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Retired Soldiers Sue BDF

PINI BOTHOKO
Retired soldiers have filed a suit against their former employer, the Botswana Defence Force (BDF) and the Attorney General as the legal representative of the army and Ministry of Justice and Security.

This allegedly comes after the army decided to move BDF’s Pension Fund in 2001, 2002 and 2003 for members of the BDF who joined the force before April 1, 2001 to a new pension in terms of the Botswana Public Officers Pension Fund (BPOPF) a decision that the retired soldiers are not pleased with.

Close to 200 retired soldiers and other serving officers have filed a suit through their attorney, Monthe Marumo & Co. The suit states that it is “illegal and unlawful contrary to the provisions of the BDF Act and its regulations for their pension to have been transferred”.

It added 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 suit also states that 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.

The change in the denominator was unlawful, contrary to the provisions of the BDF Act and its regulations and against their legitimate expectations,” reads suit.

It further says 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

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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 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 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 BDF members and the plaintiffs in particular did not therefore freely opted 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 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.

On other matters, the suit holds that 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.



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