The Public Investment Corporation (PIC) says it was owed R709,839,328.45 by Iqbal Survé’s Sekunjalo Independent Media (SIM) as of 31 May 2020.
This debt stems from the PIC’s funding of SIM’s takeover of the Independent Media group in 2013.
With punitive interest that would easily be more than R800-million by now, which really belongs to the Government Employees Pension Fund (GEPF), managed by the PIC.
There is only one problem: SIM claims that the debt does not exist. And even if it does exist, it ranks so far behind other large debts that in practice it will never have to be repaid.
SIM might very well be right, thanks to the actions of Dr Dan Matjila, the PIC’s former chief executive, outlined in court papers recently obtained by amaBhungane.
The documents show that after dragging SIM to court with a liquidation application in November 2019, the PIC was stumped when Survé surprised them with a secret agreement, signed by Matjila in December 2017.
It was a so-called “subordination agreement” annexed to SIM’s responding papers and it showed Matjila had made astonishing concessions to SIM, which drastically weakened the PIC’s position.
The agreement states:
“In order to assist the Company the Creditor agrees… to subordinate for the benefit of the other creditors of the Company, both present and future, so much of its claims, liabilities and obligations of whatsoever nature and however arising against the Company as would enable the claims of such other creditors to be paid in full.”
If SIM were ever to be liquidated the PIC “will not prove or tender to prove a claim in respect of its subordinated claim, which proof would reduce or diminish any dividend payable to other creditors”.
Due to a roughly R1-billion debt owed to Chinese funder Interacom by SIM — which is effectively broke — a subordination agreement in practice extinguishes the PIC’s claim because the Chinese would be paid out in full before the PIC got a cent.
Another clause reads:
“… no shareholder of the Creditor shall take or enforce any action arising from any event of default howsoever arising against the company.”
In other words, the PIC is effectively banned from taking legal action to protect its rights.
The crowning blow
Then there is the clincher. The subordination will in effect be permanent.
“The Creditor hereby agrees that, until such time as the assets of the Company, as fairly valued, exceed its liabilities as fairly valued … it shall not be entitled to demand or sue for or accept repayment of the whole or any part of the said amount owing to it …”
So if the agreement stands, the PIC has no claim on the money it is owed unless SIM somehow reverses its hopeless insolvency.
The papers also claim the existence of this agreement came as a shock to the PIC.
In June last year the PIC, under new leadership, launched another court application to claim back the money from SIM — this time including an attempt to quash the Matjila agreement.
In its particulars of the claim, the PIC states:
“Before SIM annexed the Subordination Agreement to an answering affidavit delivered relating to an application issued by the GEPF against SIM to place the latter in winding-up… the PIC (alternatively the GEPF) had no knowledge of the existence of this Subordination Agreement.”
The subordination agreement adds to the litany of claims that Matjila repeatedly prejudiced the pension fund to make deals that favoured Survé.
This agreement accompanied an equally hard-to-justify “Share and Claims Sale Agreement” that amaBhungane has previously reported on here.
How ex-PIC boss Dan Matjila swallowed Iqbal Survé’s Indy lemon
Both these agreements were tied to the failed listing on the JSE of Survé’s “African unicorn”, Sagarmatha Technologies, in which the PIC was set to sink billions of rands.
AmaBhungane has also recently reported on how the South African Clothing and Textile Workers Union (Sactwu), another funder of the 2013 SIM takeover of Independent, finds itself in the same bind as the PIC.
Like Matjila, Sactwu general secretary Andre Kriel was persuaded to sign the same subordination and claim sale agreements.
A rush to sign off
The PIC court papers show how Matjila rushed to sign off on the Sagarmatha deal alongside the share-and-claims and subordination deals with Survé before the PIC’s relevant investment committee could even formally consider it.
As it turns out the committee rejected the deal — not knowing Matjila had already signed it, endangering hundreds of millions of rands belonging to government pensioners.
