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[2016] ZAGPPHC 1253
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Masemola v Special Pensions Appeal Board and Another (10448/16) [2016] ZAGPPHC 1253 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:
10448/16
DATE:
2016/12/15
In the matter between
NATHANIEL
MASHILO
MASEMOLA
APPLICANT
and
SPECIAL
PENSIONS APPEAL BOARD
1
ST
RESPONDENT
GOVERNMENT
PENSIONS ADMINISTRATION
AGENCY
2
ND
RESPONDENT
JUDGMENT
MAKHUBELE (AJ):
I heard this matter In my urgent roll of 22
November and I undertook to deliver the judgment at the end of the
roll or as soon
as possible in this term because there would be no
sense in reserving it for longer than two or three weeks. I made a
determination
that the matter was urgent and I subsequently heard the
parties.
Both parties were represented by counsel. For the applicant was Mr
Ferreira instructed by a firm of attorneys Norton Rose Fulbright
South Africa Inc. For the respondents was Mr Matebese instructed by
the State Attorney, Pretoria. I requested my Registrar on Tuesday
to
advise the parties by telephone that I would be delivering this
judgment today at 14:00 and that because it is an
ex tempore
judgment, somebody should come to note the reasons. It is now
14:00 and there is no appearance for both the parties.
I was informed by my Registrar that he telephoned the office of the
applicant's attorneys and he spoke to one Adele. He did not
ask her
surname. That was on Wednesday. I think that is when he ultimately
got hold of them because the instruction, as I indicated,
was given
earlier. With regard to the office of the State Attorney, he says
that he spoke to one Grace. He did not request or ask
for further
details.
There was counsel (Mr Mothibe), in court earlier, and he indicated
that he apparently knew something about the matter. He initially
indicated that he was going to wait and note the judgment but when I
look up now he has disappeared. I cannot postpone handing
down this
judgment because the parties were duly notified.
The relief sought in the notice of motion is for abridgment of rules
relating to service and time periods. I have already indicated
that I
declared the matter to be urgent. The substantive relief sought is
only against the first respondent, namely, that the decision
that it
took on 5 October 2016, that it is not competent to take a decision
regarding the reinstatement of the applicant's special
pension be
aside and replaced with a decision to reinstate his special pension.
That is paragraph 2.1 of the notice of motion.
In paragraph 2.3, the
applicant seeks "further and/or alternative relief". I am
mentioning this because there was a submission
during argument that
in the event that I do not find for the applicant with regard to
prayer 2.1, I should grant alternative relief
because it is supported
by evidence that is in the papers filed. The support for the argument
for alternative relief is in paragraph
12.3 of the founding papers.
It reads as follows;
"I, therefore, request in terms of section 8 (1)(c)(ii)(aa) of
PAJA, that the Honourable Court review and set aside the First
Respondent's latest decision and substitute, in its place a decision
reinstating my special pension and/or in terms of section
8 (1)(d) of
PAJA declaring my rights in respect of this matter."
The
reasons why I am requested to substitute this decision are stated in
paragraph 12,4 of the founding affidavit. I will deal with
it later,
I must state from the outset that on a reading of the Special
Pensions Act, as amended, the second respondent, Government Pensions
Administration Agency (GPAA) and National Treasury are designated
institutions as contemplated in section 7. This is important
in view
of the respondents' contention, as it will appear later in my
judgment, that the first respondent is only entitled to hear
appeals
on decisions made by designated institutions and that in this
instance there is no such decision. I must also at this stage
state
that this submission is. wrong as there is a decision that was made
by the second respondent and it is that decision that
the applicant
appealed against to the first respondent. I will refer to this
decision later on.
Mr Matebese, counsel for the respondents, argued that since the
special pension was terminated by operation of law, the applicant
should not have appealed but simply approached the designated
institution with the Presidential pardon and request reinstatement
of
the pension. Well, on the evidence before me, this is exactly what Mr
Masemola did and there was a refusal in the. letter that
I will refer
to later on. He then appealed to the first respondent. With this
sequence of events there is no merit in the argument
that the first
respondent could not hear the appeal because there was no decision of
the designated institution.
