About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 811
|
|
Dingake v National Treasury Republic of South Africa and Others (53351/2012) [2016] ZAGPPHC 811 (8 September 2016)
1
T
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
C
ase
No:
53351/2012
DATE:
8/9/2016
MICHAEL
KITSO
DINGAKE
....................................................................................
Appellant
and
NATIONAL
TREASURY REPUBLIC OF SOUTH AFRICA
…....................
First
Respondent
MINISTER
OF
FINANCE
….......
Second
Respondent
CHAIRPERSON
OF THE SPECIAL PENSIONS APPEAL
…..................
Third Respondent
BOARD
JUDGMENT
VAN
DER WESTHUIZEN, AJ
1.
This is an application for the review of the decision of the
Special Pensions Appeal Board and the substitution of that decision
with an order in terms whereof the applicant is entitled to an award
of special pension in terms of section 6 of the Special Pensions
Act,
No. 69 of 1996 (the Act), for a period of twenty-seven years of
full-time service.
2.
The relief sought includes an order in terms of the provisions
of section 7(1) of Act 3 of 2000 condoning the late institution of
these proceedings.
3.
In the alternative to the aforementioned relief, the applicant
seeks an order remitting the matter back to National Treasury
Republic
of South Africa.
4.
The applicant is Michael Kitso Dingake, a citizen of the
Republic of Botswana, eighty-four years of age. He states that he
served
the African National Congress (ANC) and uMkhonto we Sizwe (MK)
since 1952 until 1994, a period of 35 years, and during the struggle
years in the fight against Apartheid.
5.
The first respondent is the National Treasury Republic of
South Africa. The second respondent is the Minister of Finance and
the
third respondent is the Chairperson of the Special Pensions
Appeal Board. Only the first and second respondents oppose the
application.
6.
The
Special Pensions Act came
into force during December 1996.
Section 1
thereof provides as follows:
""(1)
A person who made sacrifices or served the
public
interest in establishing a non-racial, democratic constitutional
order and who is
a
citizen, or entitled to be a citizen, of
the Republic of South Africa, has the right to
a
pension in
terms of this Act if that person-
(a)
was at least
35 years
of age on
the commencement date; and
(b)
was prevented from providing
for
a
pension
because, for
a
total or combined period of
at
least five years prior to 2 February 1990, one or more
of
the
following circumstances applied:
(i)
That person was engaged full-time in the service of
a
political organisation.
(ii)
That person was prevented from leaving
a
particular
place or area within the Republic, or from being at
a
particular
place or in
a
particular area within the Republic, as
a
result of an
order issued in terms of
a
law
mentioned in Schedule 1 of this
Act.
(iii)
That
person was imprisoned or detained
in terms of any law
or for any crime mentioned
in Schedule
1
of this Act,
or
that person
was
imprisoned for any offence committed with
a
political
objective."
7.
The following qualifications stipulated in section 1 of the
Act are to be met before a special pension can be awarded:
(a)
A person had to have made a sacrifice or have served the public
interest in establishing a non-racial, democratic constitutional
order; and
(b)
Who
is a
citizen or who is
entitled to be a citizen of the Republic of South Africa; and
(c)
Who was at least 35 years of age at the commencement date of the Act;
and
(d)
Who was prevented from providing for a pension because of a total of
combined period of at least 5 years prior to 2 February
1990,
providing that person;
(i)
Was engaged full-time in the service of a political organisation; or
(ii)
Was prevented from leaving a particular place or area within the
Republic or from being at a particular place or in a particular
area
within the Republic as a result of an order issued in terms of a law
mentioned in Schedule 1 of the Act; or
(iii)
Was imprisoned or detained in terms of a law or for any crime
mentioned in Schedule 1 of the Act or that person was imprisoned
for
any offence committed with a political view.
8.
The applicant alleges that he met the circumstances mentioned
in section 1(a) and 1(b)(i) and (ii) of the Act. In this regard, he
alleges that he served the ANC and MK in various manners during the
Apartheid era and was arrested during 1965 for political activities,
charged for sabotage and terrorism and sentenced to 15 years
imprisonment on Robben Island. He was released on 5 May 1981. Upon
his release, he was repatriated to Botswana.
