CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 260/18
In the matter between:
NATHANIEL MASHILO MASEMOLA Applicant
and
SPECIAL PENSIONS APPEAL BOARD First Respondent
GOVERNMENT PENSIONS
ADMINISTRATION AGENCY Second Respondent
Neutral citation: Masemola v Special Pensions Appeal Board and Another [2019]
ZACC 39
Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Theron J and Victor AJ
Judgment: Mhlantla J (unanimous)
Heard on: 6 August 2019
Decided on: 15 October 2019
Summary: Special Pension s Act 69 of 1996 — disqualification from
receiving special pension — effect of presidential pardon —
special pension restored
2
ORDER
On appeal from the Supreme Court of Appeal the following order is made:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and replaced with
the following:
(a) It is declared that the special pension of Mr Nathaniel Mashilo
Masemola is restored from 21 July 2011, being the date on which
he received his presidential pardon.
(b) The Special Pensions Appeal Board and Government Pensions
Administration Agency are ordered to pay Mr Nathaniel Mashilo
Masemola his special pension with effect from 21 July 2011
within 14 days from the date of this order.
(c) The Special Pensions Appeal Board and Government Pensions
Administration Agency are to pay the applicant’s costs , jointly
and severally, including costs of two counsel where applicable.
4. The Special Pensions Appeal Board and Government Pensions
Administration Agency are to pay the applicant’s costs in this Court ,
jointly and severally , including the costs of two counsel where
applicable.
3
JUDGMENT
MHLANTLA J ( Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Theron J and Victor AJ concurring):
Introduction
[1] Many men and women contributed to the liberation struggle. They were
engaged in the service of political organisations in pursuit of one cause – the liberation
of the majority of South African citiz ens from apartheid. As a consequence of the
repressive measures adopted by the apartheid regime against its opponents , some
struggle activists ended up being imprisoned for many years, others were in exile and
engaged in the struggle outside South Africa , and others were prevented by law from
being in certain places. As a result, most of these political activists were not gainfully
employed and thus unable to provide a pension for themselves. Through the efforts of
all those involved , the liberation stru ggle eventually contributed to the establishment
of a democratic government.
[2] In recognition of the sacrifices made by struggle activists , section 189 of the
interim Constitution required that legislation be enacted to provide for the payment of
special pensions by the national government to persons who had made sacrifices or
served the public interest in the establishment of a democratic constitutional order. 1
1 Section 189 of the interim Constitution states:
“(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 milita ry 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 subsectio n (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
MHLANTLA J
4
The Special Pensio ns Act 2 (Act) which was enacted in 1996 did just that. It also
prescribed rules for determining the persons who were entitled to receive those special
pensions.3
[3] This matter comes before us as an application for leave to appeal against an
order of the Supreme Court of Appeal that upheld an appeal against a judgment of the
High Court of South Africa, Gauteng Division, Pretoria (High Court). It concerns the
disqualification of receipt of a special pension and the effect of a presidential pardon
in this regard.
Background facts
[4] The applicant, Mr Nathaniel Mashilo Masemola, is a 92-year-old man who was
actively engaged in the liberation struggle under the auspices of the African National
Congress (ANC), of which he had been a m ember since 1946. Due to his political
activities, he was forced into exile. After returning from exile he served in the ANC’s
Legal and Constitutional Committee which participated in the processes leading to the
adoption of the C onstitution. On 26 March 1997, the applicant applied for a special
pension, in terms of the Act, in light of his sacrifices and his service in the public
interest.4 In appreciation of his contribution to the establishment of the democratic
constitutional order, the first respondent , the Special P ensions Appeal Board (Board)
awarded the applicant his special pension on 10 December 1997.
[5] On 2 April 2001, the applicant was convicted of several counts of fraud and
was sentenced to five years’ imprisonment. Pursuant to an investigation by the
Special Investigating Unit (SIU) in 2007 the Board advised the applicant that, in terms
pension, taking into account all relevant factor s, including, inter alia , any other
remuneration or pension received by such beneficiary.”
2 69 of 1996.
3 Long title of the Act.
4 His application was lodged in terms of section 6 of the Act which requires a person who applies for a special
pension to complete the prescribed form, which must be commissioned by a Commissioner of Oaths and must
be submitted before the closing date. The closing date was 1 December 1997.
MHLANTLA J
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of section 1(8)(b) of the Act, he was disqualified from continuing to receive a special
pension.5 Thereafter the applicant did not receive his special pension.
[6] The applicant applied for a presidential pardon in terms of section 84(2)(j) of
the Constitution.6 This was granted on 21 July 2011. The pardon was i n respect of
his conviction on five counts of fr aud which it expunged. In 2012, he received a
South African Police Services (SAPS) Clearance Certificate, certifying that the
conviction had been expunged from his record.
