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[2019] ZASCA 117
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Sewpersadh v Minister of Finance and Another (923/2018) [2019] ZASCA 117; [2019] 4 All SA 668 (SCA) (23 September 2019)
Links to summary
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 923/2018
In
the matter between:
RAJAN
RAMNATH
SEWPERSADH APPELLANT
and
THE
MINISTER OF FINANCE FIRST
RESPONDENT
SPECIAL
PENSIONS APPEAL BOARD SECOND
RESPONDENT
Neutral
citation:
Sewpersadh v Minister of Finance
(923/2018)
[2019] ZASCA 117
(23 September
2019)
Coram:
Ponnan, Leach, Saldulker, Mbha and Dambuza
JJA
Heard:
26 August 2019
Delivered:
23 September 2019
Summary:
Interpretation – meaning of ‘full-time
service’ of an organisation in
s 1(1)
of the
Special Pensions
Act 69 of 1996
– appellant’s employment during the
relevant period not resulting in him failing to be in the full-time
service of
a political organisation at the same time.
Practice
– time bar – necessity of party seeking to rely on a time
bar to plead the issue and place relevant facts before
court.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Khumalo J sitting as court of first instance):
1 The appeal is upheld with costs, such costs to include
the costs of two counsel.
2 The order of the court a quo is set aside and replaced
with the following:
‘
(a) The review succeeds with costs, including the
costs of two counsel.
(b) The order of the Special Appeal Board of 16 October
2013 is set aside and substituted with the following:
“
(i) The appeal succeeds.
(ii) The determination of the Designated Institution of
4 November 2009 is set aside and replaced with the following:
‘
The applicant, Mr Rajan Ramnath Sewpersadh, is
awarded a special pension under
s 1(1)
of the
Special Pensions Act 69
of 1996
, payable monthly with a commencement date of 1 June 1995 and
determined under
s 1(5)
of the Act as it read immediately before
Part
1
of the Act lapsed on 31 December 2006.”’
JUDGMENT
Leach
JA (Ponnan, Saldulker, Mbha and Dambuza JJA
concurring)
[1]
Many people made substantial sacrifices, both personal and financial,
in the struggle to rid this country of the scourge of
apartheid. That
found recognition and expression in s 189 of the Interim
Constitution,
[1]
which mandated Parliament to pass legislation providing for the
payment of special pensions to those who had made such sacrifices
or
served the public interest in establishing a democratic
constitutional state, and the conditions on which such pensions would
be granted. Pursuant thereto, the legislature passed the Special
Pensions Act 69 of 1996 (the Act), which came into operation on
1
December 1996.
[2]
Several years later, the appellant applied for a pension by
submitting a duly completed prescribed form to the Special Pensions
Board (also referred to in the Act simply as ‘the Board’,
a title which for convenience I shall use in this judgment).
The
Board was at the time the body established to process pension
applications under the Act. In the circumstances more fully detailed
later in this judgment, his application was refused, as were internal
appeals to the Special Pensions Appeal Board
[2]
(the Appeal Board) and a review application brought in the Gauteng
Division of the High Court, Pretoria under the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). The appellant now
appeals to this court with its leave.
[3]
Presumably in recognition of the fact that persons contributed to the
struggle in a variety of ways and to differing degrees,
the Act cast
the net wide in specifying a number of categories of persons entitled
to receive a pension. The appellant limited
his claim to s
1(1)
(a)
(i), which provided:
‘
1
Right
to pension
(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
.’
[3]
[4]
The appellant was more than 35 years of age at the commencement
date
[4]
of the Act, 1 December 1996, and thus satisfied the requirement in
(a)
above. He also
satisfied the requirement in
(b)
namely,
that for at least the prescribed minimum period of five years he had
been a member of a political organisation envisaged
in subsec
(b)
(i).
In that regard, the phrase ‘political organisation’ has a
special meaning defined in s 31 of the Act, and included
both the
African National Congress (the ANC) and its armed wing, Umkhonto
WeSizwe (MK). It is accepted that the appellant was a
member of both
those organisations and that, operating under the alias of ‘Jimmy’,
he performed underground work for
them for more than a period of five
years prior to their unbanning on 2 February 1990. The principal
dispute between the parties,
however, is whether the appellant had
been ‘engaged full-time’ in their service as envisaged by
the subsection during
that period.
