Masemola v Special Pensions Appeal Board and Another

Mr Nathaniel Mashilo Masemola, a 92-year-old liberation struggle activist and ANC member since 1946, was granted a special pension in December 1997 under the Special Pensions Act 69 of 1996 in recognition of his sacrifices during the liberation struggle. In April 2001, he was convicted of fraud and sentenced to five years' imprisonment. In 2007, following an SIU investigation, the Board advised him that he was disqualified from continuing to receive his special pension under section 1(8)(b) of the Act, which disqualifies persons convicted of crimes committed after 2 February 1990. On 21 July 2011, the President granted Masemola a full pardon which expunged his conviction. He subsequently requested reinstatement of his special pension. The GPAA refused, arguing that pardons do not have retrospective effect and that his disqualification occurred before the pardon. The Board also declined to decide the matter. Masemola then approached the High Court.

• What is the legal effect of a presidential pardon granted under section 84(2)(j) of the Constitution?
• Does a presidential pardon that expunges a conviction remove the disqualification under section 1(8)(b) of the Special Pensions Act?
• Is a person whose special pension was suspended due to conviction entitled to restoration of the pension following a presidential pardon?
• Does section 6A of the Special Pensions Act, which caused Part 1 to lapse on 31 December 2006, prevent the restoration of a special pension following a pardon granted after that date?
• Do the Special Pensions Appeal Board and GPAA have the power to restore a special pension following removal of the disqualifying conviction?

Leave to appeal granted. Appeal upheld. The order of the Supreme Court of Appeal set aside and replaced with: (1) Declaration that Masemola's special pension is restored from 21 July 2011, the date of presidential pardon; (2) The Special Pensions Appeal Board and GPAA ordered to pay Masemola his special pension with effect from 21 July 2011 within 14 days; (3) Respondents ordered to pay the applicant's costs jointly and severally in the High Court, Supreme Court of Appeal, and Constitutional Court, including costs of two counsel where applicable.

A presidential pardon granted under section 84(2)(j) of the Constitution that expunges a conviction operates prospectively to remove all legal disabilities and disqualifications flowing from that conviction. Where a special pension under the Special Pensions Act has been suspended due to disqualification under section 1(8)(b) based on a conviction, and that conviction is subsequently expunged by presidential pardon, the disqualification ceases to operate from the date of pardon and the entitlement to receive the special pension revives by operation of law. Section 1(8)(b) of the Special Pensions Act disqualifies receipt of payment but does not terminate the underlying vested right to a special pension granted under section 1(1). Section 6A of the Act, which caused Part 1 to lapse on 31 December 2006, was intended to prevent new applications based on unverifiable historical information and does not prevent restoration of special pensions where eligibility had already been determined before the lapsing date. When a disqualification is removed and entitlement to receive payment revives by operation of law, the administering authority must resume payment in accordance with its statutory obligations.

The Court made observations about the purpose of the Special Pensions Act as recognizing and providing financial support to liberation struggle activists who sacrificed opportunities for retirement provision while fighting apartheid. The Court noted that section 1(8) serves the purpose of deterring special pension recipients from committing serious offences that offend the constitutional order. The Court distinguished presidential pardons granted through the ordinary process from those granted through special dispensation processes aimed at national unity and reconciliation. The Court affirmed the fundamental maxim ubi jus, ibi remedium (where there is a right, there is a remedy), noting that a right cannot be exercised without the reciprocal ability to enforce it, and citing with approval historical authorities including Harris and Dixon v Harrison. The Court observed that the respondents' interpretation would require Masemola to answer 'yes' to whether he had been convicted after 1990, which would disregard the effect of the pardon and expungement.

This judgment establishes important principles regarding the legal effect of presidential pardons in South African law, particularly their prospective operation in removing legal disabilities. It clarifies that while pardons do not operate retroactively to undo past legal consequences, they do operate prospectively to remove ongoing legal disqualifications flowing from a conviction. The case demonstrates the purposive approach to interpreting social security legislation enacted to give effect to constitutional obligations, particularly regarding recognition of liberation struggle contributions. It affirms that vested rights to social security benefits, once properly granted, are not extinguished by temporary disqualification, and can revive when the disqualifying condition is removed. The judgment also illustrates the principle that statutory bodies have implied powers necessary to give effect to rights, and that the maxim ubi jus, ibi remedium requires that enforceable rights must have corresponding remedies. This is significant for administrative law and the interpretation of social welfare legislation in the constitutional era.