Tongaat Hulett pensioners fight back

Despite being slapped down by the Durban High Court, 83 Tongaat Hulett pensioners are not taking it lying down.

The pensioners, who believe that they are due a R363.2 million pay-out from the company, are now taking their case to the Supreme Court of Appeal in Bloemfontein.

Last December the pensioners had their hopes dashed when Justice P Koen ruled that they were not entitled to a R356,2 million award, bringing what looked like the end of the road for the four-year long legal battle between the pensioners and the North Coast sugar and industrial group.

Former directors of Tongaat Hulett-owned subsidiaries Bruce Moor and Willem Hazewindus, representing the group of pensioners – and in the case of some who have died, their widows – believed that a ‘surplus’ amount of money following the splitting off of Hulamin from the group should have gone to the group’s 2300 pensioners instead of back to the company.

Moor and Hazewindus, who had both been members of the pension scheme board of trustees, were suspicious when the TH Group laid claim to the R363,2 million, being 20% of a R1.8bn surplus following the winding up of the TH Pension Fund in 2007.

However, in a turn of events that has made the group upbeat again, their lawyers and senior counsel Wim Trengrove believe Judge Koen was wrong and that they have a strong case to put before the appeal court.

The judge also awarded costs against the pensioners because, he said, their case had been ‘self-serving’.

This week Moor said the judge had been wrong, as they had not started on the legal process purely in their own interests.

“We have acted in accordance with our moral consciences, and as a matter of principle, against what we believe to be the unjust transfer of the entire actuarial surplus in the Fund to the benefit of the employer.

“As such, our action is undertaken on behalf of all the members – in-service and pensioners – whom we had represented as trustees. Of these, 77 pensioners who knew of our complaint to the Adjudicator agreed to be named as active supporters in our complaint.

“Support has continued since then and, with some deaths and additions, we are currently supported by 83 pensioners.

“We have never asked for financial assistance from these, but a total of 54 who were in a position to assist have voluntarily contributed R529 169 to the costs. Total costs up to the Judge Koen’s judgement were approximately R 2.6 million. Willem and I have therefore born the balance of around R2 million.”

Even if the whole R363.2 million was awarded to members, Moor and Hazewindus’ shares would be less than R600 000 each.

They have also put their hands in their pockets for the extra R180 000 for senior counsel’s advice.

In a turn of good fortune for the pensioners, their lawyers have agreed to be paid on a “pro bono contingency agreement” – that is, that they will only be paid in the event that the pensioners are successful on appeal and a costs order is granted in their favour.

Moor said papers would be filed with the Appeal Court within a few weeks and he expects the case to be heard in the first half of next year.

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