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[2018] ZASCA 117
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Special Pensions Appeal Board and Another v Masemola (1171/17) [2018] ZASCA 117 (20 September 2018)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1171/17
In
the matter between:
SPECIAL
PENSIONS APPEAL
BOARD
FIRST
APPELLANT
GOVERNMENT
PENSIONS
SECOND
APPELLANT
ADMINISTRATION
AGENCY
and
NATHANIEL
MASHILO
MASEMOLA
RESPONDENT
Neutral
Citation
:
Special
Pensions Appeal Board
and another
v Masemola
(1171/17)
[2018] ZASCA 117
(20 September 2018)
Coram:
Navsa, Tshiqi, Swain and Mathopo JJA
and Mothle AJA
Heard:
20 August 2018
Delivered:
20 September 2018
Summary:
Special Pensions
Act 69 of 1996 (the Act) – person in receipt of special pension
disqualified in terms of s 1(8) read with
s 1(9) the Act if that
person was convicted after 30 April 1994 of an offence mentioned in
Schedule 1 of the
Criminal Procedure Act 51 of 1977
–
respondent so convicted – whether entitled to reinstatement of
special pension due to Presidential Pardon –
lapsing of part of
the
Special Pensions Act – principle
of legality – no
statutory provision for reinstatement of special pension –
disqualifying provision not to be subverted
– Presidential
Pardon not having effect contended for.
ORDER
On
appeal from
:
Gauteng Division, Pretoria (Makhubele AJ sitting as court of first
instance):
1 The appeal is upheld
and no order is made as to costs.
2 The order of the high
court is set aside and substituted as follows:
‘
The
application is dismissed and no order is made as to costs.’
JUDGMENT
Mothle
AJA (Navsa, Tshiqi, Swain and Mathopo JJA concurring):
[1]
The personal history and present difficulties faced by the
respondent, Mr Nathaniel Mashilo Masemola, evokes a great deal of
sympathy. That having been said, it is necessary to record, at the
outset, that because of a more recent event that has legal
consequences, such sympathy as is evoked is somewhat diluted.
[2]
Mr Masemola is a 90-year old man who had been actively engaged in the
anti-apartheid struggle. He had been a member of the African
National
Congress (the ANC) since 1946 and, at some stage during his life, was
forced into exile. Shortly before the dawn of the
democratic order in
South Africa, he returned and served constructively on the ANC’s
Legal and Constitutional Committee which
participated in processes
that ultimately led to the adoption of our first democratic
constitution.
[3]
Because he had made sacrifices and served the public interest in the
course of establishing our democratic constitutional order,
he
applied for a special pension to which, on the aforesaid basis, in
terms of the Special Pensions Act 69 of 1996 (the Act) he
was
entitled. He was paid that pension from 1997 and continued receiving
it until 7 April 2008, when the second appellant, the
Government
Pensions Administration Agency (the GPAA), informed him that he was
disqualified from continuing to receive it in terms
of the provisions
of s 1(7) and 1(8), read with s 1(9) of the Act. In terms of those
provisions, a special pensioner is disqualified
from continuing to
receive such pension if he was convicted of an offence, specified in
Schedule 1 of the
Criminal Procedure Act 51 of 1977
after 2
February 1990. It is common cause that Mr Masemola had been convicted
of fraud on 2 April 2001 and that in terms of the
aforesaid statutory
provisions, he was disqualified from continuing to receive the
special pension.
[4]
On 21 July 2011, after he had applied, Mr Masemola received a
Presidential Pardon in terms of
s 84(2)
(j)
of
the Constitution.
[1]
On
the basis of the Presidential Pardon, Mr Masemola engaged with the
GPAA, seeking reinstatement of his special pension. After
a lengthy
engagement and after handing the matter over to his attorney, he
received a letter on 23 February 2015 from the GPAA
which informed
him that his request for reinstatement of the pension would not be
acceded to. On 6 March 2015, purportedly in terms
of s 8(1) of the
Act,
[2]
he
filed an appeal with the first appellant, the Special Pensions Appeal
Board (the Appeal Board) against the refusal of the GPAA
to reinstate
his special pension. More than a year later, on 4 October 2016, the
Appeal Board communicated that it was not competent
to make a
decision regarding the reinstatement of his special pension,
contending that the disqualification occurred
ex
lege
,
that is, because of the provisions of the statute and that there was
therefore no decision by the GPAA susceptible to an appeal
in terms
of s 8(1).
