ZACC 39
Date of Hearing: 06 August 2019
Judgement Date: 15 October 2019
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 15 October 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the order of the Supreme Court of Appeal. This application concerned the question of whether a pardoned individual is entitled to the restoration of his special pension if he was previously disqualified as a result of being convicted of an offence.
The applicant, Mr Nathaniel Mashilo Masemola, was actively engaged in the liberation struggle and contributed towards the establishment of our 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), this was awarded on 10 December 1997. On 2 April 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. On 7 April 2008 his special pension was terminated. A few years after his conviction, the applicant applied for a presidential pardon in terms of section 84(2)(j) of the Constitution, in respect of his conviction of fraud. The presidential pardon was granted on 21 July 2011, expunging the conviction from his record. The applicant approached the second 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 do not operate retrospectively.
The applicant noted an appeal to the Special Pensions Appeal Board (Board), the first respondent, to set aside this 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. This 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 21 July 2011, being the date of the presidential pardon. Following this, 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 provides that any person who applies for a benefit in terms of this Act must do so before 31 December 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. The applicant submitted that he should be treated as a person who has not been convicted of the pardoned offence and therefore for legal purposes his conviction no longer exists. He argued that section 6A(1) of the Act did not alter his position as he was seeking the reinstatement of his pension and not making a new application and that the respondents have the power to reinstate his special pension. The respondents in turn submitted that, firstly, presidential pardons operate prospectively and could not undo consequences of the conviction. Secondly, when the pardon was granted, the applicant’s rights had already lapsed and he was therefore not entitled to the reinstatement of his special pension. Finally, the respondents submitted that they do not have the power to reinstate the applicant’s special pension.
In a unanimous judgment, penned by Mhlantla J this Court held that, while the Act, seeks to discourage special pension recipients from committing serious offences, the disqualification does not affect the right to a pension in terms of section 1(1) of the Act. The right itself is not terminated; it is the receiving of the monthly payment that can be interfered with. Where the grounds for the disqualification have fallen away; a person will be able to receive their special pension once they have notified the Board of the change in circumstance.
This Court held that the particular wording of the presidential pardon received by the applicant meant that he was, for all intents and purposes, legally to be treated as a person who had not been convicted of the offence with effect from 21 July 2011. Therefore, the applicant was from the date of the pardon, no longer affected by any legal disqualifications that arose as a result of his conviction. The Court further held that the introduction of section 6A was to combat fraudulent claims and to overcome difficulties in the verification of new claims. The Court accepted that the effect of section 6A saw the lapsing of certain provisions in the Act and meant that new applications submitted after 31 December 2006 would not be considered. However, the Court held that the applicant did not fall into the category under section 6A(1) since the facts on which his initial application had been made, had already been verified when he applied for and was awarded the special pension.
The Court held that the applicant’s special pension was restored through the operation of law. The pardon revived his entitlement to continue receiving the special pension. The Court held that this accords with the fundamental maxim ubi jus, ibi remedium (where there is a right, there is a remedy). The applicant’s right to a special pension cannot be exercised without the reciprocal ability to enforce payment.
In the result, leave to appeal was granted and the appeal upheld. The Constitutional Court issued a declaratory order that the applicant’s special pension was restored from 21 July 2011, being the date on which he received his presidential pardon and that the Board had to pay him his special pension..
The Full judgment here