Special Pensions Amendment Act 13 of 2008


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 519 Cape Town 19 September 2008 No. 31448
THE PRESIDENCY No. 1015 19 September 2008
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 13 of 2008: Special Pensions Amendment Act, 2008.

ACT To amend the Special Pensions Act, 1996, so as to define and further define certain expressions; to extend the right to a pension to persons 30 years of age, but not yet 35 years of age, on 1 December 1996; to extend the surviving spouse's pension, orphan's pension and funeral benefit to certain persons; to regulate the administration of the Act; to amend Schedule 3 to the Act; and to provide for matters connected therewith.
BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:— Substitution of heading to Part 1 of Act 69 of 1996
1. The following heading is hereby substituted for the heading to Part 1 of the Special Pensions Act, 1996 (hereinafter referred to as the principal Act):
"PART 1
RIGHT TO PENSION OF PERSONS 35 YEARS OF AGE AND OLDER ON 1 DECEMBER 1996 AND SURVIVOR'S LUMP SUM BENEFIT".
Insertion of Part 1AA in Act 69 of 1996
2. The following part is hereby inserted in the principal Act after section 6A:
"PART 1AA
RIGHT TO PENSION OF PERSONS 30 YEARS OF AGE OR BETWEEN 30 AND 35 YEARS OF AGE ON 1 DECEMBER 1996
Right to pension
6Abis. (1) A person who made sacrifices or served the public interest in establishing a non-racial, democratic constitutional order and who is a I
Act No. 13, 2008 SPECIAL PENSIONS AMENDMENT ACT. 2008
citizen, or entitled to be a citizen, of the Republic, has the right to a pension in terms of this Act if that person was— (a) at least 30 years of age, or between 30 and 35 years of age, on the
commencement date; and (b) prevented from providing for a pension because, for a total or
combined period of at least five years prior to 2 February 1990, one or more of the following circumstances applied:
(i) That person was engaged full-time in the service of a political organisation, and did not receive any remuneration from an institution other than that political organisation:
(ii) that person was prevented from leaving a particular place or area within the Republic, or from being at a particular place or in a particular area within the Republic, as a result of an order issued in terms of a law mentioned in Schedule 1 to this Act; and
(iii) that person was imprisoned or detained in terms of any law or for any crime mentioned in Schedule 1 to this Act, or that person was imprisoned for any offence committed with a political objective.
(2) In determining whether a person committed an offence with a political objective as contemplated in subsection (])(b)(m), the designated institution must consider the following factors: (a) The person's motive in committing the offence; (b) the context within which the offence was committed and, in particular,
whether the offence was committed in the course of a political uprising or political event;
(c) the nature and gravity of the offence; (d) the effect of the commission of the offence on a political opponent,
State property, State personnel, private property or individuals; (e) whether the offence was committed as part of a programme, or with
the approval of an organisation which promoted a non-racial democratic constitutional order;
(f) the relationship, proximity and proportionality of the offence and the political objective pursued in its commission; and
(g) whether the offence was committed without— (i) personal gain; or
(ii) personal malice. (3) A pensioner who qualifies for a benefit in terms of subsection (1) is
entitled to receive a pension, payable monthly, commencing on 1 April 2001.
(4) (a) For each pensioner, the designated institution must determine the amount of the monthly pension in accordance with the table in Schedule 3.
(b) For the purpose of applying the table in Schedule 3, the qualifying period is the total length of time prior to 2 February 1990 that the pensioner spent in the circumstances listed in subsection (1).
(5) A person who qualified for and received a benefit under section 2 prior to the lapsing of Part 1 may not be granted a pension under this Part.
(6) (a) Any person who applies for a benefit in terms of Part 1AA must— (i) complete the application form as determined by the designated
institution; (ii) have a Commissioner of Oaths certify on the application form
that the applicant swore or affirmed that the information contained in that form is correct; and
(iii) submit the application form to the designated institution for approval on or before the closing date.
(b) A person who qualifies for a benefit who is permanently or temporarily disabled and therefore unable to apply in terms of paragraph (a) personally, or any person acting on behalf of that disabled person, may submit a curator's application in the prescribed form to the designated institution.
(7) (a) Part 1AA, except for this subsection, lapses on 31 December 2010.
Act No. 13, 2008 SPECIAL PENSIONS AMENDMENT ACT, 2008
(b) Paragraph (a) does not affect any benefit payable under this Part in respect of which the designated institution has made a determination in terms of section 6Abis before 31 December 2010.
(c) Any application for benefits in terms of this Part which has been submitted to the designated institution before 31 December 2010, but on which the designated institution has not made a determination by that date, must be finalised as if this Part had not lapsed,".
Substitution of heading to Part 1A of Act 69 of 1996
3. The following heading is hereby substituted for the heading to Part 1A of the principal Act:
"PART 1A
SURVIVOR BENEFITS ON DEATH OF PENSIONER AND FUNERAL BENEFITS ,
Substitution of section 6B of Act 69 of 1996, as inserted by section 6 of Act 27 of 2005
4. The following section is hereby substituted for section 6B of the principal Act:
"Limitation on benefits payable under Part 1A
6B. A pensioner referred to in section 1 whose monthly pension payments had already begun by 31 December 2006 [or a person referred to in section 2 who had already received a survivor's lump sum benefit by that date] or will begin before or on 31 December 2010, may not be granted any benefit other than a funeral benefit under this Part.".
