04 Aug

Fiduciary duty in the 21st century – South Africa Roadmap

The UNEP/PRI/Generation Foundation South Africa Roadmap [pdf] report is part of the Fiduciary Duty in the 21st Century initiative that aims to bring an end to the debate over fiduciary duty and environmental, social and governance (ESG) issues considered by responsible investors. The Roadmap, which is based on consultation with industry, provides various recommendations on how to ensure institutional investors integrate ESG factors into their investment decisions.

Unfortunately, given that it makes some important recommendations, the Roadmap has not received much media attention in South Africa. It correctly identifies many of the challenges facing the adoption of ESG integration in South Africa, despite the change to Regulation 28 and other interventions: These include:

  • Capacity constraints: capacity issues affect both asset owners and the FSB, which is seen as the “key regulator for advancing ESG factors in pension schemes”.The lack of a permanent, well-resourced secretariat of the Code for Responsible Investment in South Africa (CRISA) is also seen as a barrier to CRISA’s effectiveness. The Kigoda Responsible Investment Ranking 2017, which found considerable variation in the implementation of CRISA’s principles among ten of South Africa’s largest asset managers, supports this.
  • Knowledge gaps: although awareness of ESG has increased, there are still considerable gaps in knowledge about how to implement ESG practices. Trustee training is seen as essential to fill these gaps.
  • Structural issues: South Africa’s fragmented pensions sector means that investment consultants are extremely influential, but there is insufficient guidance on how trustees should interact with consultants.

Fortunately, there are already indications that steps are being taken to address some of these barriers. KudosAfrica, for example, has partnered with the ASISA Academy to deliver a BATSETA-approved Responsible Investing Fundamentals workshop for trustees. Chairman of CRISA John Olifant has also indicated that CRISA is “activating plans to have a dedicated secretariat to support the work of the CRISA committee.”

However, while the Roadmap’s framework to drive ESG integration in South Africa should be welcomed, it is necessary to note the lack of asset owner participation in the stakeholder interview process. The lack of ESG activity from asset owners is a perennial problem. Also worrying is that the FSB also did not participate in the interview process. Finally, when the list of South African interviewees is compared to those who, for example, contributed to the UK Roadmap [pdf], the lack of NGO voices in the South Africa Roadmap is very apparent. Hopefully, with the imminent launch of a shareholder activist NGO in South Africa, other voices from outside industry will be included in these initiatives in future

The South Africa Roadmap’s recommendations

1. Regulatory guidance:
a. The South African Financial Services Board (FSB) should:

i. provide practical guidance to enhance the impact of Regulation 28 on the investment practice of South African pension schemes and actively monitor progress in scheme practice;
ii. review the implications of the size and structure of pension schemes on governance quality.

b. The FSB should review investment manager mandates to ensure that they reflect the expectations for investment practice set out in Regulation 28.
c. South African industry associations and the FSB should provide practical guidance to trustees on interaction with investment consultants on ESG integration.

2. Enhanced stewardship:
The Code for Responsible Investment in South Africa (CRISA) should be supported with more resourcing and a permanent secretariat to enable its work on stewardship and responsible investment in South Africa.

3. Investor education:
ESG issues should be a core competency in the National Qualification Framework for trustee training. Training and accreditation groups and industry organisations, such as Batseta and the Association for Savings and Investment South Africa (ASISA), should collaborate to provide training and raise market awareness of ESG investment approaches.

4. Corporate governance and reporting:
South African stakeholders, including the FSB and the Johannesburg Stock Exchange (JSE), should review the quality of the reporting of material ESG factors following the report of the international Financial Stability Board’s Task Force on Climate-related Financial Disclosures (TCFD).

30 May

Kigoda Responsible Investment Ranking 2017

Kigoda Consulting has launched the Kigoda Responsible Investment Ranking 2017, which uses the Code for Responsible Investing in South Africa’s five principles and its practice recommendations to independently assess whether ten of the largest asset managers in South Africa have the policy frameworks and governance structures in place to implement sustainable and responsible investment, and to adequately disclose information on their responsible investment performance. These ten managers account for around two-thirds of total assets under management in South Africa by asset managers, including multi-managers. The Kigoda Responsible Investment Ranking 2017 is based solely on publicly disclosed information.

A copy of the executive summary of the Kigoda Responsible Investment Ranking 2017 is available here.


09 Sep

Clarity on collaborative shareholder engagement in South Africa required

Futuregrowth Asset Management’s decision to suspend additional loans to six state-owned enterprises (SOEs) over governance and transparency concerns has sparked wide debate. However, as Futuregrowth makes clear in its 31 August statement, responsible investors, including signatories of the Principles for Responsible Investment (PRI) and the Code for Responsible Investment in South Africa (CRISA) “have a duty to ensure the entities in which [they] invest have suitable governance and decision-making structures.” Futuregrowth has now said that it should have consulted with the SOEs before issuing a public statement, but its clear legal obligation to act on its concerns over governance is articulated in a 2011 update to Regulation 28 of the Pension Fund Act that states:

“A fund has a fiduciary duty to act in the best interest of its members whose benefits depend on the responsible management of fund assets. This duty supports the adoption of a responsible investment approach to deploying capital into markets that will earn adequate risk adjusted returns suitable for the fund’s specific member profile, liquidity needs and liabilities. Prudent investing should give appropriate consideration to any factor which may materially affect the sustainable long-term performance of a fund’s assets, including factors of an environmental, social and governance character. This concept applies across all assets and categories of assets and should promote the interests of a fund in a stable and transparent environment.”