[7] The applicant thereafter addressed a letter to the second respondent, the
Government Pensions Administration Agency (GPAA),7 notifying it of his pardon and
requested the re instatement of his special pension. In Feb ruary 2015 , the GPAA
informed the applicant that his disqualification had occurred before his pardon and
explained that since pardons do not have retrospective effect, his special pension
could not be reinstated. Accordingly, the GPAA did not accede to his request for
reinstatement.
[8] The applicant made further attempts to have his special pension reinstated
contending that the pardon had eliminated the grounds for his disqualification. In
March 2015, the applicant noted an appeal with the Board against the decision of the
GPAA. In July 2015, the Chairperson of the Board inform ed the applicant that the
2008 disqualification letter was not a decision and accordingly no appeal could be
lodged against it.
[9] In February 2016, the applicant launched proceedings in the High Court against
the failure of the respondents to take a decision. On 8 August 2016 , the High Court
5 Section 1(8)(b) provides that a special pension recipient is disqualified from receiving or continuing to receive
a pension if, after making the sacrifice or serving the public interest, that person was convicted after 2 February
1990. Section 1(9)(b) qualifies the term “crime” in section 1(8)(b) to mean at any time after 30 April 1994, an
offence mentioned in Schedule 1 of the Criminal Procedure Act 51 of 1977.
6 Section 84(2)(j) states that the President is responsib le for pardoning or reprieving offenders and remitting any
fines, penalties or forfeitures.
7 The GPAA administers pensions of the Government Employees Pension Fund and the National Treasury.
MHLANTLA J
6
ordered the Board to make a decision regarding the reinstatement of the applicant’s
special pension within 15 days of the order.8
[10] By September 2016, the applicant had not received a decision and he
threatened urgent litigation. In October 2016, the Board informed the applicant that it
was not competent to make a decision regarding the reinstatement of his special
pension. The Board explained that the disqualification occurred by operation of law ,
therefore, there could be no decision by the GPAA susceptible to an appeal in terms of
section 8(1).9 The Board explained that the interpretation of this legal issue – the
effect of his expungement – was best left to be determined by a court as any decision
on reinstatement would overstep its mandate.
[11] This prompted the applicant to approach the High Court again. This time he
sought to review and set aside the d ecisions of the GPAA and the Board and an order
reinstating his special pension.
Litigation history
High Court
[12] The High Court held that the written exchanges between the applicant and the
GPAA made it clear that the GPAA had decided not to reinstate the applicant’s special
pension and that the decision was communica ted to him. 10 The High Court hel d that
this decision was capab le of being appealed and the Board was under an obligati on to
adjudicate the correctness of this decision. Giving effect to the purpose of the Act, the
High Court held that presidential pardons and special pensions could not be viewed in
isolation. The Court held that the applicant would, in light of the presidential pardon
and “with no criminal record to his name”, be entitle d, “even on a fresh application ”,
8 Masemola v Special Pensions Appeal Board (10448/16) [2016] ZAGPPHC per Fabricus J.
9 Section 8(1) of the Act states:
“Any applicant who disagrees with any decision of the designated institution may appeal that
decision by sending a written notice in the form determined by the designated institution to
the Appeal Board within 60 days of the date of the decision.”
10 Masemola v Special Pensions Appeal Board [2016] ZAGPPHC 1253 per Makhubele AJ.
MHLANTLA J
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to receive the special pension.11 The High Court elected not to refer the matter back
to the Board and instead, s et aside the decision of the Board and ordered the
reinstatement of the applicant’s special pension, effective from the date of the
presidential pardon, 21 July 2011. The respondents were granted leave to appeal.
Supreme Court of Appeal
[13] The Supreme Court of Appeal per Mothle AJA, delved into the legislative
development of the Act. 12 It held that the purpose of the Act and its relevant
amendments indicate a clear intention by the Legislature to provide for those who
made sacrifices, but that there was a cut -off to the time in which those persons could
apply for special pensions. The insertion of section 6A meant that no new special
pension applications could be made after 31 December 2006. 13 The Supreme Court of
Appeal held that the motivation for this time bar was to guard against the ri sk of
fraudulent claims and those that could not be easily verified. This time bar did not
affect benefits already determined, or existing applications that had not by then been
determined. The Supreme Court of Appeal explained that the disqualifying pro visions
too served a purpose: to discourage people from acting in a manner that undermined
the new democratic order.
[14] The Supreme Court of A ppeal relied on McBride,14 where this Court held that
section 20(10) of the Promotion of National Unity and Reconcili ation Act15 expunged
11 Id at paras 19-20.
12 Special Pensions Appeal Board v Masemola [2018] ZASCA 117; [2019] JOL 41630 (SCA) (Supreme Court
of Appeal judgment) per Mothle AJA with Navsa JA, Tshiqi JA, Swain JA and Mathopo JA concurring.