[5]
In regard to that issue, the respondents did not dispute the
appellant’s allegations as to how he had gone about serving
both those organisations. He alleged that he underwent intense
political education, involving the attendance of night classes in
regard, inter alia, to political theory and social transformation. He
was then given various tasks in furtherance of the liberation
struggle, most of them clandestine. These included servicing dead
letterboxes, distributing ANC and MK newsletters and pamphlets,
as
well as secret reconnaissance work. Acting as a courier, he also
conveyed banned literature and other ANC materials to and from
Swaziland, and serviced so-called ‘safe houses’,
protecting cadres engaged in political and military activities.
[6]
As a cover for his activities, the appellant took up menial
employment at a jewellery workshop in Durban that was not demanding
of his time but paid a veritable pittance. He did so as it provided a
safe environment from which he could conduct activities on
behalf of
the ANC and MK, especially as he could use terminology associated
with the jewellery industry as a code to pass on secret
messages. As
he puts it, he ‘stole time’ from his employment in order
to carry out his undercover operations, and the
workshop where he
worked was ‘very much a front for the activities of the ANC and
MK’. Although the income from his
work allowed him to support
himself and his dependents at an extremely basic level, he was not in
any way able to provide for a
pension. Despite this, he continued to
work at the jewellery workshop on instructions from his ANC commander
as it provided a safe
and legitimate cover for his clandestine
activities.
[7]
In these circumstances, the appellant felt that he had become
entitled to a special pension under s 1(1) of the Act. As a result,
after having fallen on hard times, he decided to apply to the Board
for such a pension. His application was dated 22 December
2006,
but precisely when it was submitted or received is not clear from the
papers. I shall return to this later in this judgment.
[8]
It is necessary at this stage to deal in some detail with the
statutory matrix relevant to the appellant’s application.
As
already mentioned, it was clearly the intention of the legislature in
framing the Act to cast the net wide in providing for
special
pensions. Thus, when the Act first came into operation on 1 December
1996, it extended benefits not only to those who met
the requirements
in s 1(1) already quoted above, but:
(a) Section 1(1)
(b)
(ii) provided benefits to
persons who had been prevented from leaving a particular place or
area within the country, or from being
at a particular place or area,
as a result of an order issued under various pieces of apartheid
legislation including the Suppression
of Communism Act 44 of 1950,
the Terrorism Act 83 of 1967 and the Internal Security Act 74 of
1982.
(b) Section 1(1)
(b)
(ii) provided benefits to
persons who had been imprisoned or detained in terms of any law or
for any crime mentioned in Schedule
1 of the Act.
(c) Section 1(3) entitled certain persons to receive
pensions if they had been prevented from providing for a pension
prior to 2 February
1990 as a result of suffering a permanent
and total disability arising out of certain circumstances specified
in s 1(1)
(b)
.
(d) Section 2 went on to provide for benefits to
surviving spouses of persons who would have been entitled to benefits
had they
not died before 2 February 1990.
(e) Section 3 provided for payment of benefits to the
surviving spouse or dependant of a person who had been awarded a
pension under
s 1 and who had received monthly payments.
[9]
There was, however, an age limitation upon those who were entitled to
be paid a pension in terms of s 1(1). In terms of s 1(4)
they were
entitled to receive a pension payable monthly, commencing only on the
first day of the month during which they attained
the age of 60
years. This limitation was to some extent ameliorated by s 11
which provided that those who were at least 50
years of age were, at
their discretion, entitled to begin receiving their monthly pension,
albeit in an amount reduced by a formula
taking account of their age.
[10]
The provisions I have dealt with thus far related to the entitlement
to a pension. Other important provisions relating to the
administration of the Act and the pensions or benefits awarded
thereunder were the following:
(a) Section 6(1) provided that any person who applied
for a benefit under the Act should complete an application form in
the prescribed
manner, and submit it to the Board
[5]
for its determination under s 7.
(b) Section 6(1)
(c)
prescribed that an application under s 6(1) was to be submitted ‘on
or before the
closing date
’
.
[6]
In s 31 of the Act, the phrase ‘closing date’ was defined
as meaning ‘the date 12 months after the “
commencement
date
”’ which in turn was defined
as being the date on which the Act came into operation.
[7]
As the Act commenced on 1 December 1996, the closing date was
therefore the last day of November 1997. Simply put, any person
seeking a pension under s 6(1) therefore had a window of a year
commencing on 1 December 1996 in which to submit his or her
application.
(c) Section 7 required the Board to consider
applications for benefits submitted to it under the Act and to
determine, inter alia,
whether the applicant qualified for a pension
and, if so, to determine the benefit payable.