Futuregrowth’s stated intention to “engage proactively with [its] industry colleagues through ASISA [the Association for Savings and Investment South Africa] so that key concerns can be communicated to the SOEs in a joint manner by the investment industry” has also been questioned. In a statement, ASISA CEO Leon Campher argued that:

“Investment managers must make their own investment decisions. ASISA is an industry body mandated by its members to deal with industry issues, which include policy, regulatory and legislative matters. The Association cannot dictate where members invest and where not. That would be considered collusive behaviour, which is not only undesirable, but also illegal.”

Minister of Public Enterprises Lynne Brown, who is the shareholder representative of various SOEs, has noted ASISA’s position, which she argued cautioned Futuregrowth from “inviting other Fund Managers to support its decision, as doing so will be deemed collusive or restrictive behaviour in terms of the Competition Act”.

Commentary on this issue has ignored the advances that have been made in South Africa with regards to collaborative shareholder engagement. It is likely that Campher and Brown are referring to the “acting in concert” aspect of the Companies Act, which may in certain situations require concert parties with significant interests to make a mandatory bid for a company they are engaging with. “Acting in concert” is defined as “any action pursuant to an agreement between or among two or more persons, in terms of which any of them co-operate for the purpose of entering or proposing an affected transaction or offer.”

Some of the uncertainty regarding collaboration stems from the Comparex case in the early 2000s, in which a consortium of asset managers, which owned more than 35% of Comparex, were accused of “acting in concert” after they notified the Comparex board that they had agreed in principle to change the composition of the board. Non-executive directors of Comparex argued that by acting in concert, these asset managers were obliged to make an offer to Comparex’s minority shareholders. In its ruling on the matter, the Securities Regulation Panel held that there was no affected transaction, so there was no obligation to minority shareholders. However, this case has subsequently, and sometimes incorrectly, been used to restrict shareholder collaboration.

Given the importance of collaborative engagement as a strategy for effective active ownership – as contained in both the PRI and CRISA principles – the PRI South Africa Network Engagement Working Group engaged the Takeover Regulation Panel over several years to gain clarity over the regulatory rules on concert parties. The engagement included discussion on issues such as whether discussing investee company shareholder resolutions, developing engagement plans or discussing governance concerns at investee companies was restricted or required specific disclosures.

A March 2010 document on “Collaborative engagement”, which was reviewed by the Executive Director of the Takeover Regulation Panel in March 2012, noted that the “clear view” was that “a concert party is not created where institutional investors simply discuss matters of mutual interest or share their views as to concerns about particular companies. A concert party is only formed where shareholders agree a common plan under which to work together.”

However, it is clear from the Futuregrowth situation that this view is yet to be fully understood or implemented. A stronger articulation in support of collaborative engagement is required from South African regulators, such as the one issued by the European Securities and Markets Authority in 2013, which included a “White List” of activities that shareholders can engage on to drive good corporate governance. Without collaborative engagement as a possible strategy to effectively address environmental, social or corporate governance issues at companies, whether private, public or state-owned, the power of investment managers to act in the best interest of shareholders will be severely diminished.

29 Apr

Why South Africa needs a Responsible Investment civil society network

On 14 April in London, over 59% of shareholders voted against the £13.8m remuneration package for BP CEO Bob Dudley. BP had reported record losses of USD6.4bn and retrenched 4,000 employees in the preceding financial year. Dudley’s 20% pay rise was only one of the contentious issues on the agenda. Activists also used the AGM to focus attention on BP’s controversial plans to undertake exploration in the Great Australian Bight. One of the most vocal groups highlighting these issues was the charity ShareAction, which argued that BP had failed to uphold the commitments on climate change and environmental issues made at its 2015 AGM.

ShareAction was originally set up in 2005, with support from civil society, as FairPensions, which ranked major UK pension funds on responsible investment. The group now aims to “transform the investment system and unlock its potential to be a force for good” by demanding “reform in the ways large investors make decisions and account for them”. It does this by:

  • campaigning to improve corporate behaviour by helping investors to engage with companies on issues such as corporate lobbying on climate change, factory farming and corporate tax, and by pressuring pension funds on climate change action;
  • building and supporting networks of foundations, faith groups, unions and NGOs to take action in the investment system;
  • assisting shareholder activism by, for example, training individuals to engage directly with companies as part of an “AGM Army”; and
  • Providing expert policy and research to promote best practice in the investment industry. Recent surveys include Asset Manager Voting Practices: In Whose Interests? and a ranking of responsible investment practices at nine pension providers.