13 Section 6A, titled “Lapsing of Part 1, and certain savings” provides:
“(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 t his 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.”
Other amendments were affected, and by 2010 it was no longer possible to apply anew for a special pension.
14 The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11; 2011 (4) SA 191 (CC); 2011 (8) BCLR 816 (CC)
(McBride).
15 34 of 1995 (Reconciliation Act).
MHLANTLA J
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previous convictions and restored full civic status but “does not render untrue the fact
that the perpetrator was convicted, or expunge the deed that led to his or her
conviction. Those remain historically true.” 16 The Supreme Court of Appeal found
no reason to give greater effect to a presidential pardon than to section 20(10). The
Court noted that when the applicant’s pardon was granted, the part of the Act in terms
of which special pensions could be paid to the category of persons u nder which the
applicant received his special pension, had lapsed by virtue of section 6A of the Act.
The Court explained that the relevant part of the Act had lapsed approximately five
years before the grant of the presidential pardon. It held that this presented “a
formidable if not insuperable bar to payment of the special pension”.17
[15] Ultimately, in upholding the appeal, the Supreme Court of Appeal held:
“There is no means within the structure of the Act through which Mr Masemola can
continue to receive a special pension. To find otherwise would be to subvert the
disqualifying provisions, which the Legislature correctly thought fit to include and
would offend against the principle of legality.”18
In this Court
[16] Aggrieved by the decision, the applicant applied for leave to a ppeal to this
Court. We issued directions requesting submissions from the parties on: (a) the effect
or limits of a presidential pardon; and (b) the effect of section 6A(1) of the Act on the
reinstatement of special pensions. Upon receipt of the written submissions, t he matter
was set down for hearing.
Issues
[17] The issues for determination are:
(a) Should leave to appeal be granted?
16 Supreme Court of Appeal judgment above n 12 at para 20 quoting McBride above n 14 at para 72.
17 Supreme Court of Appeal judgment id at para 21.
18 Id at para 23.
MHLANTLA J
9
(b) What is the effect of the applicant’s presidential pardon?
(c) Is the applicant , following his presidential pardon, entitled to the
restoration of his special pension benefits?
(d) If he is entitled, is the re storation automatic following the presidential
pardon, or does it require a fresh application?
(e) Given the changes to the legislative scheme, is the right to a special
pension still available? Linked to this , what is the effect of section 6A
of the Act?
(f) Does the Board and the GPAA have the power to reinstate the special
pension?
Jurisdiction and leave to appeal
[18] While both parties agree that this Court has jurisdiction and that leave should
be granted, this is not determinative. In order for this Court to entertain this matter
there must be either a constitutional issue or an arguable point of law of general public
importance19 and it must be in the interest s of justice to hear the matter .20 It is
axiomatic that the construction of a constitutional provision, such as section 84(2)(j)
of the Constitution, as well as the interpretation and application of legislation enacted
in order to give effect to section 189 of the interim Constitution, constitute
constitutional matters. 21 In addition, t his matter raises questions of considerable
19 Section 167(3) of the Constitution provides:
“The Constitutional Court—
(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to appeal
on the grounds that the matter raises an arguable point of law of
general public importance which ought to be considered by that
Court; and
(c) makes the final decision whether a matter is within its jurisdiction.”
20 Paulsen v Slip Knot Investments 777 (Pty) Ltd [2015] ZACC 5; 2015 (3) SA 479 (CC); 2015 (5) BCLR 509
(CC) at paras 29-30.
21 Masetlha v President of the Republic of South Africa and Another [2007] ZACC 20; 2008 (1) SA 566 (CC);
2008 (1) BCLR 1 (CC) at para 28.
MHLANTLA J
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public importance concerning the legal effect of presidential pardons as well as the
interpretation of the Act. This is a novel question which clearly implicates significant
public interest. The matter is arguable and has prospects of success. The interests of
justice dictate that this Court resolve this matter. Accordingly, leave to appeal should
be granted.
[19] Before turning to the question of the effect of a presidential pardon , an
overview of the construction o f the Act is necessary in order to properly ascertain the
rights and responsibilities it caters for.
The regulatory framework
[20] The starting point is its purpose. As stated above, the Act , in giving effect to
section 189 of the interim Constitution, aims to provide financial support to those
involved in the liber ation struggle who made sacrifices either in exile or within
South Africa. It was enacted to support those who were barred from or who lost
opportunities to provide for themselves in retirement as the y fought for a democratic
state based on human dignity, the achievement of equality and the advancement of
human rights and freedoms. 22 Ultimately, the purpose of the Act is to recognise the
efforts and give financial support to those who deserve it.