[8]
(d) Under s 8 of the Act, any applicant who disagreed
with the decision of the Board was entitled to request a review of
that decision
by way of the submission of a prescribed form to a
Special Pensions Review Board established by s 28(1) of the Act (the
Review
Board). It was to consider every appeal or review
[9]
submitted to it and either confirm the decision of the Board or
replace it with another decision.
[11]
The Act was amended on various occasions after it came into
operation. First, the categories of persons entitled to receive
a
pension were thrown yet wider by the
Special Pensions Amendment Act
75 of 1998
, which extended pensions to persons who were suffering
from a terminal disease (subject of course to other criteria being
met).
At the same time, the age restriction in
s 1(4)
was relaxed to
entitle a pensioner to receive a pension upon attaining the age of 35
years rather than at 60 years as initially
provided. This rendered
nugatory the provisions of
s 11
under which a pensioner was
entitled to apply for an early pension at 50 years of age, and that
section was repealed.
[10]
[12]
These amendments came into effect on 27 November 1998. As the
appellant who was born in June 1960 was then 38 years of age,
it was
at this stage that he became entitled to receive a pension if he
otherwise qualified. Of course, the difficulty that he
then faced was
that the closing date for applications had passed and, at first
blush, the window of opportunity for him to apply
for a pension had
already closed. In any event, the appellant explained he had not
applied for a special pension at that time as
he had not taken part
in the struggle for financial gain. He only did so later when, due to
a deterioration in his financial circumstances,
he found himself
struggling to meet his commitments.
[13]
Further changes to the Act were effected by way of the Special
Pensions Amendment Act 2 of 2003 (the 2003 amendment). Of importance
in regard to the appellant was an amendment to s 6. Limiting
applications to those submitted within the 12 month period preceding
the closing date was presumably viewed by the legislature as being
overly restrictive and unfair, and this was ameliorated with
effect
from 7 October 2003 by the addition of subsec 6(3) which read:
‘
Notwithstanding subsection (1)
(a)
(iii),
the
Board
may condone
any late
application
if the
Board
is
satisfied that, for reasons beyond the control of the
applicant
,
the
application
could
not be submitted on or before the
closing
date
.’
Although
the commencement and closing dates prescribed by the Act remained the
same, and required the prescribed form to be lodged
in the 12 month
period preceding 1 December 1997, the Board thus became entitled to
condone any application submitted after that
date. If so condoned,
the application would then fall to be determined in the normal course
under s 7.
[14]
Further amendments to the Act were thereafter introduced by way of
the Special Pensions Amendment Act 27 of 2005 (the 2005
amendment).
Commencing with effect from 16 January 2006, these were far-reaching.
They widened the scope of the Act yet further
by introducing funeral
benefits as well as pensions for surviving spouses and orphans.
Importantly in regard to the present matter,
the 2005 amendment also:
(a) Introduced s 6A which reads as follows:
‘
Lapsing of Part 1, and certain savings
(1) Part 1, except for this section, lapses on 31
December 2006.
(2) Subsection (1) does not affect any
benefit
payable under this Part in respect of which the Board has made a
determination in terms of section 7 before 31 December 2006.
(3) Any
application
for
benefits
in terms
of this Part which has been submitted to the Board before 31 December
2006, but on which the Board has not made a determination
by that
date, must be finalised as if this Part had not lapsed.’
(b) Amended
s
27
to oblige the Minister to dissolve the Board by no later than 60 days
after 31 December 2006 and to provide that, upon such dissolution,
the Head of Pensions Administration in the National Treasury was to
become responsible for the performance of the functions of
the Board
in terms of the Act.
(c) Introduced s 28(6) to oblige the Minister to
dissolve the Review Board within 90 days of dissolving the Board
under s 27.
(d) Introduced s 28(7) to provide that upon dissolution
of the Review Board under s 28(6), responsibility for the performance
of
the functions of the Review Board would vest in the Minister.
[15]
The appellant had still not applied for a special pension when these
amendments were effected. He was running out of time.
Section 1(1)
fell within Part 1 of the Act and, in the light of the new s 6A, this
meant he had until 31 December 2006 to
submit his special
pension application to the Board. It was only if he had done so and a
determination had either been made in
his favour under s 7 or his
application had not been finalised, that his right to a pension under
s 1(1) would not have lapsed
on that date.
[16]
Due to a deterioration in his financial position, the appellant
finally decided to apply for a pension before his right to
do so
lapsed. But he cut things fine. The prescribed form that he completed
in so applying was dated 22 December 2006, and
there is nothing
on the papers to indicate how or when it was sent or delivered to the
Board. But by the same token there is nothing
to indicate that it was
rejected by the Board. Indeed as appears from what follows, the Board
clearly regarded it as being in proper
form and accepted it for
determination.
