectation of
achieving a profit or preserving the real value

Listed securities
means securities included in the list of securities kept by an exchange

81 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Minister
means the Cabinet member responsible for finance in the context of the Pension Funds Act
and other legislation supervised by the Financial Sector Conduct Authority, the Minister
of Finance in the context of the Pension Funds Act

Passive Management
is an investing strategy that tracks a market-weighted index or portfolio.

Pension fund
A funding arrangement as defined in the Pension Funds Act, to provide pension and/or
other benefits for members on retiring and, after a member's death, for his or her
dependants or nominees. At least two-thirds of the benefits due at retirement are to be
taken as a pension in terms of the Income Tax Act, 1962.

Performance
means the accomplishment of a given task measured against preset known standards of
accuracy, completeness, cost, and speed

PFA
Pension Funds Act, 1956

Portfolio
means a group of assets including any amount of cash in which members of the public are
invited or permitted by a manager to acquire, pursuant to a collective investment scheme,
a participatory interest or a participatory interest of a specific class which as a result of its
specific characteristics differs from another class of participatory interests

Private Equity
Shares that are not traded on a public market or, more broadly, investments for which there
is no readily liquid market on which the investor can exit at an objectively determined
price.

Provident fund
any fund (other than a pension fund, benefit fund or retirement annuity fund) that is
approved by the Commissioner of Inland Revenue and is registered under the provisions
of the Act. The total benefit at retirement may be taken as a cash lump sum, subject to
income tax

Regulatory authority
an entity established in terms of national legislation responsible for regulating activities of
an industry, or sector of an industry

82 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Risk management
involves assessing and quantifying business risks, then taking measures to control or reduce
them

Terms of reference
describes the purpose and structure of a project, committee, meeting, negotiation, or any
similar collection of people who have agreed to

Tracking error
is a measure of how closely a portfolio follows the index to which it is benchmarked. An
index tracking fund is expected to have zero or very low tracking error relative to the index
being tracked

Source: https://www.trusteetoolkit.co.za/ and other

83 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 APPENDICES
REPORT ON PROCEEDINGS OF THE
PIC INQUIRY WORKSHOP
CONTENTS

Appendix A: Compensation Fund Credit Risk Management ................................................ 2

Appendix B: Duties of the Investment Committee at PIC .................................................... 3
Appendix C: Best Practice in Unlisted Investments .............................................................. 4
Appendix D: Best Practice in Private Equity and Private Markets in ROA ......................... 7
Appendix E: Best Practice in Unlisted Property in ROA ...................................................... 9
Appendix F: Best Practice in Listed Equities in ROA .......................................................... 11
Appendix G: BEE Deal Structuring ...................................................................................... 12
Appendix H: Building Public Trust ...................................................................................... 13
Appendix I: Other Lessons .................................................................................................... 15

LIST OF TABLES

Table 1A: Bonds in Aggregate: Investment Mandate Limits in Bond Instruments .............. 2
Table 2A: Counter Parties: Mandates Limits in terms of Bond Credit Risk Rating ............. 2
Table 3A: Money Market: Mandate Limits ............................................................................ 2
Table 4A: Counter Parties: Mandate Limits in terms of Credit Risk Rating......................... 2

LIST OF FIGURES

Figure 1C: The Decentralised Organisational Structure ........................................................ 4

1|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix A: Compensation Fund Credit Risk Management

Credit Risk – as per PFMA Treasury Regulation 31.3.2

Table 1A: Bonds in Aggregate: Investment Mandate Limits in Bond Instruments

Instrument Max. limit per issuer

Government Bonds (RSA Bonds and/or Government Guaranteed, etc.) 70% to 100%
Other Bonds (Corporate, Parastatals, Securitisation, etc.) 0% to 30%
Source: Compensation Fund

Table 2A: Counter Parties: Mandates Limits in terms of Bond Credit Risk Rating
Subject to the following restrictions based Lower Bound Upper Bound SAA Limit
on the total value of the portfolio
Sovereign obligations of the Republic of 70% 100% 100%
South Africa
AAA - rated bonds with South African 0% 50% 40%
Government guarantee
AAA- rated bonds without South African 0% 25% Unallocated
Government guarantee
AA - Rated Bonds 0% 25% 20%
A- Rated Bonds 0% 15% 10%
BBB – Rated Bonds 0% 5% 2.5%
Source: Compensation Fund

Table 3A: Money Market: Mandate Limits

Bank Recommended Range (%)
ABSA 0% - 40%
Firstrand 0% - 40%
Investec 0% - 20%
Nedbank 0% - 40%
Standard Bank 0% - 40%
Other 0% - 20%
Source: Compensation Fund

Table 4A: Counter Parties: Mandate Limits in terms of Credit Risk Rating
Subject of the following restrictions based on the Lower Bound Upper Bound
total value of the portfolio
Republic of South Africa 70% 100%
AAA – rated issuer with SA Government 0% 30%
guarantee
AAA – rated issuer without SA Government 0% 10%
guarantee
AA – Rated issuer 0% 10%
A – Rated issuer 0% 5%
Source: Compensation Fund

2|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix B: Duties of the Investment Committee at PIC

The IC operates in line with approved Terms of Reference (ToR), DoA Framework and
policies which are reviewed on an annual basis. The responsibilities and duties of the IC
are to:

a. Ensure that investments, disposals and acquisitions (listed, unlisted and properties) are
in line with the PIC’s overall investment strategy;
b. Ensure that appropriate due diligence procedures are followed when acquiring or
disposing of investments;
c. Ensure that investments/divestments are in the best interest of clients, increase
Shareholder value and meet the PIC’s financial and ESG criteria;
d. Make recommendations to the Board concerning further action about
investment/divestment opportunities;
e. Give due consideration to the relevant provisions of the Companies Act, read in
conjunction with the Companies Act Regulations, the PIC Act, the approved DoA
Framework, King IV, competition laws and any other legislation and regulations;
f. Monitor performance of the investments, at least on a quarterly basis;
g. Review and evaluate policies and procedures that PIC Management has implemented
to monitor compliance with client mandates;
h. Oversee the implementation of client mandates by reviewing PIC Management’s
quarterly reports, including but not limited to, the regulatory requirements under the
FAIS Act, the PFMA and the Financial Markets Act, 2012 (Act 19 of 2012);
i. Report quarterly to the Board on issues relating to the investment of funds under
management;
j. Consider and approve investments, acquisitions and divestments in line with the
approved DoA Framework;
k. Review the deal approval process, policies and criteria on an annual basis;
l. Ensure that risk management is incorporated in all investment recommendations and
decisions;
m. Approve the criteria and process for the selection of external investment managers and
notify the Board of approvals;
n. Approve the process for establishing the mandates of external investment managers;
o. Approve the process for monitoring external investment managers;
p. Evaluate performance of external investment managers;
q. Make recommendations to the Board, which it deems appropriate, on any area within
its authority where action or improvement is needed; and
r. Perform such other investment-related functions as may be determined by the Board
from time to time.

3|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix C: Best Practice in Unlisted Investments

Old Mutual Alternative Investments (OMAI) is an investment firm that specializes in

investing in private equity, infrastructure and impact investments, collectively described
as alternatives. They have AUM of R58 billion across 21 funds with over 188 underlying
portfolio companies. The unit has a team of 112 employees of which 73 (65%) are
investment professionals. The decentralised organizational structure at OMAI is as follows:

Figure 1C: The Decentralised Organisational Structure

Source: OMAI

The type of investments that they undertake in the alternatives space include:
(1) Infrastructure: transport, renewable energy, power generation, communication
infrastructure development
(2) Private equity: direct and fund of funds approaches
(3) Impact funds: government-supported and private sector projects for social
development e.g., schooling and housing

In acknowledgement of the broader African growth opportunity, Old Mutual has offices in
several locations across the continent in recognition that the best quality deal flow often
requires local relationships in the respective markets.

Example 1: SA Infrastructure Fund (IDEAS FUND)

§ There is segregation between the professional team that originates the potential
transactions and the investment committee that approves the deals. In a team of 57,
there are nine investment professionals on the SA Infrastructure fund (three
Investment Directors, five Investment Principals and one Associate) with the rest
serving in operating and other support capacities.
§ Composition of the investment committee: Comprised of the Chair who is independent
with over 30 years’ investment management experience, three senior individuals from

4|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 the investment team with 10-20 years’ experience and three members representing
investors (professional investment managers) with 10-20 years’ experience.

Example 2: Impact Fund (EDUCATION TEAM)

§ There is segregation between the professional team that originates the potential
transactions and the investment committee that approves the deals. In a team of 34,
there are four investment professionals (one Investment Principal, two Senior
Investment Professionals and one Analyst).
§ Composition of the investment committee: Independent chair with over 20 years’
investment and credit experience, three members representing investors with 10-20
years investment management experience, and one independent member who is an
Actuary with over 15 years’ experience.

Key lessons:
§ Decentralized decision-making: The 21 funds are not managed by one team, and
therefore there are several different investment-making structures in place.
§ OMAI has clearly defined levels of responsibility and accountability across the
investments business. Levels of investment professionals include Analysts, Associates,
Principals and Investment Directors. They are supported by Administration, Finance,
Legal, Risk, Compliance, Human Resources, Investment Technology etc.
§ Deal origination, deal review and deal proposals are done by the investment team.
§ There is more than one Investment Committee (IC) so that there is enough capacity to
review the volume of transactions. In addition, the skills needed to review private
equity, infrastructure and impact investing are different. All transactions are approved
at the ICs.
§ This means that the way the ICs are constructed is very important. Each IC must have
enough independence, skills, and the voice of the investment team who proposes the
deals and is held accountable for the investment outcome. The Chair of the IC and the
majority of the board is independent with deep investment and commercial experience.
§ Investment decisions are made by unanimous consensus.
§ Old Mutual aims to create an environment that encourages risk-taking and does not
only evaluate outcomes but also carefully weighs the process undertaken to get to a
particular negative outcome.
§ Hiring top talent gives the firm a competitive edge.
§ Business (Board/senior management) does not get involved in investment decision-
making rather has a broader oversight role.
§ The Chief Risk Officer is responsible for compliance and risk functions. This team sits
outside of the investment function.
§ At Old Mutual Investment Group (OMIG), the Board has overall responsibility over
governance, policies and oversight but no direct role in investment decision-making
which is decentralized to respective investment committees.

5|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
§ Investment Committee (IC) membership demonstrates a combination of independence,
skill and expertise in infrastructure investments. IC members earn a flat fee for being
part of the committee.
§ There is clear alignment of interests whereby investment professionals are invested in
the funds that they make decisions on. The CEO/MD is not involved in any of the
investment making platforms; their main responsibility is to run the business.

6|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix D: Best Practice in Private Equity and Private Markets in
ROA1

1. Strategy, selection of markets, defensible sectors, deal size, deal stage, equity size (sweet
spot):
§ Proven businesses, with adequate scale, EBITDA profitability, revenues of USD
10m+
§ Early stage businesses/ venture, post revenue, pre-EBITDA with clear path to
profitability
§ Ability to absorb follow-on funding rounds with exit visibility

2. Value creation/ portfolio management:

§ Identification of consistent institutionalising activities (operations/ management
information systems/ governance)
§ Articulation of key strategic & commercial value drivers which can unlock growth
& profitability through responsible investments

3. Deal selection, strategy led, relationship based (proprietary/ intermediated):

§ Knowledge of the management team, understand their strengths, weaknesses,
personal and professional drivers and working style
§ Viability of the market & consumer growth (B2B/ B2C): Burrow beneath the
business models and understand the business

4. Local and Regional Presence/ Oversight:

§ 54 Countries > 5 regions > Pan-Regional, selection based on common language, ease
of cross border business engagement, similar drivers of growth
§ Fast growing cities, well connected regions

5. Trusted Partners/ Ensure alignment of interest:

§ Access to transactions through co-investment rights of funds
§ Own staff housed with partner funds
§ Referral compensation for deal origination/ management
§ Own diverse staff in-house and on-plane

6. Appropriate Team Composition – building the next generation with experienced

proven teams with market experience/ networks/ reputations with the right standards
and culture:
§ Investment skills
§ Operational skills
§ Industry/ thematic skills

1
Rest of Africa

7|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
7. Investing in the Entrepreneur, growing the Management:
§ Identify what the true management requirements are for the stages of the business,
hire well and incentivise based on the strategic plan

8. Structuring well:
§ Mix of internal gearing and equity, aligned with the capital needs of the business
§ Allows for better downside protection, get cash out early and hedges against
currency volatility without needing a significant equity exit
§ Ensure strong minority rights, remaining an active investor on all key decisions
(M&A/ key staff decisions/ large capex spend), anti-dilution and influencing exit
negotiations

9. Currency management:
§ Seek to naturally hedge with dollar-based sales
§ Actively monitor currency assumptions during portfolio management
§ Understand price elasticity to balance market share and profitability

Presented by:
Geetha Tharmaratnam, The Botswana Public Officers Pension Fund (BPOPF)

8|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix E: Best Practice in Unlisted Property in ROA

1. Direct property capabilities

Asset Management Property Management Project Development

§ Capital raising § Lease management § Opportunity identification –
§ Investment allocations § Accounting and reporting what to build, where?
§ Acquisitions and disposals § Operations, risk § Concept design – how to
§ Maximising net income management build it?
§ Maximising capital values § Property marketing § Construction – the build
§ Utility management

Source: STANLIB

2. Investment process

Source: STANLIB

3. Alignment of interest between Manager and Investor

Manager commitment: Regulation of successor and predecessor funds and time spent on
each
Term of Fund: Time for capital raising versus management, divestment, extensions,
approval mechanisms
Management fee: Reasonableness of fee versus cost, wage structure. Regulations to establish
calculation basis
Carried interest: Manager’s economic rights to share in profits, order to pay out,
communication of accrual
Reinvestments: Recommended conditions (time and quantity) under which Manager
makes investments
Investment related fees: Clarity on nature and origin of fees paid directly or indirectly to
Manager/ related entities