[21] With the purpose of the Act in mind , it is necessary to con sider the provisions
of the Act that give rise to a right to a special pension. The starting point here are the
definitions. A “pension” is defined as a right to monthly payment of a pension .23 A
“benefit” is defined as a sum of money payable.24
22 See Long title of the Act above n 3. See further Nevondwe and Tshoose “A Legal Analysis of the
Distribution and Payment of Special Pensions under the South African Special Pensions Act” (2011) 16
Pensions 224 at 225.
23 A monthly pension is applicable to sections 1, 6A bis and 6D of the Act. Section 1 provides the requirements
for being eligible for a special pension. Section 6A bis sets out further qualifications including age and th e
circumstances that would have prevented a person from providing a pension. Section 6D provides for the
entitlements of surviving spouses and dependents upon the death of a special pension recipient.
24 A “benefit” is applicable in terms of Part 1 titled: “Right to pension of persons 35 years of age and older on
1 December 1996 and survivor’s lump sum benefit”; Part 1AA titled: “Right to pension of persons 30 years of
age or between 30 and 35 years of age on 1 December 1996”; or Part 1A of the Act titled: “Survivor benefits on
death of pensioner and funeral benefits”.
MHLANTLA J
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[22] A special pension comes from a non -contributory fund and differs from
ordinary pensions. A benefit includes, amongst others, a pension, a survivor’s benefit,
and a funeral benefit. This distinction is important. In the context of the Act a
pension refers to a special pension which is a unique type of financial support for a
specified group of deserving people, whereas a benefit is the more general concept of
receiving financial support through a variety of ways.
[23] Given their text, context and link to oth er sections , I have interpreted these
definitions to mean that a benefit includes a special pension (the same way it includes
a funeral benefit) , whereas a special pension is the specific monthly payment of a
pension received in terms of the Act. Simply put, a benefit is an amount of money
received, a special pension is a specific amount of money received by a specific
person as a result of their contribution. With this distinction in mind it is necess ary to
consider other provisions that are pivotal in this matter.
[24] Section 1(1) of the Act affords a “right to pension ” to a certain category of
persons who made sacrifices and served the public interest in the struggle against
apartheid. In order to obtain this right and receive the special pension, a person had to
make an application in terms of section 6(1) by completing a prescribed form. This
section has, however, since lapsed. Section 1(1) could be seen as vesting a right on an
individual who has met the criteria for a special pension and whose application was
approved.
[25] Section 1(8)(b) of the Act provides:
“A person referred to in this section is disqualified from receiving or continuing to
receive a pension if, after making the sacrifice or serving the public interest as
referred to, that person . . . was convicted of a crime committed after 2 February
1990.”
MHLANTLA J
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[26] This section provides for instances where the payment o f the special pension
will be stopped. Specifically, it provides that a person is disqualified from receiving
or continuing to receive a special pension if that person was convicted of a crime
committed after 2 February 1990. The contextual reading of the section is that all
persons who were convicted of a crime after this date would be disqualified. This
means that the accrual of the special pension is suspended during the period of the
conviction and disqualification . However, the vested right is not a ffected during this
period. It is clear from this section that a person is disqualified from “receiving or
continuing to recei ve a pension ”. I n other words, the payment is stopped and that
person does not actually receive, nor is he entitled to receive, the monthly payments if
he has been convicted of an offence such as fraud.
[27] From a purposive reading of the Act, it is clear th at section 1(8) sought to deter
and discourage special pension recipients from committing serious offences which
offend the constitutional order. 25 While this is an important purpose, the
disqualification does not affect the right to a special pension in t erms of section 1(1).
This means that, where the reasons for the disqualification have fallen away, a person
will be able to receive their special pension once they have notified the Board of the
change in circumstance. The right itself is not terminated; it is the receiving of the
monthly payment that can be interfered with.
Effect of the presidential pardon on the applicant’s special pension
[28] In 1997, the applicant duly complied with the application procedure as
prescribed by the Act and was granted his special pension. It was at this point that he
began accessing the benefits that flowed from his right to a special pension. In 2001,
the applicant was convicted of fraud triggering section 1(8). From that date he was no
25 This purposive interpretation was also adopted by the Supreme Court of Appeal above n 12 which held at
para 19 that:
“The disqualifying provisions were to discourage persons who had acted nobly in the past in
pursuit of a democratic state, from acting in a manner that undermined the newly -established
democratic order and/or engaging in criminal activity. Engaging in either of those activities
led to a disqualification which operated ex lege.”
MHLANTLA J
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longer entitled to receive the monthly payment of his special pension, but it was only
in 2008 that the respondents became aware of the conviction and ultimately
disqualified him from receiving or con tinuing to receive his special pension. O n 21
July 2011, t he applicant was granted a presidential pardon in respect of his 2001
conviction. As a result, the conviction was expunged. It is for us to determine what
this means for the applicant and his special pension. In doing so , consideration must
be given to the effect of presidential pardons.
