African Human Rights CLA 2.0

335/06 Dabalorivhuwa Patriotic Front v the Republic of South Africa Communication 335/2006- Dabalorivhuwa Patriotic Front v the Republic of South Africa1 Summary of the Complaint 1. The Secretariat of the African Commission on Human and Peoples' Rights (the Secretariat) received this Communication on 19 December 2006, pursuant to Article 55 of the African Charter on Human and Peoples' Rights (the African Charter or the Charter). 2. The Complainants are Mr. Tshifhiwa Samuel Makhale, the President of Dabalorivhuwa Patriotic Front (DPF), and the DPF. The Communication is brought against the Republic of South Africa, alleging violation of the basic indigenous and labour rights of the Vhavenda people. 3. The Venda people are from Venda (presently part of South Africa), which had the status of a self-governing state as at 1979. It is alleged that the Venda Government, passed the Venda Government Service Pension Act 4 of 1979, dealing with retirement benefits for male and female employees. 4. The Complainants allege that for the purpose of implementing the Act, provision was made for the establishment, control and administration of a pension fund for permanent employees and for a Superannuation Fund for temporary employees and married women. The former fund was known as the Venda Government Service Pension Fund while the latter was named the Venda Government Service Superannuation Fund. They are however both referred to as the "Venda Pension Fund" in this Communication. 5. It is further alleged that the pension fund was better funded than any other pension fund in the Republic of South Africa, compared to other homeland funds and the fund of the Apartheid National Government of South Africa. However due to a coup by the Venda military, a new government headed by Brigadier Gabriel Ramushwana replaced the old government and a Council of National Unity took control of the Venda Government. 6. The new government brought an amendment to the Venda Pension Fund Act on 14 February 1992, by way of Proclamation 2 of 1992, by the insertion of a Section 10A. This Section provided that any active member of the pension fund, whose pensionable emoluments exceeded an amount, as determined from time to time by the Director General for the Department of Finance and Economic Affairs, would have the right to elect to have his accrued benefit transferred in his name to a private investment plan providing retirement benefits. It further provided that on payment or transfer of a person's accrued benefit and interest thereon, such person's membership of the pension fund would be regarded as terminated. This is regarded as the "first privatisation scheme". 7. The Complainants state that this first privatisation scheme was amended in April 1992 providing that members having exercised their option to withdraw shall automatically rejoin the existing pension fund as a new member. After a number of members elected to participate in the privatisation scheme, it was officially suspended on September 1992, in terms of Proclamation 20 of 1992, by the erstwhile Government of Venda. This was due to a mass action by civil servants who objected to the fact that the younger members of the fund, whose emoluments were below the amount determined by the Director General, were being disadvantaged in the privatisation process. 8. The Complainants state that a Commission of Enquiry was appointed. The report of the Commission, dated 31 May 1993, revealed that the more senior members were gaining an unfair advantage over the junior/younger ones to the detriment of the latter. 9. The Complainants state that a new Proclamation was subsequently published by the Council of National Unity, on 28 June 1993 amending the first privatisation scheme in Section 10(A)(1). The new Section 10(A) (1) provided that all active members of the pension fund were given the right to elect that his or her "actuarial share"2 of the fund be transferred by means of a lump sum payment for his or her benefit in his or her name to any investment plan or be paid to him or her free of tax. This is referred to as the "second privatisation scheme". 10. The Complainants state that Section 7 of Proclamation 9 of 1993, provided that "payment of benefits shall be made in accordance with the revised actuarial formula which shall be based on parameters that are consistent with the valuation to be performed by an independent actuary", which revised formula "shall 1