‘Class action’ ruling stalls retired soldiers’ pension lawsuit
Mpho Mokwape | Monday September 4, 2023 10:02
A class action is a legal proceeding in which one or more plaintiffs bring a lawsuit on behalf of a larger group, known as the class. In 2019 many retired soldiers launched a lawsuit against the BDF’s decision to move their Pension Fund to a new pension scheme in terms of the Botswana Public Officers Pension Fund (BPOPF), a decision that they were not pleased with. They accused the government of forced transfer.
The defendants in the matter are the Attorney General, the BDF and the Ministry of Defence and Security. On Tuesday this week, the parties met before Justice Michael Leburu of the Gaborone High Court for final case management before the matter started and the defendants’ attorney Advocate Sidney Pilane requested the judge to explain why he ruled that the lawsuit was a class action.
Pilane was seeking answers to a ruling that Justice Leburu made on August 2, in which he agreed with the retired soldiers that the lawsuit was a class action and there was no need for each and everyone to appear in the papers and in court. This was after the soldiers’ attorney from Monthe Marumo & Co on a previous court appearance argued that the lawsuit be treated as a class action because the litigants are many with one and same issues and as a result are represented by others.
The attorney had explained that the litigants are many and complaining of the same issue therefore, could not all appear before court as defendants had wanted them to do so. Justice Leburu is expected on September 12 to give his decision on the class action ruling and determine if the case progresses. Meanwhile, in a brief interview, the litigants’ spokesperson Brigadier Mabe Gaborone explained that they believe the lawsuit was a class action because they are about 2,000 and can all not appear before court. “The defendants are disagreeing that it is a class action and they want answers from the judge. From our point as our lawyer argued it is a class action because we are so many and complaining about the same issue and we cannot at all appear before court and give evidence as they have wanted.
The defendants want each and every litigant to give evidence which is impossible because we are talking about 2,000 or so litigants,” he said. Brigadier Gaborone said after the ruling, Advocate Pilane had written to the Master and Registrar of the High Court seeking that the judge explains why he deemed the lawsuit a class action. He said as they await for the judge to decide, they will go back to court on September 12 and if the judge still maintains it is a class action, the matter will commence unless if Pilane chooses to appeal the matter at the Court of Appeal (CoA). “If the ruling stands and Pilane chooses not to appeal, which could delay the case further, then on September 19 the case will go on,” he said.
The background of the case is that close to 200 retired soldiers and other serving officers filed a suit in 2019 through their attorney, Monthe Marumo & Co. The retired soldiers are alleged to represent close to 2,000 litigants and according to the suit, the soldiers stated that it was illegal and unlawful contrary to the provisions of the BDF Act and its regulations for their pension to have been transferred to BPOPF without their consent. Through their papers, they argue that the amendment in 2002 of the BDF Act and its regulations to the effect that any person who joined the BDF on or after April 1, 2001 shall be deemed to be a member of the BPOPF does not apply to them, they point out. The suit further states that the pension arrangement for the BDF was governed by the defence force (regular force, officers), regulations and defence force (regular force and other ranks) regulations prescribed pursuant to BDF Act until the 2002 amendment and the same does not apply to the retired soldiers.
They say the purported transition of members of the BDF, both the officers and other ranks including the retired soldiers to the BPOPF operated pension scheme, had no legal basis and is therefore, a nullity. “The transition to the BPOPF was illegal and is incapable of being cured and that the 2002 amendment is not applicable to them (plaintiffs) as it took effect from April 1, 2001. The manner in which the transition was handled was discriminatory and denied the plaintiff the protection of the right of equality before the law,” read the lawsuit.
The soldiers, in their papers, also pointed out that the change in the denominator was unlawful, contrary to the provisions of the BDF Act and its regulations and against their legitimate expectations. It further stated that the use of the same denominator for both the army and the civil service was irrational given the differences between the two categories of employees. The suit added that the migration has disadvantaged the retired soldiers immensely and in any event was illegal and contrary to the provisions of the BDF Act and its regulations. The suit points out that the retired soldiers decided to sue because they were employed by the army under the provisions of the BDF Act 1977 and its regulations, Cap 21:05 of the laws of Botswana prior to April 1, 2001. It further states that a decision was taken in or about 2,000 to have members of the BDF join or transfer to the BPOPF without amending the BDF Act regulations that deal with pensions and gratuities for BDF members.
Furthermore, it stated that the matter was not only illegal and contrary to the provisions of the BDF Act and its regulations and there was no legal basis for such a decision. “Such was not notwithstanding the fact that the issue of joining the BPOPF by members of the BDF and plaintiffs in particular was initially presented as optional, in fact within the BDF the issue was presented as an instruction. In essence, the plaintiff and other members of the BDF were not given a choice to join or not join the BPOPF, given the culture of the army, once an instruction was given it had to be obeyed,” states the suit.
Moreover, the suit highlights that the BDF members and the plaintiffs in particular did not therefore, freely opt to join the BPOPF and at the time that BDF members were being requested to join the said pension fund scheme. It says that then the army was in discussion with the Defence Council regarding the need to have gaps in the BDF salary structure rationalised and government accepted the recommendations from the army on the need to close the salary gaps In conclusion, the lawsuit holds that the BDF members, in particular the plaintiffs, opted to join BPOPF with knowledge that government had accepted the salary rationalisation or alternately without the knowledge that joining the BPOPF prior to April 1, 2002 would greatly disadvantage them in particular the plaintiffs given the pending salary rationalisation.