[17]
One must presume that after the appellant submitted his application
to the Board, the Minister indeed dissolved both it and
the Review
Board pursuant to the 2005 amendment of ss 27 and 28(6), which came
into operation on 1 January 2006. In addition,
the Act was again
amended with effect from 12 January 2009 by the Special Pensions
Amendment Act 13 of 2008 (the 2008 amendment)
which, inter alia:
(a) Deleted references to the Board (which presumably
had been dissolved) and replaced them with references to the
‘designated
institution’ – defined in s 31 as
being either the National Treasury or another institution designated
by the
Minister of Finance.
(b) Repealed the powers of the Board set out in s 7 and
vested the administration of the Act under that section in the
Director-General
of the National Treasury (the Treasury), with the
Minister being given the power to also designate certain institutions
to administer
the Act to ensure its effective and efficient
implementation.
(c) Repealed s 28 of the Act under which the Review
Board (also dissolved by then) had been established. It also repealed
s 28(7)
which had bestowed upon the Minister responsibility for all
functions of the Review Board upon its dissolution under s 27(1).
(d) Introduced s 8AA, which established the Appeal Board
in place of the Review Board, to hear appeals against decisions of a
designated
institution.
[18]
These further amendments were effected before the appellant’s
application, submitted more than two years earlier, had
been
determined. Indeed, processing the application proceeded at the pace
of a snail, probably due in part to the dissolution of
the Board to
which it had been submitted and the subsequent delay until the
Treasury was established as a designated institution.
It was only in
November 2009, almost three years after it had been submitted, that
the Treasury informed the appellant that his
application had been
rejected.
[11]
The reason it gave for doing so was that, in its view, he had
provided insufficient evidence of having been in full-time service
of
his political organisations for the relevant period.
[19]
Disgruntled, the appellant proceeded under s 8 of the Act to appeal
to the Appeal Board. The appeal was lodged on 30 November
2009 and
thereafter supported by further documentary evidence. However,
despite the appellant’s efforts, on 8 April
2011 the
Appeal Board rejected his appeal and confirmed the decision of the
Treasury. The reason given for doing so was that since
the appellant
had been gainfully employed at the jewellery workshop, he could not
have been engaged full-time in the service of
the ANC and MK.
[20]
The appellant did not give up. In January 2012, he instituted review
proceedings in the Gauteng Division of the High Court,
Pretoria.
Citing the Government and the Appeal Board, respectively, as first
and second respondents, he sought an order setting
aside the Appeal
Board’s decision. For some reason he did not challenge the
initial decision of the Treasury. It would probably
have been better
had he done so. It was pointed out in
Wings
Park
[12]
that when an applicant has suffered an unfavourable decision at first
instance which is confirmed on an internal appeal, both decisions
must usually be taken on review in order to have the decision set
aside. This is because if just the appeal decision is set aside,
the
first decision that was the subject of the internal appeal will
continue to stand should it, too, not be set aside on review.
The
failure to target the original decision is, however, not necessarily
fatal to a review in such circumstances, and much depends
upon the
nature of the decision at first instance and the remedy sought on
review.
[13]
Here the proceedings before Appeal Board do not amount to a simple
rehearing as in the case of a true appeal but, rather, are akin
to
proceedings de novo in as much as the Appeal Board can receive
further evidence and make further enquiries.
[14]
In my view, this is a case where a failure to target the original
decision does not preclude relief. Certainly if the Appeal Board’s
decision is substituted on review with an order which overturns the
Treasury’s initial decision, no harm can be done.
[21] In
any event, the review application was opposed. Unfortunately, the
respondents dragged their feet and it was necessary for
the appellant
to bring various interlocutory applications to compel them to comply
with their obligations, inter alia, to file
a proper record of the
proceedings before the Appeal Board. Eventually, the respondents
consented to an order setting aside the
Appeal Board’s
decision, with the latter undertaking to reconsider the appellant’s
appeal. An order in those terms
was granted by consent on 6 August
2013.
[22]
Any flush of success on the part of the appellant was to be short
lived. On 25 October 2013, his attorneys were informed that
the
Appeal Board had reconsidered his appeal and, by a majority, had
again rejected it for reasons to be provided in due course.