With that out of the way, now I wish to state the common cause issues
or rather the chronology of the matter. The applicant is
an 89 year
old man. He qualified and was awarded a special pension in terms of
the Special Pensions Act, Act 69 of 1996, as amended
on December
1997. I will refer to it as the Act. Years later, to be specific in
April 2001, he was convicted of several counts
of fraud and sentenced
to five years imprisonment. He served six months of that sentence.
The Special Investigating Unit that investigated the fraud
allegations then wrote a Letter to the Special Pensions Appeal Board.
This letter is dated 8 March 2007 and briefly in this letter the
special investigating unit or SIU, informed the Chief Executive
Officer of the Special Pensions Board that it had information that
Masemola, or the applicant, is receiving special pension in
contravention of section 1 (8) of the Act. Section 1 (8) of the Act
provides, amongst others, that:
"A person who would otherwise have qualified for a pension
in terms of the Act is disqualified if after making the sacrifice
or
serving the public interest in the course of establishing a
democratic constitutional order that person either actively engaged
in actions calculated to undermine the efforts to establish a
non-racial democratic constitutional order, or was convicted of a
crime after 2 February 1990."
It is
common cause that Mr Masemola was. convicted of a crime and in terms
of section 1 (9) the crime of which he was convicted
fell under this
prohibition.
The SIU recommended to the CEO of the Special Pensions Board to put
this information to Mr Masemola and ask him, or call on him
to submit
written representations to the Unit (which is the SIU) on behalf of
the Board as to why the Board should not find that
by virtue of the
aforementioned conviction, he was not entitled to a special pension
and why he should not be called upon to repay
the benefits that he
had already received to date, in addition to having his special
pension cancelled.
Indeed and in the letterhead of the National Treasury, the acting CEO
of the Special Pensions Board wrote to Mr Masemola on 7 April
2008
and basically repeated what the SIU had said, namely, that he had
been convicted of a schedule 1 offence for fraud and that
this is in
contravention of section 1 (8) of the Act and consequently is
disqualified from receiving any further special pension
payments. He
was asked to indicate whether this information was accurate or not by
1 June 2008 failing which his pension would
cease immediately. There
is no evidence as to whether he took up this call to make
submissions, but what is common cause is that
indeed his pension was
stopped.
Later on and specifically in 2011, he applied and received a
Presidential pardon in respect of his convictions on 2 April 2001
on
five counts of fraud. The President's Minute pardoning him is dated
21 July 2011. It reads:
"President's Minute 169:
By virtue of section 84 (2)U) of the Constitution of the Republic of
South Africa 1996, hereby pardon NATHANIEL MASHILO MASEMOLA
in
respect of his convictions on 2 April 2001, on five counts of fraud.
The convictions shall be expunged
from
his SAP69 by way of
endorsement.
Given under my Hand and the Seal of the Republic of South Africa at
Pretoria on this 31
st
day of July 2011."
It is signed by the President. I cannot make out who the President
was at the time, as there is no name. It is al.so signed by
the
Minister of Justice and Constitutional Development, J Hadebe.
He then obtained a Clearance Certificate from the South African
Police which is undated. I cannot see the date, but it is stamped
and
simply states that it certifies that there are no convictions that
have been recorded for any crime in the Republic of South
Africa
against NATHANIEL MASHILO MASEMOLA Armed with this, he then attempted
to obtain a re-instatement of his special pension.
It appears from
the record, as I have already indicated, that there was a request to
the GPAA to reinstate the pension and a decision
to that request was
made.
