- Ex-soldiers assert their right to have their pensions calculated under BDF Act
- Govt holds the ex-soldiers were also public officers subject to Public Service Act
- The matter being a class action case is potentially gravid for the ex-soldiers
GAZETTE REPORTER
The state has made an application for leave to appeal the recent decision by Gaborone High Court Judge Michael Leburu to dismiss its bid to challenge the class action status granted to former soldiers.
The judge’s ruling allowed the ex-soldiers to proceed collectively in their legal battle against the government regarding pension fund transfers.
The legal dispute originated when five former soldiers, led by former Commander of the Botswana Defence Force (BDF), Gaolathe Galebotswe, contested the government’s decision to move the pension plan of BDF members who enlisted prior to 1st April 2001 to the Botswana Public Officers Pension Fund (BPOPF).
Unlawful
The retired soldiers argue that this transition was unlawful and lacked a proper legal foundation. They assert their right to have their pension entitlements calculated in accordance with the regulations under the BDF Act.
The government has now appealed the ruling and is seeking a stay of the impugned order, saying it will raise points of law in the application.
In his recent ruling, Justice Leburu stated that the key issue revolves around whether the interim order designating the case as a class action is appealable.
He clarified that the order, issued on 2nd August 2023, merely addressed procedural aspects of the trial and did not impact the final relief sought by the former soldiers.
The judge refuted the government’s argument that the court lacked the authority to order a trial through a class action. Citing Order 16 Rule 8, Justice Leburu asserted that the High Court possesses discretionary power to order a class action.
He challenged the interpretation that would grant this right only to defendants, emphasising the potential for discrimination and absurdity.
Addressing the government’s concern about the denial of the right to cross-examine each ex-soldier, Justice Leburu emphasised that the nature of a class action entails a selective presentation of evidence.
He noted that not every claimant is required to give oral testimony aligning with the inherent characteristics of proceeding via a class action.
The government’s application for leave to appeal and a stay of the order reflects its determination to contest the class action status granted to the ex-soldiers.
The legal battle, which began in 2020 with around 200 soldiers, has garnered increased support, with more than 2500 soldiers now seeking to join the lawsuit collectively.
Govt’s position
The government holds that despite being part of the military, former BDF members were concurrently considered public officers, making them subject to the Public Service Act and associated pension legislation governing public officers.
It emphasises that the transition to the BPOPF pension scheme was both voluntary and lawful, noting that applicants had the choice to join.