Court refuses to stay retired soldiers’ pension fund trial
Mpho Mokwape | Monday November 13, 2023 06:00
The State had sought leave to appeal the ruling or alternatively stay of execution in order to approach the Court of Appeal (CoA) for a redress following the ruling by Justice Michael Leburu in early September. Justice Leburu had ruled that the lawsuit led by former commander of the Botswana Defence Force (BDF), Lieutenant General Gaolathe Galebotswe, several brigadiers, colonels and other retired senior officers was a class action which did not sit well with state. In its contention, the State filed two applications before Justice Leburu which were subsequently joined together during hearing where they sought in the application a stay of the class action ruling pending the hearing and determination of application for leave to appeal and if leave to appeal was refused, that a stay be effected pending the hearing and determination of the application for leave to appeal at the Court of Appeal. However, Justice Leburu he did not agree with State but agreed with the retired soldiers that ‘class action’ ruling was interim and as such not appealable. When dismissing state’s application on Wednesday, Justice Leburu said the application for leave was dismissed with costs as it was determined that the interim order was not appealable therefore rendering consideration for stay of execution academic. “Having determined that the interim order is not appealable, consideration of application for stay of execution, which meant the stoppage of trial has been rendered academic, therefore leave to appeal is dismissed,” he said.
The judge explained that the impugned order was purely interim and was not definitive of the parties’ rights in the main trial and that it was issued at an intermediate stage and as a procedural order that gave directions on how the trial should proceed. He said the argument by the Sate saying that by ordering a class action they will be denied the right to cross examine each and every plaintiff was a bit out as the answer to that was simply that it was the very nature and essence of a class action that not every claimant should give oral evidence but just a few of them. “Such is a direct and natural consequence of the proceedings by a way of a class action. On the right to bring action to court, the issue does not arise because in any event, the effect of a class action is to truncate a trial and permit only a few similarly circumstanced plaintiffs to take the stand and not all the claimants in a case, based on the commonality of both legal and factual matrix of a case,” he said. This was after the State submitted that by ordering a class action, the issue of the right to bring a lawsuit becomes topical in that it goes against the allowed principle and that the onus of proof was a matter of substantive and not procedural therefore the ruling went against the common law requirement. Justice Leburu said the soldiers have amply demonstrated their direct and substantial interest in the matter and that the issue of right does not arise and for that the order was not final nor was it dispositive of the rights of the parties or a portion or segment of the disputants’ rights in the main application.
AG, BDF and Ministry of Defence and Security’s case
It was their case that although the impugned ruling about a class action was interlocutory, it was appealable, with leave of the court. During court proceedings, it was submitted that the action proceed as a class action, considering the commonality of the factual and legal issues raised and further that there were over 2, 000 respondents (retired and serving soldiers) and therefore it would be impractical to call each and every respondent to give oral evidence. The State opposed the said application and submitted that each and every respondent should give oral evidence and prove his claim despite the respondents arguing that the case proceeds as a class action was final and that the court cannot alter it. It was further submitted that the impugned ruling was definitive of the rights of the parties in that the respondents will call, as witnesses, only five of the named respondents and not the rest of them and thus the state’s right to cross examine the rest of the respondents is denied. The State contended that the main case does not depend solely on the interpretation of the applicable statutes canvassed but that it also depends upon whether the transfer of the respondents from the BDF Pension Scheme to the BPOPF Pension Scheme was voluntary or not, and the circumstances in which each respondent did so, hence the need to call each and every claimant to speak to such coersion, as pleaded. It was argued that it was in the interest of justice that leave be granted so that the highest court in the land can pronounce on the far-reaching decision (class action) that departs from the normal procedure of conducting civil trials, as prescribed by Order 45 of the Rules of the High Court, more so that the application for class action was orally made from the Bar without prior notice. “Order 16 Rule 8 does not permit class actions. Alternatively, that it allows same, only a defendant may benefit from such certification of a matter as a class action,” argued the State.
Former soldiers’ opposition
In opposing the application, the retired soldiers said the court order classifying the trial a ‘class action’, was not appealable, even with leave, in that it was merely procedural, interlocutory and was not definitive of the rights of the parties herein. It was submitted that such ruling was clearly preparatory in that it directed how the matter should proceed, given the number of respondents (Plaintiffs in main application) and the legal issues arising in the main claim. The former soldiers argued that the said interlocutory order, being preparatory to the main trial, did not dispose of any portion of the relief sought, in the main application. “The interim order did not touch merits of the main application and therefore is not appealable,” argued the retired soldiers.
Facts of the case
By way of background, the former soldiers brought an action against AG, BDF and Defence ministry seeking various declaratory orders. 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 the 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 2000 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.