IN THE HIGH COURT OF SOUTH AFRICA 
GAUTENG DIVISION, PRETORIA
Case No: 10448/2016
In the matter between:
NATHANIEL MASHILO MASEMOLA                                                                                                                                          Applicant
and
SPECIAL PENSIONS APPEAL BOARD                                                                                                       First Respondent
GOVERNMENT PENSIONS ADMINISTRATION   
AGENCY                                                                                                                                                                                                Second Respondent
JUDGMENT ON LEAVE TO APPEAL
MAKHUBELE AJ
Introduction
[1] I heard the main application in this matter in the urgent roll of 22 November 2016.
[2] I delivered an ex tempore judgment on 15 December 2016 and granted the following order; ·
"   1.   The decision of the first respondent   that   was communicated   to   the applicant in a letter or a report dated 4 October 2016 in terms of which his appeal is dismissed is set aside and replaced with the following:
1.1 .         The appeal lodged by   Mr Masemola dated   6 March 2015 in   terms of which he seeks reinstatement of   his Special   Pension   succeeds.
1.2.                     The special pension is reinstated with effect from the date of expungement of his criminal record which is 21 July 2011.
1.3.                     The respondents are to pay the costs of this application, jointly and severally, the one paying the other, to be absolved.   "
[3] Despite having   been   notified,   none     of     the     parties' representatives were in court when I handed down the judgment.
[4] The respondents filed the notice of application for leave to appeal against the whole of my judgment and orders during January 2017. It is common cause that they had not, at that time, had sight of the judgment or reasons thereof.
[5] After the necessary corrections of the typed record of proceedings. the judgment was subsequently transmitted to the parties in early June 2017, a few before the application for leave to appeal   was heard .
[6] The respondents did not supplement or vary their grounds of application for leave to appeal. I took this issue up with their Counsel, Mr. Matebese during the hearing of this application. He indicated that due to the nature of the grounds of appeal, it was not necessary to have sight of the reasons for judgment.
[7] I do not necessarily agree with him, but this issue is not important because of the stance that I have adopted with regard to what I   consider to be   the   real   questions   that   I   should   consider   in   this application.
Grounds of appeal
[8] The grounds of appeal are in the main similar to the arguments that were advanced during the hearing of the main application. The main complaint now (although they did not have sight of my reasons for the judgment and order) is that the order has offended the principle of legality in that the courts are not authorised to interpret a statute to fill in gaps.
[9] It was submitted on behalf of the respondents that since there is   no provision for reinstatement of a pension in the enabling statute , the powers of the court are limited to the remedies that are available   therein.
[10] During oral argument, Mr. Matebese submitted that the clear intention of the legislature when enacting Section 1(8) of the Special Pensions Act, Act 66 of 1996 ("the Act") was   that, once   the pension was revoked, it cannot be reinstated . Furthermore, courts do not have powers to fill in gaps in a statute.
Analysis
[11] I gave reasons for my judgment that the respondents have not dealt with in their application for leave to appeal for reasons indicated above. A copy of the transcript of the record of proceedings is attached herein   as Annexure "A".
[12] I am not expected, at this stage to re-write or justify my reasons for the judgment.
[13] The decision of the first respondent with regard to the applicant's application for reinstatement of his special pension is contained in a letter /report dated 04 October 2016. The last paragraph   reads   as follows:
" 11.     It   is noteworthy   that   the   Act   does   not   enable   the   SPAB to decide on matters of interpretation of the law.
The question whether expurgation effectively results in conviction, for all purposes, being deemed not to have taken place, can best be decided by a court of la w. If the SPAB, in the instant case,   were   to   pronounce   on   the     reinstatement     or     otherwise     of Masemola' s pension benefit it would be overstepping its mandate as the Act is silent in this regard ." Decision.
" In the result the appeal is dismissed."
[14] My   understanding   of   paragraph   J J was (and still is ) that the first respondent   is informing   the   applicant that it does not have powers to decide whether he is entitled to reinstatement of his special pension or not because the issue involves interpretation of the   law, which it is not empowered   to   do.   This power   (to interpret law), according to the first   respondent,   rests with the   courts.
[15] The argument advanced on behalf of the respondents is that paragraph 11 is not the decision of the first respondent. I do not understand this denial because there is no other document   in   the   entire record that expresses what the   actual   decision   is.   In fact what is stated   in   paragraph   11   of   the   letter   was not new. The erstwhile Appeals Board arrived at the same   conclusion.