Such
reasons were not immediately forthcoming. It was only on 21 February
2014, after the appellant had threatened court action
to compel
compliance, that the Appeal Board delivered them. As appears
therefrom, the majority decision was again based on the
fact that the
appellant had been employed full-time at the jewellery workshop
which, so it reasoned, precluded him being engaged
in the full-time
service of the ANC and MK. The Chair of the Appeal Board reached the
contrary conclusion. She reasoned that:
‘
. . . private employment as a means of providing
cover for an underground operative, implies that more often than not,
such a person
would be unable to market his/her skills on the open
labour market to secure decent employment with reasonable benefits.
To do
otherwise would surely attract unnecessary attention, and
therefore run the risk of having his/her cover revealed.’
[23]
The appellant is obviously a person of determination. Despite this
further setback, he once more proceeded to seek the assistance
of the
courts. In August 2014 he instituted proceedings in the court a quo,
seeking to review the Appeal Board’s decision
of 25 October
2013. Citing the Minister of Finance as first respondent and the
Appeal Board as second respondent, he sought the
following relief:
‘
(a) Reviewing and setting aside the decision of
the second respondent, of which the applicant was first notified on
25 October 2013,
refusing the applicant’s application for a
special pension in terms of the Special Pensions Act, 69 of 1996.
(b) Substituting for the decision of the second
respondent a decision that the applicant is entitled to a special
pension in terms
of
section 1(1)
and
1
(4) of the
Special Pensions
Act, with
effect from 05 June 1995.
(c) Alternatively to (b) above, referring the
applicant’s application for a special pension back to the
second respondent,
and ordering the second respondent to summon such
witnesses to appear before it as will clarify the so-called
contradictions identified
by the second respondent in the reasons
received by the applicant on 21 February 2014.’
[24]
These proceedings, too, proceeded at no haste. Although the answering
and replying papers of the parties were filed by January
2015, it
took two and a half years until judgment was given on 25 August 2017
dismissing the application. In doing so the court
a quo adopted
similar reasoning to that of the Appeal Board, holding, inter alia,
that the appellant’s full-time employment
at the jewellery
workshop precluded him from being in the full-time service of his
political organisations. It also dismissed an
application for leave
to appeal. In July 2018, such leave was granted by this court.
[25]
The respondents sought to support the correctness of the decision of
both the Appeal Board and the court a quo by arguing,
first, that the
appellant’s application for a special pension had been out of
time and that for this reason alone he was
not entitled to such a
pension; and, secondly, that the application had correctly been
rejected on its merits by both the Board
and the Appeal Board. For
the reasons that follow, the argument must fail on both counts.
[26]
In regard to the first issue, the respondents contended that the
appellant’s application had been submitted both after
the
closing date in
s 6
(ie after the end of November 1997) and
after Part 1 of the Act had lapsed by virtue of the provisions of s
6A introduced by the
2005 amendment (ie after the end of December
2006).
[27]
It is indeed so that the appellant’s application was submitted
after the closing date of 1 December 1997 but, as I have
pointed out,
s 1(4) initially imposed an age limitation of 60 years upon those
entitled to a pension under s1(1). It was only after
the 1998
amendment came into operation on 27 November 1998 (after the
closing date), that he became entitled to receive a
pension under
that section.
[15]
And it was only with effect from 7 October 2003, when s 6(3) was
introduced, that he acquired the right to seek condonation for
failing to apply before the closing date.
[16]
Of course his right to receive a pension had only accrued after the
closing date, and respondents’ counsel was driven to
concede
that it could not have been expected of the appellant to have
submitted his application before then, any application for
condonation on his part would probably have had to succeed.
[28]
One does not know if the appellant in fact applied for condonation at
any stage. The papers are silent on this issue, and it
was never
raised at any stage in any of the proceedings I have detailed.
Moreover the issue of the appellant’s application
being out of
time was never an issue until the respondents filed their heads of
argument in this court. And therein lies the rub.
What the
respondents essentially seek to argue is that the appellant was
time-barred. But in terms of the well-known adage that
the party who
alleges must prove, it was incumbent upon the respondents, if they
had wished to argue that the appellant’s
claim had been out of
time, to have raised the issue and pleaded the facts upon which they
relied in support of their contention,
including that condonation was
necessary and had never been obtained. In this regard, the matter is
similar to a plea of prescription.
[17]
However, that issue and whether the appellant had been granted
condonation, were never canvassed in these proceedings (nor before
the Board, the Treasury, the Appeal Board or the high court in either
review). In these circumstances, the respondents are precluded
from
relying on a defence they never properly raised.
