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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case No: 10448/2016

In the matter between:

NATHANIEL MASHILO MASEMOLA                                                                     Applicant

and

SPECIAL PENSIONS APPEAL BOARD                                                    First Respondent

GOVERNMENT PENSIONS ADMINISTRATION  

AGENCY                                                                                                Second Respondent

JUDGMENT ON LEAVE TO APPEAL

MAKHUBELE AJ

Introduction

[1] I heard the main application in this matter in the urgent roll of 22 November 2016.

[2] I delivered an ex tempore judgment on 15 December 2016 and granted the following order; ·

"  1.  The decision of the first respondent  that  was communicated  to  the applicant in a letter or a report dated 4 October 2016 in terms of which his appeal is dismissed is set aside and replaced with the following:

1.1 .     The appeal lodged by  Mr Masemola dated  6 March 2015 in  terms of which he seeks reinstatement of  his Special  Pension  succeeds.

1.2.           The special pension is reinstated with effect from the date of expungement of his criminal record which is 21 July 2011.

1.3.           The respondents are to pay the costs of this application, jointly and severally, the one paying the other, to be absolved.  "

[3] Despite having  been  notified,  none   of   the   parties' representatives were in court when I handed down the judgment.

[4] The respondents filed the notice of application for leave to appeal against the whole of my judgment and orders during January 2017. It is common cause that they had not, at that time, had sight of the judgment or reasons thereof.

[5] After the necessary corrections of the typed record of proceedings. the judgment was subsequently transmitted to the parties in early June 2017, a few before the application for leave to appeal  was heard .

[6] The respondents did not supplement or vary their grounds of application for leave to appeal. I took this issue up with their Counsel, Mr. Matebese during the hearing of this application. He indicated that due to the nature of the grounds of appeal, it was not necessary to have sight of the reasons for judgment.

[7] I do not necessarily agree with him, but this issue is not important because of the stance that I have adopted with regard to what I  consider to be  the  real  questions  that  I  should  consider  in  this application.

Grounds of appeal

[8] The grounds of appeal are in the main similar to the arguments that were advanced during the hearing of the main application. The main complaint now (although they did not have sight of my reasons for the judgment and order) is that the order has offended the principle of legality in that the courts are not authorised to interpret a statute to fill in gaps.

[9] It was submitted on behalf of the respondents that since there is  no provision for reinstatement of a pension in the enabling statute , the powers of the court are limited to the remedies that are available  therein.

[10] During oral argument, Mr. Matebese submitted that the clear intention of the legislature when enacting Section 1(8) of the Special Pensions Act, Act 66 of 1996 ("the Act") was  that, once  the pension was revoked, it cannot be reinstated . Furthermore, courts do not have powers to fill in gaps in a statute.

Analysis

[11] I gave reasons for my judgment that the respondents have not dealt with in their application for leave to appeal for reasons indicated above. A copy of the transcript of the record of proceedings is attached herein  as Annexure "A".

[12] I am not expected, at this stage to re-write or justify my reasons for the judgment.

[13] The decision of the first respondent with regard to the applicant's application for reinstatement of his special pension is contained in a letter /report dated 04 October 2016. The last paragraph  reads  as follows:

" 11.   It  is noteworthy  that  the  Act  does  not  enable  the  SPAB to decide on matters of interpretation of the law.

The question whether expurgation effectively results in conviction, for all purposes, being deemed not to have taken place, can best be decided by a court of la w. If the SPAB, in the instant case,  were  to  pronounce  on  the   reinstatement   or   otherwise   of Masemola' s pension benefit it would be overstepping its mandate as the Act is silent in this regard ." Decision.

" In the result the appeal is dismissed."

[14] My  understanding  of  paragraph  J J was (and still is ) that the first respondent  is informing  the  applicant that it does not have powers to decide whether he is entitled to reinstatement of his special pension or not because the issue involves interpretation of the  law, which it is not empowered  to  do.  This power  (to interpret law), according to the first  respondent,  rests with the  courts.

[15] The argument advanced on behalf of the respondents is that paragraph 11 is not the decision of the first respondent. I do not understand this denial because there is no other document  in  the  entire record that expresses what the  actual  decision  is.  In fact what is stated  in  paragraph  11  of  the  letter  was not new. The erstwhile Appeals Board arrived at the same  conclusion.

[16] Mr. Matebese argued that the special pension was terminated by operation of law:  therefore, it cannot be reinstated. There is no need for a decision to reinstate it because it was not terminated by  a decision .

