Anyone in Mamodupi Mohlala's position is bound to ruffle feathers. It goes with the territory of the Pension Funds Adjudicator. In office for almost a year, she has made some controversial rulings, attracting her share of critics.
Stepping into the shoes of Vuyani Ngalwana would intimidate most, but Mamodupi Mohlala isn't the least bit daunted. At 35, she is the youngest ombud in the country - and the first woman in her position. She is driven and has a reputation for fearlessly fighting injustice. Passionate about the upliftment of disadvantaged women, Mohlala is a trustee on the board of the Gauteng Domestic Workers' Trust and a part-time commissioner for the Commission for Conciliation, Mediation and Arbitration.
Before taking up office at the Pension Funds Adjudicator (PFA), Mohlala worked for the Independent Communications Authority of South Africa as a councillor and lectured law at the University of South Africa. She is the silent partner in Mohlala Attorneys Inc. in Johannesburg.
You matriculated at 14 and completed your Bachelor of Arts in law at 19. How did you do it? I never chose to complete matric so early. My parents were in exile and we moved around a lot as a family. I went to school in Swaziland, Lesotho, Tanzania and Zimbabwe. In each country I was assessed and eventually started moving up grades, which is how I ended up matriculating so young.
In my family, academic study was held in high regard. My father was a lecturer and my parents always encouraged us to be the best we could be. Although I toyed with the idea of being an artist or a philosopher, by the age of 12 I had decided I wanted to be a lawyer. I grew up very conscious of the political environment in South Africa and I felt the law was the best medium to correct injustices.
What were some of your first jobs?
I was an English tutor at a study centre in Harare and worked at Edgars as a training officer while I was studying.
You were born in Swaziland. When did you come to South Africa?
When Nelson Mandela was released and the African National Congress was unbanned there was no longer reason to stay in exile. I was 19 at the time.
What do you recall about the day you arrived?
It felt like I had finally arrived in the "promised land". I was finally home.
Who are your role models?
My parents. They took a stand and refused to raise their children in a society that indoctrinated them to believe they were less than others because of the colour of their skin.
My mother, as a young black girl in apartheid South Africa, dared to challenge the Bantu education system and refused to be forced into an occupation relegated to black women. While in exile she went into accounting. My dad was an exceptional man. He was born in the most rural part of Limpopo and was raised by his grandmother, along with six other siblings. He defied the odds and, instead of becoming a farm labourer, went on to earn a master's degree in economics. He worked for the European Economic Community as a senior executive and went into academia in later years.
With parents like mine, there was never a need to look for role models.
How do you deal with people who see your youth as a stumbling block?
I don't see youth as a barrier but as an advantage. If you have youth on your side, you have the advantage of more energy, you have a clear, untainted perspective, and you have a point to prove.
Did the prospect of taking over from Ngalwana intimidate you?
No, I wasn't intimidated. By the same token, I'm sure that Ngalwana wasn't intimidated about taking over from John Murphy.
If you have the necessary tools, then no job or task is too big to handle. I'm an attorney, with experience spanning a decade, and I love a challenge. I never shy away from one.
What attracted you to the job?
First, it's a challenge. You should always be looking for work that forces you beyond your boundaries. Second, by accepting this job, I've elevated the position of women and youth. If I'm successful, there will be more confidence in young women.
I was also inspired by the work Ngalwana did in this office; he made people sit up and take note of the issues associated with pension funds.
In this office, we deal with bread-and-butter issues and the results of the work are immediate; there's a direct impact to the member and the fund.
What's the backlog of cases at the PFA?
At the middle of March, we had 10 182 cases but, of those, 4 208 are from the private security sector. We receive an average of 400 complaints a month. Time is a challenge. Our office is sitting with complaints dating back to 2005.
We have 21 professionals investigating complaints and drafting determinations, but only one adjudicator to sign them off. I feel the office should have a deputy adjudicator with the powers to sign off determinations, like the FAIS ombud's office does. I've applied for this. Once we have a deputy adjudicator, I expect the process will move much faster.
How do you incentivise staff faced with challenges such as the huge backlog?
The backlog is nothing new. It existed under my predecessor, so I inherited it. The staff work with the necessary zeal and energy, and I'm sure they will continue to perform to the required levels. Also, I lead by example. If I demand hard work from my staff, I demand equally high output from myself.
We have a staff of professionals who are stimulated by having clearly identified goals and a means of achieving them.
Every January, we have participatory strategic sessions where we identify and adopt goals and strategies for the year ahead. So I believe the staff is sufficiently motivated to deal with the backlog. In addition, we have both a quarterly incentive and annual bonus in place.
When Ngalwana left the post he cited insufficient resources and a lack of support. How do you intend to address these issues?
