An individual who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order was entitled to the restoration of his special pension after being fully pardonedwhere aninitial application for the special pension had already been determined
Masemola v Special Pensions Appeal Board and Another 
Case CCT 260/18
Constitutional Court of South Africa
Mogoeng CJ; Cameron, Froneman, Jafta, Khampepe, Madlanga, Mhlantla, Theron JJ and Victor AJ
October 15, 2019
Constitutional Law–democratic constitutional order – persons who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order – right to a special pension-where a person entitled to a special pension was convicted of fraudand itdisqualified him from continuing to receive his special pension -where the person received a presidential pardon and applied for revival of his special pension-whether an individual who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order was entitled to the restoration of his special pension if he was previously disqualified as a result of being convicted of an offence but then fully pardoned-Constitution of the Republic of South Africa, 1996, section 84(2)(j); Special Pensions Act, 1996, section 1(8)(b),6A
Constitutional Law – the presidency-powers and functions of president- presidential pardon- where a person entitled to a special pension was given a full presidential pardon- what was the effect of a full presidential pardon on a person whose special pension was disqualified-Constitution of the Republic of South Africa, 1996, section 84(2)(j)
The applicant was actively engaged in the liberation struggle and contributed towards the establishment of the constitutional democracy. As a result of his service, he applied for a special pension in terms of the Special Pensions Act 69 of 1996 (the Act), which was awarded on December 10, 1997. On April 2, 2001 the applicant was convicted of several counts of fraud. In terms of the Act, the conviction disqualified him from continuing to receive his special pension which was then terminated on April 7, 2008. A few years after his conviction, the applicant applied for a presidential pardon in terms of section 84(2)(j) of the Constitution of the Republic of South Africa (the Constitution), in respect of his conviction of fraud. The presidential pardon was granted on July 21, 2011, expunging the conviction from his record. The applicant approached the 2nd respondent, the Government Pensions Administration Agency (GPAA) and requested that his special pension be reinstated as the pardon had eliminated the grounds for his disqualification. In 2015, the GPAA refused to reinstate his special pension. It informed the applicant that his disqualification had occurred before his pardon and pardons did not operate retrospectively.
The applicant appealed to the Special Pensions Appeal Board (Board), the 1st respondent, to set aside the decision. The Board stated that the disqualification occurred as a result of the provisions of the Act, therefore the GPAA could not make a decision, and accordingly there could be no appeal. The applicant successfully approached the High Court of South Africa, Gauteng Division, Pretoria (High Court), which ordered the respondents to make a decision about the reinstatement of his pension. In October 2016, the Board concluded that it was not empowered to decide on a matter relating to the interpretation of law and that the issue of the effect of expungement should be determined by a court. That prompted the applicant to approach the High Court again. The High Court upheld the application finding that the applicant was entitled to receive his special pension, with effect from July 21, 2011, being the date of the presidential pardon. Following that, the respondents were granted leave to appeal to the Supreme Court of Appeal.
The Supreme Court of Appeal upheld the appeal, holding that a person convicted of a listed offence was disqualified from receiving a special pension in terms of the Act. The Supreme Court of Appeal held that the changes to the Act through section 6A – which provided that any person who applied for a benefit in terms of the Act had to do so before December 31, 2006 – meant that when the applicant was pardoned, the part of the Act in terms of which special pensions could be paid had already lapsed, therefore the applicant could not lodge a new application. Aggrieved by the decision, the applicant applied for leave to appeal to the Constitutional Court.
i Whether an individual who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order was entitled to the restoration of his special pension if he was previously disqualified as a result of being convicted of an offence but then fully pardoned.
ii What was the effect of a full presidential pardon on a person whose special pension was disqualified?
Relevant Provisions of the Law
Special Pensions Act, 69 of 1996
Section 1- BENEFITS Right to pension
1. (1) A person who made sacrifices or served the public interest in a non-racial, democratic constitutional order and who is a citizen, or entitled to be a citizen, of the Republic(1) of South Africa, has the right to a pension in terms of this Act if that person-
(a) was at least 35 years of age on the commencement date; and
(b) was prevented from providing for a pension because, for a total or combined period of at least five years prior to 2 February 1990, one or more of the following circumstances applied:
(i) That person was engaged full-time in the service of a political organisation.(2)
(ii) That person was prevented from leaving a particular place or area within the Republic, or from being at a particular place or in a particular area within the Republic, as a result of an order issued in terms of a law mentioned in Schedule 1(3) of this Act.
(iii) That person was imprisoned or detained in terms of any law or for any crime mentioned in Schedule 1 of this Act, or that person was imprisoned for any offence committed with a political objective.
(8) A person referred to in this section is disqualified from receiving or continuing to receive a pension if, after making the sacrifice or serving the public interest as referred to, that person-
(a) either actively engaged in actions calculated to undermine efforts to establish a nonracial democratic constitutional order;
(b) or was convicted of a crime committed after 2 February 1990.
