05 January 2023

DEPARTMENT OF MILITARY VETERANS C/O THE DIRECTOR: LEGAL SERVICES

328 Festival Street Hatfield

Pretoria, 0001

By hand and by e-mail:

[email protected]

Dear Sir/Madam,

RE: COMMENTARY ON THE DRAFT MILITARY VETERANS PENSION BENEFIT REGULATIONS, 2022

1. AfriForum is a registered non-profit and civil rights organisation with more than 305 000 members. AfriForum actively and regularly participates in the legislative process on behalf of its members as well as in the public interest.

2. AfriForum hereby presents its written commentary on the draft Military Veterans Pension Benefit Regulations, 2022 as published for public comment by the Minister of Defence and Military Veterans (“the Minister”) on 7 December 2022 (“the draft Regulations”), ostensibly under authority of Section 24 of the Military Veterans Act, No. 18 of 2011 (“the Act”).

3.  Notably, the Minister only afforded a period of 30 days for written comment, despite the fact that the draft Regulations were published at the eleventh hour of 2022, when most South Africans are on annual leave for the December festive season. This will be dealt with in more detail below.

4.  At the outset, it is noted that AfriForum is strongly opposed to the draft Regulations in its current form, insofar as it only affords pension benefits to certain listed “non-statutory force members”, while it excludes other non-statutory and all statutory force members. AfriForum submits that the draft Regulations are, inter alia, inconsistent with its enabling legislation, unfairly discriminatory, and unconstitutional.

INCONSISTENT WITH THE MILITARY VETERANS ACT, NO. 18 OF 2011

5. In Section 1 of the Act, a “military veteran” is defined as:

“Any South African citizen who —

(a)  rendered military service to any of the military organisations, statutory and non-statutory, which were involved on all sides of South Africa's Liberation War from 1960 to 1994;

(b)  served in the Union Defence Force before 1961; or

(c)   became a member of the new South African National Defence Force after 1994, and has completed his or her military training and no longer performs military service, and has not been dishonourably discharged from that military organisation or force: Provided that this definition does not exclude any person referred to in paragraph (a), (b) or (c) who could not complete his or her military training due to an injury sustained during military training or a disease contracted or associated with military training” (own emphasis).

6.  It is evident from the use of the emphasised phrases that it was the intention of the legislature to adopt an inclusive, rather than exclusive approach, when determining the ambit of military veterans to whom the Act applies.

7.  Section 5(1) of the Act proceeds to list of number of benefits relating to a “military veteran”, the aforesaid term bearing the meaning assigned to it under section 1 of the Act. As stated above, this includes all South Africans who rendered military service to any military organisations, albeit statutory or non-statutory. i.e., the pension benefits afforded to military veterans under Section 5(1)(h) of the Act includes both statutory and non-statutory force members.

8. Regulation 2(1) read with Regulation 2(2) of the draft Regulations seeks to go beyond the purpose and provisions of the Act and arbitrarily qualify and/or limit the definition of “military veterans”. Furthermore, by only affording pension benefits to three selected “non-statutory forces” (being uMkhonto we Sizwe (“MK”), Azanian People’s Liberation Army (“APLA”), and Azanian National Liberation Army (“ANLA”)) the draft regulations clearly unfairly and unconstitutionally limits the ambit of the Act.

9.  Effectively, the draft Regulations exclude pension benefits from all other statutory and non-statutory force members, e.g., members of the South African Cape Corps (“SACC”), members of the defence forces of the former TBVC states and members of the South African Defence Force between 1957 and 1994.

10.  AfriForum submits that this is inconsistent with the Act, which under Section 5(1)(h) affords pension benefits to specifically defined “military veterans”, which explicitly includes both statutory and non-statutory forces on all sides of South Africa’s Liberation War.

UNFAIRLY DISCRIMINATORY AND UNCONSTITUTIONAL

11. Section 24(2) of the Act affords the Minister with the power to make different regulations regarding different categories of persons or bodies, subject to the condition that the resulting differential treatment may not be unfairly discriminatory against the persons or bodies who are the subject of such differential treatment.

