Justice Leburu faults Judges Pensions Act

Lobatse High Court Judge Michael Leburu has critiqued some of the provisions of the Judges Pensions Act for not being favourable to all the judges.

Justice Leburu made this observations in his ruling in which former High Court Judge Dr Onkemetse Tshosa approached the court to demand payment for gratuity from government following his resignation after serving for two and half years. His suit has since been dismissed.“Some Judges accrue full pension after serving 15 years whereas others are required to serve for a longer period in order to accrue full pension. Clearly there is uneven and unequal protection accorded to some of the subjects without any reasonable and justifiable foundation or criteria”, observed Leburu.He explained that a curative legislative intervention may be appropriate, for purposes of affording equal protection to all the subjects of the Judges Pensions Act, as constitutionally promised. 

Jusitce Leburu stated that it is evident that the intention of the legislature was to provide an incentive, by way of gratuity and/or pension, to those appointed on permanent and pensionable terms, and who served for at least five years (gratuity) or ten years or more (pension).  By the same token, he said, it was the intention of the legislature to impose a disincentive to those appointed on permanent and pensionable terms to leave the service before serving at least five years.“It is without any doubt that the Judges Pensions Act applies to those Judges appointed on a permanent and Pensionable terms. 

The Act states that a judge who has attained the retirement age of 70 years and has continuously served as such for a period of 15 years is eligible for full pension. The Act furthers says a judge who has served continuously for a period of not less than 10 years but less than 15 years is entitled to receive a reduced pension, proportionate to the period he or she served in relation to 15 years - See section 5 (1).  A judge who resigns after serving continuously for a period of 15 years, but has not attained the retirement age of 70 years, is entitled to receive a reduced pension, proportionate to the age of the judge in relation to the age of retirement”, he pointed out.

Justice Leburu further stated that the Judges Pension Act, although enacted primarily to make provision for payment of pension to judges appointed on permanent and pensionable terms, it also makes provision for the payment of gratuity, in lieu of pension. Section 11 of the same Act states that “Where a judge resigns after serving for a period of not less than five years but not more than 10 years, he or she shall be entitled to payment of gratuity at the rate of 30 per cent of his or her salary during his or her period of service.”