9.
In 1992 the applicant entered into Botswana politics and also
served in the National Assembly as acting MP. He is a founder member
of the Botswana Congress Party and served as its president from 1998
to 2001. The applicant retired from politics in 2004 whereupon
he
became a weekly columnist for a newspaper in Botswana.
10.
The applicant states that during his aforementioned trial, it
was claimed by the Apartheid regime that he was a South African
citizen,
for reasons he did not and still does not understand. He
still regards himself as a citizen of Botswana. This would disqualify
the applicant. Nevertheless, a special pension was awarded to the
applicant.
11.
Sometime during 1999, the applicant applied in terms of
section 6 of the Act for a special pension under Special Pensions
number
[SP0…] His application was partly successful. He
received a pension commencing on 1 July 1999, with arrears back dated
to
1 April 1995. That pension was restricted to the period he was
incarcerated on Robben Island, i.e. for a period of 15 years. This
application for review is restricted to the other periods of service
to the ANC and MK.
12.
It is conceded by Mr Bishop, who appeared on behalf of the
applicant, that the applicant does not comply with the requirement
stipulated
in section 1(b)(ii) of the Act. Mr Bishop further
submitted that the applicant, having been awarded a special pension
in respect
of the years that he was imprisoned on Robben Island, only
relies upon the requirement relating to being engaged full time in
the
service of a political organisation in respect of the further
periods the applicant stipulates. This application is to be
considered
on that premise.
13.
The applicant appealed the award to the Special Pensions Appeal
Board, the appeal being restricted to the other periods of service
to
the ANC and MK. The applicant alleges that the award did not take
into consideration his other alleged "full-time"
periods of
service in respect of the ANC and MK. In that regard, the applicant
refers in particular to the services rendered by
him whilst he was in
Botswana after being repatriated. The applicant specifically relies
on letters by one Jele and one Gilder.
14.
In a letter dated 10 March 2011, the Special Pensions Appeal
Board (Board) confirmed the award and dismissed the appeal. The
reasons
provided for the dismissal of the appeal were as follows:
(a)
The appellant's political history does not indicate that he
continued serving the
ANC/MK a
fter
his release in 1981. In this regard, the Board relied on a letter
from MK that indicates that his service to that organisation
ended on
his release from prison in 1981;
(b)
In so far as the letter of Gilder, relied upon in support of
the allegations post release, the Board found that the service
mentioned
therein did not constitute full-time service of a political
organisation;
(c)
In respect of the alleged organising of routes for entering
the territory of the Republic was found not to be on a full-
time
basis.
(d)
The 15 years for which a pension was awarded, was found by the
Board to have been reasonable in the circumstances.
15.
The applicant alleges that the findings of the board were
premised upon a misinterpretation of the Act; in particular with
reference
to what constitutes "engaged full-time".
16.
Mr
Bishop submitted, with reference to the judgment in
Natal
Joint
Municipal Pension Fund v Endumeni Municipality
[1]
that the
normal
meaning of the phrase "engaged full-time" should not apply.
He
submitted further that the phrase is to be interpreted in the context
it appears
in the Act and with reference to the provisions of section 189 of the
Interim Constitution of the Republic of South Africa.
17.
The context in which the phrase "full-time" appears
in the Act is to be considered purposively. That phrase appears in
section 1 of the Act. Read in that context, the reference to "a
sacrifice or have served the public interest in establishing
a
non-racial, democratic constitutional order'', clearly requires an
exclusive dedication, i.e. dedicating his/her life to the
cause. This
is supported by the requirement that the person applying for the
pension was prevented from providing for a pension.
18.
It follows that once a person had "normal"
employment in addition to serving the cause, such person was not
prevented
from providing for a pension.
19.
In view of the foregoing, the phrase "engaged full-time"
is to be interpreted to mean that the person applying for the
special
pension had dedicated his life to the cause and in so doing did not
hold other employment that entitled him to provide
for a pension. To
hold otherwise, would undermine the requirement relating to being
prevented from providing for a pension.
20.
Considering the findings of the Board and its reasoning, dealt
with above, it is apparent that the Board had applied the correct
meaning to be ascribed to the phrase "engaged full-time".