[29] There has been some consideration by this Court on the issue of presidential
pardons.26 But the issue before us is fairly novel. The point of departure is the
Constitution. Section 84(2)(j) is a constitutional power c onferred on the President
who has a function and obligation to decide upon applications for pardon. 27 The
President is, in terms of this section , authorised to pardon or reprieve offenders and
remit any fines, penalties or forfeiture s. What is of relevance here is the applicant’s
pardon and its effect.
26 President of the Republic of South Africa v Hugo [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708
(CC) (Hugo) dealt with the President’s decision to remit the sentences of a special category of prisoners. There ,
the majority of this Court at par as 45-6 held that there were at least two situations in which the power to grant
pardons may be important. First, to correct a mistaken conviction and enhance justice within the legal system,
and second, to provide an opportunity to release convicted pers ons when it is in the public interest, as in Hugo,
where the exercise of the power to pardon was an act of mercy at a time of great historical significance. See
also President of the Republic of South Africa v South African Rugby Football Union [1999] ZACC 11; 2000 (1)
SA 1 (CC); 1999 (7) BCLR 725 (CC) where this Court engaged with the basis on which the courts may review
the exercise of presidential powers. Affirming Hugo, the Court gave historical content to presidential pardons at
para 144 and explained that such powers originated from the royal prerogative and were enjoyed by the Head of
State. The Court went on to explain that now, all powers conferred by section 84(2) are original constitutional
powers. See also Minister for Justice and Constitutional Development v Chonco [2009] ZACC 25; 2010 (4) SA
82 (CC); 2010 (2) BCLR 140 (CC) (Chonco) at para 16 where this Court considered the relationship between
the powers and functions of the President as Head of State, on the one hand, and those that are entrusted to the
Executive, on the other, as well as the obligations that accrue to each in terms of section 84(2)(j). See further
Albutt v Centre for the Study of Violence and Reconciliation [2010] ZACC 4; 2010 (3) SA 293 (CC); 2010 (5)
BCLR 391 (CC) where this Court determined the scope of the President’s power to grant pardons to people who
were convicted of offences that were committed with a political motive as part of the special dispensation
process. At para 75, Ngcobo CJ writing for the Court, distinguished between pardons through the special
dispensation process and ordinary presidential pardons (with which we are concerned here). While that matter
did not make explicit determinations regarding ordinary presidential pardons, it distilled the impression that the
purpose of amnesty and special dispensation pardons were geared towards national unity and n ational
reconciliation.
27 Chonco id at para 30.
MHLANTLA J
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[30] The applicant submitted that the effect of his pardon – which was “in respect of
his conviction” – constitutes a full and unconditional pardon that requires the
conviction to be expunged from his criminal record. He argues that section 84(2)(j) of
the Constitution, read with the express wording of his pardon, means he is to be
treated as a person who has not been convicted of the pardoned offences , such that his
conviction falls away and the pardon makes him eligible and entitled to receive his
special pension. During the hearing, the applicant explained that the legal effect of his
pardon was that the ineligibility to receive his special pension ceased to exist.
[31] Reliance was placed on McBride to illustrate that the legal effects of amnesty
are substantially similar to a full pardon in that the conviction is expunged restoring
his “unblemished legal and civil status.” 28 The applicant contended that McBride
makes it clear that the effect of expungement – be it as a result of amnesty or pardon –
is that the convicted person is restored to full civic status, and all legal disabilities are
removed. The applicant took issue with the Supreme Court of Appeal’s interpretation
of McBride. According to him, t he correct interpretation is that although amnesty
removes the legal consequences of a conviction it does not absolve its recipient from
moral condemnation, nor does it change the facts of history. The fact that the
conviction occurred remains true, even though legally, the conviction is era sed. On
this interpretation, the applicant contends that the effect of his pardon means that he is
no longer disqualified from receiving his special pension.
[32] The respondents, on the other hand, submitted that upon the grant of the pardon
and expungement of the record, the applicant does not automatically become entitled
to a restoration of the special pension that he was receiving before the benefits were
discontinued. They contended that there is no provision in the Act for the restoration
of a special pension terminated in terms of section 1(8). The respondents rely on
Du Toit to illustrate that whilst a pardon gives the offender freedom from the
consequences of his convic tions, it does not undo the past and it operates
28 McBride above n 14 at para 71.
MHLANTLA J
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prospectively.29 It restores civil status but does not undo collateral consequences of
the conviction. The lack of a provision dealing with restoration of rights upon pardon
should be understood and interpr eted to mean that the Legislature sought not to
provide automatic restoration. The respondents further submitted that the Court has
no power to afford a benefit to those who have been deemed to be disqualified by the
Legislature from receiving the special pension.
