Retired Soldiers pension case goes for trial
Mpho Mokwape | Monday November 27, 2023 06:00
This is despite the State not being happy with a recent ruling classifying the matter led by the former commander of the Botswana Defence Force (BDF) retired Lieutenant General, Gaolathe Galebotswe, several Brigadiers, Colonels and other retired senior officers as a ‘class action’.
Despite the approach by the State to Court of Appeal for a redress, the judge has set trial dates for July 8, 2024 and is expected to last until July 19 with off days in between. Earlier on the State had engaged Advocate Sidney Pilane yesterday updated the court about the status of the case and indicated that they have made an application for leave and stay of execution at the CoA. He explained that they have a notice of opposition and they are waiting for the hearing of the said applications.
“We request that we wait for the hearing of the application. Despite the opposition to wait, we say it is normal to wait as it would be in the best interest of the case. We did not file for urgency because we have no grounds for that,” he said. Retired soldiers’ attorney, Kgalalelo Monthe in response did not agree with waiting for hearing saying the status hearing was scheduled for trial dates. “We are here for trial dates as per our last appearance. There is no interdict to stop this matter. It seems the defendants have no desire to see this case move forward, that is why leave to appeal has been filed in the ordinary,” he said. Monthe explained that if the CoA order is issued ordering a stay of proceedings then they will wait.
He said currently there is nothing stopping them from setting trial dates and continuing with the matter. He said according to the court rules, there was no automatic stay of proceedings just because an appeal has been filed. The State’s approach of the CoA follows after the judge a few weeks back refused to stay proceedings and grant leave to appeal ‘class action’ ruling in a pending retired soldiers’ pension trial. The State had made an application seeking to stay the proceedings and a subsequent leave to appeal the ruling citing that it will affect its defence. The leave to appeal and stay of proceedings was sought in order to approach the CoA for a redress after the ruling early September by High Court judge, Justice Leburu.
Meanwhile, in the main case, it was ruled that it proceed as a class action, considering 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 is opposing the ruling emphasising that every respondent should give oral evidence and prove his claim despite. The background of the case is that former soldiers brought an action against the AG, the BDF and the Defence ministry seeking various declaratory orders. Close to 200 retired soldiers and other serving officers filed a suit in 2019 through their attorney, Monthe.
The retired soldiers are said to be representing 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 pensions 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.