ShareAction is now launching a new network of civil society organisations working towards sustainable capital markets in Europe.

An organisation like ShareAction is perhaps what is missing from the South African responsible investment community. South Africa is regularly promoted, especially when compared to its emerging market peers, as a leader in the field. This is due to various positive interventions, including changes to Regulation 28 of the Pensions Fund Act – to support the adoption of a responsible investment approach by giving “appropriate consideration to any factor which may materially affect the sustainable long-term performance of a fund’s assets, including factors of an environmental, social and governance character”. The launch of the JSE SRI Index in 2004 and the creation of the Code for Responsible Investing in South Africa (CRISA) in 2011 are also viewed as ground-breaking.

But progress appears to have stalled. There are some asset managers that seem to be taking responsible investment seriously, but most asset managers and owners, including pension funds, do not seem to have made it much further than developing a responsible investment policy. The fact remains that the majority of investors in a pension fund scheme will not know whether or not their fund manager supports responsible investing practices. Even if they do, there is little to no information available about how such practices are implemented: for example, very few fund managers report publicly on their engagement with company management around ESG issues.

The bottom line is that despite South Africa’s much-lauded initiatives around responsible investment, there is very little evidence to show that these initiatives have translated into actual changes in corporate behaviour and impacts, especially in relation to the environment, climate change, and social factors. Individual investors also do not necessarily realise that, as the ultimate beneficiaries or owners of those funds, they have power over how those funds are invested or managed on their behalf. A local organisation based on the vision of ShareAction, “of an investment system that truly serves savers and communities, and protects our environment for the long term” would go some way in rebalancing the situation.

There are a number of ways in which a civil society organisation modelled on ShareAction could boost transparency and accountability in the South African business and investment community, not just in responsible investment. These include:

  • Supporting NGOs: there are numerous NGOs working across the country to improve corporate accountability and address social and environmental rights. Some groups such as the Centre for Environmental Rights (CER) have developed capacity to ensure that where their work has investment implications, this is brought to the attention of investors. However, not all of these NGOs are able to adequately convey the relevance of their work to investors. Furthermore, although there are areas of overlap, often the work is not coordinated. By understanding the investment system, it will be possible to ensure that the results of NGO programmes are brought to the attention of the relevant investor audience and that the outcomes can be used to drive change.
  • Boosting transparency of asset managers: Despite many of South Africa’s largest asset managers marketing themselves as being signatories to the PRI or supporters of CRISA, it is extremely difficult to determine which fund managers actually are acting on these commitments and which are simply “greenwashing”. This is evident from a 2013 report commissioned by the CRISA Committee that found shortcomings in the application of CRISA and varying degrees of accountability across institutions. In many cases, asset managers prefer to engage with companies on issues affecting responsible investing behind closed doors, with little evidence of this driving any meaningful change.

    Independent surveys and research are necessary to benchmark asset managers on responsible investment performance and transparency on issues such as policies, voting practices and engagement strategies. This will support best practices and encourage improvement by asset managers who are “talking the responsible investment talk” but not actually taking any responsible investment action.

  • Driving change in asset owners: Asset owners, the large institutional investors such as pension funds and insurance companies, are essential to the implementation of responsible investment practices. Asset owners, on behalf of their members, establish the investment mandates that asset managers should apply. Despite the changes in Regulation 28, asset owners continue to disregard responsible investment strategies in their mandates. Research is needed to establish how asset owners are fulfilling their fiduciary duty in this area.

    The need for further changes was reflected in the PRI’s 2015 report Fiduciary duty in the 21st century that recommended that the Financial Services Board clarify compliance with Regulation 28; asset owners prepare a public annual report on how they have implemented SRI commitments; and ESG-related competence on pension fund boards be improved.

  • Giving individual investors a voice: A PRI survey in 2015 found that, out of 1001 respondents in South Africa, 77% agreed that “it is important that companies their pension fund is invested in do not pay CEOs too high a salary” and 51% “consider it ‘very’ important that the companies their pension fund is invested in do not contribute to the burning of fossil fuels which link to climate change”. However, the investment community argues that a barrier to responsible investment is the lack of demand. It is possible that there is demand but that asset owners and managers are not paying attention, but there is currently no simple way for individual investors to communicate their viewpoints to pension firms and explore how to translate their moral standpoints into their investments. Greater public awareness is needed for this barrier to be overcome.

    ShareAction has been extremely successful in supporting individuals in another area: raising issues it feels are important at company AGMs. AGMs are an important arena to hold boards and executives to account and to ensure that they are acting in the best interests of stakeholders, including on ESG issues. South African AGMs are notoriously humdrum affairs, with many asset managers not bothering to attend and executives seldom required to answer difficult or challenging questions. With many asset managers apparently ignoring even basic tenets of corporate governance, perhaps it is time to support individuals who want to make a stand?