State clashes with retired soldiers again
Sharon Mathala | Monday September 25, 2023 06:00
Just two days before the four-year-old case trial could commence, the State filed a new application. The State applied for leave to appeal and stay of execution.
Arguments for the application have been set for November, further postponing trial that was supposed to commence this week.
The State wanted the lower High Court to halt its proceedings as they stated they intend to appeal the earlier ruling classifying the case as a class action suit.
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 his ruling Justice Michael Leburu stated that litigation is costly and that by adopting a class action, the retired soldiers would share the cost of litigation.
“Inevitably, by joining forces in this litigation, the plaintiffs and others will derive strength in numbers. In that procedural endeavour, access to justice will be promoted and served,” he ruled.
Leburu agreed with the retired soldiers that their cause of action is founded on the same facts and that it would be better if their case is heard on a class action instead of all the 3,000 aggrieved approaching individually.
“It is in the interest of justice that matters should not be protracted. This public interest imperative is even echoed and encapsulated by order 1 Rule 2 of the High Court rules, which states that as application of these rules shall be directed towards the achievement of a just, efficient, and speedy dispensation of justice,” Leburu stated.
In the end, the judge ruled that circumstances of the retired soldiers be aggregated and tried as one and as a class action. “It would be impracticable and inconvenient that over 2,000 claims be litigated upon by different claimants singularly, against the same defendants on a same cause of action,” he said.
Now following the order, the State through the Attorney General (AG) is not satisfied with the judge's ruling. In an affidavit filed by Boikhutso Dolores Botlhole, the Acting Permanent Secretary in the Ministry of Defence and Security, the State believes it has good prospects of success at the apex court. The State also believes the retired soldiers will suffer no prejudice if the trial is halted and an appeal is heard.
“In any event , the delay will have been caused solely by the precipitate and impromptu acts of the respondent in, on the eve of the commencement of the trial, making an oral application from the bar that the trial proceed as a class action on the eve of the commencement of the trial,” the acting PS stated in her affidavit.
The State further says one of the reasons why they don’t want the matter to proceed as a class action is, “their belief that the action brought by the plaintiff hinges on each and every one of them being able to establish that each and everyone of them did not voluntarily consent to being moved to the pension scheme they now impugn and that they did so under duress and undue influence. That is a matter upon which each plaintiff only can and must testify and be cross examined, a matter in respect of which only each plaintiff can speak and another and others cannot, on their behalf, do so.” In their response, the retired soldiers believe the State is just delaying justice. “The purpose for applicants was to disrupt the trial of the matter hence the application to stay the ruling and nothing else,” contended the retired soldiers. Galebotswe, the former army commander, further argues that for each of the close to 3,000 plaintiffs to take the stand is impracticable because the circumstances and facts of all of them are the same. “The issue of the grounds of appeal that it is necessary to call each and every individual affected is meant to not only delay the trial but to mulcate and strangle the plaintiffs in unnecessary cost given that the principles are the same and so are the facts,” he stated.
Galebotswe said the retired soldiers suffer prejudice on a daily basis and that majority of them live in abject poverty. “It is the intention of the applicants (State) to drag this matter for as long as it can and deny the matter being decided by the court for reasons unknown because the desire to have only as few as opposed to all was precisely because it was impractical and it would not be conducive to the course of justice to have over 2,500 witnesses including independent witnesses take the stand,” his application further states.
According to them, about 353 members have since passed on and are represented by their beneficiaries. 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 Botswana Public Officers Pension Fund (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 pointed 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,” further reads 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.