[5]
In the dire circumstances alluded to later, Mr Masemola approached
the Gauteng Division of the High Court, Pretoria, (Makhubele
AJ),
which reviewed and set aside the decision of the GPAA and the Appeal
Board. The high court granted an order in terms whereof
the special
pension was reinstated, effective from the date of the Presidential
Pardon, which expunged his criminal record, being
21 July 2011. The
Appeal Board and the GPAA were ordered to pay Mr Masemola’s
special pension.
[6]
Makhubele AJ reasoned that the written exchanges between Mr Masemola
and the GPAA made it clear that the latter had, in
fact, made a
decision not to reinstate Mr Masemola’s special pension and
that the decision was communicated to him. The high
court held that
that decision was susceptible to appeal and that the Appeal Board was
obliged to decide whether the refusal to
reinstate was correct or
not. Thus, the Appeal Board’s view, that it had no jurisdiction
to decide an appeal, was fallacious
and fell to be set aside.
Makhubele AJ went on to state that Mr Masemola would, in the light of
the Presidential Pardon, ‘with
no criminal record to his name’,
be entitled, ‘even on a fresh application to a pension in terms
of this Act’
to receive the pension. The high court concluded
that there was no purpose referring the matter back to the Appeal
Board. The present
appeal by the GPAA and the Appeal Board is
directed against these conclusions and the orders referred to and is
before us with
leave of the high court.
[7]
At the time of the litigation before the high court, Mr Masemola was
in poor health. He had had three operations for a blocked
spinal
nerve; a colonoscopy; heart surgery and prostate cancer. His wife had
passed on and he had been declared insolvent, losing
his assets.
[8]
In adjudicating the matter, it is necessary to understand the purpose
and structure of the Act. It is to that task that I now
turn.
[9]
The long title to the Act makes it clear that the Act came into being
‘to give effect to section 189 of the [Interim]
Constitution;
[3]
to
provide for special pensions to be paid to persons who made
sacrifices or served the public interest in the cause of establishing
a democratic constitutional order.
[10]
The Act, in its original form, provided for the payment of special
pensions to applicants who fell within the age group indicated
in s 1
of the Act, namely, persons who were at least 35 years of age on the
date of commencement of the Act (1 December 1996).
Section 1 of the
Act, set out the qualifying factors for a special pension for persons
in that age group. Section 2 provided for
payment of a lump sum
benefit to a surviving spouse or a surviving dependant. Section 6 set
out the procedure for applying for
either of those two kinds of
benefits. Section 6 of the Act read with the definition of a ‘closing
date’ in s 31 provided
a window period of 12 months from the
date of commencement within which an application for benefits could
be made.
[11]
In 2005, s 6A of the Act was inserted.
[4]
Section
6A is a material provision to which little attention was paid by any
of the parties and the high court. It reads as follows:
‘
(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 finalized as if this Part had not lapsed.’
The
timeline is of special significance and is an aspect to which I will
revert in due course. I interpose to record that, before
us, the
attention of counsel for the parties was drawn to the provisions of
this section of the Act. They were afforded an opportunity
to reflect
thereon and to consider those provisions contextually and make
submissions on their effect. They took advantage of the
opportunity
and made submissions. I shall, in due course, deal with the
submissions made. Sections 1 to 6 formed part of Part 1
of the Act.