- In order for the Constitutional Court to entertain a matter there had to be either a constitutional issue or an arguable point of law of general public importance and it had to be in the interests of justice to hear the matter. It was axiomatic that the construction of a constitutional provision, such as section 84(2)(j) of the Constitution on the president being responsible for pardoning or reprieving offenders and remitting any fines, penalties or forfeitures, as well as the interpretation and application of legislation enacted in order to give effect to section 189 of the interim Constitution, constituted constitutional matters. In addition, the matter raised questions of considerable public importance concerning the legal effect of presidential pardons as well as the interpretation of the Act. That was a novel question which clearly implicated significant public interest. The matter was arguable and had prospects of success. The interests of justice dictated that the Constitutional Court resolve the matter. Leave to appeal should be granted.
- Whereas the conviction and the sentence remained factual historical occurrences, the ordinary legal effects or consequences of the conviction and sentence were removed as a result of the presidential pardon. In that regard, presidential pardons could not be misconstrued as having the effect of setting aside convictions and sentences.
- From a purposive reading of section 1(8) of the Special Pensions Act (the Act) it sought to deter and discourage special pension recipients from committing serious offences which offended the constitutional order. While that was an important purpose, the disqualification did not affect the right to a special pension in terms of section 1(1) on persons with a right to a pension in terms of the Act. That meant that, where the reasons for the disqualification had fallen away, a person would be able to receive their special pension once they had notified the Board of the change in circumstance. The right itself was not terminated; it was the receiving of the monthly payment that could be interfered with.
- In the instant case, and given the particular wording of the presidential pardon, the applicant received what was generally referred to as a full pardon. The President also directed that the applicant’s conviction be expunged from his criminal record. The result being that for all intents and purposes, the applicant, with effect from July 21, 2011, was legally to be treated as a person who had not been convicted of the offence. The applicant was with effect from the date of the pardon no longer affected by any legal disqualifications that were as a result of his conviction. He was no longer subject to any civil or statutory disabilities that were imposed on a person convicted of the offence. The applicant was not seeking expungement of his disqualification he sought only its expungement from the date of his presidential pardon.
- The applicant only sought the reinstatement of his special pension from the date that he was pardoned. He acknowledged that he was disqualified from receiving his special pension under the Act between April 2001 and his pardon in July 2011. But, he stated, his entitlement to the special pension revived when he was pardoned.
- The scope of the disqualification was limited to the receipt of a special pension. It followed that the prior right to a special pension, in terms of section 1(1) of the Act which had already been determined, never lapsed due to the disqualification, it continued to exist. The applicant’s section 1(1) right remained despite his conviction. He was, however, disqualified from receiving his special pension by virtue of section 1(8)of the Act. Accordingly, the pardon revived the applicant’s entitlement to receive his special pension from the date of pardon. Therefore, the question to be answered was whether there was anything that stood in the way of the applicant for his special pension to be restored.
- A proper interpretation of section 1(8) of the Act had to be given. In doing so, regard had to be had to the purpose of the Act and the introduction of section 6A. The purpose of the Act was to give effect to section 189 of the interim Constitution. That section required that an Act of Parliament would provide for the payment of special pensions to persons who, in the establishment of a democratic constitutional order, made sacrifices or served in the public interest. The applicant was one of those persons and his application was considered and approved in 1997.
- Section 6A of the Act was introduced to combat fraudulent claims and to overcome difficulties experienced in the verification of historic information so long after the beginning of the new democracy. Its purpose was to prevent the Board and the GPAA from making decisions regarding a person’s eligibility for a special pension based on outdated information that was difficult to verify. It was not intended to affect those persons whose applications had already been verified and approved. The effect of section 6A saw the lapsing of certain provisions in the Act and meant that new applications submitted after December 31, 2006 would not be considered. Those applicants whose applications were already determined or submitted before the cut-off date would continue to receive their benefits.
- The applicant did not fall into the category under section 6A(1) of the Act since the facts on which his initial application had been made, had already been verified when he applied in 1997 and was allocated the special pension. The applicant was not the intended target of the Legislature when it drafted section 6A. In reinstating the applicant’s special pension, the Board was not supposed to review new facts on which the applicant alleged that he was eligible for the special pensions. Rather, the Board had to consider whether the disqualification was still applicable to those old facts (and application) given that the applicant was pardoned and his criminal record was expunged. There was no rational basis for reading section 6A (1) as preventing the respondents from being able to have the applicant’s special pension restored.
- Section 6A(2) provided that subsection (1) did not affect any benefit payable under the part, in respect of which the Board had made a determination in terms of section 7 of the Act before December 31, 2006. The Board in the case was still empowered to restore special pensions. A determination whether the applicant met the criteria for the special pension had already been done. The respondents explained that the applicant would need to complete the prescribed form afresh which was required to be commissioned, and he would, on oath, have to disclose his conviction. Part 3 of the form asked whether one was convicted of a criminal offence after February 2, 1990. An applicant was required to tick either yes or no. The respondents’ argument disregarded the effect of the pardon and expungement of the applicant’s conviction. It was clear that post-pardon the applicant was prospectively deemed not to have been convicted of an offence. Part 3 of the form was not an obstacle for the applicant. That meant that the applicant was covered by section 6A (2) which referred to applications which had already been determined before the lapsing of provisions on December 31, 2006.