9|P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Set up and operating expenses: Regulations to clearly specify what quantities. Fund
placement fees are always excluded
Co-investments: Transparency regarding the criteria by which the opportunity is offered,
and any additional fees
Reporting: Frequent, timely reporting is essential for transparency and control over
Manager’s activity

4. Fund governance

Board practices: Separate roles of CEO and board chairman, experienced directors, diversity
of backgrounds
Advisory/ supervisory committee: Conflict of interest resolution, setting valuation
methodology
Manager removal: Investors mainstain right to remove manager for cause, with no fees paid
beyond removal
Key man clause: Consequences of departing key staff, replacement, notifying investors
Investment policy: Clearly defined investment strategy, sector/ geographical/ sponsor
limits, prohibited transactions
Financing polity: Policy on the use of credit facilities, reasons, restrictions, and impact of
fund IRR
Modification of fund terms: Flexibility to adapt to changing circumstances, with material
modifications subject to approval
Investment committee: Investments and divestments decided by IC, comprising of key staff
ESG policy: ESG factors considered and recorded at every stage of the investment process

Presented by:
Patrick Mamathuba, STANLIB Asset Management

10 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix F: Best Practice in Listed Equities in ROA

Investec have been investing listed asset classes in the rest of Africa since 2004
§ Approach to investment decisions
§ Examples of opportunities and of failures across Africa

Alpha generation
§ Managing a substantial team, combined with generalist and specialist including
financials, resources, economist and credit specialist
§ Including boots on the ground where analysts are regularly flying into countries

Philosophy
§ Only invest in companies that are profitable already, as opposed to promise of
profit in the future
§ Avoid being contrarian on the continent, this is a hard lesson that has to be
learned
§ Have to have people on the ground, this is a non-negotiable

Key lessons
§ Blue sky storey spun by charismatic CEOs is not worth it. Invest in profitable
companies now
§ Management that are strong operationally an embrace innovation
§ Must understand the macroeconomic risks
§ Spend time in the country
§ Be patient

Presented by:
Thabo Khojane, Investec Asset Management

11 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix G: BEE Deal Structuring

Key lessons:
§ All potential transactions need to be evaluated on their own merits and only
undertaken when the underlying economics and other key, consistently applied deal
criteria make sense.
§ Lending banks assess the risk on BEE deals with reference to the risk of the underlying
company as this is the source of all potential repayment proceeds. Size and stability of
cashflows from the underlying business as well as the quality of the management and
asset base or security are important considerations.

12 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix H: Building Public Trust

The Norwegian Government Pension Fund Global (GPFG) is the largest sovereign wealth
fund in the world with assets under management of $1 trillion. The GPFG is managed by
NBIM, a special division of the Norwegian Central Bank. The fund invests the country’s
oil income into listed markets with the aim of achieving the highest possible long-term
financial return within an acceptable level of risk. Oil and gas were discovered Norwegian
continental shelf in 1969 with production starting in 1971. For the first 25 years, all the
revenue generated from the oil and gas sector was simply spent and, in some years, more
was spent than earned. In time, the need to manage and save petroleum income to
transform the finite natural resource into a permanent source of financial wealth for future
generations, led to the creation of the Government Petroleum Fund in 1990, with the first
net transfer to the Fund occurs in 1996. In 2006, a strategic political decision was made to
rename the fund the Government Pensions Fund Global to encourage a stronger sense of
ownership and awareness from the population of the country.

The fund invests 100% outside of Norway. Ninety-nine percent of the assets are managed
passively in indices worldwide, largely in-house by a comparatively small team of 400.
There is very little room for discretionary decisions, but specialist consultants are brought
in when their expert knowledge is required. Approximately 70% of the assets are invested
in equities and 30% are invested in bonds. The Fund displays it full assets under
management in real time on its website including all investments with current values,
which is possible as the Fund invests mainly in listed markets. Any changes to the Funds
mandated strategy go through a well-defined process to ensure that they are anchored in
line with broader societal considerations as follows:
1. Appointment of national and international experts to assess and make
recommendations on the proposed change
2. Report is made public via a public hearing system
3. Based on the hearings and on the recommendations, Minister of Finance makes a
recommendation to Parliament
4. Parliament then has another hearing
5. Based on this hearing and the recommendation from the experts, a decision is
made and executed.

At present, the most important decision facing the government is where the Fund should
be based: inside the central bank or in a separate independent organisation with its own
dedicated board given the complexities of running such a fund2.

Key lessons:

2
“Norway wealth fund’s former chief hits out at governance,” by Richard Milne, Financial Times May 27, 2019

13 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
§ Transparency is important to managing and bolstering public trust and confidence.
Public funds have to be well governed because they have the potential to strengthen or
destroy public trust in important public institutions. This is established foremost by an
active, public reporting stance.
§ No changes are made to the strategic asset allocation changes to the Fund without
expert advice.

14 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
Appendix I: Other Lessons

§ A key principle of investing is to define a framework which defines and allocates

responsibilities to the right levels and groups and identifies how much and which risks
to take.
§ In theory, the natural timeframe for many institutional investors is long-term but in
practice, short-term performance often matters, and not only in terms of actual results
but in a grounding in the process that resulted in the particular results.

15 | P I C I N Q U I R Y W O R K S H O P R E P O R T 1 7 - 1 9 M A Y 2 0 1 9 |
 2

PIC Commission Report

TABLE OF PIC Commission Report
CONTENTS Jan 1, 2019 - Sep 30, 2019

1. Executive Summary 13. Tonality (PIC Commission | Global N...

2. Sov Reach 14. Tonality (PIC | Global News)
3. Sov Volume 15. Tonality (PIC Transactions | Global...
4. Top Reach Articles (PIC Commission ... 16. Top Publications (PIC Commission | ...
5. Top Reach Articles (PIC | Global Ne... 17. Top Publications (PIC | Global News...
6. Top Reach Articles (PIC Transaction... 18. Top Publications (PIC Transactions ...
7. Competitive Media Exposure 19. Geo Presence (PIC Commission | Glob...
8. mScore 20. Geo Presence (PIC | Global News)
9. mScore Position 21. Geo Presence (PIC Transactions | Gl...
10. Media Exposure (PIC Commission | Gl... 22. Social Echo (PIC Commission | Globa...
11. Media Exposure (PIC | Global News) 23. Social Echo (PIC | Global News)
12. Media Exposure (PIC Transactions | ... 24. Social Echo (PIC Transactions | Glo...
25. Word Cloud (PIC Commission | Global...
26. Word Cloud (PIC | Global News)
27. Word Cloud (PIC Transactions | Glob...
EXECUTIVE Global News's reach share covered 54%
SUMMARY SHARE OF VOICE BY REACH - Jan 1, 2019 - Sep 30, 2019

HIGHLIGHTS
PIC | Global News 54%
The total number of editorial
mentions for the group were
12.5k, with an overall potential
PIC Commission | Global News 26%
reach of 46B views

The group's sentiment was

overall negative PIC Transactions | Global News 20%

GROUP SUMMARY GROUP TONALITY

Editorial Mentions | 12.5k

Positive 2%
The number of appearances in articles

Potential Reach | 46B

Negative 10%
Approximate number of article views you appeared in

Net Tonality Score | -9

The net change (up or down) in sentiment over the time period Neutral 88%
SHARE OF PIC | Global News had the largest reach share with 54%
VOICE BY Share of Voice by Reach - Jan 1, 2019 - Sep 30, 2019

REACH
HIGHLIGHTS

20%
PIC | Global News 24.6B

PIC Commission | Global N... 12B

54%
26% PIC Transactions | Global... 9.4B
SHARE OF PIC | Global News had the largest volume share with 59%
VOICE BY Share of Voice by Volume - Jan 1, 2019 - Sep 30, 2019

VOLUME
HIGHLIGHTS

18%
PIC | Global News 7.4k

PIC Commission | Global N... 2.9k

23% 59%
PIC Transactions | Global... 2.3k
TOP ARTICLES MSN South Africa had the largest reach of 109M
Top Articles - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

The top 25 articles combined MSN South Africa | May 1 MSN South Africa | May 7
for a total reach of 3B
Discredited Sunday Times journalists find new home at Iqbal Survé’s Western Cape ANC to return Iqbal Survé's R1m election donation
The sentiment was media empire
CAPE TOWN – The African National Congress (ANC) in the Western Cape
predominantly negative in the Editor’s note: The opinions in this article are the author’s, as published by has decided to return a donation from Cape Town businessman Iqbal
top articles with high reach our content partner, and do not represent the views of MSN or ... Survé....

PIC Commission Reach 109M Neutral Reach 109M Neutral

MSN South Africa | May 8 MSN South Africa | May 15

Swerve on Survé: R1m donation falls foul of ANC factional strife Former Ayo board member implicates Iqbal Survé directly in bogus
valuation of company
Editor’s note: The opinions in this article are the author’s, as published by
our content partner, and do not necessarily represent the view... Editor’s note: The opinions in this article are the author’s, as published by
our content partner, and do not represent the views of MSN or ...
Reach 109M Neutral
Reach 109M Neutral
TOP ARTICLES 搜狐新闻-搜狐 had the largest reach of 129M
Top Articles - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

The top 25 articles combined 搜狐新闻-搜狐 | Aug 15 搜狐新闻-搜狐 | Aug 15

for a total reach of 3B
腾讯背后的神秘金主，1000 亿美 腾讯背后的神秘金主，1000亿美
The sentiment was 元资本大收割 元资本大收割
predominantly negative in the 原标题：腾讯背后的神秘金 原标题：腾讯背后的神秘金
top articles with high reach 主，1000 亿美元资本大收割 2001 主，1000亿美元资本大收割 欢迎
年是腾讯生死存亡的一年，资金几 关注“创事记”微信订阅号：
PIC 乎耗尽，在用户数迅速增加的同 sinachuangshiji 文/挖数 来源：挖
时，盈利却遥遥无期。 当时腾讯 数（ID:washu66） 2001年是腾讯
的两个大股东 - IDG 资本和小超人 生死存亡的一年，资金几乎耗
李泽楷急了，觉得这笔投资很亏... 尽，...

Reach 129M Neutral Reach 129M Neutral

MSN South Africa | May 1 MSN South Africa | May 2

Discredited Sunday Times journalists find new home at Iqbal Survé’s New HoldCo acquisition of Edgars should go ahead – commission
media empire
DURBAN – Struggling Edcon on Tuesday received a major lease of life after
Editor’s note: The opinions in this article are the author’s, as published by the Competition Commission recommended that the Competition
our content partner, and do not represent the views of MSN or ... Tribun...

Reach 109M Neutral Reach 109M Neutral

TOP ARTICLES MSN South Africa had the largest reach of 109M
Top Articles - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

The top 25 articles combined MSN South Africa | May 1 MSN South Africa | May 7
for a total reach of 3B
Discredited Sunday Times journalists find new home at Iqbal Survé’s Western Cape ANC to return Iqbal Survé's R1m election donation
The sentiment was media empire
CAPE TOWN – The African National Congress (ANC) in the Western Cape
predominantly negative in the Editor’s note: The opinions in this article are the author’s, as published by has decided to return a donation from Cape Town businessman Iqbal
top articles with high reach our content partner, and do not represent the views of MSN or ... Survé....

PIC Transactions Reach 109M Neutral Reach 109M Neutral

MSN South Africa | May 8 MSN South Africa | May 6

Swerve on Survé: R1m donation falls foul of ANC factional strife WhatsApps expose Floyd Shivambu and the ‘red boys’

Editor’s note: The opinions in this article are the author’s, as published by A series of cryptic messages add further weight to claims that the EFF
our content partner, and do not necessarily represent the view... deputy president used his political profile for financial gain. Floy...

Reach 109M Neutral Reach 109M Neutral

COMPETITIVE PIC | Global News's exposure peaked in July at 1.2k
MEDIA Competitive Media Exposure - Jan 1, 2019 - Sep 30, 2019

1400
EXPOSURE
HIGHLIGHTS
1200

1000

800

Volume
600

400

200
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PIC Commission | Global News PIC | Global News PIC Transactions | Global News
mSCORE PIC | Global News scored the highest at 98
mSCORE - Jan 1, 2019 - Sep 30, 2019
Your mScore is based on a
combination of Editorial
Mentions, Reach, and Tonality

HIGHLIGHTS

PIC | Global News

PIC Transactions | Global News 32

PIC Commission | Global News 21

mSCORE PIC | Global News scored the highest
POSITION mScore Position - Jan 1, 2019 - Sep 30, 2019

PERIPHERAL CONTENDING STRONG LEADING

98

32
TONALITY

21

EXPOSURE

21 - PIC Commission | Global News 98 - PIC | Global News 32 - PIC Transactions | Global News
MEDIA PIC Commission | Global News's exposure was highest in July
EXPOSURE Media Exposure - Jan 1, 2019 - Sep 30, 2019 Volume Reach

750 4.5B
PIC Commission | Global News

HIGHLIGHTS 500 3B

Volume

Reach
July had the highest volume of
editorial mentions with 541 250 1.5B

IOL mentioned PIC

Commission | Global News the
most at 313

Ja

Fe

Ap

Ju

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Se
n

ar

ay

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b

p
r

g
TOP PUBLICATIONS TONALITY Positive Negative

25
IOL 313
0
Safrica 24 155
-25

Find all news 138 -50

BusinessLIVE 104 -75

-100
MSN South Africa 99

Ja

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MEDIA PIC | Global News's exposure was highest in July
EXPOSURE Media Exposure - Jan 1, 2019 - Sep 30, 2019 Volume Reach

1500 9B
PIC | Global News

HIGHLIGHTS 1000 6B

Volume

Reach
July had the highest volume of
editorial mentions with 1.2k 500 3B

IOL mentioned PIC | Global

News the most at 405

Ja

Fe

Ap

Ju

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Se
n

ar

ay

l
b

p
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TOP PUBLICATIONS TONALITY Positive Negative

100
IOL 405
50
BusinessLIVE 278
0

Safrica 24 205 -50

MSN South Africa 203 -100

-150
Eyewitness News 177

Ja

Fe

Ap

Ju

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Se
n

ar

ay

l
b

p
r

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MEDIA PIC Transactions | Global News's exposure was highest in Apr...
EXPOSURE Media Exposure - Jan 1, 2019 - Sep 30, 2019 Volume Reach

600 3.6B
PIC Transactions | Global News

HIGHLIGHTS 400 2.4B

Volume

Reach
April had the highest volume of
editorial mentions with 488 200 1.2B

IOL mentioned PIC

Transactions | Global News the
most at 236

Ja

Fe

Ap

Ju

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Se
n

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p
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TOP PUBLICATIONS TONALITY Positive Negative

25
IOL 236

0
Safrica 24 119

-25
Find all news 101

-50
MSN South Africa 82

-75
BusinessLIVE 73

Ja

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TONALITY PIC Commission | Global News's net tonality was overall nega...
Tonality - Jan 1, 2019 - Sep 30, 2019 Positive Negative Neutral
PIC Commission | Global News
120 600
HIGHLIGHTS

Positive / Negative
March had the highest 80 400

Neutral
volume of 91 negative articles,
rising 139%
40 200
"MSN South Africa", with
108M reach, drove negative
sentiment in an article titled
"Suspended PIC accuses

Ja

Fe

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inquiry of evidence tampering"

ar

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ARTICLES WITH MOST IMPACT

MSN South Africa | Jun 25

Suspended PIC accuses inquiry of evidence tampering

JOHANNESBURG - A serious accusation has been made against the

PIC inquiry. The suspended PIC Chief Investment Officer suggested
the commission's legal team could have tried to tamper with evidence.
...

