MASERU — The Lesotho Court of Appeal will on April 20 deliver judgment in a case in which army captain Bulane Sechele is challenging a government pension scheme.
Hearing began on Tuesday this week.
Sechele brought his application before the Court of Appeal in December after three judges of the High Court, sitting as the Constitutional Court, rejected his initial application.
High Court judges; Justices Tšeliso Monaphathi, Semapo Peete and Nthomeng Majara, ruled that Sechele’s mandatory membership to the fund is constitutional because he would benefit from the scheme.
“The learned judges erred and/or misdirected themselves in holding that . . . even though membership is mandatory under the 2008 Act (at least for the applicant) and contribution compulsory, all these are for his benefit and for his advantage’,” Sechele argued.
Sechele wants the court to declare a law compelling civil servants to contribute to a new pension scheme declared unconstitutional.
He argued that the Public Officers’ Defined Contribution Pension Fund Act of 2008 contravened the constitution which already provided for a pension in which public officers are not compelled to contribute.
Sechele said the 2008 Act contravenes section 150 (4) of the constitution which states: “All pensions shall be a charge on the consolidated fund.”
He argued that the said provision of the constitution meant that the constitution had already established a consolidated fund for pension benefits in which public officers do not have to make contributions to the fund.
“Section three, subsection one of the Public Officers’ Defined Contribution Pension Fund Act of 2008 is unconstitutional for it establishes the contribution fund for purposes of providing pension benefits contrary to section 150 (4) of the Constitution of Lesotho of 1993 which has already established consolidated fund for such purpose.”
Sechele also asked the Court of Appeal to declare as unconstitutional sections of the Public Officers’ Defined Contribution Pension Fund Act of 2008 that bound him to be a member of the contributory fund without affording him an option to choose between the Lesotho Defence Force regulations and the Pension Fund Act.
The Lesotho Defence Force Act of 1996, Sechele submitted, provided for the defence minister to make regulations regarding benefits of the army personnel when they retired from the force.
“The honourable minister has already made regulations in terms of the Lesotho Defence Force Act of 1996 regarding pension and gratuity.
“The fact that the 2008 Act does not give an option to choose whether to stick by the regulations or opt for the contributory fund deprives me of my constitutional right,” he said.
It was unconstitutional for the government to deduct a portion of his salary as contribution to his pension without consulting him, he argued.
“A man’s salary is his property and possession thereof cannot be taken compulsorily,” Sechele said.
He said the government and the administrators of the fund had failed to justify how he would benefit from the newly established compulsory pension scheme.
“The respondents kept telling me that I am going to benefit without convincingly showing how I am going to benefit from the scheme.”
The lawyer representing the Public Officers’ Defined Contribution Pension Fund Advocate Kananelo Mosito said the constitution did not prohibit the government from establishing the fund.
“Section 150(4) of the constitution does not prohibit an alternative fund to mobilise funds for people that might retire or fall on injury.”
Mosito said the scheme was established to benefit public officers.
“I would like to differ with my learned colleague (Sechele) that we haven’t shown enough that the scheme is not less favourable to him. The memorandum of objects and reasons attached to the Act clearly shows that the scheme aims at benefiting pubic officers,” he said.
The principal secretary for the Ministry of Public Service, Tsukutlane Au, in his affidavit, said: “The reality is that the deposits into the Contribution Pension Fund are from the Consolidated Fund. The government contributes 11.2 percent and a public officer contributes five percent (of gross salary).”
Court of Appeal President, Justice Michael Ramodibedi, said the court will take time to consider judgment in this case.
“Judgment will be delivered on the 20th April 2011 in this court,” he said.