A push to freeze former Investigating Directorate Against Corruption head Andrea Johnson’s pension faces a legal hurdle, with government insiders warning that allegations alone cannot justify withholding retirement benefits.
Government insiders informed Sunday World that a written request from the camp of SAPS crime intelligence head Lt-Gen Dumisani Khumalo was sent to the National Director of Public Prosecutions after Johnson resigned following her appearance before the Madlanga commission.
The newspaper could not independently verify that the request had been received.
A government official with knowledge of the matter said any attempt to freeze Johnson’s benefits would have to be based on a specific legal claim and not merely allegations.
“The first question is: What is the legal basis?” the official said.
They said the state would have to show that Johnson’s alleged conduct caused a financial loss for which she could be held personally liable.
Johnson has faced allegations before the Madlanga commission that she abused her powers by pursuing criminal charges against Khumalo and other senior SAPS officials. Khumalo’s camp has reportedly sought intervention to prevent her from accessing her pension benefits.
But the official said the government could not simply instruct a pension fund to wit hold the money.
“If someone wants that outcome, they should go to court.”
Pension law allows an employer, including an organ of state, to recover financial losses from an employee’s pension in certain circumstances. Section 37D of the Pension Funds Act permits deductions where an employer suffers losses caused by misconduct involving theft, fraud, dishonesty or corruption. The employer generally requires a court judgment or an admission of liability.
The official said evidence of wrongdoing and a potential financial claim would, therefore, be necessary before a court could be approached.
“You have to establish grounds. You must have proof.Then you go to a judge or magistrate and say: ‘I want to freeze this because I am investigating this matter and there is evidence that this person may be liable for repayment.’ Then the judge looks at it and decides.”
The official warned that allowing allegations alone to justify freezing pension benefits would set a dangerous precedent. “If we allow something like that, anybody can write to us and say there is a case and freeze this person’s pension. It becomes a slippery slope.”
State institutions have increasingly sought to hold officials personally liable for financial losses. The Special Investigating Unit (SIU) has obtained preservation orders preventing officials from accessing pension benefits while civil recovery cases are under way.
The official said the cases were supported by investigations and evidence linking the officials to financial losses.
“Even with the SIU, when freezing the pensions of people, it was because there were investigators and proof already that the money went to them.
“If the case says you have not done anything wrong, the funds go back to you. But if the case says there is something to claim, the SIU then claims it.”
The official also cautioned that testimony before the Madlanga commission did not amount to final findings against Johnson.
“The Madlanga commission has not made up its mind. Those are the things that will be in the report. We have to wait for Madlanga to say: ‘I have listened to all of this, evaluated all the evidence, and these are the facts.’”
NPA spokesperson Kaizer Kganyago had not responded at the time of publication.
- A request was reportedly sent by the camp of Lt-Gen Dumisani Khumalo to the National Director of Public Prosecutions to freeze Andrea Johnson's pension after her resignation post-Madlanga commission appearance.
- Government officials stated that pension benefits cannot be frozen based solely on allegations without a specific legal claim or proof of financial loss caused by the employee's misconduct.
- Section 37D of the Pension Funds Act allows deductions from an employee's pension only if there is a court judgment or admission of liability related to theft, fraud, dishonesty, or corruption.
- The government official emphasized that allegations alone cannot justify freezing pensions as it would lead to dangerous precedents allowing indiscriminate pension freezes.
- Testimony before the Madlanga commission does not constitute final findings, and the commission's report will provide an official determination regarding Johnson's conduct.