Reach 108M Negative

TONALITY PIC | Global News's net tonality was overall negative
Tonality - Jan 1, 2019 - Sep 30, 2019 Positive Negative Neutral
PIC | Global News
180 1200
HIGHLIGHTS

Positive / Negative
February had the highest 120 800

Neutral
volume of 57 positive articles,
rising 235%
60 400
March had the highest
volume of 130 negative
articles, rising 41%

Ja

Fe

Ap

Ju

Ju

Au

Se
"MSN South Africa", with

ar

ay

l
b

p
r

g
109M reach, drove negative
sentiment in an article titled ARTICLES WITH MOST IMPACT
"Blade Nzimande calls on
workers to give ANC decisive MSN South Africa | May 2
poll victory" Blade Nzimande calls on workers to give ANC decisive poll victory

DURBAN - South African Communist Party (SACP) general secretary

Blade Nzimande has called on workers to give the African National
Congress (ANC) a decisive victory in May elections but warned
Presiden...

Reach 109M Negative

TONALITY PIC Transactions | Global News's net tonality was overall ne...
Tonality - Jan 1, 2019 - Sep 30, 2019 Positive Negative Neutral
PIC Transactions | Global News
90 600
HIGHLIGHTS

Positive / Negative
March had the highest 60 400

Neutral
volume of 65 negative articles,
rising 150%
30 200
July had the highest
volume of 13 positive articles,
rising 550%

Ja

Fe

Ap

Ju

Ju

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Se
"MSN South Africa", with

ar

ay

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b

p
r

g
108M reach, drove negative
sentiment in an article titled ARTICLES WITH MOST IMPACT
"PIC commission can't ignore
racism claims against evidence MSN South Africa | Jul 1
leader - analysts" PIC commission can't ignore racism claims against evidence leader -
analysts

JOHANNESBURG - Analysts say the PIC Commission cannot ignore

allegations of racism and interference against its evidence leader.
Advocate Jannie Lubbe has been making headlines for the wrong
reasons ...

Reach 108M Negative

TOP IOL mentioned PIC Commission | Global News the most
PUBLICATIONS Top Publications by Volume - Jan 1, 2019 - Sep 30, 2019

PIC Commission | Global News IOL 313

HIGHLIGHTS
Safrica 24 155
"IOL", "Safrica 24", and "Find all
news" accounted for 34% of
the volume share among the Find all news 138
25 highest publications
BusinessLIVE 104

MSN South Africa 99

Mail & Guardian 88

Eyewitness News 85

Fin24 – Business & Finance News 76

Moneyweb 68

ENCA 58
TOP IOL mentioned PIC | Global News the most
PUBLICATIONS Top Publications by Volume - Jan 1, 2019 - Sep 30, 2019

PIC | Global News IOL 406

HIGHLIGHTS
BusinessLIVE 279
"IOL", "BusinessLIVE", and
"Safrica 24" accounted for 27%
of the volume share among the Safrica 24 206
25 highest publications
MSN South Africa 205

Eyewitness News 177

Find all news 161

Moneyweb 156

Fin24 – Business & Finance News 127

Mail & Guardian 122

ENCA 120
TOP IOL mentioned PIC Transactions | Global News the most
PUBLICATIONS Top Publications by Volume - Jan 1, 2019 - Sep 30, 2019

PIC Transactions | Global News IOL 236

HIGHLIGHTS
Safrica 24 119
"IOL", "Safrica 24", and "Find all
news" accounted for 32% of
the volume share among the Find all news 101
25 highest publications
MSN South Africa 82

BusinessLIVE 73

Fin24 – Business & Finance News 72

Mail & Guardian 60

Eyewitness News 58

Fin24 57

Moneyweb 56
GEO PRESENCE South Africa and United States had the most global coverage
PIC Commission | Global News

HIGHLIGHTS

PIC Commission | Global News

was mentioned in 38 total
countries in this time period

The regions Southern Africa,

North America, and South Asia
combined to cover 85% of the
total volume in this time period

TOP COUNTRIES

South Africa 75% Nigeria 2%

United States 5% Russia 1%

India 3% Bahrain 1%

Australia 3% Philippines 1%

Ireland 2% Canada 1%
GEO PRESENCE South Africa and United States had the most global coverage
PIC | Global News

HIGHLIGHTS

PIC | Global News was

mentioned in 59 total
countries in this time period

The regions Southern Africa,

North America, and Western
Europe combined to cover
86% of the total volume in this
time period

TOP COUNTRIES

South Africa 59% United Kingdom 2%

United States 20% Nigeria 2%

Germany 3% Russia 1%

India 2% Canada 1%

Australia 2% Hong Kong (China) 1%

GEO PRESENCE South Africa and United States had the most global coverage
PIC Transactions | Global News

HIGHLIGHTS

PIC Transactions | Global News

was mentioned in 36 total
countries in this time period

The regions Southern Africa,

North America, and Pacific
combined to cover 86% of the
total volume in this time period

TOP COUNTRIES

South Africa 73% Bahrain 1%

United States 9% Ireland 1%

Australia 3% Philippines 1%

Nigeria 2% Thailand 1%

India 2% Venezuela 1%
SOCIAL ECHO 1000 articles were shared 137.6k times on social media
Social Echo - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

News24​ had the most News24​ | May 6 The Citizen | Mar 8

popular article on social media
with 9.8k shares WhatsApps expose Floyd and the ANC’s plans ‘could collapse
'Red Boys' pension funds, with pensioners
PIC Commission dying poor’
A series of cryptic messages
suggest that EFF deputy president The party’s manifesto hints at
Floyd Shivambvu used his political targeting pensions through
profile for financial gain. prescribed investments, ‘which
will see half the population’s
Reach 6M Neutral money used to bail o...
821 9k
Reach 2M Negative

47 4.8k

Eyewitness News | Feb 1 BusinessLIVE | May 27

All PIC board members resign The PIC has nothing to show for $270m investment into oil exploration
amid inquiry company

Their resignations come in the The PIC inquiry has been trying in vain to get documents relating to its
middle of a commission of inquiry 2014 investment in Camac Energy, whose founder has links to Zuma
into the PIC which is investigating
allegations of impropriety and Reach 619k Neutral
dubious ...
756 2.9k
Reach 2M Negative

123 4.3k
SOCIAL ECHO 1000 articles were shared 347.4k times on social media
Social Echo - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

News24​ had the most

popular article on social media
with 9.8k shares
Twitter 49.9k
14%
PIC
Facebook 297.5k

86%

MOST SHARED ARTICLES

News24​ | May 6 City Press | Jun 3

WhatsApps expose Floyd and the R500m taken from the poorest
'Red Boys'
Documents show how money
A series of cryptic messages belonging to dependants of
suggest that EFF deputy president deceased miners was splurged by
Floyd Shivambvu used his political executive on costly mansion A
profile for financial gain. pension fund boss entrust...

Reach 6M Neutral Reach 704k Neutral

821 9k 142 7.2k

SOCIAL ECHO 1000 articles were shared 135.3k times on social media
Social Echo - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

News24​ had the most

popular article on social media
with 9.8k shares
Twitter 26.5k
20%
PIC transactions
Facebook 108.8k

80%

MOST SHARED ARTICLES

News24​ | May 6 City Press | Jun 3

WhatsApps expose Floyd and the R500m taken from the poorest
'Red Boys'
Documents show how money
A series of cryptic messages belonging to dependants of
suggest that EFF deputy president deceased miners was splurged by
Floyd Shivambvu used his political executive on costly mansion A
profile for financial gain. pension fund boss entrust...

Reach 6M Neutral Reach 704k Neutral

821 9k 142 7.2k

WORD CLOUD Global News's most popular keyphrase was "Public Investment...
Word Cloud - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

"Public Investment
Corporation" (1.4k)
"commission" (1.4k)
"inquiry" (1.2k)

The above 3 keywords covered

40% of the mentions across
the top 20
investment
PIC Commission

inquiry company
PIC Commission
asset manager

Public Investment Corporation

Matjila
board

allegations
commission
WORD CLOUD Global News's most popular keyphrase was "Public Investment...
Word Cloud - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

"Public Investment
Corporation" (3.7k)
"South Africa" (1.9k)
"company" (1.8k)

The above 3 keywords covered

34% of the mentions across
the top 23

PIC
allegations Matjila
investment commission

Public Investment Corporation

company South Africa
Industry Value Chain report inquiry
WORD CLOUD Global News's most popular keyphrase was "Public Investment...
Word Cloud - Jan 1, 2019 - Sep 30, 2019
HIGHLIGHTS

"Public Investment
Corporation" (1.3k)
"company" (954)
"inquiry" (746)

The above 3 keywords covered

36% of the mentions across
the top 22
Matjila
PIC Transactions Survé South Africa

commission investment

Public Investment Corporation

inquiry company
allegations asset manager
 3

REPORT TO

THE BOARD OF THE PUBLIC INVESTMENT CORPORATION

on

ALLEGATIONS CONTAINED IN ANONYMOUS EMAILS

DISTRIBUTED TO THE PIC EMAIL ADDRESS LIST

IN SEPTEMBER 2017

GEOFF BUDLENDER SC

12 October 2018

Instructed by Ms D Tshepe

Cheadle Thompson & Haysom

 2

TABLE OF CONTENTS

CHAPTER 1: INTRODUCTION 3

CHAPTER 2: THE PIC, MST AND MS PRETTY LOUW 10

The alleged relationship between Dr Matjila and Ms Louw 11

The relationship between MST and Ms Louw 13

The loan by PIC to MST 16

Three MST proposals to the PIC for CSI funding 18

The role of Ms Pretty Louw 22

CHAPTER 3: THE ROLE OF MINISTER MAHLOBO 30

CHAPTER 4: DR MATJILA, MS LOUW AND MR LAWRENCE MULAUDZI 35

Dr Matjila’s explanation to the Board 41

CHAPTER 5: RESPONSE OF THE PIC BOARD TO THE ALLEGATIONS 43

The special board meeting of 15 September 2017 43

The media release of 15 September 2017 48

The special Board meeting of 29 September 2017 50

Assessment 55

Were the Board minutes doctored or sanitised? 58

CHAPTER 5: OTHER ALLEGATIONS 61

CHAPTER 6: CONCLUSIONS AND RECOMMENDATIONS 64

 3

CHAPTER 1

INTRODUCTION

1. From 5 September 2017, a number of e-mails were widely distributed to the

staff of the Public Investment Corporation, and to members of its Board.

The e-mails purported to have been sent by, amongst others, “James

Nogu” and “leihlola Leihlola”. No such persons are known to the PIC. I

therefore refer to them as the anonymous emails. The e-mails made

serious allegations of misconduct against the PIC, and in particular the

Chief Executive Officer, Dr Daniel Matjila, and to a lesser extent, the Chief

Financial Officer, Ms Matshepo More.

2. The Board and management investigated this matter. I refer below to the

steps which the Board and management took in this regard.

3. On 29 September 2017, a media release was issued on behalf of the

Board, stating:

“On the 29th September 2017, the Board of the Public Investment

Corporation (PIC) met to receive feedback from Internal Audit

division with regard to the allegations against the CEO, Dr Daniel

Matjila. The Board fully applied its mind to the report presented by
 4

Internal Audit and confirms its satisfaction with the report. The Board

has concluded that the allegations were baseless and that Dr Matjila

is cleared of any wrongdoing”.

4. This did not however put an end to the controversy, which continued.

5. Ultimately, after having a meeting with the Board, the Minister of Finance

(Mr Nhlanhla Nene) wrote on 25 July 2018 to the Chairperson of the PIC as

follows:

“I would like to thank members of the board for the constructive

discussion and their recommitment to ensuring that we do restore

public confidence in the Public Investment Corporation (PIC), that

the institution is stabilised and that staff morale is returned.

As indicated at the meeting I hereby, in terms of section 6(4)(a) and

(b) of the PIC Act,1 request the board to commission a forensic

investigation into allegations that have been made against the Chief

Executive Office(r) and Chief Financial Officer of the PIC in e-mails

sent to the PIC e-mail address list from an unknown source. I want

to appeal that this be initiated as a matter of urgency and that the

1 Section 6 of the PIC Act provides as follows:

(4) The Minister may issue directives to the board regarding the management of the
corporation if-
(a) it is in the public interest; or
(b) it is reasonably necessary to do so.
 5

final report of the investigation be submitted to me by 31 September

2018.