[17] The first respondent, so the argument goes, cannot decide on applications for reinstatement of a special pension because the Act is silent about the matter. It was also submitted that the courts have no powers to entertain the applications for reinstatement of special pensions.

[18] Should the interpretation that the first respondent seeks to give to the Act in as far as the dispute is concerned be correct, it means that the applicant has no recourse. His dispute cannot be entertained  by any forum, be it the first respondent or the courts.

[19] I am convinced that the legislature did not intend such draconian consequences. It (the Act) makes provision for a right to a special pension and circumstances under which a recipient may be disqualified from receiving further payments. The question is whether the disqualification should stand even after the reasons for its imposition no longer exists. For instance, if the basis for the disqualification was a criminal conviction, what happens if  the  conviction is

set aside?

[20] My view (in the judgment) was that  the  special pension could be reinstated if the reason for the disqualification no longer exists. This view is fortified by the  fact  that  the  legislature  effected  certain amendments  to  the  Act  during  2008  and   made provision for establishment of  the  Appeals  Board  (the first respondent) . The amendments also made provisions of  the  Promotion  of   Administrative  Justice Act (PAJA), Act 3 of 2000 to be applicable to any administrative decision  taken in  terms  of  this Act.

[21] The decision to disqualify the applicant from receiving further pension after his criminal conviction was preceded by a letter to him in terms of  which  he was asked to make representations. Although there is  no evidence that he took up the invitation, the special pension was stopped on the expiry  of  the  date indicated  in  the letter.

[22] Mr. Matebese argued that no administrative action was taken, hence PAJA is not applicable.

[23] In my view, should the respondents be  correct, the applicant's constitutional rights to access to justice and  a fair hearing in an open forum are in jeopardy.

[24] Despite my confidence that my judgment  is correct. I believe that the circumstances of  this  case are similar to cases where  leave  to  appeal  was granted on the basis that the issues involved interpretation of a statute that has a  potential  to  limit the rights of individuals to access to justice.

Zondo J put it  as follows In the  matter of Links v MEC  for Health, Northern Cape[1]

“ Jurisdiction

[22] This Court has jurisdiction because the matter involves an interpretation of legislation that limits the applicant's right in terms of section 34 of the Constitution.[14] That is the Prescription Act. [15] The meaning that the court a quo attached to section 12(3) of the Prescription Act had the effect of preventing the dispute between  the applicant  and  the respondent  from being resolved by  a  court  of law.

The applicant challenges the correctness of that meaning. The provisions of section 39(2) of the Constitution should be borne in mind. Section 39(2) rea ds:

"When interpreting any legislation, and when developing the  common  law  or  customary law, every court, tribunal or forum must promote the  spirit ,  purport  and objects of the Bill of Rights. " The case also implicates the right to security of the person entrenched in section 12 of the Constitution.[16]

Leave to appeal

[23] It is in the interests of justice that leave to appeal be granted. This matter is about the correct interpretation of section 12(3) of the Prescription Act . ... "

[25] Although there was no evidence before me, I am of the view that the outcome of this matter will not just affect the applicant, but all recipients of the special pension and possibly others whose rights may be taken away by the very statutes that conferred them.

[26] I believe that this application for leave to appeal should succeed because the dispute between  the  parties  involves interpretation of a statute that, on the version of the respondents gives and takes away rights without affording the individual concerned an opportunity for a hearing, and furthermore, denies him/her a right to approach the courts for appropriate relief.

[27] What I have stated above constitute compelling reasons, as contemplated in Section 17(1) (a) (ii) of the Superior Courts Act, 10 of 2013, and for those reason s, I am of the view that this matter deserves the attention  of  the Supreme Court of Appeal.

[28] Accordingly, I make the following order;

[28.1]         The  application   for   leave   to   appeal   is  granted  to  the Supreme Court  of  Appeal.

[28.2]        Costs of  this application will be  costs in  the appeal.

MAKHUBELE AJ 

 

ACTING JUDGE OF THE HIGH COURT

Application heard on:      30 June 2017

APPEARANCES:

APPLICANT:                         ADVOCATE FERREIRA

Instructed by:                         Norton Rose Fulbright South Africa Inc.

RESPONDENTS:                  ADVOCATE ZZ MATEBESE, with ADVOCATE MX SHlBE

Instructed by:                         Msikinya Attorneys and Associates

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