[12]
The apparent motivation for the insertion of s 6A was that a period
of more than eight years had passed since the commencement
of the Act
and the period for applications in terms of the Act – the
window period of 12 months from the time of promulgation
– had
expired. Government apparently took the view that extending the
period within which applications could be made was
not prudent,
presumably because of the risk of fraudulent claims and difficulties
experienced in the verification of information
so long after the
beginning of our new democracy. The lapsing provisions of s 6A meant
that a consideration of new applications
for a special pension or
survivor’s lump sum after 31 December 2006 in the indicated age
group was no longer possible. Persons
who, before the lapsing, had
applied for and were in receipt of a pension would continue receiving
that pension. Those who fell
within the provisions of s 6A (2) and
(3), which deals with the finalisation of applications made before
the cut-off date, and
with pending applications, would of course be
able to claim its benefits.
[13]
In 2008, Part 1AA of the Act was introduced.
[5]
Section
6A
bis
,
which fell under Part 1AA, set out the category of persons who now
had a right to apply for and receive a special pension, namely,
persons who were at least 30 years of age or between 30 and 35 years
of age on the date of commencement of the Act (1 December
1996). This
was a category distinct from the prior category under Part 1 referred
to above.
[14]
Part 1AA extended the right to claim a special pension, to persons 30
years of age on 1 December 1996, but not yet 35 years
of age. Such
persons would, of course, have to meet the qualifying provisions set
by the provisions of s 6A
bis
,
which were essentially the same as those that previously applied to
the category of persons set out in s 1 of Part 1. One has
to bear in
mind that by the time of the introductions of s 6A
bis
no new applications could be made in respect of the prior category.
[15]
The rationale for granting of special pensions for both age groups
referred to above was apparently to cater for persons whose
full time
involvement in the struggle for democracy impacted on their ability
to make provision for pensions.
[16]
Section 6A
bis
(7)
(a)
which was part of Part 1AA, contained a lapsing provision not
dissimilar to the lapsing provision in respect of s 6A of Part 1.
In
terms of s 6A
bis
(7)
(a)
,
Part 1AA lapsed on 31 December 2010. That subsection, like the
lapsing provision referred to above, also had a saving provision
in
relation to pending applications and to those awaiting finalisation.
[17]
By 31 December 2010, it was no longer possible to apply anew for
either of the two categories of special pensions.
[18] It is now necessary
to turn to the disqualifying provisions contained in Part 1 of the
Act. Sections 1(8) and 1(9) read as
follows:
‘
(8) A person
referred to in this section is disqualified from receiving or
continuing to receive a
pension
if,
after making the sacrifice of serving the public interest as referred
to, that person –
(a)
either
actively engaged in actions calculated to undermine efforts to
establish a non-racial democratic constitutional order;
(b)
or
was convicted of a crime committed after
2
February 1990.
(9) For the purposes of subsection
8
(b)
, “
crime”
means –
(a)
at
any time between 2 February 1990 and 1 May 1994, an offence mentioned
in Schedule 1 of the Criminal Procedure Act, 1977 (Act
51 of 1977),
other than treason and sedition; and
(b)
at
any time after 30 April 1994, an offence mentioned in Schedule 1 of
the Criminal Procedure Act, 1977 (Act 51 of 1977).’
[19]
As stated earlier, the Act was designed to provide special pensions
to those who, at personal cost, had made sacrifices or
had acted in
the public interest in the cause of establishing a democratic order.
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
. Simply put,
ss 1(8) and 1(9) operated as a bar to the continued payment or
receipt of the special pension. As noted above, notwithstanding
those
provisions and before the GPAA became aware of the conviction,
Mr Masemola continued receiving his special pension for
several
years. Because of these subsections the continued payment of the
special pension was legally unjustifiable.
[20]
In support of the proposition that Mr Masemola was entitled to
continue receiving his special pension, counsel on his behalf,
made
reference to the Constitutional Court decision in
The
Citizen 1978 (Pty) Ltd & others v McBride (Johnstone & others
amici curiae)
2011 (4) SA 191
(CC). The Constitutional Court in interpreting the
amnesty provisions of the Reconciliation Act
[6]
held
in para 72 of the judgment that s 20(10) of that Act expunged the
previous conviction and reinstated the former convict to
full civic
status, so that he or she is deemed never to have been convicted, but
it does no more than that. It further held that
the amnesty:
‘
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.’