A major chunk of the debt related to the 2013 Independent deal was due for repayment in August 2018, but it was clear much earlier that there would be a default.
According to the court papers, between August and September 2017 SIM started having meetings with the PIC about “the GEPF’s exit strategy from its investments in SIM and Independent Media; and/or a potential investment opportunity in the subsidiary company [ie Sagarmatha] that Sekunjalo Holdings intended to list on a recognised stock exchange”.
The deal Survé had in mind was that the PIC would give up its loan claims, as well as its shares in SIM and in Independent itself, in exchange for Sagarmatha shares.
These Sagarmatha shares would allegedly be worth R1.5-billion, but this figure was based on a valuation provided by Survé’s own company.
This neat escape trick was captured in a Survé letter to Matjila dated 14 September 2017 asking him simply to personally sign off on the deal: “Please accept this offer by countersigning in the space provided below, upon which a binding agreement will come into existence.”
At this point Survé was already making outlandish claims about the international interest in his supposed technology venture, which largely consisted of a bailout for Independent:
“We are pleased to announce that Sagarmatha has also attracted to its advisory board and as shareholders, technology billionaires from the USA, Holland, China, Singapore and India.
Sagarmatha will more than likely have at its listing some of the world’s prominent technology billionaire investors as shareholders and as members of its international advisory board, signalling a significant vote of confidence in Sagarmatha.”
amaBhungane has previously reported on how Survé’s claims about his company were about as real as the African unicorn. (Unicorn is a colloquialism for a technology startup worth more than a billion dollars.)
Following Survé’s daring gambit to have Matjila sign off without further ado, the Johannesburg Stock Exchange apparently raised unspecified concerns (it would later be the JSE itself that scuppered the Sagarmatha listing, months later).
A second letter dated 1 December 2017 was sent by Survé to Matjila.
“Subsequent to comments received from the Johannesburg Stock Exchange (JSE) in relation to the Original Offer Letter, we hereby substitute and replace the Original Offer Letter with this offer letter and the contents hereof in order to address the concerns of the JSE.”
This time around the offer at least contained some of the normal checks and balances one would expect in a deal purportedly worth R1.5-billion.
This included the condition that “each party acquires the necessary approvals for them to enter into the Sale Agreement”.
For the PIC, that condition would be the consideration of the proposal by its Private Equity, Priority Sector and Small Medium Enterprise Fund Investment Panel.
This investment panel did meet to consider the Sekunjalo proposal a few days after Survé’s letter — on 6 December.
It roundly rejected the core basis of the deal: getting paid in Sagarmatha shares of doubtful value. Sekunjalo claimed the shares were worth R39.62 each. The PIC’s internal research came up with a value of R7.06.
Instead of these shares, the panel insisted on a cash payment for the GEPF’s “exit” from Independent. The panel would also not make a commitment to investing in Sagarmatha.
For all practical purposes, these conditions amounted to a wholesale rejection of the deal.
But not for Dr Dan.
Unbeknown to his colleagues, Matjila had already signed Sekunjalo’s offer on 1 December, the day it arrived in the mail.
Still acting alone and, according to the court papers “without any authority, unlawfully alleging to represent the GEPF”, Matjila signed the full Share and Claims Sale Agreement on 13 December, heedless of the committee’s decision.
The secret subordination agreement, which cut off exit from the Sagarmatha pipedream, is not properly dated, but a signed copy is included in the court papers.
The PIC’s arguments to repudiate the subordination deal are based on Matjila’s alleged lack of authority to make investment decisions of this magnitude without jumping through any number of hoops involving the investment panel and other executives. None of that happened and no due diligence was done, claims the PIC.
Matjila told amaBhungane that he was unaware of this latest litigation between the PIC and SIM until amaBhungane brought it to his attention.