- The Act gave the Board and the GPAA certain express powers. However, the Act had not expressly conferred on the Board and the GPAA a power to restore the special pension. But whether the Board and GPAA had implied powers to restore the special pension was not at the heart of the matter. That was because the disqualification under section 1(8)(b) terminated the entitlement to continue receiving a special pension and the effect of the applicant’s pardon was to revive the entitlement to continue receiving the special pension. Payment had to then follow as a matter of course; and that was because the entitlement to receive payment had been revived. That was quite distinct from requiring the Board and GPAA to have implied powers to restore the applicant’s special pension. Rather, the revival happened by operation of law. And, because the entitlement to continue receiving payment had been revived, the GPAA had to pay in terms of section 9 as before.
- That entitlement had to be so accorded with the fundamental maxim ubi jus, ibi remedium (where there was a right, there was a remedy). The applicant’s right to a special pension could not be exercised without the reciprocal ability to enforce payment. There could be no doubt that the authors of the Constitution intended that those rights that was, the rights entrenched in the Constitution should be enforceable by the courts of law. They could never have intended to confer a right without a remedy. The remedy was, indeed, part and parcel of the right.
- Those remedies included the power to receive applications for appeals, to administer oaths and to summon individuals to testify. The Board had in terms of section 8(5) the power to confirm, set aside and vary a decision of a designated institution, such as the GPAA. Section 7(2) required the respondents through their delegated power to ensure the effective and efficient implementation of the Act. The GPAA was empowered to administer the Act. Those powers were discretionary and wide.
- If a plaintiff had a right, he had to of necessity have a means to vindicate and maintain it, and a remedy, if he was injured in the exercise or enjoyment of it; and indeed it was a vain thing to imagine a right without a remedy; for want of right and want of remedy were reciprocal. The greatest absurdity imaginable in law was that a man had a right to a thing for which the law gave him no remedy; which was in truth as great an absurdity, as to say, the having of right, in law, and having no right, were in effect the same.
- All the applicant had to do was to: advise the relevant functionaries that through the grant of pardon the impediment to his entitlement to continue receiving the special pension had been removed; and demand that payment be resumed. He had succeeded in doing so. Therefore, the functionaries had to resume payment. The appropriate relief was to declare that the applicant’s entitlement to receive a special pension was restored with effect from July 21, 2011, the date of pardon. Therefore, the respondents were obliged to pay him his special pension. That meant that the appeal succeeded with costs.
1. Leave to appeal was granted.
2. The order of the Supreme Court of Appeal was set aside and replaced with the following:
a) It was declared that the special pension of the applicant was restored from July 21, 2011, being the date on which he received his presidential pardon.
b) The Special Pensions Appeal Board and Government Pensions Administration Agency were ordered to pay the applicant his special pension with effect from July 21, 2011 within 14 days from the date of the order.
c) The Special Pensions Appeal Board and Government Pensions Administration Agency are to pay the applicant’s costs, jointly and severally, including costs of two counsel where applicable.
d) The Special Pensions Appeal Board and Government Pensions Administration Agency are to pay the applicant’s costs in this Court, jointly and severally, including the costs of two counsel where applicable.
Relevance to the Kenyan Situation
The Pensions Act Cap 189 Laws of Kenya was enacted to provide for the grant and regulating of pensions, gratuities and other allowances in respect of the public service of officers under the Government of Kenya. It does not provide for special pension for persons for examplewho made sacrifices or served the public interest in the cause of establishing a democratic constitutional order. In Kenya this category of people would refer to the Mau Mau freedom fighters.
In Kimerera Elders Advisory Council (Mau-Mau Founders) (suing through Maina Kamau & 2 others v Government of Kenya (through the Attorney-General)  eKLR, the petitioners brought a petition seeking various declarations, monetary compensation and restoration and refund for abuse of their human rights during the colonial period, and more particularly during the period of the war of liberation between 1952 and 1962, by agents of the colonial government.
However the petition was dismissed for lack of a proper case that should have been drafted, filed and prosecuted with all the seriousness it deserved, after properly identifying the claimants, their roles in the struggle for Kenya’s independence, the particulars of their sufferings and breach of their human rights, the particulars of the properties confiscated from them by the colonial government, et cetera. The court however identified that there were serious issues that needed to be addressed for abuse of their human rights during the colonial period, and more particularly during the period of the war of liberation between 1952 and 1962, by agents of the colonial government.
There is thus need to enact laws or amend the existing ones in order to compensate the persons who fought for Kenya’s independence and the South African case is a good precedent with even laws that would guide on the same.