I am convinced that the report that will be prepared will assist us in

dealing with the challenges at the PIC in a decisive manner”.

6. On 6 August 2018, the Board resolved to appoint me as the lead for the

forensic investigation required by the Minister. I accepted the appointment,

after which the terms of reference for the investigation were settled, and

attorney Doris Tshepe of attorneys Cheadle Thompson and Haysom was

appointed as my instructing attorney.

7. The steps which Ms Tshepe and I took in order to conduct the investigation

included the following:

7.1 We arranged for the establishment of a secure e-mail address for the

investigation, to which only she and I would have access.

7.2 We sent an e-mail to the entire PIC e-mail address list, informing

recipients that we had been appointed. We set out the enquiry’s

terms of reference, and stated that all communications with us would

be treated as confidential. We provided the secure e-mail address,

and invited people with relevant information to come forward with it,

by providing documents and/or attending an interview. We stated

that all interviews would be conducted at an off-site venue.

 6

7.3 We also sent the email to the email addresses of the “senders” on

the emails which had been sent to the PIC mailing list during

September.

7.4 Subsequently, we sent a further e-mail to all persons on the PIC e-

mail address list stating that we were continuing to receive and

would welcome further information, and also advising that if there

were any persons who preferred to be interviewed after normal

working hours, we would accommodate that request.

7.5 We appointed an IT specialist to assist us with the analysis of

electronic information.

7.6 We appointed a financial analyst to assist us with analysis of the

financial information which we expected to receive, and did receive.

8. We conducted face-to-face or telephonic interviews with twenty-two people

(a number of them on more than one occasion). We examined a large

volume of documents provided to us by the PIC, and by people who

appeared before us for an interview.

9. The IT analyst conducted an analysis of the company laptop, company

mobile phone, company mobile device, company file share folder and

personal Gmail account of the CEO, Dr Matjila, who co-operated in making

them available for this purpose.

 7

10. As a result of this investigation, I now make this report. I wish to express

my great appreciation for the considerable assistance which Ms Tshepe

gave me. This report is the product of the work which both of us undertook.

However, as I was the person appointed as the lead investigator, the report

is in my name.

Terms of reference

11. At the outset it is necessary to clarify my terms of reference, as there may

be some confusion in that regard. My brief was limited in its scope. I was

not appointed to investigate all of the allegations that have been made

about the PIC in the recent past.

12. The letter from the Minister of Finance to the Board of the PIC set out

matters which the Minister required to be investigated. They are the

allegations that were made against the Chief Executive Officer and Chief

Financial Officer of the PIC in e-mails sent to the PIC e-mail address list

from an unknown source (the anonymous emails).

13. My terms of reference are set out in Annexure A to this report.

14. In recent times a number of allegations have been raised in the media

about investments which the PIC has made. Issues have been raised with

regard to investments in or loans to companies such as Ayo, VBS,

Sagamartha, Steinhoff, S&S Refinery, and Tosaco Energy. The question

 8

which has been raised is whether those investments or loans were prudent,

and whether they were influenced by political considerations, pressure or

favouritism. These matters do not fall within my terms of reference.

15. The President has announced that he will appoint a commission of inquiry

to look into a wide range of matters concerning the structure and

functioning of the PIC. Public commentators have suggested that matters

such as those to which I have just referred will be included within the

mandate of that commission.

16. Consistent with the mandate given to me by the Board (which flowed from

the mandate of the Minister), I have not investigated this broader range of

issues relating to the PIC’s investment decisions, as it was not within my

authority to do so.

17. During my investigation I have however received information containing

allegations of improper or inappropriate or politically influenced investment.

Most of this material is already in the public domain. If and when the

contemplated commission or another enquiry is appointed, I shall make that

information available to it.

18. In this Report, I deal with the following matters:

 9

18.1 Allegations of favourable treatment of the company Mobile Satellite

Technology (Pty) Ltd as a result of an alleged romantic relationship

between Dr Matjila and Ms Pretty Louw.

18.2 The role of then Minister Mr David Mahlobo.

18.3 Allegations that Dr Matjila instructed or induced a beneficiary of a

PIC investment, Mr Lawrence Mulaudzi, to make a payment to Ms

Louw.

18.4 The Board’s investigation of and response to these matters.

18.5 A number of the other allegations which were made in the emails.

18.6 Conclusions and recommendations.

19. I note at the outset that the allegations in the emails were wide-ranging and

disparate. Some of them were very generalised. A substantial number

related to employee grievances, and would require a much more extensive

investigation than was possible in the limited time available to me for this

purpose.2

2 The original mandate from the PIC Board, reflecting the request by the Minister, was that the
investigation should be concluded by the end of September 2018. In the event, at my request this
was extended to 12 October 2018.
 10

CHAPTER 2

THE PIC, MST AND MS PRETTY LOUW

20. MST operates, staffs and maintains “Mobile units” (adapted buses) which

are used to provide medical and educational services in rural areas.

21. During 2016 and 2017, the PIC made funds available to MST through two

mechanisms:

21.1 MST sought and ultimately obtained a loan from the PIC as an

investment in its business; and

21.2 MST sought and ultimately obtained a Corporate Social Investment

(CSI) contribution from the PIC towards its work in providing services

in rural areas.3

22. I describe each of these transactions below.

23. At the heart of the allegations in the anonymous emails was the question of

the relationship between Dr Matjila and Ms Pretty Louw, who had a

business relationship with MST.

3The proposed CSI funding is sometimes described as the lease of a bus or buses. In substance,
however, it was a grant to MST in support of its work. PIC did not take possession of the bus for
which it provided funding to enable the provision of educational services in rural areas.
 11

The alleged relationship between Dr Matjila and Ms Louw

24. The anonymous e-mails alleged that MST received the loan and CSI

contribution from the PIC because Ms Pretty Louw is the girlfriend of the

CEO, Dr Matjila, and has a corrupt relationship with him. It was alleged that

Dr Matjila “funded his girlfriend an amount of R21 million through Maison

Holdings”, Ms Louw’s company.

25. The first question which arises is whether Ms Louw is or was the girlfriend

of Dr Matjila, as alleged. Both of them deny the allegation. The

investigations which have been conducted have not provided any support

for the allegation. They suggest that the allegation is not true.

26. In the “James Nogu” e-mail of 19 September 2017, the author said the

following:

“Does Dr Daniel Matjila have a love relationship with Ms Pretty

Louw? The answer is yes. As a whistle blower I have tangible

evidence that proves this assumption and given an independent

opportunity under oath I can provide this evidence. I have pictures of

the two, SMS between Dr Daniel Matjila and Ms Pretty Louw,

including WhatsApp messages”.

27. No such evidence has been produced. As I have noted, I sent two e-mails

to the entire PIC mailing list, inviting people with evidence and information
 12

to come forward. I also sent the email to the “senders” of the anonymous

emails. Only one of those emails bounced back.

28. In those emails, I undertook to deal with information on a confidential basis.

I provided a secure e-mail address to which information could be sent. I

undertook and arranged that the interviews would be off-site (in other

words, not at the PIC), and offered to hold interviews after working hours if

those with information would prefer this.

29. It is clear from the content of the e-mails that “James Nogu” is either

employed at the PIC, or has contacts and sources of information within the

PIC. The email was sent to the “authors” of the anonymous emails. The

fact of this enquiry has been reported in the media. It is reasonable to

assume that the true author or authors of the anonymous e-mails became

aware of the enquiry. They have not come forward.

30. In particular, I have not been provided with the alleged photographs, SMS

and WhatsApp messages, which were said to be evidence of the alleged

relationship.

31. Under the circumstances, the most reasonable conclusion is that this

evidence does not exist. The author or authors undertook to provide it to an

independent enquiry, but did not do so when such an enquiry was

established.
 13

32. I therefore conclude that there is no evidence that Ms Louw is Dr Matjila’s

girlfriend. In the light of their denial that this is the case, and the absence of

any evidence which contradicts their denial, I must conclude that on the

evidence before me, Ms Louw is not and was not Dr Matjila’s girlfriend.

The relationship between MST and Ms Louw

33. Ms Louw is not a shareholder or director or employee of MST.

34. Ms Louw did have a commercial and financial relationship with MST, from

which she has derived financial benefit. She and Ms Annette Dlamini run a

company Maisan Holdings (Pty) Ltd, which is the vehicle for a number of

current or intended businesses. Maisan Holdings entered into a Joint

Venture agreement with MST, in terms of which it would act as MST’s agent

in seeking partnerships with state entities or businesses. This came about

as follow:

34.1 Maison Holdings was introduced to MST by Mr Wiseman Khumalo,

when it was seeking a partner for submitting a tender to the

KwaZulu-Natal education department

34.2 On about 22 April 2016 Ms Louw and Ms Dlamini had a meeting with

MST about the KZN tender. During the course of that meeting, they

learnt of MST’s work in providing mobile health and education

facilities. They expressed interest in working with MST on these

 14

projects. It was agreed that Maisan would act as MST’s agent in

sourcing state entities and corporations to fund these activities. Ms

Louw expressed the view that an approach should be made to the

PIC, which might be willing to approach its investee companies.

34.3 Thereafter, MST and Maison co-operated in the submission of

proposals to a number of corporations, including the PIC.

35. Subsequently, on 22 July 2016, MST and Maisan entered into a formal

Joint Venture agreement. which was termed a “consultancy and joint

venture agreement”. It provides, inter alia, as follows:

35.1 MST is the owner of mobile units which it seeks to supply to various

Government Departments in South Africa.

35.2 MST was approached by Maison with a proposal of sourcing clients

on behalf of MST in order to supply mobile units to them.

35.3 Maison has identified a number of potential clients to supply the

mobile units.

35.4 Maison “has the experience and skills to facilitate a sale and supply

of the mobile units to the various clients”.

 15

35.5 MST has engaged the services of Maison to procure suitable clients

to which the mobile units will be supplied.

35.6 Maison will also be responsible for “the business development and

account management of the projects brought on by them”.

35.7 Maison is appointed as “consultant and facilitator”.

35.8 “The primary objective of Maison will be to facilitate, negotiate and

procure the conclusion of an agreement in terms of which the client

will either purchase or rent the mobile units from MST”.

35.9 Maison will be paid a “facilitation fee” which will be negotiated on a

deal-by-deal basis.

36. On 1 April 2017, MST paid Maison Holdings R438 000 plus VAT for “work

done to date” (the reason stated in an email from MST to the PIC). That

email also stated that “the payment was made to look at improving BEE

status and motivate and stimulate our partnership to create further sales”.

37. Ms Louw undertook to provide us a copy of her invoice in that amount.

However, she did not provide this invoice, or any of the other documents

which she had promised to provide.4

4 After her interview with us, she did not respond to any messages sent to her.
 16

38. MST stated that they were not able to locate the invoice. The MST ledger

reflects this as a payment for “consulting fees”. I discuss below what the

purpose of the payment was.

39. I now deal with MST’s contacts and engagement with the PIC

The loan by PIC to MST

40. MST’s first contact with the PIC appears to have taken place in June 2015,

when Ms Matshepo More, the Chief Financial Officer of the PIC, met a

person connected with MST on a social occasion, and learnt of the work of

MST. She said that the PIC might be interested in MST, and said that any

relevant material in that regard could be submitted to the PIC through her.

41. Mr Gareth Watkins of MST thereafter sent an application for loan funding to

the PIC through Ms More. She forwarded it to Mr Roy Rajdhar of the PIC.

42. MST’s application was for a loan of R45 million. It was processed in the

usual manner.

43. On 23 November 2015, the PIC’s Portfolio Management Committee

approved a debt facility of R30 million with 25% equity for the PIC.

44. This proposal was not acceptable to MST. Further discussions took place.

Ultimately, on 8 June 2016 the PIC revised the approval of 23 November

 17

2015, to a debt facility of R21 million, with 5% profit sharing. This was

accepted by MST.

45. It took an extended period before the payment of this R21 million was

made. The reasons for the extended delay have not been fully explained,

but I have been informed that the reason was the delay in the signing of

legal agreements and the performance of suspensive conditions.

46. On 6 July 2017, the sum of R21 million was disbursed to MST.

47. It may be said that the PIC’s analysis of the financial projections of MST

was unduly optimistic. However, I have not found any evidence of

impropriety in the loan of R21 million made by the PIC to MST.

48. There is no evidence to support a conclusion that Ms Louw played any role

in the MST’s securing of loan financing of R21 million from the PIC. The

PIC made its first offer to MST on 23 November 2015. As I explain below:

48.1 Ms Louw’s first contact with Dr Matjila and the PIC was on 4 April

2016.

48.2 At that stage, Ms Louw had no connection with MST. Her first

contact with MST was on about 22 April 2016.

 18

48.3 The PIC’s decision-making process (which included a second

appraisal report on 30 May 20165 because of the delay in granting

the loan finance) and the PIC’s flow of documentation do not support

any theory that Ms Louw played a role in the PIC’s approval of a

revised loan facility on 8 June 2016.

Three MST proposals to the PIC for CSI funding

49. During the presentation of the MST application for loan funding to the PMC

on 23 November 2015, Dr Matjila had requested that Corporate Affairs

should consider the MST product offering for a CSI investment. The CSI

programme falls under the Corporate Affairs section of the PCI.

50. Ultimately, three different proposals were made to the PIC for financial

support which could be regarded as CSI funding. They were submitted

through different routes.

The proposal facilitated by Maisan Holdings

51. On 2 May 2016, MST sent Ms Louw a draft proposal to the PIC for the

lease of two buses by MST to the PIC. Ms Louw advised MST to submit

the proposal to Dr Matjila and Mr Roy Rajdhar at the PIC.