I believe the pension funds industry needs to come to the table. Trustees should seriously consider complaints before them. For example, a member asking for his benefit statement is a complaint that can easily be resolved at fund level and should not escalate to the PFA's office. This boils down to member education. The fund should be the first port of call for such trivial issues. For this to happen, there needs to be a level of confidence and trust between the member and the fund.
Does the PFA have authority to over-rule or change decisions made by trustees, particularly in respect to benefits to a member's dependants?
Only when there has been an exceptional transgression of fund rules can the PFA replace the decision of the trustees of a pension fund.
Earlier this year, I ruled that a caregiver, who was a granny, should be given the same consideration as a natural or legal guardian. However, I didn't actually give the granny in the case access to the death benefit that was due to the minor in her care. I didn't feel this case was of a magnitude to justify me over-ruling the trustees. So I left them to exercise their own discretion, making it clear what my thoughts were on the matter.
There was controversy over your ruling regarding the application of the clean-break principle to divorce orders made prior to legislation that introduced the principle. What does this mean for divorcees?
Previously, non-member spouses were expected to wait for an infinite period of time for their share of their spouse's retirement benefit.
The Cockcroft determination means a spouse who is not a member of a pension fund is now entitled to their benefit at the date of divorce. The determination applies to all divorces, even those that occurred before September 13 last year , so long as the non-member spouse is in possession of a valid court order.
Pension funds belonging to bargaining councils and security companies now fall under your office as well as the Department of Labour. Isn't this problematic?
The biggest challenge posed by duality of jurisdiction is incoherent jurisprudential developments that do not augur well for proper pensions law jurisprudential developments . The solution would be to change the law to align the provision of the Pension Funds Act and the Labour Relations Act, as well as the Basic Conditions of Employment Act, to iron out the issue of duality of jurisdiction. We're liaising with the Department of Labour on bargaining council matters and the extended jurisdiction as per the legislative amendments last year.
What's stopping a fund or administrator from moving between the two authorities until it gets the ruling it wants?
There is potential for "forum shopping" - but I'm in the process of finalising a determination that will deal with that. It addresses the question of enforceability of sectoral determination in terms of the Pension Funds Act vis-à-vis the Basic Conditions of Employment Act.
What are your goals as the PFA?
We need to respond to the challenges that have been identified. They are:
- The backlog of cases, for which we need to develop a strategy.
- Accountability. Administrators and trustees seem to lack a clear accountability to members. This issue needs to be followed up on and enforced.
- Unnecessary hiccups in the adjudication process. Often we have to go back and forth for information, which shouldn't be the case.
One of my goals is to introduce a formal scorecard, which will rate administrators and trustees, and which will be made public. Such a scorecard would provide an objective measure for members to assess the performance of their service providers as well as the output of my office.
Where did the idea for the scorecard come from? Has it been used in other countries?
Pension funds and fund administrators exist to provide benefits and products that benefit their members. There's a need for a measure that will place an obligation on them not only to provide a service, but to meet the needs of their members.
The idea of a scorecard seemed to me to be a good way to achieve this, and will add transparency to the industry. It will give members a tool they can use to make investment decisions and will also ensure much-needed accountability to the members by the fund. The scorecard concept is a home-grown concept applied in many other sectors to measure industry performance, such as the black economic empowerment scorecard for the various sectors.
We believe the scorecard will be a catalyst to ensuring that funds and administrators comply timeously and comprehensively with requests from our office for information.
What other reforms do you have in mind for the PFA office?
To address the backlog, we need to improve efficiency, as do external stakeholders. This is in respect of response time and quality of responses received from funds and administrators.
We have started to issue default determinations to deal with administrators that are in the habit of not responding to correspondence from the PFA.
We believe it's not fair to expect a member's complaint to be delayed unduly due to the failure of a fund to respond timeously or even a failure to respond at all despite repeated requests by our office for outstanding information.
How do you react under pressure?
I thrive on it. I tend to work harder and put more time into what I'm doing.
What does a typical day in your life look like?
Work, work and more work! No seriously, I wake up at 5.30am and watch the news. Sometimes I exercise in the morning, on my treadmill. I try to do that at least three times a week because I'm asthmatic and I need to exercise.
Then I go to the office and it's down to work, which means reading determinations, responding to emails and dealing with administrative issues. In the evenings, I read and sign off determinations. Part of the joy of being single and childless is that I have my weekends to myself, so I read determinations!
What do you do for relaxation?
I read sometimes. I used to meditate, but not so much these days - though I still do yoga.
How do you stay motivated?
Being a black professional in South Africa means you have to be alert to the fact that it's not just about you. It's about the society in which I operate and being a good role model to other young people.
If you won R20 million on the lottery, what would you do with it?
I believe in giving back to society. I think I would plough money into education in needy communities, such as the one in Limpopo, where my father is from. I already sponsor three children through high school, from grades nine to 12.
This article was first published in Personal Finance magazine, 3rd Quarter 2008. See what's in our latest issue