Hall v Military Pensions Appeal Tribunal

• Jurisdiction: South Africa
• Court: Transvaal Provincial Division
• Judge: Galgut J
• Judgment Date: 16 April 1963
• Citation: 1963 (3) SA 407 (T)
• Hearing Date: 09 April 1963

Galgut, J.:

This is an application for an order compelling the respondent to state a case on a question of law in terms of sec. 33 (4) of the War Pensions Act, 44 of 1942, as amended.

Galgut J

It is accepted that the applicant is the widow of a European volunteer and was receiving

'a pension at the rate applicable to Europeans in terms of the War Pensions Act, 44 of 1942, as amended'.

The applicant remarried on the 30th November, 1960, and on her A remarriage she became entitled to a gratuity in terms of the Act. the relevant sections read:

'17. The widow of a volunteer, who is killed or dies during military service performed outside the Union, or who dies as a result of a pensionable disability (whether or not such disability is due to the volunteer's own serious misconduct) shall be awarded a pension at the rate and a gratuity in the amount specified . . ..'

19.

B (This section was amended by sec. 1 of Act 92 of 1962, but the amendment does not affect the issue:

'Any pension or supplementary pension granted to the widow of a volunteer shall cease on her remarriage, and she shall then be awarded a gratuity on the following scale -

(a)

One hundred and thirty-two pounds in the case of a European;

(b)

Fifty pounds in the case of a non-European other than a Native; and

(c)

C Twenty-five pounds in the case of a Native.'

It will be seen that in terms of these two sections the applicant is entitled to receive a gratuity.

The applicant is a Coloured woman, while her former husband, the volunteer, was a European. The Military Pensions Board established by D the Commissioner of Pensions in terms of the Act awarded her a gratuity of R100, whereas the applicant contends that she is entitled to a gratuity of R264. Against that decision of the Military pensions Board she appealed to the Military Pensions Appeal Tribunal, i.e. the respondent. The respondent disallowed the appeal. The reasons given by the President of the Appeal Board read as follows:

'Sec. 19 deals with the award in the case of gratuities on remarriage of E a widow and it states that she shall be awarded a gratuity. No mention is made of the race of the volunteer but the relevant sec. 19 (1) (b) clearly refers only to a non-European widow. I feel satisfied that the intention of the legislator was that the amount of the gratuity should be determined by the race of the widow and not by the race of her late husband, the deceased volunteer, and that the award of R100 (£50) is not affected by the fact that she was the widow of volunteer accepted as a F European. It is not disputed that she is a non-European and I consider that she was only entitled in terms of sec. 19 (1) (b) to a gratuity of R100 (£50). Sec. 19 (1) of the Act seems to be clear and not ambiguous. It refers to the widow's race and not to the volunteer's race. I cannot find any other section in the Act which would cause me to come to a different conclusion. The finding of the Tribunal is that sec. 19 (1) (b) refers to the race of the widow and not to the race of her late husband.'

Thereafter the applicant, relying on sec. 33 (4) of the Act as G substituted by sec. 30 of the War Pensions Laws Amendment Act, 58 of 1946, requested the respondent to state a case for consideration by the Supreme Court. That section reads:

'Where any decision of the appeal tribunal rests, wholly or partially, on a point of law, the appeal tribunal may on application by the appellant or the...