[33] The applicant does not dispute the cause of the disqualification and accepts that
he was correctly disqualified under the circumstances. The issue is what happens
once that disqualification falls away. In Du Toit , General Du Toit, who had been
convicted of the murder of the “Motherwell Four” and sentenced to 15 years’
imprisonment, was granted amnesty under section 20(10) of the Reconciliation Act.30
However, his amnesty came through some nine and a half years aft er his murder
conviction. In the meantime, the SAPS applied section 36(1) of the South African
Police Service Act.31 This provides that a SAPS member convicted of an offence and
sentenced to imprisonment without the option of a fine “shall be deemed to ha ve been
discharged from the Service”. General Du Toit had argued before this Court that by
virtue of receiving amnesty, the provisions of the Reconciliation Act had the effect of
cancelling the discharge from duty as if it had never occurred.
[34] This Court unanimously held, per Langa CJ, that General Du Toit’s discharge
could not be undone. The effect of granting amnesty on civil liability that has already
been determined is, the Court noted, “prospective only” .32 This, the Court reasoned,
shows that “the g ranting of amnesty does not obliterate all direct legal consequences
of conduct in respect of which amnesty is gran ted”.33 This Court also distinguished
between the concepts of retrospectivity and retroactivity:
29 Du Toit v Minister for Safety and Security [2009] ZACC 22; 2009 (6) SA 128 (CC); 2009 (12) BCLR 1171
(CC).
30 Id at para 4.
31 68 of 1995 (SAPS Act).
32 Du Toit above n 29 at para 44.
33 Id.
MHLANTLA J
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“A retrospective provision operates for the future only but imposes new results in
respect of past events. A retroactive provision operates as of a time prior to the
enactment of the provision itself and changes the law applicable with effect from a
past date.”34
[35] This Court concluded that section 20(10) of the Reconciliation Act was,
contrary to the finding of the S upreme Court of Appeal in that case, unavoidably
retrospective, in that it reached into the past in referring to acts committed before its
enactment “and seeks to expunge the record of such acts”. 35 However, for
General Du Toit’s argument to succeed, it required the provision not just to be
retrospective, but also retroactive. This it was not.36
[36] In this matter at the Supreme Court of Appeal , Mothle AJA noted that counsel
could not point to any decision in terms of which the effect of a presidential pardon
does not operate with the power and vigour of section 20(10) of the
Reconciliation Act. The difference between Du Toit and the applicant is that
General Du Toit’s discharge had occurred as both a legal reality and as a fact in the
world. It could not be undone. This is accentuated by the provisions of section 36 of
the SAPS Act which permits an applicant to be reinstated to the SAPS if the
conviction is set aside or a sentence other than imprisonment is imposed. Likewise,
section 36(3) and (4) make provision explicitly for reinstatement. The point is that
General Du Toit was not seeking reinstatement. He was seeking expungement of his
discharge. That, this Court said could not be. The effect is that, whereas the
conviction and the sentence remain factual historical occurrences, the ordinary legal
effects or consequences of the conviction and sentence are removed as a result of the
presidential pardon. In this regard , presidential pardons cannot be misconstrued as
having the effect of setting aside convictions and sentences.
34 Id at para 33.
35 Id at para 34.
36 Id at paras 35-6.
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[37] In this case , and given the particular wording of the presidential pard on, the
applicant received what is generall y referred to as a full pardon. The President also
directed that the applicant’s conviction be expunged from his criminal record . The
result being that for all intents and purposes, the applicant , with effect from
21 July 2011, is legally to be treated a s a person who has not been convicted of the
offence. The applicant is with effect from the date of the pardon no longer affected by
any legal disqualifications that are as a result of his conviction. He is no longer
subject to any civil or statutory disabilities that are imposed on a person convicted of
the offence.
[38] Here, the applicant is not seeking expungement of his disqualification, he seeks
only its expungement from the date of his presidential pardon. If the applicant had
sought, retroactively, on the basis of his pardon, to have his disqualification expunged
from the date of his conviction to April 2001 , his case would have been on all fours
with that of Du Toit.
[39] But he does not seek that. The applicant only seeks the reinstatement of his
special pension from the date that he was pardoned. Therefore, in true fidelity to the
reasoning and importance of Du Toit, he seeks a retrospective but not retroactive
result. Differently put, he acknowledges that he was disqualified from receiving his
special pension under the Act between April 2001 and his pardon in July 2011. But,
he says, his entitlement to the special pension revived when he was pardoned.
[40] The scope of the disqualification is limited to the receipt of a special pension.
It follows that the prior right to a special pension, in terms of section 1(1) which had
already been determined , never lapsed due to the disqualification. It continued to
exist. The applicant ’s section 1(1) right rem ains despite his conviction. He was ,
however, disqualified fro m receiving his special pension by virtue of section 1(8).
