Union teams up with AIDC and Richard Spoor to bring alleged fraudulent transactions to light
The Association of Mineworkers and Construction Union (Amcu) has partnered with the Alternative Information and Development Centre (AIDC) and human rights attorney Richard Spoor to chase billions of rands allegedly siphoned from Samancor Chrome almost a decade ago through what they claim to be fraudulent and profit-shifting transactions.
Amcu president Joseph Mathunjwa, along with the AIDC and Spoor, announced last week the start of the court battle to investigate a number of transactions during which it is claimed that Samancor, including its workers’ trust, which is a shareholder, lost billions.
Mathunjwa said the case was the culmination of three years of work triggered by, among other things, the mine’s reluctance to grant the union recognition rights.
“This current case came to our attention when we saw suspiciously low returns on the Ndizani workers’ employee share ownership plan at Samancor. We started investigating and asked the AIDC to assist in the process,” Mathunjwa said.
However, Amcu only set the ball rolling after Miodrag Kon, a former director of Samancor, approached the union last year with explosive claims about the alleged siphoning off and profit shifting by Samancor.
Mathunjwa also announced that the union had offered R100 000 to any credible whistle-blower who came forward with valuable information.
Spoor said one of the biggest challenges in the country was the lack of reporting transparency among companies like Samancor, which is not listed on the JSE.
“BEE partners have been significantly prejudiced over a very long time by such BEE transactions because the parties who led this BEE consortium have failed to protect the interests of the workers and groups they represent,” Spoor said.
In court papers filed in the Johannesburg High Court earlier this month, Amcu asked for a declaratory order to act on the matter in the public interest, as well as a court-ordered accounting audit of all transactions in the implicated companies. The application lists 27 respondents.
Amcu filed the papers on behalf of its members, some of whom belong to the Ndizani Trust, the employee share ownership plan at Samancor, and had also sought to be the applicant in the public interest as provided for in the Companies Act.
Amcu is not a recognised union at Samancor. According to its affidavit, it has more than 500 members at the mine.
Kon claimed that Samancor’s majority shareholders and some of its directors had siphoned off billions through a series of transactions dating back to 2005, to the detriment of the minority shareholders. Kon stated this in an affidavit presented to Amcu.
Among the transactions under scrutiny are an “overly generous” selling of chrome to Australian company Sylvania Resources in exchange for 14.1 million shares in Portpatrick, an entity registered in the British Virgin Islands, which is a tax haven. Portpatrick was allegedly used as a front by some of Samancor’s directors – Danko Koncar, Branislav Lazovic and then CEO Franz Schalamon.
According to a report by amaBhungane, Lazovic and Schalamon were minority shareholders in Kermas BVI, a company owned by Koncar in the British Virgin Islands.
In 2008, Sylvania was awarded the right to work at a number of mine tailings operations in Limpopo and North West, including at Samancor mines, to extract residual chrome and platinum. Its CEO is Terence McConnachie, a founding director of Merafe Resources.
In 2007, Samancor sold a 50% stake in one of its subsidiaries, Tubatse Chrome, to Sinosteel, a Chinese company, for $225 million (R3.3 billion). According to Amcu’s affidavits in its court submission, of this amount, $125 million was paid to Samancor’s then majority shareholder, Kermas BVI, which had no direct interest in that subsidiary.
Had the funds gone to Samancor as the seller of the stake, the affidavits state, at least R1.5 billion, at the current exchange rate, would have been paid to workers via the Ndizani Trust.
In its court papers, Amcu also claims to have approached Samancor in March last year to recover the money, but the company has yet to act, despite promises to investigate.
The affidavit, penned by Amcu general secretary Jeff Mphahlele, also states that, although it wanted to join the Ndizani trustees in the application, it has failed to locate them.
Samancor spokesperson Bridget von Holdt said the company knew about the allegations and would investigate.
“Samancor Chrome Limited is aware of allegations in the media pertaining to historical transactions, despite the application not having been served on Samancor,” she said.
“A decision by Samancor, the Samancor board and its recognised unions was taken to commission an independent investigation into the allegations by Amcu, of which most date back more than 10 years.”
Von Holdt also alleged that the whistle-blower, Kon, had requested compensation for information he had provided.
“Samancor has taken legal advice on the allegations made by Amcu with the assistance of the so-called brave whistle-blower, who is requesting compensation for the information he provided. Samancor views this as malicious and opportunistic,” Von Holdt added.
McConnachie said his company was aware of the allegations and would respond to the court application accordingly.
“We are aware of certain unfounded allegations made via the media that are apparently included in a court application. The company will respond to and study any application should it proceed, and vigorously defend and substantiate its position. It will apprise shareholders and other stakeholders as this becomes appropriate,” he said.