. . . But NBC’s Vatsha stands his ground
MASERU – A war of words with threats of litigation has broken out between retirement fund administration rivals, NBC Lesotho Financial Services and Akani Retirement Fund Administrators. The pair has been throwing punches at each other over allegations and counter-accusations of “corruption”, with Akani threatening to sue NBC, which has promised to “vigorously oppose” any lawsuit.
Akani has given NBC Lesotho until today to have formally apologized for the allegations leveled against Akani Retirement Fund Administrators, failing which they will launch a defamation lawsuit. This week Akani legal representatives Webber Wentzel wrote a letter of demand to NBC Lesotho’s Director Godfrey Vatsha, demanding a retraction of allegations leveled against Akani in the March 27 to April 2, 2020 issue of Public Eye, in which Vatsha accused Akani of corruption.
Akani has demanded that NBC Lesotho must run a quarter-page advert in the same platform that the article was published, Public Eye newspaper, promising to sue NBC if fails to comply.
However, a defiant Vatsha fought back in a letter of his own, informing Akani that NBC would not be apologising and that in the event that Akani sued, NBC would “vigorously oppose” any lawsuit instituted against NBC by Akani.
Both NBC and Akani are fervently competing to administer Lesotho’s almost M7 billion worth Public Officers’ Defined Contribution Pension Fund (PODCPF), after they were short-listed as the best two bidders for the tender to manage the fund.
The fresh turf war comes hot on the heels of the PODCPF Board of Directors’ last Thursday’s resolution to re-appoint NBC-Lesotho to administer the fund through a vote which saw five members endorsing NBC against Akani’s four backers.
The vote is however already facing opposition following last week’s decision by Public Officers Defined Contributions Pensions Association (PODCPA), an association of pensioners opposed to NBC-Lesotho’s appointment as the Pensions Fund administrator, to challenge the board’s vote in courts of law.
On Thursday last week, PODCPA Spokesperson Ithabeleng Phamotse, confirmed to Public Eye that the association had already instructed its legal representatives to challenge the decision by PODCPF’s Board of Directors’ to appoint NBC over Akani.
NBC has enjoyed a monopoly in administering the PODCPF since the fund’s inception in 2008 as it has consistently won the tender. It faced stiff competition from Akani when in 2019 they along with other companies decided to bid for the three-year contract and were shortlisted as the best two companies to manage the pension fund.
In its letter of demand dated March 30, 2020 addressed to Vatsha, Akani demands an apology that it says should be published in Public Eye in the form of a three-quarter advert retracting the allegations Vatsha made about its rival.
In the article, Vatsha accused Akani and Senator Futho Hoohlo, an Independent Trustee of the Pensions Fund Board, of conniving to sully NBC’s name, further referring to a lawsuit in the Northern Gauteng High Court in South Africa, in which Akani and NBC Holdings are embroiled in a legal fight over who should administer the Chemical Industries National Provident Fund (CINPF), of which he said there was an existing order of the court that authorised NBC Holdings over Akani to administer the CINPF.
The order, seen by Public Eye, authorises NBC Holdings over Akani to administer the CINPF only until the end of July, 2020, but also opens the window for CINPF to move to appeal the decision before the prescribed period lapses.
However, NBC Holding General Jayna Pancham and Executive Head Floyd Ntombela, understand the ruling to mean that Akani was corrupt, writing a letter dated March 12 to stakeholders to the effect that the court had found evidence of corruption in Akani’s conduct, which was appointed by CINPF to run the fund despite a standing contract with NBC.
“As advised, an urgent case was brought in the South Gauteng High Court in Johannesburg by concerned CINPF members to interdict NBC’s termination as fund administrators, consultants and actuaries to CINPF,” part of Pancham and Ntombela’s letter reads.
“The court handed down judgment today (12 March, 2020), having found strong evidence of corruption in the matter at hand and that the appointment of Akani was unlawful. The interdict remains in force until 31 July, 2020, unless extended by the court of its own accord or upon good cause being shown.”
It is on the premise of the above-mentioned letter and defamatory statements made by Vatsha in Public Eye’s article, that Akani demands a retraction from NBC-Lesotho, further promising to sue, to which Vatsha replied in writing on March 31 that NBC-Lesotho stood by its allegations and that it would “vigorously oppose” any lawsuit.
“Your letter dated 30 March, 2020, refers. Save to acknowledge receipt thereof, the contents of your letter are denied as if specifically traversed. The allegations bear no substance and we thus do not deal with them herein. Our failure to do so should not be construed as an acknowledgement by us of the correctness thereof,” Vatsha said.
“Further note that any application brought by your client will be vigorously opposed and an appropriate cost order sought against your client. We submit that there are no grounds for urgency in the relief being sought.
“Should an application nevertheless be brought as threatened it will also be argued that it is an abuse of the court process, more so the case given that Lesotho is in a state of national lockdown.”
In its letter, Akani referred to the interim court judgment, refuting NBC’s allegations of findings of corruption against the company, noting that Justice Vally J handed out both a written interim order and an oral judgment, which Akani says CINPF “does not agree with”.