“For the record, though it is important for me to record that I have never acted outside the company mandate and delegated authority whilst I was the Chief Executive of the PIC [and that] I had no pre-existing relationship with Dr Survé, whom I have only met in the course of my work at PIC, like many other investors and PIC clients.”
See Matjila’s full response here.
In testimony before the Mpati commission of inquiry in July 2019, Matjila had said that “there was a continuous engagement with Dr Survé and the reason for this was not because of friendship per se, but I and my colleagues were worried that the PIC was increasingly exposed to high risk”.
Survé told other PIC employees that he considers Matjila a “good friend”, according to other testimony at the commission.
No escape?
The PIC is trying to wriggle out of the Share and Claims Sale Agreement on two bases. One is that Matjila had no power to sign it. The agreement should also not be read to force the PIC into trading its claims on and shares in Independent and SIM for useless Sagarmatha shares.
The agreement was explicitly tied to the Sagarmatha listing. The “effective date” at which the share swap was deemed to happen was, according to the agreement, the day that an announcement was made on the JSE’s Sens news service, indicating how many shares are getting listed on the exchange.
That announcement went out on 28 March 2018, even though the listing ultimately failed.
Nothing in the agreement, however, said that it was conditional on the listing succeeding — even if that seems like an obvious inference.
The PIC is arguing that the agreement must be read to imply, “that the sale and exchange… would only be implemented upon the successful listing of Sagarmatha’s ordinary shares on the JSE (“Listing”) within a reasonable time after the signing of the [agreement]”.
The subordination agreement is different. It makes no explicit reference to the Sagarmatha listing at all.
After the listing fell away, the subordination agreement appears to remain in force, unless SIM’s hopeless financial state is dramatically reversed and “the assets of the Company, as fairly valued, exceed its liabilities as fairly valued”.
Here the PIC’s argument is that Matjila had no authority to sign the deal without going through the PIC’s checks and balances.
Same old story
The listing of Sagarmatha was a transparent attempt to bail out SIM and Independent Media by having the PIC forgive its debt and, in addition, invest several billion rands more.
It would have been the culmination of a series of increasingly generous PIC investments in Survé companies that started with the listing on the JSE of Premier Fishing in March 2017.
The fishing company was 100% owned by African Equity Empowerment Investments (AEEI), which is Survé’s main investment vehicle. For the listing, it sold 45% of the company with 23.75% going to the PIC for R278-million.
The manoeuvres to help SIM escape its debt obligations in December 2017 coincided with Matjila’s even more damaging actions in relation to the listings of Survé’s AYO Technology Solutions that same month.
Once again he allegedly circumvented the PIC’s internal processes in order to invest a staggering R4.3-billion in AYO. As with Sagarmatha, the AYO shares Matjila made the PIC buy were grossly overvalued.
In the AYO case, the investment was forced through with Matjila allegedly signing an “irrevocable agreement” to make the investment on 14 December, two weeks after sealing the irregular SIM deal and a mere day after signing the share-and-claims agreement. This signature again predated a formal consideration of the deal by the PIC a week later.
The PIC is also trying to get its money back from AYO, again relying on the argument that Matjila had gone rogue. DM
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Mind blowing – yes. Surprising – no.
It’s time to get angry government employees. Make sure justice is done – this money is your families’ future.
You, rightfully in my opinion, would like to see justice done in this case.
But you would not like Ramaphosa’s dishonest behaviour and his habit of putting party before country to be questioned.
This illustrates the futility of compromise. Who decides where these arbitrary lines are drawn, where justice should sometimes be seen to be done and at other times not? Who decides which crimes are not in the interest of the country and should therefore be punished, and which ones are in the interest of the country, and should therefore best be ignored? You?
If it is not formalised in some way, whereby CR’s actions (or inaction) are somehow given some kind of immunity, or whereby it is formally decided which types of crime warrant investigation and prosecution and which don’t, for whatever reason, compromise will in my opinion simply not work.
Let justice prevail and be seen to be done in all cases, especially at the highest level. And then let the dice fall as they may.