[29]
The same considerations apply in respect of the respondents’
argument based on s 6A. The appellant’s application
was duly
processed with nary a whisper that it might have been out of time and
if the respondents wished to contend that it had
only been submitted
after Part 1 of the Act had lapsed, it was incumbent on them to have
alleged so and established the facts upon
which they relied. They did
not attempt to do so, and on a similar basis of reasoning to that set
out above, they are precluded
from now seeking to rely on a special
defence never previously raised.
[30]
I turn to consider the respondents’ second main contention,
namely, that the appellant had failed to make out a case
for a
special pension. On this issue it was argued on their behalf that the
appellant had failed to show that he had been prevented
from
providing for a pension on account of his having been in the
full-time service of his political organisations.
[31]
The reasoning of the court a quo in regard to this issue is somewhat
confusing, but the finding appears to have been that,
because the
appellant was in the full-time employment of the jewellery workshop,
he could have provided for a pension – and
was thus not
entitled to receive one under s 1(1). This does not appear to have
been the basis of the reasoning of either the Treasury
or the Appeal
Board, nor was it raised by the respondents in their papers opposing
relief in the court a quo. It is thus surprising
that it was raised
in that court, and ventilated again in the respondents’ heads
of argument in this court.
[32]
It is, in any event, a matter that need not detain us. The appellant
states that the measly salary he obtained from his work
was
sufficient only to allow him to support his family at an extremely
basic level, and was insufficient to provide for a pension.
This has
never been challenged, nor was his contention, supported as it was by
affidavits from his seniors in his organisation,
that he had been
instructed to continue working at the jewellery workshop as it
provided a safe and legitimate cover for him to
conduct his
clandestine operations. For no good reason the court a quo rejected
these allegations, despite them having been accepted
by the Appeal
Board.
[33]
In these circumstances, the court a quo clearly misdirected itself in
concluding that the appellant had not shown that his
activities on
behalf of the ANC and MK had prevented him from providing for a
pension. Clearly they had, and although the respondents
presented a
contrary argument in their heads of argument, their counsel was
obliged to concede the point during the hearing.
[34]
I therefore turn to the sole issue relied upon by both the Treasury
and the Appeal Board, namely, whether the appellant’s
full-time
employment with the jewellers meant he could not have been in the
full-time service of the ANC and MK. In interpreting
the meaning of
‘engaged full-time in the service of a political organisation’
set out in s 1
(b)
(i),
it must be remembered that the Act is a so-called ‘remedial
statute,’ having as its aim the extension of rights
for the
benefit of persons that they would not otherwise enjoy. As mentioned
at the outset of this judgment, parliament had been
mandated by the
Interim Constitution to provide for the payment of pensions to those
who had made sacrifices or served the public
interest in establishing
a democratic constitutional state, and the preamble to the Act
reflects this laudable intent. The Act
is therefore designed to
ameliorate the financial suffering of those who fought for freedom,
and it is trite that in the interpretation
of remedial provisions
such as those, a statute should be construed liberally in order to
afford the greatest measure of relief
which its language may fairly
allow. The phrase ‘engaged full-time in the service of a
political organisation’ must
be construed in that light.
[35]
The Act must also be interpreted in the light of its surrounding
circumstances. As I have attempted to show when detailing
the
history, the various amendments to the Act demonstrate an
ever-widening class of persons entitled to receive special pensions.
This is a clear reflection of the legislature’s intent to
bestow such pensions liberally rather than restrictively and, in
itself, indicates the necessity of interpreting the phrase widely
rather than narrowly.
[36]
In my opinion, in placing a restrictive interpretation upon the
phrase, the majority of the Appeal Board lost sight of the
reality
that those engaged in the struggle against apartheid faced in this
country. Prior to the unbanning of the ANC and MK on
2 February 1990,
it was a criminal offence to be a member of those organisations. The
so-called ‘security forces’ of
the apartheid state
operated tirelessly and brutally against their opponents. It is no
exaggeration to say that those involved
in the struggle were daily at
risk of being detained without trial, brutally assaulted or killed.
The reach of the security police
was long, relentless and determined,
and it was impossible for members of the ANC and MK to operate in the
open. Instead, they
were obliged to operate covertly, as the
appellant did.
[37]
There is nothing in the Act which indicates any legislative intent to
exclude from its operation members of such organisations
who were
obliged to act covertly within this country. Nor are there any
surrounding circumstances that give reason to think that
such
exclusion was intended. Certainly none were suggested in the
respondents’ papers nor any suggested by their counsel.
The
only argument advanced was that persons who were in full-time
employment could not be said to have been in the full-time service
of
their political organisations at the same time.
