Court declares soldiers pension matter a class action
Retired senior members of Botswana Defence Force (BDF) have succeeded in convincing the Gaborone High Court that issues concerning their pension should be treated a class action, rather than individual litigation.
The former troopers are challenging a 2002 decision by the government to transfer soldiers pension scheme from the BDF Act to the Botswana Public Officers Pension Fund (BPOPF) saying it was unlawful and it continues to disadvantage them.
Former BDF Commander, Lieutenant General Gaolathe Galebotswe, Brigadier Shadrack Moloi, Brigadier David Dikobe, Colonel Tjatanga Moloi, and Major General Victor Kebakile had cited the Attorney General, the BDF and the Ministry of Defense as first to third respondents respectively.
They argue that former soldiers who joined the army prior to April 2001 were coerced into joining the BPOPF and are unhappy saying the decision to put them at the same level as civil servants was unlawful and irrational since the two are totally different.
“The Government ought to have maintained the denominator differential between the army and the Public Service,” they said during the arguments.
On the other hand, the Government contends that the troopers were public officers employed under the BDF Act 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.
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The AG further argued that the soldiers were given the right to opt to become members of the BPOPF and denied that the soldiers were coerced to join the pension fund, and stated that the transition was lawful.
The AG was adamant that the matter should not be treated as a class action since that can only be determined at the end of the main trial in which the Army veterans are demanding just over P1billion in compensation for their pensions.
Justice Michael Leburu said although the High Court Rules are silent on what constitutes Class Action, there are decisions made in the United States, the United Kingdom and South Africa on the procedure for that the form of litigation.
In South Africa for instance, former mine workers successfully litigated against their employers for compensation for lung disease and pulmonary tuberculosis which they acquired during their many years of working in the mines.
In a nutshell, he said class action takes place where litigants have similar circumstances affecting them, adding that it would be prudent for the courts to listen to their cases if they have complied with the requirements for such.
“It is this court’s conclusion that the five plaintiffs have satisfied the essential requirements for a class action. Without equivocation, they have satisfied the numericity and commonality requirements. Their course of action is founded on the same facts and the legal issues raised herein requires an interpretation and application of the applicable laws and regulations,” he said.
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He said it is in the interest of justice that matters should not be protracted and that treating this as a class action will afford others access to justice.
There was no order on costs.