KindIy receive a summary of the aforesaid submission and trust that it will receive favorable consideration.

The group has no less than 5000 affected members and an academic study to this effect will be submitted during the forthcoming hearings or submissions

We are looking forward to meeting your good committee in Cape Town.

Regards.

JOHANNES NGCOBO

SUBMIMSION TO THE PORTFOLIO COMMITTEE ON FINANACE SPECIAL PENSION AMENDMENT BILL

The Special Pensions Act 69 of 1996 provides for special pensions to be paid to persons who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order.

Further in terms of section 1(a), the Ad provides that a person who has a right to a pension in terms of the Act, that person should have been at least 35 years of age at the commencement date of the Act.

The Group of Former Umkhonto Wesizwe Members who are excluded on the basis of age by the said provisions of this Act wish to make the following submission in light of the proposed amendment to the Special Pensions Act.

SUBMISSION

It is clear that the intention of the Act is to address the plight of persons who made sacrifices or served the public interest in the cause of establishing a democratic constitutional order. There is no doubt that the Act was adopted in good faith and nevertheless has a disproportionate effect to a number of Former Umkhonto Wesizwe Members and members of other liberation formations.

The mere exclusion of certain groups on the basis of age is in our view discriminatory and defeats the purpose of the Act i. to provide special pension to the above category of persons.

We submit that there are legislations and regulations that govern the minimum age allowed for persons to be in full employment thus prohibiting the use of child labour for an example. If someone was at an employable age but for the restriction imposed by his Act, such persons would have had an opportunity to ensure adequate pension provision. There are persons who fulfil the requirements of this Act save far the age restriction. Persons who joined liberation movements in 1983 were twenty one (21) years at that time and were either employed or at an employable age. Such persons, because they were born before the commencement date (1 December 1995), are unfairly excluded by this Act.

We view this Act, as we have submitted above, as having been enacted in good faith and in the spirit of balancing the imbalances of the past It would therefore be unfortunate for the very noble instrument to discriminate against persons who made sacrifices in terms of the Act.

It is further our view that this Act as it is today may lead to indirect discrimination where the Act appears to be neutral or addressing the imbalances of the past, but adversely affects a disproportionate number of certain groups, in this case, the persons who made sacrifices but were not thirty five (35) at the commencement of this Act. This disproportionate number of former liberation movement members mostly, is currently unemployed and them are a significant number of women affected

Many submissions were made to the Special Pensions Review Board by persons affected by the age restriction as provided by section 1.The submissions were based on invoking the provisions of the Act in harmony and in dose correlation With the presumption against unjust and inequitable results. Further if the entire Act were to be interpreted to mean that those who were not 35 years of age on the commencement of the Act should not qualify, the said results would be in contrast with the primary objective of the Act. The balance should tip in favour of the disadvantaged or unfairly discriminated persons since it is in the public interest to provide for a special pension to persons who made sacrifices in terms of the Act.

In the matter of:

MONGEZI TSHONGWENI: SP 4957 REVIEW BOARD DECISION

It was held that:

"The purpose of the Special Pensions Act is the payment of pensions or lump sum benefits if applicants meet the statutory criteria . The review Board does not have powers of changing the Act as it was passed in Parliament by Parliamentarians who belonged to the liberation movements. The duty of the Special Pensions Board and Review Board is to implement the Act as it is and not deviate from legalities in it . The Act can only be amended in parliament and hopefully the clause of the under 35 will be changed.

The Review Board read your submission carefully and it makes a lot of sense , but most unfortunately the Review Board affirms the decision of the Special Pension Board and rejects the appeal"

The submission we make is that, in fight of the above, and with the belief that the legislator did not intend to discriminate against those who genuinely made sacrifices in terms of this Act , the age restriction Provision should be repealed and be substituted by a strict provision that at time a person made sacrifices in terms of the Act, he or she would have had an opportunity to ensure adequate pension provision. The burden of proof should be stricter on the part of the applicant. The former liberation movements or organisations should be compelled to adhere strictly to this approach in order to close a gap or opportunity for possible fraud.

RECOMMENDATIONS

It is recommended that:

1. The above submissions be taken into consideration in the public interest;

2. That the Portfolio Committee afford at least five of our representatives to make oral submissions to the honourable Committee on Finance, and

3. Parliament to assist in the arrangement of making 2 above a possibility.

Dated this 4th day of October, 2005