Africa-Press – Botswana. Transfer and transition of the pension funds of the former member of the Botswana Defence Force (BDF) to Botswana Public Officers Pension Fund (BPOPF) will be litigated as a class action.
Justice Michael Leburu of Gaborone High Court ruled on Wednesday, in a case in which the Attorney General representing BDF and Ministry of Defence and Security opposed the matter brought before court by some on behalf of others.
Over 2 000 ex-military members had taken their former employer to court arguing that their transfer and transition to BPOPF operated pension scheme had no legal basis and therefore a nullity for all members of the BDF and in particular the respondents who joined the BDF before April 1 2001.
They argued that the pension entitlements of members ought to had been calculated using the BDF Act and its regulations and not in accordance with BPOPF Pension Scheme.
However, when the matter started on August 23 this year, the ex-BDF members applied that the action be proceed as a class action considering the commonality of the factual and legal issues raised.
Members stated that there were over 2 000 plaintiffs, hence it would be impractical to call everyone to give viva voce evidence.
Though the state opposed the application, court ruled in favour of the former soldiers, hence the state brought an application for leave to appeal to the High Court as well as an application for stay of operation of the ruling pending the hearing and determination of the leave to appeal.
When dismissing the state submissions, Justice Leburu said the decision to regard the matter as a class action was purely interim and was not definitive of the parties’ rights in the main trial.
He said the order was issued at an intermediate stage as a procedural order that gave directions on how the trial should proceed.
Justice Leburu said the state had submitted that by ordering a class action, the issue of locus standi of the plaintiffs becomes topical.
However, he said the effect of a class action was to truncate a trial and permit only a few similarly circumstanced plaintiffs to take the stand.
Adding that the respondents had amply demonstrated their direct and substantial interest in the matter.
The attorney general had also submitted that by ordering a class action, they were denied the right to cross examine each and every plaintiff.
“The answer to this submission is simply that it is the very nature and essence of a class action that not every claimant should give viva voce evidence, but just a few of them,” Justice Leburu said.
Therefore, he said having determined that the interim order was not appealable, the consideration of the application for stay of execution was then rendered academic.
The case will convene for status hearing on 23 November.
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