Another masterpiece judgement by Judge Michael Leburu

High Court Judge Michael Leburu has granted over 200 retired soldiers permission to join forces and litigate against Botswana Defence Force (BDF) in a class action to challenge the transfer of their pension.

In the legal suit led by former army commander Lieutenant General Gaolathe Galebotswe, the retired members of the BDF are effectively challenging the transfer and transition of their pension scheme from the Botswana Defence Force Act to the Botswana Public Officers Pension Fund Scheme (The BPOPF).

According to the plaintiffs, they were instructed to join the BPOPF pension scheme involuntarily. They state that there was no basis for the said transfer of their pension scheme for them and those members of the BDF, who joined the BDF prior to the 1st April 2001. The defendants admitted that the plaintiffs were employed in terms of the BDF Act.

They further contend that whilst members of the BDF, the plaintiffs were also public officers and therefore were subject to the Public Service Act, the General Orders and all legislation, including the relevant pension legislation that governed public officers, irrespective of the Ministry or Department of Government in which they were employed.

The plaintiffs' attorney applied for the matter to proceed as a class action. In his judgement, Justice Leburu stated that the basis of the application was the commonality of the factual and legal issues arising herein, coupled with the number of plaintiffs herein, who are well in excess of 200.

Justice Leburu said the procedural scheme for class actions has been received and developed by other common law jurisdictions.

“A class action represents a paradigm shift in the South African legal process. It is a process that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group or “Class” against one or more defendants. The process is utilised to allow parties and the court to manage litigation that would be unmanageable or uneconomical if each plaintiff was to bring his or her claim individually,” he said.

According to the judge, it is normally instituted by a representative on behalf of the relevant class of plaintiffs. The class action process, he said, is part of the equity-developed law and is designed to cover situations where the parties, particularly plaintiffs, are so numerous that it would not be in the interest of justice for them to come before court individually.

Judge Leburu said it is not only for the benefit of the plaintiffs that a class action process was conceived, it is also designed to protect defendant(s) from facing a multiplicity of actions resulting in it having to recast or regurgitate its case against each and every individual plaintiff.

“Furthermore, it enhances judicial economy by protecting courts from having to consider the same issues and evidence in multiple proceedings, which carries with it the possibility of decisions by different courts on the same issue.

“It is also worth noting that in other jurisdictions, rules have been promulgated to specifically address class actions. In our jurisdiction, the jurisprudence of a class action is at a nascent stage and our rules (High Court) are silent on the procedural imperatives of a class action,” the Judge observed.

Justice Leburu indicated that it is in the interest of justice that the issues raised by plaintiff and similarly circumstanced retired members of the BDF, be aggregated and tried as one and as a class action, having regard to the commonality of the facts and legal issues yearning for adjudication and the numerosity of the claimants.

He pointed out that it would be impracticable and inconvenient that over 200 claims be litigated upon by different claimants singularly, against the same defendants, on a same cause of action.

In their plea, the defendants - BDF, Ministry of Defence and Security and Attorney General- admitted that the Government gave members of the BDF the right to opt to become members of the BPOPF.

The defendants denied that the plaintiffs were coerced or instructed to join BPOPF. It is the defendants' case therefore that the plaintiffs transition to the BPOPF pension scheme was voluntarily. They argued that the said transition from the BDF Pension Scheme to the BPOPF Scheme was lawful.

The retired soldiers sought among others that the purported transition of members of the BDF and in particular the Plaintiffs both the officers and other ranks, to the BPOPF operated pension scheme had no legal basis and is therefore a nullity for all members of the BDF and in particular the Plaintiffs, who joined the BDF before 1st April 2001.

The pension entitlements of members of the BDF and in particular the Plaintiffs, ought to have been calculated using the respective Regulations promulgated pursuant to the BDF Act and the purported transition to the BPOPF was illegal ab initio and is incapable of being cured in so far as Statutory Instrument No. 74/2002 (the 2002 amendment) is not applicable to members of the BDF and in particular the Plaintiffs, as it takes effect from 1st April 2001.

The pension denominator for the Plaintiffs and other officers ought to have been at the rate of 1/330 when the pension denominator for the Public Service moved from 1/720 to 1/450 in 1998 in order to maintain the differential between members of the BDF, in particular the Plaintiffs and persons employed in the Public Service; and there was and there is still no legal basis for any person who joined the BDF prior to 1st April 2001 to become a member of the BPOPF and the amended Regulations speak only to those who joined on or after the 1st April 2001.

They argued that the BDF members and in particular the Plaintiffs were not subject to the Pensions Act for pension purposes but to the BDF Act and its Regulations made pursuant thereto and are the operational legal framework for members of the BDF and in particular the Plaintiffs.