Nguza and Others v Minister of Defence

• Jurisdiction: South Africa
• Judge: Pickering J
• Judgment Date: 30 November 1995
• Citation: 1996 (3) SA 483 (TkS)
• Docket Number: 1652/95
• Hearing Date: 16 November 1995
• Counsel: N K Dukada for the applicants. S Alkema SC (with him A Z Gaju) for the respondent.
• Court: Transkei Supreme Court

A Pickering J:

The 34 applicants seek the following urgent relief:

'2.1

An order declaring that the applicants are entitled to retire forthwith from the South African National Defence Force.

2.2

An order directing the respondent to pay forthwith the pension benefits which B applicants are entitled to consequent upon retirement and such payment to be on terms and conditions not less favourable to those of retired members of the South African Defence Force who were stationed in the former Republic of Transkei.

2.3

An order directing respondent to pay the applicants' pension benefits referred C to in para 2.2 hereof within 30 days of the date of finalisation of these proceedings.'

Applicants are presently all members of the South African National Defence Force. Prior to the re-incorporation of the former Transkei homeland into the national territory of the Republic of South Africa on 27 April 1994 the applicants were members of the former D Transkei Defence Force which was established in terms of the Transkeian Defence Act 34 of 1978.

In terms of s 224(1) of the Constitution of the Republic of South Africa Act 200 of 1993 ('the Constitution') a National Defence Force was established as the only defence force for the Republic.

E Section 236(1) of the Constitution provides, inter alia, that a military force as defined in s 224(2)(a) or (b) shall continue to function as such in accordance with the laws applicable to it until such time as it is, as the case may be, 'abolished or incorporated or integrated into any appropriate institution or is rationalised . . .'.

The military force defined in s 224(2)(a) is the South African Defence Force and that F defined in s 224(2)(b) is a 'defence force of any area forming part of the national territory'. The Transkei Defence Force is such a defence force.

In terms of s 236(2) of the Constitution a person who immediately before the commencement of the Constitution was employed by an institution referred to in s 236(1) G shall continue in such employment subject to the applicable laws regulating such employment. In terms of s 236(4) the terms and conditions of employment applicable to a person employed by the Transkei Defence Force immediately before the commencement of the Constitution shall continue to apply to him or her until amended by or under any law.

H Section 229 of the Constitution provides that all laws which immediately before its commencement were in force in any area which forms part of the national territory, shall continue in force in such area, subject to any repeal or amendment of such laws by a competent authority.

I The Transkeian Defence Act 34 of 1978 and the regulations promulgated under s 50 thereof have not been repealed. Accordingly the terms and conditions of employment of the applicants are governed by the provisions thereof.

For various reasons which are not germane to this application, the applicants have J decided that they wish to retire early from the South African National Defence Force.

Pickering J

A The issue of the retirement of an officer from the defence force is dealt with in reg 14(1) of the aforesaid regulations. This regulation provides as follows:

'Subject to the provisions of the Transkeian Government Service Pensions Act B 1970 any officer who is contributing to the Pension Fund shall retire on reaching the age of 55 years or may retire after 10, 20 or 30 years' service on condition that he gives three calendar months' notice of such desire.'

The essential dispute between the parties is whether, on a proper construction of reg C 14(1), an officer who has not yet attained the age of 55 years may voluntarily retire at any time after completion of 10 years' service, as contended for by the applicants, or whether such an officer may only voluntarily retire immediately upon completion of either 10, 20 or 30 years' service respectively, as contended for by the respondent.

The respondent raised in limine the issue of the non-joinder of the Minister of Social Welfare and Pensions. There is merit in the submission of Mr Alkema, who with Mr D Gaju appeared for the respondent, that the Minister of Social Welfare and Pensions has a real and direct interest in this application in that an order in favour of the applicants will automatically give rise to their right to claim pension benefits on the basis of retirement as opposed to resignation, the benefits in the former case being greater than those in the latter. As submitted by Mr Alkema, all interested parties should be joined in an E application for a declaration of rights. A declarator cannot affect the rights of persons who were not parties to the proceedings. (Webb v Beaver Investments (Pty) Ltd and Registrar of Deeds 1950 (1) SA 491 (T); Van der Walt and Another v Saffy 1950 (2) SA 578 (O).) The Minister of Social Welfare and Pensions should therefore, in my view, have been joined as a respondent.

F In view of the conclusion to which I have come on the merits, however, it is not necessary to order that the said Minister be so joined as my decision will not adversely affect his rights in any way.

Mr Alkema submitted further in limine with reference to s 19(1)(a)(iii) of the Supreme Court Act 59 of 1959 that the Court should, in any event, in the exercise of its discretion, G refuse to exercise its jurisdiction to make a declaratory order in the terms sought by the applicants in that remedies other than that of a declaration of rights were available to the applicants. He submitted that the obvious remedy for the applicants was to retire and then to claim whatever pension benefits they alleged were due and payable to them from the H Department of Social Welfare and Pensions.

Section 19(1)(a)(iii) provides that a Provincial or Local Division shall have power 'in its discretion, and at the instance of any interested person, to enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot I claim any relief consequential upon the determination'.

In making this submission Mr Alkema relied on the decision in Shaban and Others v Culemborg Banking Corporation Ltd and Another 1962 (2) SA 450 (W) at 451A-B where Dowling J, with reference to the then s 19(1)(c) of the Supreme Court Act 59 of 1959, stated:

'The words "notwithstanding that such person cannot claim any relief J consequential upon such...