5The second appraisal report revised the loan to a value of R21 million with no equity, but for the
most part was a cut-and-paste of the initial appraisal report for the November 2015 approval.
 19

52. That same day, MST sent a Mobile Schools Health Vehicle Proposal to Dr

Matjila. This was a proposal for CSI funding. On 9 June 2016 Dr Matjila,

apparently that unaware that the proposal had also been sent to Mr

Rajdhar, forwarded it to Mr Rajdhar with the comment “Please assist”.

53. The proposal which MST submitted to the PIC contemplated the PIC

leasing buses from MST over a period of three to five years. MST would

then deploy the buses for health and education purposes in rural areas.

The cost of the project would be between R23 million and R37 million,

depending mainly on the term of the contract.

54. A meeting between MST/Maisan and the PIC took place on 30 June 2016.

Ms Louw and Ms Dlamini represented Maisan/MST. The PIC was

represented by Mr Rajdhar, Mr Wellington Masekesa (PIC Executive

Assistant to the CEO), and Mr Paul Magula (PIC Executive Head: Risk).

The meeting discussed three matters raised by Ms Louw and Ms Dlamini:

a request by Maisan for funding for a manufacturing plant; a request by

Maisan for funding for a chromite plant; and CSI investment in MST for the

purchase of a bus.6

55. The MST proposal for the leasing of buses at a cost of between R23 million

and R37 million received support from PIC staff, and was submitted to the

6 This is how the CSI proposal is referred to in a note of the meeting.

 20

PIC Exco on 5 December 2016. Exco declined the proposal on the ground

of affordability.

The Mpumalanga proposal

56. Meanwhile, the Corporate Affairs section of the PIC was independently

following up the request which Dr Matjila had made on 23 November 2015

that Corporate Affairs should consider the MST product offering for a CSI

investment.

57. On 12 February 2016, Xolani Matthews of Corporate Affairs wrote to

Sekgoela Sekgoela. He referred to the CEO’s request of 23 November

2016, and asked for a resumption of that process. He also asked for an

update on the process so that this could be incorporated into the pending

MST application for a loan facility.

58. Mr Kwabena Boateng of Corporate Affairs thereafter engaged with Mr

Sandile Mzonyane, a director of MST, in this regard. From those

discussions, a proposal emerged that the PIC provide funding for a bus to

provide services to the elderly in Mpumalanga for a period of one month.

The cost would be a little less than R500 000.

59. The proposal was submitted to Dr Matjila. In November 2016, acting under

delegated authority to deal with funding at this level, he approved it.

 21

60. However, when the matter was submitted to the Chief Financial Officer, Ms

More, who was required to certify that funds were available for this purpose,

she pointed out that another proposal from MST had recently been declined

by Exco. This was the proposal which had been facilitated by Maisan. Ms

More stated that the Corporate Affairs team should discuss the matter with

Mr Rajdhar’s team, who had put forward the Maisan-facilitated proposal.

61. The two teams discussed the matter. They concluded that by now, there

were no longer funds available for the Mpumalanga project. The

Mpumalanga project was therefore declined. The two teams however

agreed that a new proposal should be put forward for CSI funding for a one-

year education project in the new financial year.

The one-year project

62. In 2017 a one-year CSI project was accordingly proposed by MST, at a cost

of R5 million. The proposal was submitted to the PIC’s CSI team by Mr

Mzonyane on behalf of MST. Mr Mzonyane had extensive engagement

with the PIC in progressing the proposal.

63. On 20 February 2017 Exco approved an allocation of R5 million for this

purpose. This was approximately 1% of the PIC’s profit, which was the

target for CSI spending.

 22

64. On 28 March 2017 the CEO authorised the payment of R 5 million, which

was then made.

The role of Ms Pretty Louw

65. Witnesses gave conflicting accounts of the role of Ms Louw in this process.

It is necessary first to address the question of how Ms Louw came into

contact with the PIC.

66. When she gave evidence, Ms Louw’s account of her dealings with Dr

Matjila was the following:

66.1 She and Ms Dlamini were at the OR Tambo Airport. They saw Dr

Matjila, who had arrived from somewhere on a plane. They

recognised him because they are in business and they had seen him

on the television.

66.2 They approached Dr Matjila, introduced themselves, and asked for

his business card. They told him that they had some projects that

they wanted to bring to the PIC. They said that Dr Matjila was

responsive to this.

66.3 Thereafter, they contacted him and set up a meeting with him at the

PIC offices. They told him that they were looking for funding for spa

products and a mining venture. They also introduced the subject of

 23

MST at the meeting, and raised the question of the possible funding

of buses. Dr Matjila did not mention that the PIC was already in the

process of providing loan funding to MST, and that it was also

already interested in possible CSI funding of MST.

67. It is common cause that Ms Louw had several meetings with Dr Matjila. Ms

Louw put two requests to him for support for Maisan:

67.1 In response to a request for support for a plant for manufacturing spa

products (cosmetics), Dr Matjila suggested that they approach other

government funding agencies which would be more appropriate than

the PIC for a proposal of this nature. He also put her in touch with

Mr Lawrence Mulaudzi. He was part of a BBBEE consortium which

had recently with the assistance of the PIC acquired a substantial

share in Ascendis, which is involved in the pharmaceutical industry.

Dr Matjila asked Mr Mulaudzi to consider providing a suitable

opportunity. Nothing came of this.

67.2 In response to a request for support for a chromite mining venture,

Dr Matjila put her in touch with the PIC staff who deal with mining,

and asked them to deal with the matter. Thus, on 9 June 2016 Ms

Louw and Ms Dlamini had a meeting with Heidi Sternberg of the PIC,

who was responsible for mining beneficiation. Nothing came of this.

 24

67.3 Dr Matjila also suggested alternative funding sources which Maisan

might approach.

68. I asked Ms Louw how it was possible that she had such easy and extended

access to the CEO of a large public entity, simply on the basis of having

bumped into him at the airport and introducing herself. She insisted that

this was nothing out of the ordinary, and that there was nothing surprising

about it.

69. However, when she was further questioned on this, she admitted that the

facts were not as she had presented them. When it was put to her that Dr

Matjila had said that this has not a chance meeting, she admitted that the

truth was the following:

69.1 She is friendly with Mr David Mahlobo, who at the time was the

Minister of State Security.

69.2 What actually happened is that Minister Mahlobo called Dr Matjila to

a meeting at the OR Tambo Airport, without disclosing the purpose

of the meeting. His purpose was to introduce Dr Matjila to Ms Louw,

and to ask Dr Matjila to arrange for the PIC to assist her in her

venture with Ms Dlamini, which he did.

70. She could not explain why she had lied in claiming that this had been a

chance encounter. When asked why Minister Mahlobo had set up this
 25

meeting for her and Ms Dlamini with Dr Matjila, the exchange was as

follows:

Question: Why did Minister Mahlobo do that for you?

Answer: Like I say, I know him from varsity.

Question: So sufficiently well that he will just phone up the head

of the PIC and say come to the airport to meet some people?

Answer: Well, no, he is also a client of mine at the spa and I

have known him since back in the day. And we were talking about

how business is going and I said to him you know we want to do spa

treatments, and in spa products and then he said Oh okay maybe try

PIC.

71. Ms Louw’s attempt to conceal the truth as to her first meeting with Dr Matjila

clearly indicates that she recognised that this was something which she

should try to hide, because it was out of the ordinary, in fact extraordinary,

and called for an explanation and further enquiry. Her relationship with

Minister Mahlobo was sufficiently close that he would put himself out to

advance her personal business interests, and summon the head of a major

public entity to the airport for this purpose – and, as I point out in the next

chapter, to continue to do so after the meeting with Dr Matjila at OR Tambo.

 26

Ms Louw’s role in the CSI funding of MST

72. In considering Ms Louw’s role in relation to the CSI funding of MST, it is

necessary to consider each of the three proposals which emerged.

73. As I have noted, the suggestion that the PIC provide CSI funding to MST

was made within the PIC when Dr Matjila requested, at the PMC meeting of

23 November 2015, that MST be considered for CSI funding. This was

more than four months before Ms Louw came on the scene, when she met

Dr Matjila at OR Tambo International Airport. That meeting took place on

4 April 2016.

74. Steps were taken to implement Dr Matjila’s request of 23 November 2015.

They culminated in the first proposal, the proposed one-month Mpumalanga

project for approximately R500 000, which was ultimately not proceeded

with. Ms Louw played no role in relation to this proposal.

75. The second proposal was the proposal facilitated by Maisan, for a three- to

five-year project costing between R23 million and R37 million. Ms Louw

played an active role in this regard. The proposal was recommended by

PIC staff, but rejected by Exco.,

76. The third proposal was the one-year proposal which Mr Mzonyane

submitted to the CSI team at the PIC. It was approved by Exco, and the
 27

proposed amount of R5 million was paid to MST. Ms Louw played no role

in relation to this proposal.

77. The obvious question which arises is what Ms Louw did for MST, such that

they paid her R438 000, at a time when they were under some financial

pressure? The various role-players gave different explanations.

78. MST stated that this was for the consultancy services which Maison

Holdings had provided, particularly with regard to the PIC. They stated that

during their initial meeting with Maison Holdings, Ms Louw had said that she

would like to take this to various companies to obtain support for the

business. She had said that she could take it to many companies, and

specifically mentioned the PIC, saying that the PIC should be approached

to gain access to PIC investees which need to undertake social investment.

MST said that they did not have the capacity to deal with the PIC with

regard to CSI, and Ms Louw had “invigorated” the CSI discussion with the

PIC. She had worked hard in relation to other possible partners. She was

“clearly well connected”: they had been told by others that she was close to

the Minister of State Security. They did not want to demotivate her. While

the initial CSI proposal to the PIC (for between R23 million and R37 million)

was turned down, the subsequent proposal for R5 million was approved.

They appeared to attribute this, at least in part, to the work of Ms Louw.

That this was their view is supported by the fact the payment of R438 000

was 10% of the PIC contribution of R5 million excluding VAT.

 28

79. However, Mr Mzonyane said that in fact MST recognised that the R5 million

project was the result of his work, and not the work of Ms Louw. He said

that for this reason, the decision to pay her R438 000 initially caused some

friction within MST. He said that ultimately the intention was that the

payment to Ms Louw was an advance in respect of future projects to be

delivered by Ms Louw.

80. Ms Louw distanced herself from any suggestion that she was responsible

for the R5 million CSI contribution. She said that MST did not need her to

open the door to the PIC, because that door was already open to them.

She agreed with the propositions that she “produced nothing for MST”, and

“produced no new business for them”. When asked why she had been paid

the R438 000, She said that she had incurred expenses travelling to Cape

Town to meet MST.

81. Dr Matjila confirmed that because of his original intervention in November

2015, the PIC was already considering a CSI investment in MST before Ms

Louw came on the scene. He said that Ms Louw’s involvement was not

necessary in order to secure the PIC investment. He was under the

impression that the approved R5 million project was a revised version of the

unsuccessful R23 million to R37 million proposal which had been presented

by Ms Louw. It seems that he misunderstood what had happened in this

regard: the R5 million project was the result of a proposal submitted by Mr

Mzinyane, not the proposal submitted by Ms Louw. The Mzinyane proposal

 29

was submitted to (and facilitated through) the CSI team, whereas the

Maisan proposal was submitted to Mr Radjhar’s team.

82. The absence of the key invoice (Ms Louw claimed that there were two

invoices) does not assist in resolving the matter. MST stated in an e-mail to

the PIC that “the payment was made to look at improving BEE status and

motivate and stimulate our partnership to create further sales”. That

appears to confirm Mr Mzinyane’s explanation. However, that same email

also described the payment as for “work done to date”.

83. As I have noted, the Joint Venture Agreement states that Maison will be

paid a “facilitation fee” which will be negotiated on a deal-by-deal basis, and

will be attached as an Addendum. We requested copies of all such

Addenda, but were informed that there were none. At our initial interview

with MST, we were told that the agreement was that Maison would be paid

on a commission basis, which we understood to be a reference to a

success fee. There was no such success.

84. Having regard to all of the evidence, I conclude that in substance, despite

its form, the payment of R438 000 to Maisan was to reward the

(unsuccessful) efforts Ms Louw had made with the PIC, and to encourage

her to continue her further efforts.

 30

CHAPTER 3

THE ROLE OF MINISTER MAHLOBO

85. When we interviewed former Minister Mahlobo, he acknowledged that he

had called Dr Matjila to a meeting at the airport in order to introduce him to

Ms Louw and to ask him to get the PIC to assist Ms Louw with her business

interests.

86. When we asked what his relationship was with Ms Louw, Mr Mahlobo’s

answer was “I don’t have a relationship with her”. He said that he used to

go to her Spa for treatment. He said that while they had been at university

at the same time, they were not friends at university, and in fact he did not

know her at university. His first contact with her was when he went to her

Spa for treatment.

87. Mr Mahlobo said that when he was at the Spa, Ms Louw told him that she

was experiencing “challenges” in dealing with the PIC, and that he then

arranged the meeting with Dr Matjila. There are two difficulties with this:

87.1 Ms Louw did not suggest to us that she had previously approached

the PIC or attempted to do so, or that she had experienced

 31

“challenges” in this regard. Her explanation of why Mr Mahlobo

approached the PIC was quite different - she said that approaching

the PIC was his suggestion:

“… we were talking about how business is going and I said to

him you know we want to do spa treatments, I mean spa

products, and then he said oh okay, maybe try PIC.”

87.2 Dr Matjila said that when he met Minister Mahlobo and Ms Louw,

neither of them said that she had previously made any attempt to

approach the PIC and had experienced “challenges” in this regard.

88. Mr Mahlobo denied Dr Matjila’s evidence that when they subsequently had

other meetings, he asked Dr Matjila for a follow-up on what had happened

with regard to Ms Louw’s attempt to obtain assistance from the PIC. It

seems to me that there are two difficulties in this regard:

88.1 It seems only natural and probable that Mr Mahlobo, having gone to

the extent of setting up and attending a meeting at OR Tambo

specifically to request Dr Matjila to enable Ms Louw to obtain

assistance from the PIC, would at subsequent meetings have

enquired what had happened in that regard.