[38]
To me this would be an unduly restrictive connotation of what was
meant by ‘full-time service’ envisaged by the
section. A
distinction must be drawn between the concepts of ‘employment’
on the one hand and ‘service’
on the other. Although the
former connotes service for a salary, the latter has a wider
connotation, not necessarily associated
with the payment of a wage or
salary. Fowler records that the verb ‘service’ was a late
addition into the English language,
used first only in the sense of
‘to be of service to, to provide with a service’
[18]
neither of which necessarily connotes a sense of acting in order to
earn a wage or salary. Whilst the noun ‘service’
has been
defined as being ‘the action or process of serving’, the
verb ‘serve’ has been defined as meaning
to ‘perform
duties or services for’ and to ‘be of use in achieving
something or fulfilling a purpose’ (which
again perfectly
describes the appellant’s activities). By a similar token, the
phrase ‘be at someone’s service’
bears the meaning
‘be ready to assist whenever required’.
[19]
Interestingly, the act of volunteering has been defined as ‘where
an individual or group provide
services
for no financial or social gain
to benefit another person, group or organisation (my emphasis)’
[20]
– which aptly describes how the appellant assisted his
political organisations.
[39]
Bearing that in mind, as well as the purpose of the legislation, the
necessity to interpret it liberally rather than narrowly,
and the
connotation of ‘service’ being far wider than that of
‘employment’, there seems to me to be no
reason why a
person such as the appellant in full-time employment of the kind
encountered here, cannot be said to be at the same
time in the
full-time service of a political organisation, especially if such
employment was used as a cover for their activities
on behalf of that
political organisation. That being so, both the court a quo and the
majority of the Appeal Board erred in finding
that the appellant’s
action in working for the jewellery workshop precluded him from being
in the full-time service of the
ANC and MK, and the minority of the
Appeal Board reasoned correctly on this issue.
[40]
In this case, the Appeal Board made the cardinal mistake of deciding
that the appellant’s employment precluded him from
receiving a
pension for which he was otherwise entitled. For the reasons I have
given, its approach in construing both the facts
and the Act was
clearly wrong. Its conclusion that the appellant did not qualify for
a pension therefore plainly cannot stand.
[41]
It follows that the Appeal Board ought to have set aside the
Treasury’s decision and substituted in its place an order
determining the appellant’s entitlement to a special pension
under s 1(1) of the Act. By the same token, the court quo clearly
erred in not reviewing the Appeal Board’s decision and granting
the appellant relief. This appeal must therefore succeed.
[42]
That brings me to consider what would be the appropriate relief for
this court to grant on allowing the appeal. There seems
to me to be
no purpose in referring the matter back to the Appeal Board to
re-consider as the appellant is quite clearly entitled
to his special
pension, and the terms of his entitlement are largely prescribed by
the statute itself. Furthermore, years
have passed since the
appellant applied for his pension, and it seems to be unjust to delay
the matter any further when he is so
obviously entitled to relief.
This court is in any event in this particular instance in as good a
position as the Appeal Board
to make a decision, all the relevant
information being available. That seems to be the best approach, as
it does away with the
difficulty that I mentioned earlier in this
judgment of the original order standing until it is reconsidered by
the Appeal Board,
and serves to avoid both further delay and
unnecessary costs – see
Trencor
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd
2015 (5) SA 245
(CC) paras 58, 59,
74 and 78. When this was drawn to the attention of the parties, they
were agreed that if this court should find
for the appellant, we
should direct that he be paid his pension.
[43]
As the appellant’s right to a pension must be considered on the
basis of his application having been submitted but not
determined
before Part 1 of the Act lapsed on 31 December 2006, s 6A(3) provides
for it to be finalised as if Part 1, including
s 1(4) had not lapsed.
Substituted by s 2 of the 2005 Amendment, s (1)(4) at that time
provided:
‘
A
pensioner
who qualifies for a
benefit
in terms of subsection (1) is entitled to receive a
pension
,
payable monthly, commencing on 1 April 1995 or the first day of the
month during which that person attains the age of 35 years,
whichever
is the later date.’
[44]
In s 31,
benefit
is
defined as meaning ‘a sum of money payable in terms of [inter
alia] Part 1 of the Act’,
pensioner
is defined as meaning ‘a person entitled to a pension’
(which includes the appellant),
pension
is defined as meaning ‘a right to the monthly payment of a
pension determined [inter alia] in terms of section 1’.