I do not have the request in the record, but in his notice of appeal
he refers to a letter that he received on 23 February 2015
from the
second respondent and he quotes a paragraph from that letter. This
letter is also referred to in the decision of the first
respondent
that is now under review. If I may just read that letter from the
second respondent:
"The disqualification of Mr Masemola, [Appellant], from
receiving special pension occurred prior to him receiving pardon from
the President and as such is legally valid. Section 84 (2)U) of the
Constitution of the Republic does not have retrospective effect
. and
therefore his special pension cannot be reinstated. The expungement
is relevant to the removal of records and his future
interactions
with civic society and cannot affect the past or undo the past. I
therefore regret to inform you that the decision
to disqualify Mr
Masemola [appellant] from receiving Special Pensions was validly
taken based on the facts c1t the time, it remains
in force and effect
because there is no reason in law for a pardon or expungement to
operate retrospectively. It does not undo
events that happened or
invalidate decisions taken prior to the granting of the pardon or
expungement"
Having tried to obtain an audience from the second respondent, and
even the first respondent, and not getting any joy, he then
c1pproached this Court and on 8 August 2016, my brother Fabricius J
issued an order in which paragraph 1 reads as follows:
"The First Respondent is ordered to make a decision regarding
the Applicant's appeal for reinstatement of his special pension,
and
communicate that decision by email to the Applicant's attorneys of
record to the email
addresspatrick.bracher@nortemrosefulbright
.com
within 15 days of the Court Order."
In paragraph 2 the
respondents were ordered to pay the costs jointly and severally the
one paying the other to be absolved. The
respondents in that matter
were; the Special Pensions Appeal Board, the Government Pensions
Administration Agency and the Director-
General of National Treasury.
Events after this order of Fabricius J indicate that it took longer
than 15 days for the first respondent to make a decision. Part
of the
reasons given was that the term of office of the Board had ended.
This was communicated to the applicant's attorneys by
email on 16
September 2016.
But before this email, a letter was. written to the applicant on 8
September 2016 and on a reading of this email, which I am going
to
read into. the record, it appears that the appeal was actually
considered by the erstwhile Board on 2 July 2015. This letter
of 8
September 2016 from one Lokanyo Langa advices the applicant certain
things. In fact, it actually just gives a history of the
matter and
the last paragraph reads:
"On the 2
nd
July 2015 your notice of appeal was
placed on the roll of the. SPAB. Upon deliberation of the sitting,
the SPAB was of the opinion
that a letter dated 7 April 2008
addressed to you was not a decision of the Special Pensions
Authority. It was in their opinion
a letter informing you of
necessary actions taken as a result of information that had come to
light long after your special pensions
had been approved. The SPAS
was further of the opinion that there being no decision of the lower
authority made after 10 December
1997, there can be no appeal, refer
to the attached email communication between members of the SPAS and
Manager: SP Appeals."
The email referred to was that letter written by the then chairperson
of the Special Pensions Appeal Board one Mr Sungaree Pather.
It is
dated 2 July 2015 and addressed to Nndwadkulu and copied to Bongitte
Shabalala and Hassen E. The subject matter, "Masemola
SP 63193."
It actually says what the letter that I have just read says. The last
paragraph reads:
"For the record, this is a matter involving an interpretation of
the law, which means that the ordinary Civil Court has jurisdiction."
This is
the decision of the Special Pension Appeal Board whose term has
apparently ended.
In the email of 16 September 2016, the applicant's attorneys were
assured by one Esti de Witt, seemingly of second respondent's
office
that the decision as per the judgment of my brother Fabricius J must
be made by 14 October 2016. The new Board was constituted
and it met
and considered the applicant's application for reinstatement of his
pension. I am reading from a document in the letterhead
of National
Treasury, dated 07 October 2014 the decision of the Special Pensions
Appeal Board, which was signed by the Chairperson
and countersigned
by two members.
Of importance in this decision, is that in paragraph 1, it
acknowledges that the appeal before it was considered by the previous
Board on 23 February 2015, but it does not say or state what the
decision then was. Also of importance in this report or decision
is
paragraph 7, which reads:
"On B May 2014, Mr Masemola addressed a letter to GPAA
requesting that his special pension, be reinstated."
