Pensioners should not retire into poverty-Judge
High Court Judge Michael Leburu’s judgment restores hope for members of BDF Retired Officers Association and serving soldiers that justice may prevail
Former Botswana Defence Force (BDF) Commander Lieutenant General Gaolathe Galebotswe and other retired officers have successfully managed to turn tables against their former employer’s bid to throw out their case.
In the case the soldiers are challenging the state’s “unlawful” migration of their pension benefits from BDF to Botswana Public Officers Pensions Fund (BPOPF).
Army men especially retired officers have for long been up in arms with the government over the migration of their pensions to BPOPF which they argue has resulted in diminution of their pension benefits. The BDF members’ Pensions which were managed under the BDF Act were moved to BPOPF between 2000 and 2001 following the amendment of the Pensions Act.
In the current suit the state (Attorney General, BDF, Ministry of Defence Justice and Security) had wanted the matter to be dismissed on a technicality, arguing that the over 500 retired soldiers did not deliver their declaration within the prescribed 14-day period.
The declaration is the plaintiff’s statement of a claim against the defendant, formally and specifically setting out the facts and circumstances that make up the case. The 1st plaintiff Lt Gen (rtd) Galebotswe conceded that they have not delivered their declaration within the time allowed.
He has argued that the delay in the delivery of their declaration was caused by logistical problems of going around the country to find other plaintiffs who were interested in joining this action. He said following the issuance of the writ of summons, many members of the BDF Retired Members Association who are spread across the country had expressed a wish to be included in the matter, and thus delayed the process.
High Court Judge Michael Leburu in his ruling said the matter is of great national importance in that it directly hits at the doorstep and livelihood of retired members of the BDF and some of the current members.
“Up to now no declaration has been filed, nor is there an application filed by the plaintiffs for condonation of the late filing of such declaration. Along the way, the official Retired Members of the
Association were no longer interested in pursuing this matter.
“The plaintiffs then formed themselves into a group named and styled “A Re Itshekeng” and continued with the present matter. Members of ‘A re Itshekeng’ are spread across the country and therefore the 1st Plaintiff and retired Captain Maliza were tasked with going around the country to get members sign powers of attorney giving mandate to their attorneys to institute the present action.
“The list of members of “A Re Itshekeng” runs to 586 retired members of the BDF; as evidenced by a list of such members attached hereto,” Justice Leburu stated.
The judge pointed out that there is no demonstrable prejudice that has been suffered by the state arising from the delay in the delivery of the declaration.
Lt Gen Galebotswe had argued that the action should not be dismissed as it is a matter of national importance that affects the pension of retired and serving members of the BDF.
It was submitted in relation to pension that it goes to the livelihood of the members of the BDF directly, who are affected by the migration of their pension benefits from BDF to BPOPF.
“It is a trite that the quantum of pension payable to a pensioner is a matter of livelihood and dignity. Pensioners should not retire into poverty. The plaintiffs are former members and some current members of the BDF. They stood sentinel over the sovereignty of Botswana for many years.
“Not only that, even in the arena of international diplomacy and peacekeeping, the BDF has been assembled, paraded and deployed with aplomb. This court takes judicial notice of one such deployment in Somalia in 1992/3 under the aegis of the United Nations on a mission aptly styled ‘Operation Restore Hope.’ The present case is thus of national importance. Importance of a case is key when determining whether to grant a non-compliant litigant indulgence,” Justice Leburu ruled.
He said all these factors elevate this matter onto a higher pedestal, hence the case should be properly articulated and ventilated at trial rather than dismissing the action on a mere technicality. The judge stated that the number of members currently serving and who are similarly circumstanced has not been disclosed.
He added that the numbers are jointly and cumulatively significant, when one has regard to the already disclosed figure of 586.
“In my ruling and having regard to the imperatives of the events, coupled with the outbreak of the COVID-19 virus, which has caused further delays in the delivery of the declaration, this is a fitting case in which I should exercise my discretion, in the true sense, and in contra-distinction to discretion in the loose sense and thus extend the timeline for the delivery of the declaration, in terms of Order 24 Rule 2 (b) of the Rules of the High Court, as I hereby do.
“The Plaintiffs have thus discharged the onus of showing that they have a lawful and reasonable excuse for the delay in the delivery of the declaration,” said Justice Leburu.
This has been a thorny issue between the BDF and retired officers as the government failed to resolve the matter amicably.
Former Minister of Defence, Justice and Security Shaw Kgathi has on several occasions promised that the Defence Council is seized with a Commissioned Report on the matter.