Albeit
that these concepts are somewhat tortuously framed, they result in
the appellant, a pensioner, who is entitled to receive
a pension
under s 1(1) – and who therefore qualifies for a benefit under
that section – having become entitled to receive
such pension
from the first day of the month on which he attained the age of 35
years, which was after 1 April 1995. As he was
born in June 1960, the
appellant therefore became entitled to receive his pension commencing
from 1 June 1995. This will be reflected
in the order set out below.
[45]
Finally there is the issue of costs. In regard to the costs of the
litigation both a quo and in this court, there is no reason
for those
not to follow the event. Counsel were also agreed, correctly in my
view, that any order for costs should embrace the
costs of two
counsel.
[46]
The following order is made:
1 The appeal is upheld with costs, such costs to include
the costs of two counsel.
2 The order of the court a quo is set aside and replaced
with the following:
(a) The review succeeds with costs, including the costs
of two counsel.
(b) The order of the Special Appeal Board of 16
October 2013 is set aside and substituted with the following:
“
(i) The appeal succeeds.
(ii) The determination of the Designated Institution of
4 November 2009 is set aside and replaced with the following:
‘
The applicant, Mr Rajan Ramnath Sewpersadh, is
awarded a special pension under
s 1(1)
of the
Special Pensions Act 69
of 1996
, payable monthly with a commencement date of 1 June 1995 and
determined under s 1(5) of the Act as it read immediately before Part
1 of the Act lapsed on 31 December 2006.”’
______________
L
E Leach
Judge
of Appeal
Appearances
For
the Appellant: B Morris (with him B Meyersfeld and M Nxumalo)
Instructed
by: Viren Singh Attorneys, Durban
M
A Martins Attorneys, Bloemfontein
For
the Respondent: Z Z Matebese SC (with him M X Shibe)
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
[1]
Constitution of the Republic of South Africa Act 200 of 1993. Section
189, headed ‘Special pensions’, provides:
‘(1) Provision shall be made by an Act of Parliament for the
payment of special pensions by the national government to-
(a)
persons who have made sacrifices or who have served the
public interest in the establishment of a democratic constitutional
order,
including members of any armed or military force not
established by or under any law and which is under the authority and
control
of, or associated with and promotes the objectives of, a
political organisation; or
(b)
dependants of such persons.
(2) The Act of Parliament referred to in subsection (1) shall
prescribe the qualifications of a beneficiary of a special pension
referred to in subsection (1), the conditions for the granting
thereof and the manner of the determination of the amount of such
pension, taking into account all relevant factors, including,
inter
alia
, any other remuneration or pension received by such
beneficiary.’
[2]
Established under s 8AA after it had been inserted into the Act as
set out in para 17 of this judgment.
[3]
The words italicised by the legislature were specially defined in s
31 of the Act.
[4]
Defined in s 31 of the Act as being the date on which the Act came
into operation as set by the President in a proclamation in
the
Government Gazette.
[5]
Established under s 15 of the Act and referred to in para 6 above.
[6]
The phrase ‘
closing date
’ was italicised by the
legislature to emphasize that it was a concept defined in s 31 of
the Act.
[7]
This is confirmed by
s 2(2)
of the
Special Pensions Amendment Act 75
of 1998
which specifically provided that
s 6(1)
‘must be
regarded as having taken effect on 1 December 1996’.
[8]
Subsections 7
(b)
and
(f)
.
[9]
The words appeal and review were used interchangeably – the
heading of
s 8
referred to a right to appeal the Board’s
decision while the section itself referred to the decision being
reviewed.
[10]
Section 3
of the
Special Pensions Amendment Act 75 of 1998
.
[11]
Pursuant to the amendments I have detailed, the Treasury as
designated functionary had replaced the by then dissolved Board as
the body charged with the determination of the appellant’s
application and had assumed its functions set out in
s 6.
[12]
Wings Park Port Elizabeth (Pty) Ltd v MEC Environmental Affairs,
Eastern Cape & others
2019 (2) SA 606
(ECG) para 34.
[13]
Wings Park
paras 39-46.
[14]
Section 8(3) of the Act.
[15]
See para 12 of this judgment.
[16]
See para 13 of this judgment.
[17]
Gericke v Sack
1978 (1) SA 821
(A) at 827G-828C.
[18]
R
W Burchfield
Fowler’s Modern English Usage
rev 3 ed
(2004) at 704.
[19]
See in this regard the
Concise English Oxford Dictionary
(12
ed).
[20]
Wikipedia
online dictionary -
en.wikipedia.org/wiki/Volunteering.