12. AfriForum submits that the draft Regulations unfairly discriminates against all military veterans, both statutory and non-statutory, who are not members of MK, APLA or ANLA, by irrationally, unreasonably, and unjustifiably excluding these “non-members” from pension benefits afforded to military veterans under the Act. The draft Regulations infringes upon inter alia the following fundamental rights of statutory and excluded non- statutory force members:

12.1 Equality before the law (Section 9);

12.2 Human dignity (Section 10);

12.3 Political Rights (Section 19);

12.4 Freedom of trade, occupation and profession (Section 22); and

12.5 Social security (Section 27).

13. It is trite that the fundamental rights contained in the Bill of Rights may be limited only in terms of law of general application, to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors set out in section 36 of the Constitution.

14.  In this regard, an important starting point to be considered is the nature of the right to a pension benefit. Section 197(2) of the Constitution inter alia provides that employees within the public service are “entitled to a fair pension as regulated by national legislation” (own emphasis). I.e., employees in the public service, which includes employees of the Department of Defence under the national sphere of government’s right to a pension, is constitutionally provided for and of an important nature. Many military veterans from all sides of South Africa’s Liberation War’s livelihoods and social security, after years of service to their country, is dependent upon their pension benefits. It should therefore not be limited and/or infringed upon lightly.

15. Furthermore, the purpose of the exclusion of these non-members are not exactly clear. However, if one is to accept that the purpose thereof is to advance certain categories of persons who were historically unfairly discriminated against, the exclusion of the said non-statutory and all statutory force members from pension benefits afforded under the Act, have no rational connection to the said purpose it purportedly seeks to achieve.

16.   It is unclear how the inclusion of only some historically disadvantaged persons and the exclusion of other historically disadvantaged persons (e.g., members of the SACC and the defence forces of the former TBVC states), furthers this purported purpose. It is also unclear how the exclusion of statutory force members from the pension benefits afforded to them under Section 5(1)(h) of Act, furthers the advancement of non-statutory force members who does qualify for benefits in terms of the draft Regulations further than it would have done if statutory forces were included.

17. Moreover, AfriForum submits that, if the purpose of Regulation 2(1) and (2) is indeed to advance military veterans who were historically unfairly discriminated against, there are much less restrictive and alternative means to achieve this end. The most patent, least restrictive manner being to include all military veterans as defined in the Act. This would ensure that all military veterans are treated with the respect and dignity they deserve.

18. AfriForum submits that the aforesaid would be the rational, fair and least restrictive manner to ensure the benefits afforded to military veterans under the Act are realised. This approach will be in line with the Act and ensure that all military veterans enjoy equal benefit from the Act.

FAILURE TO ADDRESS ISSUES

19. AfriForum submits that the proposed draft regulations fail to address the actual issues that impede South African military veterans when it comes to pension and other benefits. The Department of Defence and Military Veterans has long been plagued by maladministration, the Department’s offices’ inability to assist veterans to register for benefits and other administrative issues such as the contact centre, which is not fully operational, leaving most telephone calls unanswered.

20. AfriForum submits that rather than attempting to unlawfully limit who may receive pension benefits that the Department should fulfil its constitutional mandate and ensure effective administration of its functions.

PUBLIC PARTICIPATION

21. As alluded to above, the draft Regulations were published at a time when many South Africans are on leave, and companies and organisations are closed for the festive season. To make matters worse, a period of a mere 30 days were afforded for public comment, which means that comments are due on 6 January 2023, when many South Africans will still be on leave.

22. AfriForum submits that the Minister failed to provide sufficient opportunity for reasonable and meaningful public participation. Reasonable and meaningful public participation is a clear and peremptory requisite when considering the effect the draft Regulations will have on military veterans.

CONCLUSION

23.  Accordingly, AfriForum rejects the draft Regulations in its current form, for inter alia the following reasons:

23.1  The draft Regulations, especially Regulation 2(1) and (2), are inconsistent with the enabling Act;

23.2  The draft Regulations are unfairly discriminatory;

23.3   The draft Regulations are not rationally connected to the purported purpose it seeks to achieve;

23.4 There are less restrictive and alternative means by which to achieve the said purpose; and therefore

23.5 The draft Regulations are unconstitutional.

24. AfriForum hereby calls on the Minister to do the following:

24.1  Extend the period of public comment to allow sufficient time for interested parties to comment.

24.2  To amend the draft regulations to address the above mentioned unlawful and unconstitutional provisions.

Regards

AfriForum NPC

ENDS