21.
The applicant bears the onus in proving that he was in
full-time employment of a political organisation. The applicant did
not provide
cogent reasons for his averments in that regard. He
failed to supply convincing facts to support his bald averments. Mr
Bishop
conceded that the letters by Messrs Jele and Gilder do not
specifically provide proof that the assistance of the applicant
constituted
full-time service within the context of the meaning to be
ascribed thereto. On the applicant's own version he held other
"normal"
employment. In this regard the applicant states in
paragraph 67.1.2 of the founding affidavit:
"Many
people in my position
as
ANC activists had to secure other
forms of "normal" employment
as a
diversionary
tactic during the struggle and also because the ANG paid no
"salaries" to people involved in the
struggle."
22.
The mere listing of positions held, absent any proof that such
positions required full-time engagement, is insufficient. Mr Bishop
was constrained to submit that it is to be inferred that such
positions inherently required full-time engagement. Absent facts
to
support such inference to be drawn, it cannot be drawn. At most, it
is speculative.
23.
The information supplied by the ANC and MK as to the
applicant's involvement with those organisations does not support the
applicant's
contentions. It confirms his membership. Mr Bishop urged
me to find that the Board was, of its own accord, obliged to
investigate
what the true position
was,
the Board having the power to summons any party to testify or
supply information to it. It is apparent from the answering affidavit
by the first and second respondents that the Board in fact called for
additional information. It is submitted on behalf of the
applicant
that that attempt by the Board was insufficient.
24.
First and foremost, the applicant bears the onus of supplying
the relevant information. He failed to do so. It is for the applicant
to supply sufficient information in support of his application for a
special pension. The information supplied by the applicant
is
insufficient and unconvincing. It lacks the required particularity to
support the averments by the applicant.
25.
It follows that the applicant has not shown cause to interfere
with the Board's decision that is sought to be reviewed.
26.
The applicant has further not shown reasons for the matter to
be remitted to the Special Pensions Appeal Board.
27.
The issue of condonation remains. The application for review
of the Board's decision was filed outside the 180-day period
prescribed.
It was filed almost 18 months after the relevant date. In
this regard the following is of importance.
28.
On 2 September 2011, the applicant's lawyers addressed a
letter to the first respondent requesting a certified copy of the
letter
indicating the Special Pension Appeal Board's decisions and
proof of postage or delivery thereof. This was required as there was
"uncertainty" as to when the applicant received
communication of the Board's decision. It is alleged that the
respondents
were unaccommodating in responding and that contributed
to the delay in launching the required application for review within
the
period prescribed.
29.
On 12 September 2012, the applicant launched this application.
During July/August 2013 an amended notice of motion was served.
30.
Ms Platt, who appeared on behalf of the first and second
respondents, submitted that on the applicant's own version he was
aware
of the Board's decision by 12 April 2011 when the applicant
addressed his dissatisfaction with the Board's decision to the
Minister
of Defence in a letter of that date. By 12 April 2011 the
applicant knew of the Board's decision. The applicant did not require
the information requested in the letter of 2 September 2011 referred
to above to enable him to launch these proceedings. Ms Platt
further
submitted that when there was no response to the aforesaid request,
the applicant could have and should have launched this
application.
All required information was available to the applicant.
31.
When this application was launched on 12 September 2012, the
applicant had known for 18 months what the Board's decision was as
well as the reasons for that decision.
32.
The applicant does not explain the delay other than suggesting
that the respondents' unaccommodating conduct contributed to the
delay. There is no merit in that contention.
33.
It follows that for all of the foregoing it is not necessary
to make a finding on the application for condonation. The application
on the merits stands to be dismissed.
I
grant the following order:
(a)
The application is dismissed with costs.
______________________________
C
J VAN DER WESTHUIZEN
ACTING
JUDGE OF THE HIGH COURT
On
behalf of Applicant:
............ ….....
M
Bishop
Instructed
by:
....................................
Legal
Resources Centre, Cape Town
On
behalf of Fifth Respondent:
.......
A L
Platt
Instructed
by:
...................................
State
Attorney, Pretoria
[1]
2012(4) SA 593 (SCA) [25] - [26]