88.2 If he did not make such follow-up enquiries, the most likely

explanation would be that he had asked Ms Louw what had

 32

happened, and that she had informed him that her attempts to raise

funding through PIC for her business ventures had not been

successful. However, he did not proffer this explanation.

89. When we asked Mr Mahlobo why he had called Dr Matila to a meeting at

OR Tambo in order to introduce her to Dr Matijila and request his

assistance, he vigorously asserted that it was commonplace for people in

high positions in government to help people who were experiencing

problems with other parts of government, by putting them in touch with the

appropriate people. We suggested to him that this, however, was

something different. It was not just that he had given Ms Louw Dr Matjila’s

phone number, or even that he had telephoned Dr Matjila and asked him to

meet Ms Louw and assist her. In order to advance Ms Louw’s personal

business interests, he had gone to the extent of summoning the head of a

major public entity to the airport for this purpose, had attended the meeting

himself, and had asked Dr Matjila to assist her. This suggested a closer

relationship than simply having attended at her Spa as a client.

90. Mr Mahlobo’s response was to say that there is nothing unlawful about

arranging meetings if people need help, and that there is no standard that

says that it is wrong to arrange such meetings. He said there was no harm

caused by arranging such meetings. We said that we were not suggesting

that there was anything unlawful in what he had done, but that it seemed

out of the ordinary, and that it was difficult to explain it simply on the basis
 33

that he had attended the Spa. His response, again, was that there is no law

that says you cannot arrange for people to meet.

91. We asked Mr Mahlobo whether he had ever made any similar arrangement

for the benefit of any other person. His answer was that he had “referred

many people”, and that he could not give details because he did not want to

“speculate”.

92. In my opinion, the probabilities are the following:

92.1 It is probable that Ms Louw was telling the truth when she said that

she had known him (and implicitly had been on friendly terms with

him) since “back in the day”. If I am correct in that regard, it raises

the question why Mr Mahlobo attempted to conceal the true nature of

his relationship with Ms Louw.

92.2 It is probable that Ms Louw had not previously approached the PIC

and experienced “challenges”, and that she did not say this to Mr

Mahlobo.

92.3 It is overwhelmingly probable that it was out of the ordinary for Mr

Mahlobo, a Cabinet Minister, to go to the extent of summoning the

CEO of a major public entity to a meeting at the airport with someone

with whom he did not have a personal relationship (I take it that this

is what he meant when he said that he did not have a relationship

 34

with Ms Louw), and himself attending that meeting and making the

request. This cannot be explained away simply on the basis that he

had been her client at her Spa. There must be more to it than that.

92.4 It is probable that when Mr Mahlobo and Dr Matjila subsequently

met, Mr Mahlobo did ask Dr Matjila to inform him what had happened

with regard to the attempt to obtain assistance for Ms Louw from the

PIC.

93. It follows that in my opinion, the probability is that what Mr Mahlobo told us

was untrue in a number of respects. The obvious questions which arise are

why he would deny or understate the true nature of his relationship with Ms

Louw; why he would assert that Ms Louw had said that she had previously

had dealings with the PIC and had experienced “challenges” in that regard;

and why he would deny that when he subsequently met Dr Matjila, he

asked what had happened with regard to the provision of assistance to Ms

Louw by the PIC. His repeated resort to the assertion that there is nothing

unlawful about arranging meetings was in my opinion an attempt to avoid

dealing with the obvious questions which arise from his role in this matter.

His inability or unwillingness to identify any other occasion on which he had

ever acted in this manner speaks for itself.

 35

CHAPTER 4

DR MATJILA, MS LOUW AND MR LAWRENCE MULAUDZI

94. The “James Nogu” e-mail of 13 September 2017 to the PIC address list

made the following allegations:

“… Dr Matjila had instructed one of the PIC funded companies,

through its director, to assist in settling Ms Pretty Louw’s legal

challenges, where her Maisan Spa in Benmore was closed and the

Sheriff of the Court was about to attach her assets. Dr Matjila sent a

message for the instruction to settle Ms Louw’s debt, which was paid

for by the PIC funded entity”.

95. The events which gave rise to this allegation are the following.

96. When Ms Louw first approached Dr Matjila for assistance from the PIC, she

told him that her business was interested in undertaking a manufacturing

product in relation to cosmetics, and a mining project. At that time, the PIC

had recently provided funding to a BBBEE consortium headed by Mr

Lawrence Mulaudzi, in order to enable it to take a stake in Ascendis. Dr

Matjila put Ms Louw in contact with Mr Mulaudzi, and asked Mr Mulaudzi

whether there were opportunities in his business as far as the cosmetics

 36

proposal was concerned, given that Ascendis is involved in

pharmaceuticals. In the event, nothing came of that.

97. Part of the activities of Maisan Holdings was running a Spa in Benmore. In

That business ran into financial difficulties, and they were not able to pay

the rent. The landlord sued for the rent, and must have obtained a

judgment for payment of the rent, because the Sheriff of the Court was

going to evict Maisan. The amount owing was in excess of R300 000.

98. Ms Louw telephoned Dr Matjila and asked him for urgent assistance. She

sent him, on WhatsApp, a copy of the Sheriff’s writ of execution.

Remarkably, Ms Louw claims not to remember whether she telephoned Dr

Matjila, told him that they were in financial trouble, asked him to help them,

and sent him the document from the Sheriff by WhatsApp.

99. Dr Matjila then telephoned Mr Mulaudzi. He informed Mr Mulaudzi that Ms

Louw (whom he had previously referred to Mr Mulaudzi as described

above) was in financial trouble. Her business had been attached by the

Sheriff of the Court, as she owed money. He asked Mr Mulaudzi urgently to

come to her rescue by settling her debt. He said that he would send Mr

Mulaudzi the legal documents that Ms Louw had sent to him.

100. Mr Mulaudzi agreed to assist. Dr Matjila then sent him the Sheriff’s

documents via a WhatsApp application. Mr Mulaudzi saw that the amount

 37

owing was some R330 000. On that same day, Ms Louw contacted him

and informed him that Dr Matjila had told her that he would assist her.

101. They met the following day, at the offices of the attorneys who were

involved in the matter. Mr Mulaudzi made an EFT payment of R150 000.

Mr Mulaudzi’s bank records show that this payment was made on 14

October 2016.

102. Ms Louw contacted him again the following day, stating that the attorneys

required the balance of the arrears before Maisan would be allowed to go

back to their business. She said that Dr Matjila had informed her that Mr

Mulaudzi would settle the debt in full.

103. Mr Mulaudzi delayed for a few days in making this payment, as he hoped

that she would obtain alternative assistance. When it became it apparent

that there was an expectation for him to settle the whole debt, he made a

second payment of R150 000. He confirmed telephonically with Dr Matjila

that he had made the payment as per his request.

104. Mr Mulaudzi says that Ms Louw thereafter asked him to make payment of

the balance of approximately R30 000. He declined to do so.

105. Mr Mulaudzi and Ms Louw both state that no part of this money has ever

been repaid. Both of them say that they did not have any expectation that it

would be repaid. Dr Matjila says that he told Mr Mulaudzi that he should

 38

deal with this as a loan, and that he should record the terms of the loan in

an agreement. Mr Mulaudzi says that this was some time after the events.

106. Mr Mulaudzi and Dr Matjila do not have any personal relationship. Mr

Mulaudzi knows Dr Matjila only in his capacity as the CEO of the PIC. He

said that when Dr Matjila made this request to him,

“it was only natural for me to comply with this request as I have been

funded by PIC in my business ventures. Although he did not force

me to give the money to Ms Louw, there is no way I would have said

no to the CEO of PIC. And it is also for this reason why I didn’t even

question why he had chosen me to give money to Ms Louw.”

107. He explained it further as follows:

“… just imagine for instance, for example you receive a call from the

CEO of Standard Bank and after Standard Bank has funded your

transaction, I think it would be difficult to just say no because you

know that if you need assistance you can still go to the very same

institution. So when Dr Dan made the request I couldn’t say …. no

to the CEO of the PIC.”

108. Mr Mulaudzi stated that the telephone call from Dr Matjila was not an

instruction: it was a request. He felt however that he could not say no to

 39

that request. He stressed that he made the payments from his personal

funds, and not from the funds of any company with which he is involved.

109. If one asks why Dr Matjila responded to the telephone call from Ms Louw by

requesting Mr Mulaudzi to pay her what was necessary to get her out of her

financial difficulties, three possibilities arise:

109.1 First, the explanation could be that Dr Matjila and Ms Louw were

involved in a romantic relationship, as alleged by “James Nogu”. I

have found noi evidence of this.

109.2 Second, it could be that Dr Matjila would make such a request on

behalf of any person whom he has met in the course of his work as

CEO of the PIC, whose application to the PIC has been

unsuccessful, and who then telephones him and says that he or she

is in financial distress. This seems improbable in the extreme. As Dr

Matjila acknowledged, Ms Louw was one of very many unsuccessful

applicants to the PIC for funding.

109.3 Third, it could be that Dr Matjila felt under pressure in this regard,

because Minister Mahlobo had called him to a meeting at the airport

to introduce him to Ms Louw, and to ask him to assist Ms Louw.

When we put that possible explanation to Dr Matjila, after some

hesitation, he said that this was in fact the reason. What

 40

distinguished Ms Louw from the many other disappointed PIC

applicants was that she had been brought to him by a Cabinet

Minister, and he felt a need to respond to that.

110. Dr Matjila said that in fact he had not met Minister Mahlobo on just one

occasion, but “probably three, four times” to “report back” on “various

matters”, including this one. He said “I unfortunately have to respect the

Ministers. When they call I come to listen you know, to what they have to

say.”

111. Dr Matjila subsequently said that he had four or five meetings with Minister

Mahlobo, at the following venues: at the Minister’s home in Pretoria, at the

OR Tambo international Airport, and at the Sheraton Hotel in Pretoria.

112. For present purposes, the most significant of these was the meeting on 4

April 2016 at OR Tambo International Airport.

113. In addition, a meeting was scheduled for the Minister’s home in Pretoria on

22 January 2018. The meeting did not take place. This was shortly before

Minister Mahlobo ceased, on 26 February 2018, to be a member of the

Cabinet.7

7 At this time, he was the Minister of Energy.

 41

Dr Matjila’s explanation to the Board

114. Dr Matjila’s request to Mr Mulaudzi to make payments for the benefit of Ms

Louw was discussed at the PIC Special Board Meeting on 29 September

2017. I deal with this more fully below. The Board resolved as follows:

“While the Board trusted the bona fides of the CEO in his actions

with regard to helping the distressed company, such actions could be

misconstrued, and the Board requested the CEO to not act on his

own in taking such actions in future.

“In order to avoid a situation where management can be accused of

acting improperly, it would be advisable that management do not

engage with clients alone. The Board instructed the Social and

Ethics Committee to look into whether a policy can be developed to

guide management in this regard”.

115. What is missing from this resolution, and from the discussion which

preceded it, is that the CEO had been prompted or pressured into taking

this action by the role played by the Minister of State Security, who had

called him to a meeting and requested him to enable Ms Louw to obtain the

assistance which she required, and who had thereafter pursued the matter

by asking for follow-up reports. This was not disclosed to the Board, which
 42

made no enquiry as to how Dr Matjila had come into contact with Ms Louw,

and how it was that she had such ready access to him.

116. In my opinion, Dr Matjila should have disclosed this to the Board. It would

have thrown the entire episode in quite a different light. The Board should

have been told that its CEO had been under pressure from a Cabinet

Minister to provide assistance to a person who was a friend of his. The

Board was entitled to know that its CEO had been in this position, and that

this was the reason why he had requested Mr Mulaudzi to assist Ms Louw.

117. One would hope that if this had been disclosed to the Board, the Board

would have pursued the matter – perhaps by taking up the matter with the

Minister of Finance, and requesting him to raise it in an appropriate manner

and prevent a recurrence.

 43

CHAPTER 5

THE RESPONSE OF THE PIC BOARD TO THE ALLEGATIONS

The Special Board Meeting of 15 September 2017

118. On 15 September 2017 the Board held a “Special in camera Board

meeting”. I was informed that unlike regular Board meetings, the “in

camera” meetings are not recorded, in order to enable a free exchange of

views. While I understand the motive for this, it seems to be a doubtful

practice: I would have thought that it is precisely when controversial matters

are discussed, that it is necessary to have an unchallengeable record of

precisely what was said – and, as I note below, what was actually decided –

in order to avoid subsequent disputes in this regard.

119. The following account is drawn from what is recorded in the approved

minutes and in the affidavit of Dr Matjila in answer to the UDM application to

the High Court.

120. The Board noted the allegations made with respect to the loan granted to

MST, and the e-mail to Board members which implicated the CEO, the CFO

and other Executives. The Board:

 44

“RESOLVED to mandate the Head of Internal Audit to conduct a

review of the allegations and that for the integrity of the process,

Management is prohibited from engaging with the Head of Internal

Audit except for purposes of providing documents or clarity on

specific questions raised by the Head of Internal Audit.”

121. The Head of Internal Audit, Mr Lufuno Nemagovhani was then called into

the Board meeting for him to be briefed him on the resolution of the Board.

Mr Nemagovhani expressed the view that the allegations were complex and

that neither he nor his subordinates had the requisite forensic expertise to

deal with the allegations as requested by the Board. He recommended that

the Board appoint a company with forensic investigation expertise to

conduct the investigation process. He then left the meeting.

122. Dr Matjila and Ms More were then called into the Board Meeting and

advised of the Resolution. Dr Matjila expressed his dissatisfaction that the

Board had failed to engage with the report which he had provided, and had

not given him and the CFO an opportunity to respond to the allegations. He

was then given an opportunity to address the responses raised in his report

and by the Board.

