/ 5 November 2019

She lost the battle, but won the war

She lost the battle, but won the war
Resolute: Rosemary Hunter took up the case against the Financial Services Board after she was asked to cancel pension funds despite the fact that some still had assets and people were owed money from them. (Paul Botes/M&G)



An “angry, distrustful and even vengeful woman”. This is how whistleblower Rosemary Hunter was described in an affidavit to the high court by her one-time boss, erstwhile Financial Services Board (FSB) chief executive Dube Tshidi.

The former deputy registrar of pensions can laugh it off now, recalling how her daughter wanted to make T-shirts declaring “I am with the vengeful woman”.

But even after all this time, the dig still stings.

Hunter is tall even when she is sitting down. She calls herself “ungainly”. But seated in the Sandton offices of business law firm Fasken, where she now works, you wouldn’t believe her. Her look, she suggests, was co-ordinated by her daughter.

In 2016, Hunter took the FSB to court over the likely unlawfulness of the board’s “cancellation project”, which, between 2007 and 2013, saw the deregistration of almost 7 000 dormant pension funds. She accused the FSB, now the Financial Sector Conduct Authority, of failing to exercise proper oversight in the process.

The funds were cancelled despite the fact that some of them still held assets and people were owed payments from them.

After years of costly litigation to compel the FSB to investigate all the funds that were deregistered, Hunter lost her final attempt, in the Constitutional Court, last year.

But her investigation did result in Liberty, which administers R2-billion in unclaimed benefits funds, admitting to incorrectly cancelling 130 funds, holding R100-million owed to 3 000 people. Liberty has reinstated 25 of these funds through the high court.

Hunter’s fight also became the catalyst for the Unpaid Benefits Campaign, a coalition of civil society organisations and pensioners, many of them former mineworkers, challenging large private financial companies to ensure that those who are owed money get paid.

READ MORE: Pensioners lose out to ‘greedy’ firms

More than four million pensioners are owed more than R42-billion in unpaid benefits, according to the FSB’s latest annual report.

The pension fund industry is structured to benefit corporations, leaving pensioners — who every month of their working lives gave up a portion of their earnings to secure a dignified retirement — out in the cold, a recently-released report by nonprofit organisation Open Secrets contends.

When Hunter started her job at the FSB, she knew there were some areas in need of improvement.

“But I didn’t think there was anything seriously dodgy, though of course there were some rumours,” Hunter says.

On the table next to her is a dog-eared copy of The Pension Funds Act, 1956: A Commentary, which she wrote before her legal battle with the FSB.

Hunter says that quite soon after she arrived at the FSB, she was asked to cancel the registrations of pension funds.

“And I said: ‘Well where are the supporting documents?’ You know, you expect to see a paper trail … And they couldn’t produce those documents,” she says.

The dull thud of construction work filters into the room as she speaks.

“They were quite surprised that I was asking for this. And I said: ‘But it’s my signature — I need to be satisfied. I need to know that investigations have gone on to ensure that there are no assets and liabilities.”

Hunter says she was driven by professionalism when she started looking into the cancellations project.

“But also these funds are such precious things,” she says. “I love pension funds because they are not-for-profit entities, actually. They’re vehicles for collective economic empowerment … And it’s vulnerable people’s money.”

Hunter knows that the subject of pension funds, and the legislation that governs them isn’t exactly a conversation starter.

When she started her law career in the early 1990s, the field of pension law had hardly been explored. By 1996, Hunter established the first full-time pensions and employee benefits law practice in South Africa.

It was her knowledge of the law that gave Hunter the backing to challenge the FSB’s cancellation project.

“I was fortunate enough to be confident in my understanding of the law and to know that, if I was kicked out, I can go back to a practice. Whereas a lot of people [at the FSB] are much more vulnerable.”

Hunter says that, though the process was hard, costing her millions in legal fees and lost earnings, “it was inconceivable that I could not do what I did”.

“I could not have done otherwise. I wouldn’t have been able to sleep at night. I don’t know how people — who can afford to blow the whistle and don’t — live with themselves.”

But she was surprised by the hostility from her superiors at the FSB.

Almost a year after filing a whistleblowing report to the FSB board alleging the mishandling of the deregistration process, Hunter filed a second report detailing the steps allegedly taken by Tshidi to frustrate her investigation and force her to resign.

In his affidavit, Tshidi called the allegation that he tried to stop Hunter from investigating the cancellations project “vexatious”.

“I don’t like to talk about that,” Hunter says. “Because my story is so much like any other whistleblower.”

She adds: “It was exhausting, very depressing and frustrating. But, at the same time, it’s very common. And I was in a much stronger position than a lot of people … but at the time, of course it was very painful.”

The ordeal was also hard on Hunter’s family. She worked long hours, juggling her everyday work at the FSB, her investigation and working on her defence against disciplinary action brought by the FSB board. There were times Hunter feared her husband would leave her.

“My daughters were 13 and 16 and somehow they just matured into these amazing young women. And my husband held it all together.”

Hunter says one day she came home to a kitchen painted bright orange. “I thought it was hideous, but they said: ‘Shut up, because you have abdicated your rights here,’” she says, breaking out into laughter.

“They got on with it.”

She says she had to get into a zone — “I had to be focused” — especially amid threats she would be thrown into jail for releasing confidential information to the public.

“When you haven’t been in detention, you fear the worst.” (Hunter had been in detention for a week in the 1980s when she was a student.) “Whereas I knew that I was a high-profile, white woman and if they put me into jail it would be for a weekend … So I drove around with a weekend bag. Because I wasn’t scared, but a lot of people would be.”

Hunter says looking back, she does sometimes still feel angry.

“But I’m mostly angry about all the people … think of the frustration that they feel. Not just about the funds that are being cancelled but also unpaid benefits and the struggles they have to claim their money,” she says.

“That stuff really makes me furious.”