And in paragraph B it
says:
"The GPAA wrote a response to Mr Masemola's letter stating
that.."
I have already quoted this letter. In paragraph 10 the Board purports
to analyse the application of Masemola and it says:
"The crux of the Appellant's argument is that the expurgation of
his criminal record made him eligible to have his Special
Pension
benefits reinstated. He states that..."
They then quoted what is in the applicant's application or appeal
where he had stated that:
"According to the Constitutional Court in the
Citizen 1978
[Pty] Ltd and others v McBride, Johnston and Others
as
amicus
curiae
2011 JOL 2708
(CC), a pardon expungement (sic) effectively
results in the conviction, for all purposes, being deemed not to have
taken place.
This indicates that the pardon and expungement (sic)
expunges the conviction and reason not to pay the Appellant
a
special pension."
In
paragraph 11 of this decision there is no indication of the
deliberations that happened except the purported analysis in
paragraph
10 which simply states what the issue is. I think it is
necessary to read paragraph 11 where the Board stated:
"It is noteworthy that the Act does not enable the SPAS to
decide on matters of interpretation of the law. The question whether
expurgation effectively results .In conviction, for all purposes,
being deemed not to have taken place, can best be decided by
a court
of law. If the SPAS, in the instant case, were to pronounce on the
reinstatement or otherwise of Masemola's pension benefit
it would be
overstepping its mandate as the Act is silen.t in this regard."
Decision.
"In the result the appeal is dismissed."
The letter
is dated
4
October 2016 and as I have already indicated, it is
signed by the Chairperson and two members of the Board.
Mr
Matebese in his submissions disagreed with me when stated that it
appears that the reasons for this decision are what is stated
in
paragraph 11. I will deal with this later.
Next
issue; the respondent opposes the application and as far
as the answering affidavit goes, the grounds of opposition are
actually
very crisp. There appears to be three main grounds of
opposition. The first ground of opposition is that section 8 of the
Act makes
it
clear that the right of appeal to the Board is
only limited to an appeal against decisions of the designated
institution by a person
who disagreed with the decision of the
designated institution. This is repeated throughout the answering
affidavit. The gist being
that section 8 is not applicable.
In paragraph 32.2 again reference is made to section 8. According to
the respondents, the Board only possesses the power or authority
to
decide appeals against decisions of the agency or the designated
institution. It is submitted that where no decision has been
taken by
a designated institution in respect of a certain issue; the Board
does not have the power or authority in terms of the
Act to decide
any appeal. I have already dealt with this ground of opposition, I
think a few minutes into my judgment I have already
said there is no
merit in this argument because in terms of section 7 of the Act, the
Government Pensions Administration is a designated
institution as
well as National Treasury. I have already referred to a letter that
was written by this agency to Masemola where
he was told that the
fact that his criminal record has been expunged does not entitle him
to reinstatement of his pension and that
expungement of a record has
no retrospective effect.
This letter is also referred to by the Board in their decision and as
such, it is clear that there is a decision or there has been
a
decision by a designated institution. The designated institution,
having told Masemola what it thinks about his application for
reinstatement of the pension, he was entitled to note an appeal to
the first respondent. So this argument by the respondent that
there
was no decision to appeal against has no merit.
The second ground of opposition is rather strange , well maybe not
strange for the respondent because it deems it to be fit to
be a
ground to oppose this application. In paragraphs 18 and 19 of the
answering affidavit, an argument is made that section 6
(1) of PAJA
provides for review of an administrative action and that only
administrative action as defined in PAJA can be reviewed
in terms
thereof. The argument during oral submissions in this regard was that
PAJA has no application in this matter. Again, there
is no merit in
this ground of opposition.
The third ground is that the Act does not provide for a right of
reinstatement of a pension. I .will deal with this when I refer
to
the oral submissions that were made by Mr Matebese. There is no merit
in the two grounds that I have already indicated. The
question is
whether there is any merit in this last standing ground that has been
advanced by the respondents.