I believe that seeking truth and justice, in all cases, even the uncomfortable ones, provides the only way in which we can truly rid ourselves of our past and get out of our current predicament. Anything less than that, if it works at all, which is highly debatable, simply sets us up for the next disaster.
I think not a cost to the government employees but us sucker Tax Payers.
The GEPF is a defined benefit pension fund meaning the benefit is guaranteed to the +1,2mio employees and the 0,4mio beneficiaries and their dependents. So any shortfall in the fund based on actuarial valuation is paid by the current and future taxpayers.
Surely paid by the State employees, not the tax payers? Did the PIC boss actually sign these documents? Why? Can he not read? What is he a doctor of?
They loot pensioners, old people in stokvels, everyone is fair game.
And talking about bad investment decisions, our government sinks our money into SAA.
Just as no elite politician will use the public health system, not one MP would out his own money into SAA .
Very safe to bet that Dan had none of his own cash in Surve businesses.
Collusion, surely. If so that would make both individuals, Drs Matjila & Survé, guilty.
No surprise. It was Mr. Matjila that made the news in 2014 around shale gas. He had decided that the PIC would be a big player.
“The intention to invest in shale gas by the PIC, which manages 1.4 trillion rand of South African public employee retirement funds, is the latest signal of the government’s commitment to developing a potential new supply of energy for Africa’s largest economy.
“Shale will be a game changer here and we will be the biggest investor,” Dan Matjila told Reuters on the sidelines of a listing event at the Johannesburg stock exchange.
“There is no doubt that we will want to participate in these shale projects,” he said.
Go figure.
The most pertinent fact overlooked is that the GEC is a defined benefit fund and any shortfall in assets (defined by the Valuator) over liability must be brought into balance by the employer (state) or by aggressive investment returns. This shortfall must be paid out of tax payer revenue, so once again the losses will fall on the public. Trust in and by these trustees is becoming a rare comodity.
Why are we not seeing any convictions? Court case after court case, bail after bail paid, excuses after excuses….then …. nothing! Just ongoing meaningless arguments about procedure. Delay delay delay! Until when, one has to wonder? The next election? The end of Covid? The end of the world? In the meantime SA’s credibility is sinking lower and lower, taxes will rise higher and higher. Those that live by the laws of the land will be futher marginalized and those that don’t will walk away scot free. Very very depressing.
Pretty much sums up what I was going to comment.
There is unfortunately a simple answer as expounded by composer and singer Alan Price.
We all want justice but you got to have the money to buy it
You’d have to be a fool to close your eyes and deny it
There’s a lot of poor people who are walking the streets of my town
Too blind to see that justice is used to do them right down
All life from beginning to end
You pay your monthly installments
Next to health is wealth
And only wealth will buy you justice.
Time to go after Dan Matjila’s royal pension and payouts from the PIC. A good example of Cadre deployment at it’s worst!
dan matjila should already be rotting in jail, but no – he is an anc cadre deployee, so nothing for him to worry about.
After Dan Matjila, they must recover payments to Brian Molefe for looting and mismanagement of the PIC.
surely the good Dr broke some sort of ethical or legal obligation to safeguard the interests of his employer and can be charged ?
I doubt he also did it for love
Whote collar criminals protected by the law? I smell donkey pooh. Pure and simple.
Much worse than donkey poo, try seal poo- something fishy and rotting.
So what did this AH get a doctorate in? How to steal while proclaiming innocence?
Will the people see justice when Jesus returns and the ANC falls?
Guys like Iqbal and Matjila : do they have normal social and business relationships? Even their mothers know their sons are lower than pond scum, so what odds anybody would choose to play golf with them.
Or sell them a car? Or feed them at their restaurant? Or take their money for a nice suit? Or holiday? Or allow them to bank with you?
Its a hard one. Some need the turnover. I won’t judge anyone for taking his money, it may be the sweetest revenge? I just would like to think I could do without it.