Accordingly, the pardon revived the applicant ’s entitlement to receive his special
pension from the date of pardon. Therefore, the question to be answered is whether
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there is anything that stands in the way of the applicant for his special pension to be
restored? That is the issue that I will consider below.
Applicability of section 6A – is it an obstacle?
[41] Section 6A, titled “Lapsing of Part 1, and certain savings” reads:
“(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.”
[42] The respondents submitted that a pardon does not lead to restoration but instead
it removes the disqualification and entitlement to apply. They contend that any
restoration without the lodging of an application in terms of section 6 of the Act
would be legally incompetent. This means that no rig ht to apply for a special pension
existed. The respondents argued that the applicant’s determination was made in 1997,
and as a result of his conviction in 2001, he was no longer entitled to the benefits ,
notwithstanding the pardon received. They contended that this termination means that
the applicant would have to app ly afresh, but unfortunately he would be precluded
from doing so because of the introduction of section 6A which rendered this route
unattainable as of 31 December 2006, Part 1 of the Act lapsed.
[43] I disagree. A proper interpretation of the section must be given. In doing so,
we must have regard to the purpose of the Act and the introduction of section 6A. The
purpose of the Act is to give effect to section 189 of the interim Constitution. That
section requires that an Act of Parliament shall provide for the payment of special
pensions to persons who , in the establishment of a democratic constitutional order ,
made sacrifices or served in the public interest. The applicant is one of those persons
and his application was considered and approved in 1997.
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[44] Moreover, the 2005 Memorandum to the Special Pensions Amendment Bill
explained the reason for the introduction of section 6A as follows:
“An extension of the period for application, or continued consideration of late
applications, is no longer prudent because of the risk of fraudulent claims. The risk is
increasing as a result of a lack of information and difficulties experienced in the
verification of information, due to the time lapse since 1996.
The Special Pensions Amendment Bill therefore proposes the lapsing of the
provisions providing for the qualification for pensions and survivor’s lump sums on
31 December 2006. This means that the consideration of new applicati ons for
pension or survivor’s lump sums after this date will no longer be possible.”37
[45] It is clear that this section was introduced to combat fraudulent claims and to
overcome difficulties experienced in the verification of historic information so long
after the beginning of our new democracy. Its purpose was to prevent the Board and
the GPAA from making decisions regarding a person’s eligibility for a special pension
based on outdated information that was difficult to verify. It was not intended to
affect those persons whose applications had already been verified and approved. The
effect of section 6A saw the lapsing of certain provisions in the Act and meant that
new applications submitted after 31 December 2006 would not be considered . Those
applicants whose applications were already determined or submitted before the cut -off
date would continue to receive their benefits.
[46] The applicant does not fall into the category under section 6A(1) since the facts
on which his initial application had been made , had already been verified when he
applied in 1997 and was allocated th e special pension. The applicant was not the
intended target of the Legislature when it drafted section 6A . In reins tating the
applicant’s special pension, the Board is not supposed to review new facts on which
the applicant alleges that he is eligible for the special pensions . R ather, the Board
must consider whether the disqualification is still applicable to these old facts (and
37 Memorandum on the Objects of the Special Pensions Amendment Bill, 2005 at paras 1.3-1.4.
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application) given that the applicant was pardoned an d his criminal record was
expunged. There is no rational basis for reading section 6A(1) as preventing the
respondents from being able to have his special pension restored.
[47] Section 6A(2) provides that 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 of the Act before 31 December 2006 . The Board in this case, is still
empowered to restore special pensions.
[48] Here, we are not concerned with a new application. A determination whether
the applicant met the criteria for the special pension had already been done. The
respondents explained that the applicant would need to complete the prescribed form
afresh which is required to be commissioned, and he would, on oat h, have to disclose
his conviction. Part 3 of the form titled “ Imprisonment after February 1990” asks:
“were you convicted of a crimina l offence after 2 February 1990 ?” A n applicant is
required to tick either yes or no. The respondents’ argument disregards the effect of
the pardon and expungement of the applicant’s conviction. It is clear that post-pardon
the applicant is prospectively deemed not to have been convicted of an offence. It
follows that Part 3 of the form is not an obstacle for the applicant. This means that the
applicant is covered by section 6A(2) which refers to applications which had already
been determined before the lapsing of provisions on 31 December 2006. I now
consider whether the Board and GPAA have the power to restore the special pension.