Counsel for the applicant, Mr Ferreira, relied, firstly, on the
amendment to the Act that was effected in 2008. This amendment
was to
make PAJA applicable to the decisions of the Board or the Special
Pensions Board. Refusal to make a decision or failure
to act is. such
administrative action. He referred me to several matters such as
Vulindlela Furniture Manufacturers [Ply] Ltd v MEC, Department of
Agriculture
1998 (4) SA 908
(Tk). The applicant contends that the
effect of a Presidential pardon is that once a person is pardoned
then there is no reason
why the acts for which he has been pardoned
should hold him back with regard to benefits that he would otherwise
be entitled to.
Although there is no indication in the Act that
a
pension that has been revoked can be reinstated, the applicant
contends that when one looks at this 2008 amendment of the Act, PAJA
would be applicable.
A person whose pension has been revoked would be entitled to be
hec1rd for the decision maker to consider whether it should be
reinstated or not. He referred me to many other cases that due to
time constraints I will not refer to but the issue here is that
the
Special Pensions Appeal Board has misunderstood its mandate and that
its decision in prayer 2.1 that it has no jurisdiction
should be
reviewed and set aside.
The respondents' counsel on the other hand was happy that there was a
concession that what happened in 2008 (stopping of the pension)
was
not a decision but operation of .law and that if you look at prayer,
2.1, which says that the first respondent is not competent
to make a
decision regarding the reinstatement of the pension, I should dismiss
this application.
The last standing ground is whether there is any provision in the Act
for reinstatement of a pension once it is revoked. Mr Matebese
says
his right was taken by the statute. He urged me to interpret the Act
in line with the principles enunciated in the Supreme
Court of Appeal
judgement in the matter of Natal Joint Municipal Pension Fund V
Endumeni Municipality
2012 (4) SA 593
(SCA).
According to Mr. Matebese, there is no way I can interpret or should
interpret this Act to say anything else other than that once
a
pension is revoked, there is no way it can be reinstated.
According to Mr Matebese the drafters of the Act did not provide for
reinstatement of a revoked pension. So, the Act must be interpreted
to mean that there cannot be a reinstatement. Presidential pardon is
a process that was made long before the enactment of this
Act and one
cannot assume that the drafters of the Act were not aware that there
could be circumstances where applicants would
want their revoked
pensions to be reinstated. With reference to the McBride judgment
that the applicant relies on, Mr Matebese's
submission is that yes,
there can be expungement of a criminal record or a pardon, but, not
to the extent of undoing the historical
facts and that the first
respondent was right when it said it has no jurisdiction.
There was a bit of a dialogue between me and Mr Matebese with regard
to the points raised in paragraph 11 of the decision and his
view is
that those points are not the reasons for the decision. The fact of
the matter, he argued, is that the Board has no jurisdiction.
On a
question as to what is the decision, or reasons for it, Mr Matebese
says it is what is stated in the notice of motion, the
issue of
jurisdiction.
I then enquired from the parties that if I agree with Mr Matebese
with regard to prayer 2.1 on the facts, and if I find that indeed
the
Board has no jurisdiction to entertain the appeal of the applicant,
what then happens to the applicant's dispute. Does it mean
that the
applicant has no remedy and I should dismiss this application? The
applicant's counsel, Mr Ferreira, submitted that I
should then look
at prayer 2.3 which is further and/or alternative relief.
I have already indicated that this submission is based on the
allegation in paragraph 12.3 of the founding affidavit to the effect
that because the first respondent .has misconstrued its mandate I
should then assume the responsibility of making and substituting
its
decision for reasons that it has failed to take a decision for years
despite all his efforts and having been ordered by Fabricius
J to do
so,, The applicant should not be faced with a situation where he has
to go back to the first respondent or the agency (second
respondent)
as Mr Matebese has suggested that there is no need for an appeal.