I agree, William. I don’t believe that I could in good conscience take their money.
The ANC’s money troubles do not bode well for many businesses.
I suspect that the number of luxury super car dealerships that will close down in the near future, will be proportional to the success of anti-corruption efforts. And then there are the importers of luxury liquors, tailors of luxury evening wear, all those rooms in 5+ star hotel rooms that will be standing empty more often, etc.
Hopefully the money will instead start flowing in the direction of desperately needed public spending instead of to the businesses that have raked in the public cash in this roundabout way.
I’m not holding my breath yet, but I remain hopeful.
The SA public that is informed and aware of these goings on have had enough of the government’s ineptitude.
This in my opinion may encourage angry pensioners to take the law into their own hand. As wrong as it is the general public would rejoice at any action taken against those two despicable humans.
Instead a hero like Bibita Deokaran is murdered to protect the likes of these two low life humans. I am angry !!!
You have every right to be angry. Even single day we get more and more bad news and that’s after CR promised to stamp this out. Is there really so little respect for him in the crooked empire and yet we’re expected to think that he’s on the right path. If this persists then there really is no future for this country.
Please stop referring to Surve as a “mogul”. These allegations show he is nothing but a common thief
Questions I want to ask are: 1. Was there external political pressure from the ANC on Matjila to provide the funds? And, 2. Did the ANC receive any kick-backs out of the deal?
Very, very pertinent questions.
Very pertinent. Now that the taps have run out they cannot pay salaries. Its obvious that the ANC is funded almost purely by theft.
And yet many of us keep subscribing to the the newspapers published by Surve’s Independent Group and by so doing keep these, what appear to be, illegally funded publications in business.
Once proud publications, many that have been around for over 100 years, now sullied by Surve and his questionable operating methods, not to mention poor levels of reporting, and too often used to defend and/or promote his businesses, or Surve personally.
I cannot see any difference between what he has done and what the Guptas’ were able to achieve by aligning with political figures with questionable morals. I ask again, why do so many people subscribe to his news publications – something, I believe, he personally sees as tacit support for him and his actions?
My best guess is that this buffoon (a cadre deployment obviously) had no idea of the implications of signing a subordination agreement and was no doubt told by his “friend” not to worry its “just a piece of paper” needed for some obscure borrowing transaction. How do they keep voting for these incompetents is anyone’s guess.
You cannot be head of the PIC and not understand the implications for the pension fund of that subordination. That also brings to mind the professional liability of the lawyer that drafted that agreement
With the ANC in charge I think you can be the head of the PIC and not understand the implications of such an agreement!!!! My point really is that he thought it was OK because his friend said it was OK.. Sadly they don’t know that they don’t know.
The million dollar question is how much did Matjila get for his prompt signature? No wonder the ANC is sending out crowdfunding requests. The kitty is empty so will be interesting to see what other schemes they get up to fleece more taxpayers money and what’s going to happen when the GE’s want to retire?
Why is Matjila not in jail already? Or his bank accounts frozen and his house, cars, jewelery etc sold off? How long do the poor people have to suffer because of this greed and stealing? Are there no honest public servant or mininster anymore?
Has this person been measured for an orange overall yet?
There’s no need for the GEPF pensioners to worry…as long as there’s a tax payer left standing who can pick up the tab for this endless litany of pure thievery! And when the tax payer is no more… well, then the trough is empty comrades … mad and sad 😡 😞
Outstanding investigative journalism non the less…
Critical Question. Look this up carefully:
Did (ex) CEO Matjila have the authority to subordinate PIC’s loan. Highly unlikely! So he is acting ultra vires, hence Subordination Agreement is NULL AND VOID!!! Look it uo, i have a detailed busuness law background : there us very little probability Matjila had that authority without BOD APPROVAL! Thank me later… for the benefit of destitute GEPF pensionets! Sunil Shah