“An interim order and oral judgment in the matter was handed down by Vally J in March 2020 (“the order” or “the judgment”). Our client does not agree with the order and the judgment and reserves all its rights in this respect,” Akani lawyers said.
Akani further discredited the letters to various contributing employers of the CINPF, alleging that the court had found Akani to be corrupt.
“It has recently come to our client’s attention that NBC Holdings (Pty) Ltd (NBC) has delivered certain letters to various contributing employers of the CINPF. The content of the letters is false and defamatory. The judgment made no findings of corruption against any of the respondents, including our client,” Webber Wentzel said.
“The assertion that the court has found the appointment of Akani to be unlawful is, to your knowledge, false and highly defamatory. In fact, the court stated in the judgment that NBC has a weak prospect of succeeding in a review of CINPF’s decision to appoint Akani.
“The letters are thus transparently and deliberately false in their assertions that the court has ‘found strong evidence of corruption in the matter at hand and that the appointment of Akani was unlawful’. They are not based on any finding made by Vally J. These statements are also defamatory.”
Akani then referred to the Public Eye article, in which Vatsha portrayed the company as corrupt, accusing him of further perpetuating “untruths and libel in the article published in the Lesotho based newspaper Public Eye written by Bongiwe Zihlangu”.
Vatsha had accused Akani of having stolen NBC Holdings’ clients and being an insignificant industry player with “no track record in South Africa”, which Akani furiously refuted on grounds that Akani managed several funds, the biggest of which was four times the size of CINPF.
“Almost every statement by Mr Vatsha is, knowingly, false and is clearly defamatory. Our client is not corrupt and there has been no finding of corruption. Our client is not an insignificant retirement fund administrator without track record in South Africa; it manages several funds, the biggest of which is approximately four times the size of the CINPF, and has been doing so for the better part of two decades,” Webber Wentzel noted.
Webber Wentzel again denied allegations propagated by NBC that Akani had lost the licence to operate in eSwatini, arguing that the company referred thereto, was the Akani Swaziland Retirement Fund Administrators (Pty) Ltd with different directors to South Africa’s Akani.
“Our client has not lost its FSP license in eSwatini due to instances of fraud and corruption (or for any other reason); our client never had any licence, and has not traded, in eSwatini at all.
“An entirely different entity, Akani Swaziland Retirement Fund Administrators (Pty) Ltd. In any event, ASRFA withdrew from the eSwatini market in or about January 2012 of its own accord and there were never findings of impropriety against it at that time or to date,” Webber Wentzel said.
Akani’s lawyers also put it to NBC Holdings that it was the insurance company that bankrolled eight CINPF members to institute a lawsuit opposing Akani’s appointment over NBC.
Also, the suggestion that the eight CINPF members (out of thousands) have, of their own initiative, brought the proceedings cannot seriously be credited. It is clear that it is NBC which has, directly or indirectly through intermediaries such as the former general secretary of the Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union, Mr Simon Mofokeng, organised, encouraged and incited these members to bring the proceedings and is bankrolling their litigation,” Webber Wentzel said.
“We invite NBC (including each of its officers) to give a full account, by no later than 14 April, 2020, of the interaction which NBC and officers had with these eight members and Mr Mofokeng from November 2019 to date.
“The defamatory statements in the letters and the article are severely harmful to our client and do, and are intended to, diminish the esteem in which our client is held by others.”
Additionally, Webber Wentzel lamented that NBC’s allegations were detrimental to their image hence they demanded an unconditional retraction of the allegations by NBC-Lesotho and NBC Holdings by today or else expect a lawsuit.
“The statements have impaired and continue to impair our client’s goodwill and are causing our client significant pecuniary harm. Our client thus demands a retraction by no later than 3 April, 2020. NBC and NBC Lesotho shall unconditionally withdraw all the defamatory statements in the letters and the article, and issue an apology for the defamatory statements published,” Webber Wentzel said.
“The unconditional withdrawal and apology shall be published by way of letters to the same parties to whom the letters were sent and shall also be published by way of a quarter page advert in the Public Eye newspaper. NBC and NBC Lesotho must undertake to desist from making any further defamatory statements of the kind set forth in the letters and the article.”
Webber Wentzel added: “If NBC and NBC Lesotho do not comply with the above demand, our client will have no option but to seek urgent relief. Our client reserves all its rights to claim any further relief in relation to NBC and NBC Lesotho’s unlawful conduct in due course.”
There developments follow a February 26 Independent Trustee PODCPF Board, former Senator Futho Hoohlo, letter to Minister of Finance, Dr Moeketsi Majoro, seeking the minister’s intervention to address outstanding issues before the Board could appoint either Akani or NBC Lesotho to administer the multi-billion fund.
Hoohlo’s letter ignited the anger of NBC Lesotho director, Vatsha, who sought to discredit its contents, further linking Hoohlo to Akani and labelling them co-conspirators in dragging the NBC name through the mud. According to Vatsha, assertions contained in Hoohlo’s letter about NBC Holdings losing clients were false and that the lies were being spread by their adversary Akani, which he described as corrupt.