Now, having stated all this, and having considered the Act, the
various correspondence and decisions that have been taken or
communicated
to the applicant, the question that I have with regard
to prayer 2.1 is whether the first respondent's view that it cannot
interpret
law is correct, or does it mean that it misconstrues its
role and function.
The Act, as I have already indicated, makes provision for termination
of a special pension on certain grounds. It also makes provision
for
appeals to the first respondent on decisions taken by the designated
institution. I have already indicated that the second
respondent,
which is the designated institution, did make a decision on whether
Presidential pardon entitles the applicant to reinstatement
of his
special pension. It is this decision that first respondent was called
upon to adjudicate on and in my view, the first respondent
is not
correct that it does not have jurisdiction to decide on the issue of
whether expungement of a criminal record has the effect
of, or would
entitle the applicant to reinstatement of his special pension. Its
agency, which is the second respondent, has already
made a decision
and all that the first respondent had to do was to decide whether
that decision was Correct or not.
I agree with the applicant that the first respondent does not
understand its mandate or role or function on whether expungement
would entitle reinstatement. As for Mr Matebese's argument that the
Act did not foresee that, I do not agree with him. When one
considers
the purpose of the Act, or the purpose for which this pension is
granted and one also considers the purpose of a Presidential
pardon,
these two cannot be seen in isolation. With a Presidential pardon,
with no criminal record to his name, taking into account
the. purpose
of the Act, Masemola would be entitled, even on a fresh application
to a pension in terms of this Act.
Just to piggyback on the argument of Mr Matebese that the applicant
did not have to appeal but simply approach the second respondent,
then if this argument is correct, on the evidence before me Mr
Masemola did just that. He approached the second respondent armed
with a Presidential pardon and that is when he met this argument or
decision that a Presidential pardon does not entitle him to
reinstatement of his pension.
Under the circumstances, I am of the view that this decision of the
first respondent that it cannot interpret law as law can only
be
interpreted in court cannot be correct. The Act makes provision for
revocation of a special pension on certain grounds and ,
looking on
those grounds, one cannot say that there is no law involved. If,.
after revocation of a pension, one comes back and
say that he no
longer have a fraud conviction, whether after successfully appealing
that conviction or for whatever reason, and
with the applicability of
PAJA having been introduced into this Act, it means that the Appeal
Board must sit and consider the issues
that are presented to it.
There would be no purpose for the legislature in 2008 long after this
Act was passed, to introduce section
29A into this Act.
Consequently, my view is that this decision in as far as it says the
Board has no jurisdiction to decide on this issue is wrong
and falls
to be set aside. The question is, having set it aside what should I
do, should I refer this matter back to the first
respondent? I have
already stated that the applicant has made submissions that I should
substitute this decision.
In my view, there exist special circumstances from what has been
submitted by the applicant that this Court must or should or can
make
or substitute this decision. I have referred to the various letters,
to and from the second respondent to the previous Board,
various
officials and no one seems to know what exactly they are doing. The
issue in dispute does not require some specialised
investigations
that only the Board can undertake. The evidence is there. On a proper
reading of the Act, its purpose and the subsequent
introduction of
PAJA in the decision making process, I am of the view that the
pension should be reinstated. Even if it were a
fresh application Mr
Masemola would, in my view, be entitled to this Special Pension.
Accordingly, the decision of the first respondent falls to be set
aside. I now make the following order:
1. The decision of the first
respondent that was communicated to the applicant in a letter
or a
report dated 4 October 2016 in terms of which his appeal was
dismissed is set aside and replaced with the following:
1.1. The appeal lodged by Mr Masemola dated 6 March
2015 in terms of which he seeks reinstatement of his Special
Pension
succeeds.
1.2. The special pension is reinstated with effect
from the date of expungement of his criminal record which
is 21 July
2011.
1.3. The respondents are to pay the costs of this
application, jointly and severally, one paying the other to be
absolved.
MAKHUBELE AJ
ACTING JUDGE OF THE
HIGH COURT