123. Dr Matjila and Ms More were then excused from the meeting, and the

Board reconsidered the matter. In arriving at its final Resolution, the Board

considered, inter alia, “the need to procure a legal opinion on a suitable way
 45

forward to resolve (i.e. is an external investigation required concerning the

allegations implicating the CEO)”.

124. After extensive discussion, the Board resolved that the Company Secretary

should draft a memo containing the Scope of Work for the review process

to be conducted by the Head of Internal Audit. The review process by the

Head of Internal Audit should be treated with extreme urgency and

confidentiality. The Board further resolved as follows:

“With specific reference to the allegations on MST

5.13.2.4 The Head of Internal Audit should verify the information

submitted to support responses by Executive Management.

5.13.2.5 The verification should only8 entail the following:

(a) the validity of the documentation provided by the CEO and

CFO to the Board as part of their response;

(b) the accuracy of the responses provided by the CEO to the

PIC Board;

(c) whether applicable policies and procedures were complied

with in approving funding to the MST;

8 My emphasis.
 46

(d) the completeness of the responses and adequacy of

documentary evidence provided by the CEO in supporting those

responses.

5.13.2.6 The verification process was not9 a forensic

investigation. The verification process should be conducted

internally in its entirety and therefore no external service provider

should be appointed for the verification process.

5.13.2.7 The relationship between the PIC CEO and an alleged

girlfriend was excluded from the scope.

5.13.2.8 The Head of Internal Audit should report to the Board

at its meeting scheduled for 29 September 2017 …

With specific reference to the email allegations received on 13

September 201710

5.13.2.9 Responses should be provided to the Head: Internal

Audit within a week, i.e. 22 September 2017.

9Emphasis in original.
10 This appears to refer to the email sent by “leihlola Leihlola” to the members of the Board. It
contained wide-ranging allegations of internal irregularities at the PIC. It did not include the
allegation about the relationship between Dr Matjila and Ms Louw, and it also did not refer to Dr
Matjila’s role in arranging that Mr Mulaudzi would provide financial assistance to Ms Louw or
Maisan.
 47

5.13.2.10 The Head of Internal Audit should conduct the same

review process mandated in respect of the MST allegations; and a

report should be submitted to the Board within 4 weeks (22 October

2017) following receipt of responses from participating parties.”

125. I was informed that the Board was divided on this issue. The minutes

record that Ms Zulu, a member of the Board, specifically requested that her

dissenting views be recorded.

126. The following aspects of this are striking in the light of the present enquiry:

126.1 The Board considered the need (perhaps more correctly, whether

there was a need) to procure a legal opinion on whether an external

investigation was required concerning the allegations implicating the

CEO. In the event, it appears that no such opinion was obtained.

126.2 The Board explicitly stated, and in fact emphasised, that the

verification process was not a forensic investigation. It was, in

essence, an internal review of whether the applicable policies and

procedures had been complied with in approving funding to MST,

and the completeness of the information provided.

126.3 The relationship between Dr Matjila and Ms Louw was explicitly

excluded from the scope of the process to be undertaken by the

Head of Internal Audit.

 48

The media release of 15 September 2017

127. After the meeting of 15 September 2017, a media release was issued on

behalf of the Board, headed “PIC Board Expresses Confidence in the

CEO”.

“The Board of the Public Investment Corporation (PIC) has taken a

decision to communicate the outcome of its special meeting held in

Pretoria today. Ordinarily, the Board would not publicly disclose the

outcomes of its deliberations. However, the Board deems it

necessary to break from this tradition, given the heightened interest

from the media and other stakeholders.

Following the meeting, the Board expressed its confidence in the

ability and integrity of the CEO, Dr Daniel Matjila, management and

staff of the PIC. The Board wishes to state that it will continue to

exercise its fiduciary duties without fear or favour, including

accountability to all stakeholders. The Board also noted media

allegations prior to the meeting about its intention to remove the

CEO. The Board wishes to reiterate that it rejects these allegations

with the contempt they deserve.

The CEO made representations to the Board responding to the

allegations levelled against him through the media. The CEO

 49

provided detailed documentary evidence of the decisions made by

the PIC and that the process followed was in accordance with all

policies, procedures and delegation of authority of the PIC.

Following the deliberation by the Board on the allegations and

representations, the Board accepted the representations of the CEO.

For completeness of the process and for its final assurance, the

Board mandated the Internal Audit division of the PIC to

independently review the representations made by the CEO”.

128. Three observations may be made in this regard:

128.1 The Board had by this time already accepted the representations

made by the CEO. The investigation by Internal Audit was merely

“for completeness of the process and for its final assurance”.

128.2 The allegations which had received the most attention in the media,

namely the alleged misuse of PIC funds and influence to favour the

girlfriend of Dr Matjila, were not addressed at all.

128.3 The media release did not disclose that the allegation that Dr Matjila

had used the resources and the influence of the PIC to benefit his

girl-friend had not been considered by the Board, and would also not

be part of the “verification process” to be undertaken by Internal

Audit.
 50

The Special Board meeting of 29 September 2017

129. On Friday 29 September 2017, a further special “special in camera”

meeting of the PIC Board took place. It was not recorded.

130. The Board had before it a report prepared by the Head of Internal Audit, Mr

Nemagovhani. He presented his report.

131. His report described as “exclusions” from his mandate, the allegation that

Ms Louw was Dr Matjila’s girlfriend, and the allegation that Dr Matjila

instructed an investee company to make payments to Ms Louw when she

was in financial difficulty. There is some disagreement as to whether these

were correctly described as “exclusions”. It seems to me that the

description is in fact correct, having regard to the minutes of the meeting of

15 September. In any event, what is undisputed is that Mr Nemagovhani

told the Board that he did not have the resources and capacity to

investigate those matters, and that he was uncomfortable about carrying

out an investigation into the conduct of the CEO, who was the person to

whom he reported. He told the Board that he had not investigated those

matters. He stated that an independent investigation would be necessary in

order to deal with them.

132. Mr Nemagovhani presented the results of his enquiry, including the

enquiries he had addressed to Dr Matjila. He noted that Dr Matjila had not

 51

responded to the allegations that he had instructed the director of an

investee company to pay the debt of an alleged girlfriend, and the allegation

that Ms Louw was his girlfriend. Mr Nemagovhani had undertaken a

verification of the information which had been provided to him. He reported

that:

132.1 all of the documents submitted by the CEO and CFO as evidence of

the loan to MST were valid;

132.2 the loan of R21 million was provided to MST and not Maisan

Holdings;

132.3 there was an agent/principal agreement between MST and Maison,

and he had not been able to obtain copy of an annexure to that

contract;

132.4 the allocation of R5 million to MST as Corporate Social Investment

was in line with the PIC’s CSI strategy which had been approved by

the Board in November 2016;

132.5 Company and Intellectual Property Commission reports confirmed

that Ms Louw was not a shareholder or a director of MST.

133. Mr Nemagovhani stated that he had not engaged with Dr Matjila during the

investigation process.
 52

134. He was then excused from the meeting to allow the Board to deliberate on

his report.

135. The Board was satisfied that the PIC’s internal processes had been

followed in respect of both the R21 million investment and the R5 million

CSI transaction with MST.

136. There was extensive discussion on how the Board could verify the

response by Dr Matjila as to whether he gave instructions to a director of an

investee company to pay the debt of an alleged girlfriend. The Board

agreed to request Internal Audit to interview both the CEO and the director

of the investee company (Mr Mulaudzi).

137. Mr Namagovhani was called back into the meeting. The Board requested

him to verify directly with Dr Matjila whether he had instructed a director of a

PIC investee company to pay the debt of an alleged girlfriend, and also

requested him to contact Mr Mulaudzi.

138. Mr Nemogovahani left the meeting at 14h00. He returned at 14h50, having

made his enquiries. He reported that he had interviewed Dr Matjila in

person, and that he had spoken on the telephone to Mr Mulaudzi. He

reported as follows.

138.1 Dr Matjila told him that he was introduced to the two women.

Thereafter, they submitted a cosmetic manufacturing proposal. Dr

 53

Matjila referred them to the IDC, NEF and DTI because the

proposals did not fit the mandate of the PIC. Subsequently, they

presented a mining transaction to the PIC, which was not accepted

because they did not have experience, the proposal was shallow,

and the deadline was too short. Thereafter, the PIC concluded the

Ascendis deal, in which one of the promoters was Mr Mulaudzi. Dr

Matjila introduced the women to Mr Mulaudzi to see whether he

could assist them through the enterprise development of Ascendis in

relation to their cosmetic business. That process took too long, and

their business was about to collapse. They contacted him again to

assist them to save their business. He said that the PIC could not

rescue them, and he asked Mr Mulaudzi to assist. This was a loan

as far as Dr Matjila was concerned. He did not instruct Mr Mulaudzi

to provide the assistance. He was mostly communicating with the

women through telephone or cell phone messages, and had deleted

most of the messages.

138.2 Mr Mulaudzi informed him that he did not know the lady in question,

and had been introduced to her by Dr Matjila, who asked him to

assist her with opportunities. He could not find any opportunities.

Thereafter, he received a call from Dr Matjila to assist as their

company was collapsing. Dr Matjila forwarded the letter of the

Sheriff to him through WhatsApp. The ladies were running a Spa

 54

shop and were locked outside. The Sheriff was waiting for payment

of the outstanding amount. He paid R150 000 on the first day, and

sent proof of payment to the ladies. The following day he paid

R150 000. This was not a loan, he was just assisting. He could not

say no, for the reason that PIC had funded two of his companies. He

did not ask why he was asked to assist. This was a request, and not

an instruction. He made the payments in his personal capacity. He

was not expecting any payment for what he had done.

139. After further extensive discussion, the Board resolved to accept the report

of Mr Nemagovhani. The Board resolved that while it trusted the bona fides

of Dr Matjila in his actions with regard to helping the distressed company,

such actions could be misconstrued, and the Board requested him not to

act on his own in taking such actions in future. It resolved that in order to

avoid a situation where management can be accused of acting improperly,

it would be advisable that management do not engage with clients alone.

The Board instructed the Social and Ethics Committee to look into whether

a policy could be developed to guide management in this regard.

140. A number of members of the Board have emphasised to me that there were

divisions on the Board with regard to this matter.

141. The Board also resolved that a media statement be issued stating that the

Board was satisfied with the responses from the Executive Directors and
 55

the outcome of the Internal Audit review. Later that day, a media statement

was issued on behalf of the Board. I have quoted the most important part

of it in Chapter 1:

“On the 29th September 2017, the Board of the Public Investment

Corporation (PIC) met to receive feedback from Internal Audit

division with regard to the allegations against the CEO, Dr Daniel

Matjila. The Board fully applied its mind to the report presented by

Internal Audit and confirms its satisfaction with the report. The Board

has concluded that the allegations were baseless and that Dr Matjila

is cleared of any wrongdoing”.

Assessment

142. I do not think it would be unfair to describe the Board’s investigation of the

content of the emails as somewhat perfunctory. It consisted of two

elements:

142.1 The major part of the investigation was an internal “validation”

exercise undertaken by the Head of Internal Audit, to establish

whether the steps taken by the PIC in making the loan and the CSI

contribution were taken by the appropriate bodies, exercising

authority which had been conferred upon them, and in accordance

with agreed procedures and policies. The review confirmed that this
 56

was the case. Mr Nemagovhani was not instructed to investigate the

underlying allegation of undue influence in the process, and he did

not do so. The enquiry was therefore very formal in its nature. Mr

Nemogovahani carried out the mandate which was given to him, and

did so properly and effectively. The problem lay in the mandate. He

reported that he had not investigated the allegations with regard to

the provision of funding to an alleged girlfriend of Dr Matjila.

142.2 The further enquiry consisted of a fairly brief interview with Dr Matjila

and a telephone call to Mr Mulaudzi. The Board clearly recognised

that the scope of Mr Nemagovhani’s initial enquiry had not been

adequate with regard to the allegations against Dr Matjila. However,

its attempt to supplement that enquiry was in my opinion also

inadequate. It did not involve any testing of the accuracy of the

information provided by Dr Matjila or Mr Mulaudzi, or any

investigation of what lay behind the events in question. The Board

simply accepted the correctness of what they had said, and did not

press for any further details.

143. The present enquiry demonstrates that additional highly relevant

information could have been obtained through a proper enquiry.

144. The Board could not, on the information before it, have validly reached any

conclusion as to whether Ms Louw was Dr Matjila’s girlfriend. All it had

 57

before it was his denial, which could not be an adequate basis for resolving

the matter: it invites the famous riposte “Well he would say that, wouldn’t

he?”

145. The somewhat perfunctory investigation of the allegations in the emails

contrasts sharply with the investigation which was undertaken in an attempt

to find out who had sent the emails, and who had “leaked” PIC documents

(in particular, the MST transaction documents and the draft minutes).

Three IT companies were involved in this investigation, which was intensive

and extensive. (I note that the IT companies were ultimately reporting to Dr

Matjila, which appears inappropriate in light of the fact that the allegations

were made about him.)

146. A further matter which calls for comment is the media statement which was

issued after the Board meeting on 29 September. It consisted of a bland

and unqualified endorsement of the conduct of the Executive Directors. It

did not reflect the Board’s discomfort or disquiet in relation to the CEO’s

approach to Mr Mulaudzi to provide financial support to Ms Louw. And it

again did not address the aspect of the emails which had received most

attention in the media, namely the allegation that Dr Matjila had used the

resources and the influence of the PIC to benefit his girlfriend.

147. Under the circumstances, it is not surprising that the media statement did

not lay matters to rest. The public controversy continued, and in fact
 58

deepened. This was to the disadvantage of the PIC, which at around the

same time was also coming under increased scrutiny in relation to

investments which were controversial for financial or political reasons. With

the benefit of hindsight, one can see that the manner in which the matter

was dealt with, also did Dr Matjila no favour. In the public mind, he

continued to be under suspicion of having used his position and influence

as CEO of the PIC to benefit his girlfriend.

Were the Board minutes doctored or sanitised?