[16] Mr. Matebese argued that the special pension was terminated by operation of law:   therefore, it cannot be reinstated. There is no need for a decision to reinstate it because it was not terminated by   a decision .
[17] The first respondent, so the argument goes, cannot decide on applications for reinstatement of a special pension because the Act is silent about the matter. It was also submitted that the courts have no powers to entertain the applications for reinstatement of special pensions.
[18] Should the interpretation that the first respondent seeks to give to the Act in as far as the dispute is concerned be correct, it means that the applicant has no recourse. His dispute cannot be entertained   by any forum, be it the first respondent or the courts.
[19] I am convinced that the legislature did not intend such draconian consequences. It (the Act) makes provision for a right to a special pension and circumstances under which a recipient may be disqualified from receiving further payments. The question is whether the disqualification should stand even after the reasons for its imposition no longer exists. For instance, if the basis for the disqualification was a criminal conviction, what happens if   the   conviction is
set aside?
[20] My view (in the judgment) was that   the   special pension could be reinstated if the reason for the disqualification no longer exists. This view is fortified by the   fact   that   the   legislature   effected   certain amendments   to   the   Act   during   2008   and     made provision for establishment of   the   Appeals   Board   (the first respondent) . The amendments also made provisions of   the   Promotion   of     Administrative   Justice Act (PAJA), Act 3 of 2000 to be applicable to any administrative decision   taken in   terms   of   this Act.
[21] The decision to disqualify the applicant from receiving further pension after his criminal conviction was preceded by a letter to him in terms of   which   he was asked to make representations. Although there is   no evidence that he took up the invitation, the special pension was stopped on the expiry   of   the   date indicated   in   the letter.
[22] Mr. Matebese argued that no administrative action was taken, hence PAJA is not applicable.
[23] In my view, should the respondents be   correct, the applicant's constitutional rights to access to justice and   a fair hearing in an open forum are in jeopardy.
[24] Despite my confidence that my judgment   is correct. I believe that the circumstances of   this   case are similar to cases where   leave   to   appeal   was granted on the basis that the issues involved interpretation of a statute that has a   potential   to   limit the rights of individuals to access to justice.
Zondo J put it   as follows In the   matter of Links v MEC   for Health, Northern Cape[1]
“ Jurisdiction
[22] This Court has jurisdiction because the matter involves an interpretation of legislation that limits the applicant's right in terms of section 34 of the Constitution.[14] That is the Prescription Act. [15] The meaning that the court a quo attached to section 12(3) of the Prescription Act had the effect of preventing the dispute between   the applicant   and   the respondent   from being resolved by   a   court   of law.
The applicant challenges the correctness of that meaning. The provisions of section 39(2) of the Constitution should be borne in mind. Section 39(2) rea ds:
"When interpreting any legislation, and when developing the   common   law   or   customary law, every court, tribunal or forum must promote the   spirit ,   purport   and objects of the Bill of Rights. " The case also implicates the right to security of the person entrenched in section 12 of the Constitution.[16]
Leave to appeal
[23] It is in the interests of justice that leave to appeal be granted. This matter is about the correct interpretation of section 12(3) of the Prescription Act . ... "
[25] Although there was no evidence before me, I am of the view that the outcome of this matter will not just affect the applicant, but all recipients of the special pension and possibly others whose rights may be taken away by the very statutes that conferred them.
[26] I believe that this application for leave to appeal should succeed because the dispute between   the   parties   involves interpretation of a statute that, on the version of the respondents gives and takes away rights without affording the individual concerned an opportunity for a hearing, and furthermore, denies him/her a right to approach the courts for appropriate relief.
[27] What I have stated above constitute compelling reasons, as contemplated in Section 17(1) (a) (ii) of the Superior Courts Act, 10 of 2013, and for those reason s, I am of the view that this matter deserves the attention   of   the Supreme Court of Appeal.
[28] Accordingly, I make the following order;
[28.1]                 The   application     for     leave     to     appeal     is   granted   to   the Supreme Court   of   Appeal.
[28.2]               Costs of   this application will be   costs in   the appeal.

MAKHUBELE AJ  
  
ACTING JUDGE OF THE HIGH COURT

Application heard on:           30 June 2017

APPEARANCES: 
APPLICANT:                                                ADVOCATE FERREIRA
Instructed by:                                                 Norton Rose Fulbright South Africa Inc.

RESPONDENTS:                                   ADVOCATE ZZ MATEBESE, with ADVOCATE MX SHlBE
Instructed by:                                                 Msikinya Attorneys and Associates

[1] 2016] ZACC 10
I omitted the footnotes in the judgment