[21]
Counsel could not point to any decision in terms of which the effect
of a Presidential Pardon held to be greater than the effect
of s
20(10), referred to in the preceding paragraph. Moreover, at the time
of Mr Masemola’s conviction, the disqualifying
provision of the
Act was a bar to his continued receipt of his special pension. When
the Presidential Pardon was granted, the part
of the Act in terms of
which special pensions could be paid to the category of persons under
which Mr Masemola received his special
pension, had lapsed by virtue
of the provisions of s 6A of the Act. It will be recalled the
relevant part of the Act lapsed on
31 December 2006, approximately
five years before the grant of the Presidential Pardon. At the time
of the Presidential Pardon,
Part 1 and Part 1AA of the Act had
lapsed. Counsel on behalf of Mr Masemola, was constrained to accept
that the principle of legality
presented a formidable if not
insuperable obstacle to payment of the special pension. He could
suggest no viable way in which the
Act could be construed so as to
enable Mr. Masemola to either apply anew or continue to receive the
special pension. It is necessary
to record that no constitutional
challenge to the disqualifying provisions was foreshadowed in the
papers. Counsel for Mr Masemola
accepted this fact.
[22]
We enquired of counsel representing the GPAA and the Appeal Board,
whether his clients could find no other basis to come to
Mr
Masemola’s assistance, particularly as his present
circumstances were so dire. Although expressing sympathy for Mr
Masemola’s
present plight, counsel was adamant that neither the
GPAA nor Treasury could find a legal avenue to alleviate his
circumstances.
He submitted that a decision by this Court on the
matter was of importance, as there are a number of cases waiting in
the wings
for an outcome. He indicated that they involved persons in
similar circumstances as Mr. Masemola, namely, persons who had made a
valuable contribution towards the struggle for a just and democratic
society, but who had been convicted of an offence as contemplated
in
the disqualifying provisions referred to above. He rightly emphasized
that the Act was designed to ensure that those who committed
offences
post the establishment of our new democratic order, did not continue
to receive the benefits which the Act bestowed. Counsel
emphasised
that government agencies were obliged
to act within the constraints of the law and that the Constitution
and a number of statutory
enactments demanded fiscal transparency and
accountability.
[23]
I can find no fault with the submissions set out in the preceding
paragraph. 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.
[24]
Counsel on behalf of the GPAA and the Appeal Board, appreciating
Mr Masemola’s position, did not contend that a
cost order
should be made against him in the event of a finding against him.
[25] For all the reasons
set out above, the following order is made:
1 The appeal is upheld
and no order is made as to costs.
2 The order of the high
court is set aside and substituted as follows:
‘
The
application is dismissed and no order is made as to costs.’
________________________
S
P Mothle
Acting Judge of Appeal
APPEARANCES:
For
the Appellant: Z Z Matebese SC (with him M X Shibe)
Instructed
by:
Msikinya
Attorneys & Associates, Johannesburg
Matsepes
Inc , Bloemfontein
For
Respondent: I S Ferreira
Instructed
by:
Norton
Rose Fulbright, Johannesburg
Webbers,Bloemfontein
[1]
Section 84(2)
(j)
provides:
‘
(2) The president is
responsible for-
(j)
pardoning or reprieving
offenders and remitting any fines, penalties or forfeitures.’
[2]
Section 8(1) provides:
‘
(1) 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.’ (Emphasis in
original.)
[3]
The
Constitution of the Republic of South Africa, Act 200 of 1993.
Section 189
thereof reads:
(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.’
[4]
Section 6A was added by s 5 of Act 27 of 2005.
[5]
Part 1AA was inserted by s 2 of Act 13 of 2008.
[6]
The
Promotion of National Unity and Reconciliation Act 34 of 1995
,
s
20(10)
thereof which provides:’ Where any person has been
convicted of any offence constituted by an act or omission
associated
with a political objective in respect of which amnesty
has been granted in terms of this Act, any entry or record of the
conviction
shall be deemed to be expunged from all official
documents or records and the conviction shall for all purposes,
including the
application of any Act of Parliament or any other law,
be deemed not to have taken place…’