148. In June 2018 the United Democratic Movement instituted an application to

the Pretoria High Court against Dr Matjila, the PIC, the Minister of Finance,

and the Chairperson of the Board of the PIC. The UDM sought orders

declaring that the Minister of Finance would be responsible for taking

decisions regarding the suspension of and/or disciplinary action against Dr

Matjila, directing the Minister to place Dr Matjila on suspension with

immediate effect, and directing the Minister to institute disciplinary

proceedings against Dr Matjila with immediate effect. The application was

opposed.

149. In that application, it was alleged that the minutes of the Special Board

Meeting of 29 September 2017 had been “doctored” or “sanitised”. In

support of this allegation, the applicant attached draft Minutes which had

been considered, revised and then approved by the Board.

 59

150. The various respondents filed answering affidavits. None of them said that

the draft minutes contained information which was not correct. It was

explained that it is normal procedure for the Company Secretary to prepare

a draft of the minutes, which is then circulated to the Board, revised and

refined by the Board to ensure that it accurately reflects the important

features of the meeting, and then approved by the Board and signed. It

was denied that there had been any manipulation of the minutes, which it

was said had been revised and then adopted by the Board in the ordinary

course.

151. In answer to the allegation of “doctoring” or “sanitisation”, I was told that the

draft minutes were revised because they went into too much detail. I was

also told that there was a concern that if the minutes were too detailed and

fell into the hands of third parties, this could be embarrassing to the PIC. In

the event, what happened was that both the draft minutes and the approved

fell into the hands of a third party, and were then made public.

152. I do not think any practical purpose would be served by a detailed analysis

of the differences between the draft minutes and the minutes as approved.

It is sufficient to record that the draft version was more sharply critical of Dr

Matjila’s conduct than the final version – for example, the draft version

stated “The CEO’s conduct placed the reputation of the PIC at risk, as such

the CEO needed to be warned” and “The Board could not condone the

conduct of the CEO”.

 60

153. The obvious answer to the allegation of “doctoring” is that the final minutes

were approved by the Board, and the Board can be taken to know what it

decided at an earlier meeting. However, where there is a lengthy meeting

and the body concerned is divided, it is possible that some members may

agree to (or not explicitly oppose) something which has been proposed, and

thereafter regret this and attempt to re-write the events when the minutes

are to be confirmed. I am not able to say whether this happened. This

does however underline the advantage of having a voice recording of the

discussions and the decisions.

 61

CHAPTER 6

OTHER ALLEGATIONS WHICH HAVE BEEN MADE

154. The e-mails (and in particular the e-mail of 13 September 2017 addressed

to members of the Board) contain wide-ranging allegations of internal

irregularities at the PIC:

154.1 Some of them are very generalised, and would require extensive

investigation in order to be able to deal with them. I have not

undertaken such investigations.

154.2 Some of the complaints are the subject of disciplinary enquiries

which have either been concluded or are still in process. I have not

investigated such matters. I did not understand it to be within my

brief to conduct my own investigation into the disciplinary matters.

155. I have obtained some information in relation to a limited number of specific

allegations which have been made. I address them briefly here.

156. These allegations are the following:

156.1 It was alleged that Dr Matjila paid money to a senior journalist of the

Sunday Times to stop publication of allegations against the PIC or

 62

him. No evidence was submitted in support of this allegation. Dr

Matjila denied it. He informed me that he did have an interview with

a journalist at the Sunday Times, who put to him allegations which

had been made. When Dr Matjila provided his response to those

allegations, the journalist did not pursue the matter further.

156.2 It was alleged that Mr Katleho Lebata, the son of the CEO, is

employed by the PIC. Dr Matjila stated that while has a son named

Katleho, that is not Katleho Lebata, who is employed at the PIC.

156.3 It was alleged that Dr Matjila granted a contract to a relative to run

the staff canteen at the old PIC offices. Dr Matjila stated that the

person who was given the contract to run the staff canteen was

indeed a Mr Matjila. He stated that this person is no relative of his,

and that he was not involved in the procurement process.

156.4 It was alleged that Dr Matjila had asked beneficiaries on WhatsApp

to make certain payments on his behalf as a way of thanking him for

approving a transaction with the PIC. No evidence was provided in

support of this allegation, and Dr Matjila denied it.

156.5 It was alleged that Mr Adrian Lackay was illegally employed at the

PIC on the instructions of Dr Matjila, without the proper Human

Resources procedures having been followed. Mr Lackay was hired

 63

at the PIC after his departure from the SA Revenue Service, to assist

the PIC with communications. I was provided with an extensive file

of documents which reflected the procedures which were followed in

this regard. No-one came forward to explain or contend why the

appointment was irregular. I have not investigated the matter further.

156.6 There was a series of generalised complaints against the CFO, Ms

More, about the manner in which she performs her duties at the PIC.

We interviewed Ms More, who denied the allegations. She said that

in her capacity as CFO, she has to sign off on a wide range of

procurement decisions and other decisions with financial

implications. She is regularly required, she says, to refuse to

approve the proposals which are submitted to her. She said that this

will inevitably will make her unpopular with some people.

 64

CHAPTER 7

CONCLUSIONS AND RECOMMENDATIONS

157. There is no evidence that Dr Matjila and Ms Louw have or had a romantic

relationship. In the light of their denial that this is the case, and the

absence of any evidence which contradicts their denial, I conclude that on

the evidence before me, they do not and did not have a romantic

relationship.

158. I have investigated the transactions in which the PIC made a loan of

R21 million to MST, and made a Corporate Social Investment contribution

of R5 million to MST. I have found no irregularity or impropriety in either of

those transactions.

159. The involvement of Ms Louw with the PIC was brought about by the then

Minister of State Security, David Mahlobo, who called Dr Matjila to a

meeting at the airport without disclosing the reason for the meeting, when in

fact the reason was to introduce Dr Matjila to Ms Louw and Ms Dlamini and

to request Dr Matjila to assist them to obtain funding from the PIC for their

business. Ms Louw initially gave a deliberately false explanation as to how

this meeting came about.

 65

160. It is overwhelmingly probable that it was out of the ordinary for Mr Mahlobo,

a Cabinet Minister, to go to the extent of summoning the CEO of a major

public entity to a meeting at the airport with someone who was (on his

version) a virtual stranger to him, and himself attending that meeting. There

must be more to it than that, but he has not disclosed what that was. In my

opinion, it is probable that Mr Mahlobo’s account of what happened was

untrue in a number of respects.

161. When Ms Louw’s business ran into financial difficulties, she telephoned Dr

Matjila and asked him for assistance. He telephoned Mr Mulaudzi, to

whose consortium the PIC had recently provided substantial funding, He

asked Mr Mulaudzi to assist Ms Louw. Mr Mulaudzi understood this as a

request, and not an instruction, but felt that under the circumstances he had

no alternative but to agree, which he did. Dr Matjila then telephoned Ms

Louw and told her that Mr Mulaudzi would assist her. He did so by

providing the amount of R300 000 in order to prevent the eviction of Ms

Louw’s business from its premises for non-payment of rent. Mr Mulaudzi

paid the money personally.

162. It was inappropriate for Dr Matjila to make this request to Mr Mulaudzi. This

was recognised by the Board of the PIC.

163. The reason why Dr Matjila acted as he did was that he felt under pressure

as a result of the interventions by then Minister Mahlobo.

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164. Dr Matjila did not disclose Minister Mahlobo’s role to the PIC Board, either

at the time or later when these events came to light and he was asked for

an explanation of what he had done. In my opinion, he was under a duty to

inform his Board that a Cabinet Minister had placed him under inappropriate

pressure. He should have done so. This was particularly so when his

connection with Ms Louw had become a matter of public controversy and

speculation.

165. When the anonymous e-mails were sent to persons on the PIC e-mail

address list making serious allegations about particularly the CEO and to a

lesser extent the CFO, the PIC Board did not properly investigate the

matter. After receiving a report from Dr Matjila, it pronounced itself

completely satisfied with his explanation of the transactions with MST, and

requested the Head of Internal Audit to carry out an internal “verification”

process which it stated was not to be a forensic investigation. Internal Audit

reported, correctly in my opinion, that the policies and procedures had been

complied with, and complete information had been provided in this regard.

166. The PIC Board did not properly investigate the public allegations with

regard to Dr Matjila’s relationship with Ms Louw, and Dr Matjila’s request to

Mr Mulaudzi to provide financial assistance to Ms Louw. It contented itself

with an oral report by the Head of Internal Audit on a brief interview he had

with Dr Matjila, and a telephonic interview which he had with Mr Mulaudzi.

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167. After its meeting on 15 September 2017, the PIC Board issued a statement

in which it expressed its confidence in the ability and integrity of Dr Matjila.

It did not disclose that it had at that stage made no enquiry as to his

relationship with Ms Louw, and the request to Mr Mulaudzi to provide her

with financial assistance.

168. After its meeting on 29 September 2017, the Board of the PIC issued a

press release which stated that it had received feedback from Internal Audit

with regard to the allegations against Dr Matjila, and that it had concluded

that the allegations were baseless, and that Dr Matjila was cleared of any

wrongdoing. The Board did not disclose the limited nature of its

investigation.

169. The Board did not institute a proper investigation of this matter until after

Minister Nene, on 25 July 2018, requested it to do so.

170. The Board’s perfunctory or limited investigations into the truth of the

allegations in the emails contrast sharply with the intensive investigations

which were carried out, with the assistance of three IT companies, in an

attempt to find out who were the authors of the anonymous e-mails, and

who had been responsible for “leaks” of PIC documents.

171. The initial draft of the Minutes of the Board Meeting of 29 September 2017

differed materially from the Minutes which were ultimately approved. The
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draft Minutes reflected sharper criticism of Dr Matjila’s conduct than was

contained in the finally approved Minutes. It is not possible for me to make

any finding as to whether this was because the Board wished to “sanitise”

the Minutes. This is because the discussions at the Board Meeting were

held at an “in camera” session which was not recorded, unlike other

meetings of the board. I recommend that the Board reconsider the practice

of holding “special in camera meetings” which are not recorded. This

makes it difficult to resolve disputes which may arise (particularly in relation

to controversial matters) as to precisely what was said at the meeting, and

what was decided.

172. The Board resolved that while it trusted the bona fides of Dr Matjila in his

actions with regard to helping Ms Louw’s company, such actions could be

misconstrued, and the Board requested him not to act on his own in taking

such actions in future. It resolved that in order to avoid a situation where

management can be accused of acting improperly, it would be advisable

that management do not do not engage with clients alone. The Board

instructed the Social and Ethics Committee to look into whether a policy

could be developed to guide management in this regard.

173. In my opinion, this is not an adequate response to the problem which is

identified by these events. The PIC is an organ of state which manages the

funds of a very large number of South Africans, in an amount of R2 trillion.

It exercises considerable power through the investment decisions which it

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makes. There is a risk that the PIC function may be compromised if it

exercises its financial muscle in a manner which favours selected people, or

which is perceived as doing so. This goes to the heart of the PIC’s

functions and the need to ensure its probity and integrity. I recommend that

the PIC adopt clear rules which prohibit members of its staff from

approaching investees or would-be investees for favours, whether for

themselves or for any other person.

174. I recommend further that the PIC should develop formal supplier

development criteria for investees, where this is to be a relevant criterion for

investment, or where the PIC will require a company in which it has

invested to undertake supplier development. This issue was raised in a

number of the documents which we examined. Our recent history teaches

us that so-called “supplier development” can be used and abused as a

means of achieving patronage or corruption.

175. Finally: Members of the PIC Board have told me that in responding to the

allegations about the PIC and its senior staff as they did, they were

concerned to preserve the integrity and reputation of the PIC. I accept that.

However, I do not think it can be disputed that subsequent events have

demonstrated that the attempt to lay the matter to rest through what was in

fact a perfunctory enquiry was misguided. The rumours continued to

circulate, in particular the core allegation that Dr Matjila had favoured his

girlfriend by assisting her and her business to obtain benefits from the PIC.
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This was a serious and damaging allegation, which needed to be properly

investigated and dealt with. The enquiry which I have undertaken has

revealed that material facts were concealed from or at least not disclosed to

the Board. A proper investigation of these serious and damaging

allegations would have enabled the Board to deal with them in a manner

which better promoted public accountability and confidence in the integrity

of the PIC.

GEOFF BUDLENDER SC

Cape Town

12 October 2018
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ANNEXURE A

PUBLIC INVESTMENT CORPORATION

TERMS OF REFERENCE FOR FORENSIC INVESTIGATION INTO

ALLEGATIONS MADE AGAINST THE CHIEF EXECUTIVE AND CHIEF

FINANCIAL OFFICER OF THE PUBLIC INVESTMENT CORPORATION

1. On 25 July 2018 the Minister of Finance directed the Board of the PIC to

commission a forensic investigation into allegations that had been made

against the Chief Executive Officer and the Chief Financial Officer of the

PIC in e-mails sent to the PIC e-mail address list from an unknown source.

The Minister requested that this be initiated as a matter of urgency and that

the final report be submitted to him by 30 September 2018.

2. The Board has appointed Adv G Budlender SC as the lead for the forensic

investigation. He will be instructed by Attorney Doris Tshepe of Cheadle

Thompson and Haysom. She will be responsible for the overall

management of the forensic investigation.

3. Adv Budlender SC and Ms Tshepe will appoint an independent forensic

investigator and any other persons whose expertise and assistance are

required in order for them to be able to conduct a proper forensic

investigation.
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4. Adv Budlender and Ms Tshepe will conduct the investigation in a manner

that will ensure that those who provide it with information are not subjected

to victimisation.

5. Adv Budlender will submit a report to the Board of the PIC, which will

forthwith submit it to the Minister of Finance.

6. The report or its findings and recommendations will be made public not

more than thirty days after the report has been submitted to the Minister.

7. Adv Budlender will have the liberty, if he considers this desirable and in the

public interest, to respond in the public domain to questions which are

raised with regard to the investigation and the report.