Gupta-linked fund manager on its deathbed

Pension fund turns to courts to reclaim hundreds of millions

Nearly half-a-billion rand in retirement funds belonging to thousands of Transnet workers landed up in the bank accounts of Gupta-linked companies, including a Bank of Baroda account, and the funds are believed to have been used to buy Optimum Coal Mine.

The Guptas’ purchase of Optimum has been steeped in controversy, with this new information adding to it.

The employees’ pension fund has approached the courts in a bid to force Gupta-linked Trillian and its director, Eric Wood — and other companies — to repay more than R300-million, plus interest, it says it is owed.

The Transnet Second Defined Benefit Fund, which has 51 000 members, is the first state-linked institution to take legal action against Gupta associates accused of being involved in attempts to capture the state for commercial benefit.

Seeking R1-billion from Trillian

Eskom announced on Thursday that it would be seeking R1-billion from Trillian and McKinsey, but the power utility stopped short of saying if it would approach the courts to get the money back.

The Transnet employees’ pension fund is hauling the embattled Wood, alongside Regiments Capital and its directors, Litha Nyhonyha and Niven Pillay, to court.

Kuben Moodley, a Gupta associate and former special adviser to Mineral Resources Minister Mosebenzi Zwane, and his company, Albatime, are also cited as respondents in a case lodged by the pension fund at the High Court in Johannesburg.

Some of the employees on the fund are retired and have been receiving pensions since November 1 2000.

Papers filed by Moeti Kanyane, of Gildenhuys Malatji Inc, in August on behalf of the pension fund state that the fund accused Regiments of making unlawful payments of more than R500-million from the fund’s account to Trillian and Albatime between December 2015 and April 2016.

The fund entered a contract with Regiments in August 2014 to manage a portfolio of its assets and invest on its behalf. The contract was terminated on September 30 2016.

State of Capture account pops up

The fund says in its court application that Regiments was given full “powers, without prior approval or consent from the fund, to deal with the portfolio in whatever manner it deemed necessary or appropriate in order to achieve the fund’s investment objectives”.

Regiments went on to make payments to Trillian and Albatime — even though the fund had no contract or obligation to make any payments to either party.

In addition, it is alleged that payments of R1.6-million and R42-million were made on or about December 4 2015, three days “before invoices were issued”.

Albatime was paid R50-million between December 4 2015 and April 14 2016. Of that, R42-million was paid by Regiments into a Bank of Baroda account number 1454095326 — the same account former public protector Thuli Madonsela flagged in her State of Capture report as having been used to raise funds for Gupta company Tegeta to buy Optimum.

Transnet said it only became aware of the payments after being alerted by the pension fund. “No payments were authorised by Mr Garry Pita or anyone at Transnet to pay Trillian,” it said.

However, this was contradicted by a letter, seen by the Sunday Times, written by Pita, who is Transnet’s chief financial officer, to the pension fund in August last year.

In the letter, Pita confirmed that the transaction had been properly authorised, as well as all fees due to Trillian.

“The fund has merely facilitated the payment of these fees, in the same way that banks would have facilitated,” read the letter.

The Sunday Times understands that a legal opinion was obtained in July last year, which confirmed that Regiments was entitled — without prior approval from its client — to deal with the portfolio in any manner to achieve investment objectives.

Nyhonyha, Regiments’ executive chairman, said the company was unable to respond to questions due to confidentiality.

“However, we will say that we are confident that the claims against us are without any merit and, if the matter proceeds, we will defend the action vigourously. We have always acted in full compliance with our contractual, legal and regulatory obligations and we are extremely proud of our performance,” he said.

Pay back the money

Moodley said on Friday his company deserved all the payments it had received as it had a contract with Regiments at the time.

But the pension fund wants Wood and Trillian to pay back R179.5-million and an additional R81.5-million which, it argues, Wood, who was a Regiments director when the contract was signed, unduly and unlawfully benefited from.

“There was no legal basis for the fund to pay the Transnet transaction fees to one or more of the Trillian companies because at no time was there any contract . . . Wood was an agent of the fund under the portfolio management agreements . . . and owed the fund fiduciary duty,” said Kanyane.

Until March 1 2016, Wood worked for Regiments and was among executives who negotiated the contract between the pension fund and Regiments.

He went on to start Trillian after relations soured.