Powers of the Board and GPAA
[49] The Board and GPAA submit that they are creatures of statu te and can only
exercise their functions in accordance with the Act . Administering special pensions
includes the implementation of the disqualifying provisions and excludes the
restoration of special pensions. They do not have the power to restore the applicant’s
special pension. Inter preting the Act to afford that power would be stretching
interpreting to legislating . On behalf of the applicant , this was countered by a
submission that the power of the Board and GPAA to restore his special pension is
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implicitly authorised by the Act as it is reasonably incidental to the proper carrying
out of the express powers of these functionaries.38
[50] Indeed, the A ct gives the Board and the GPAA certain express powers. 39
However, the Act has not expressly conferred on the Board and the GPAA a power to
restore the special pension. But whether the Board and GPAA have implied powers to
restore the special pension is n ot at the heart of this matter. This is because the
disqualification under section 1(8)(b) terminates the entitlement to continue receiving
a special pension and the effect of the applicant’s pardon is to revive the entitlement to
continue receiving the special pension. Consequently, payment must then follow as a
matter of course; and that is because the entitlement to receive payment has been
revived. That is quite distinct from requiring the Board and GPAA to have implied
powers to restore the applicant’s special pension. Rather, the revival happens by
operation of law. And, because the entitlement to continue receiving payment has
been revived, the GPAA must pay in terms of section 9 as before.40
[51] That this must be so accords with the fundamental maxim ubi jus, ibi remedium
(where there is a right , there is a remedy). The applicant’s right to a special pension
cannot be exercised without the reciprocal ability to enforce payment . In Harris,
Centlivres CJ, with reference to English authorities, stated:41
“There can to my mind be no doubt that the authors of the Constitution intended that
those rights [that is, the rights entrenched in the Constitution] should be enforceable by
the courts of law. They could never have intended to confer a right without a remedy.
The remedy is, indeed, part and parcel of the right. Ubi jus, ibi remedium . If
38 See Road Accident Fund Appeal Tribunal v Gouws [2017] ZASCA 188 ; 2018 (3) SA 413 (SCA) at para 27
and Hoexter Administrative Law 2 ed (Juta & Co Ltd, Cape Town 2015) at 43.
39 These include the power to receive applications for appeals, to administer oaths and to summon individuals to
testify. The Board has in terms of section 8(5) the power to “confirm, set aside and vary a decision of a
designated institution”, such as the GPAA. Section 7(2) requires the respondents through their delegated power
to ensure the effective and efficient implementation of the Act. The GPAA is empowered to adminis ter the Act.
These powers are discretionary and wide.
40 Section 9 provides for the payment of benefits.
41 Minister of the Interior v Harris 1952 (4) SA 769 (A) (Harris) at 780H-781B.
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authority is needed for what I have said, I refer to the following cases. In
Ashby v White Holt CJ said:
‘If a plaintiff has a right, he must of necessity have a means to
vindicate and maintain it, and a remedy, if he is injured in the
exercise or enjoyment of it; and indeed it is a vain thing to imagine a
right without a remedy; for want of right and want of remedy are
reciprocal.’”42
In Dixon v Harrison, it was stated that the greatest absurdity imaginable in law is—
“that a man hath a right to a thing for which the law gives him no remedy; which is in
truth as great an absurdity, as to say, the having of right, in law, and having no right, are
in effect the same.”43
[52] From this, we can gather that all the applicant had to do was to: advise the
relevant functionaries that – through the grant of pardon – the impediment to his
entitlement to continue rece iving the special pension had been removed; and demand
that payment be resumed. He has succeeded in doing so. Therefore, the functionaries
must resume payment.
Remedy
[53] It follows that the appropriate relief is to declare that Mr Masemola’s
entitlement to receive a special pension was restored with effect from 21 July 2011,
the date of pardon. Therefore, the respondents are obliged to pay Mr Masemola his
special pension. That means the appeal succeeds with costs.
Order
1. Leave to appeal is granted.
2. The appeal is upheld.
42 [1703] 92 ER 126 at 136
43 [1823] 124 ER 958 at 964.
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3. The order of the Supreme Court of Appeal is set aside and replaced with
the following:
(a) It is declared that the special pension of Mr Nathaniel Mashilo
Masemola is restored from 21 July 2011, being the date on which
he received his presidential pardon.
(b) The Special Pensions Appeal Board and Government Pensions
Administration Agency are ordered to pay Mr Nathaniel Mashilo
Masemola his special pension with effect from 21 July 2011
within 14 days from the date of this order.
(c) The Special Pensions Appeal Board and Government Pensions
Administration Agency are to pay the applicant’s costs , jointly
and severally, including costs of two counsel where applicable.
4. The Special Pensions Appeal Board and Government Pensions
Administration Agency are to pay the applicant’s costs in this Court,
jointly and severally, including the costs of two counsel where
applicable.
For the Applicant:
For the First and Second Respondents:
N Rajab-Budlender and I Cloete,
instructed by Norton Rose Fulbright
South Africa Inc.
Z Matebese SC and M Shibe, instructed
by Msikinya Attorneys and Associates