An attempt by the Department of Military Veterans (DMV) to cancel the order which favoured a veteran member has failed.
The South Gauteng High Court removed the matter from the unopposed roll.
The judgment was made on August 19, 2024.
This was after the department challenged Acting Judge Moses Baloyi’s decision to dismiss its application to reinstate the appeal after it was struck from the roll.
This was after Judge Raylene Keightley Petse was entitled to both compensation in terms of the Military Veterans Act and pension in terms of the Military Pensions Act.
Petse, who joined the Azanian People’s Liberation Army (Apla) in exile in 1987, returned to South Africa with permanent injuries in 1993 and qualified for an 80% disability rating in terms of the Military Pensions Act.
However, the department refused to pay him an annual pension and gave him a lump sum of R52 629, and told him that this was all he would get in terms of the Military Veterans Act regulations.
Petse launched a court challenge in the South Gauteng High Court in 2016 and has been in dispute with the department since then.
The department’s spokesperson Lebogang Mothapa said Petse opposed the matter and was removed the unopposed roll.
“The department is awaiting an answering affidavit from the respondent in the rescission application brought by the department,” said Mothapa.
The department based its argument on the common law which was believed to empower a court to set aside a judgment having regard to the reasonableness of the explanation offered by the applicant, the bona fides of the application for rescission and the bona fides of the defence on the merits, which prima facie carries some prospects of success.
In the affidavit, the department’s director chief of healthcare and wellness, Caroline Mongale, said she was advised that the state attorney did not bring Keightley’s judgment to the department's attention. She said the judgment was discovered through media publications in 2022.
“Mr Khalabi Mashego came across the article on IOL headed ‘APLA Veteran Beats Government in pension battle’. Upon reading the same, he ascertained that judgment was given in the South Gauteng High Court in terms of which government’s refusal to pay annual pension to Mr Petse as a military veteran has been ruled unlawful and that he was entitled to be paid a pension benefit annually retrospective from 2016 until his death and not only entitled to a once-off payment compensation,” said Mongalo.
She said after the state attorney confirmed that the matter had been heard and there was a judgment, it was brought to the minister’s attention and she instructed that the matter should be appealed.
Mongalo said although the state attorney was given instructions to proceed with an appeal, by September 2022, nothing had been done and Petse was proceeding with executing the order.
She said, in response, the state witness advised that the department write a letter to Petse and request that he stay execution of the order.
“After much back and forth the department learned that counsel had made various requests to the state attorney for a consultation, but this was not communicated. A consultation was held on September 29, 2022, where it was agreed that the state attorney would prepare a draft application to be settled by counsel,” said Mongalo, adding that the department was summoned to a consultation in November 2022.
She said the department found out that the leave to appeal would be heard on November 10, 2022, but the condonation application was necessary because of the delay in prosecuting the appeal.
She said the department also found out later that the matter was struck off the roll because the condonation application was filed on the eve of the hearing without a postponement application.
She said the state attorney struck again when Judge President issued directives for the reinstatement application to be heard.
Mongalo said the state attorney did not bring the directives to the department’s attention.
“To make matters worse, after Acting Judge Baloyi issued directives affording the department another chance and postponed the matter to February 9, 2024, the state attorney failed to bring the directives to the department immediately and belatedly brought them to counsel’s attention resulting in the written submissions being filed after the hearing.
“Counsel was also unaware that the matter had proceeded,” said Mongalo, adding that no one was in attendance for the department, resulting in Baloyi’s judgment.
Meanwhile, Petse said the reason the matter was heard on the unopposed motion court roll was because the department and its legal team tried to create an impression that he was not interested in opposing their application to rescind Baloyi’s judgment.