Amendment of section 6D of Act 69 of 1996, as inserted by section 6 of Act 27 of 2005
5. Section 6D of the principal Act is hereby amended by the addition after subsection (2) of the following subsections:
"(3) Subject to section 6E, from the date on which the Special Pensions Amendment Act, 2008, takes effect—
(a) a surviving spouse of a pensioner referred to in section 6Abis who died prior to the date on which the Special Pensions Amendment Act, 2008, takes effect, is entitled to receive a monthly pension equal to 50% of the pension that would have been payable to that pensioner immediately before the date of his or her death for the remainder of the surviving spouse's life;
(b) a surviving spouse referred to in section 2 who received a survivor's lump sum benefit is entitled to receive a monthly pension equal to 50% of the pension that would have been payable to the deceased person who would have been a qualifying pensioner had that person survived until the commencement date;
(c) where there is no surviving spouse, a dependant who became an orphan, is entitled to receive the monthly pension that would have been payable to a surviving spouse in terms of paragraph (a) or (b)—
(i) until the orphan reaches the age of 18; or (ii) until the orphan reaches the age of 23, if the orphan is a full-time
student; or (iii) for the remainder of the orphan's life, if the orphan suffers from
a permanent and total disability on the date of such pensioner's death.
(4) A surviving spouse or orphan who qualifies for a benefit in terms of subsection (3) is entitled to receive a pension, payable monthly, commencing on the date on which his or her application was made.".
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Substitution of section 6E of Act 69 of 1996, as inserted by section 6 of Act 27 of 2005
6. The following section is hereby substituted for section 6E of the principal Act:
"Allocation of equal shares in benefit
6E. (1) If a pensioner is survived by more than one spouse or, if there are no surviving spouses, by more than one dependant or orphan, each of whom qualifies for a lump sum benefit or a monthly pension or both, the [Board] designated institution must allocate an equal share of the lump sum benefit and the monthly pension to each qualifying spouse, dependant or orphan, as the case may be, but the total benefits for all the surviving spouses, dependants or orphans must not exceed the benefit that would have been payable had there been only one surviving spouse, dependant or orphan.
(2) If a pensioner referred to in section 6D(3) was survived by more than one spouse or, if there are no surviving spouses, by more than one orphan or dependant, each of whom qualifies for a monthly pension, the designated institution must allocate an equal share of the monthly pension to each qualifying spouse, dependant or orphan, as the case may be, but the total benefits for all the surviving spouses, dependants or orphans must not exceed the benefit that would have been payable had there been only one surviving spouse, dependant or orphan.".
Substitution of section 6F of Act 69 of 1996, as inserted by section 6 of Act 27 of 2005
7. Section 6F of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection:
"(1) A funeral benefit as set out in Schedule 4 is payable to— (a) a pensioner on the death of his or her spouse or child; (b) a surviving spouse upon the death of a pensioner or child of a deceased
pensioner; [or] (bA) a surviving spouse upon the death of a child of a pensioner referred to in
section 6D(3); (c) any dependant who becomes an orphan upon the death of a pensioner or
surviving spouse of a deceased pensioner[.]; or (d) any dependant who becomes an orphan upon the death of a surviving
spouse of a pensioner referred to in section 6D(3).".
Substitution of section 6G of Act 69 of 1996, as inserted by section 6 of Act 27 of 2005
8. The following section is hereby substituted for section 6G of the principal Act:
"Applications for benefits under Part 1A
6G. (1) (a) Any person who applies for a benefit under Part 1A must— (i) complete an application form in such format as the [Board]
designated institution may determine; and (ii) supply the [Board] designated institution with such additional
information as it may require. (b) The form must be submitted to the designated institution for approval
as soon as possible after the date on which the spouse or child qualifies to apply for a benefit in terms of this Part, but not later than 36 months thereafter.
(2) If a person who would qualify for a benefit is permanently or temporarily disabled and therefore unable to apply for a benefit personally under this part, any person acting on behalf of that disabled person may submit a curator's application to the [Board] designated institution in such format as the [Board] designated institution may determine.".
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Substitution of heading to Part 1B of Act 69 of 1996
9. The following heading is hereby substituted for the heading to Part 1B of the principal Act:
"PART 1B
[DETERMINATION BY BOARD] ADMINISTRATION AND APPEAL".
Substitution of section 7 of Act 69 of 1996, as amended by section 7 of Act 27 of 2005
10. The following section is hereby substituted for section 7 of the principal Act:
"Administration of Act
7. (1) The Director-General of the National Treasury is responsible for the administration of this Act.
(2) The Minister may, despite subsection (1), by notice in the Gazette designate any of the following institutions to administer this Act to ensure the effective and efficient implementation thereof: (a) A national department or government component listed in the Public
Service Act, 1994 (Proclamation No. 103 of 1994); or (b) a public entity responsible for the administration of public pensions,
listed in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999).".
Substitution of section 8 of Act 69 of 1996, as substituted by section 2 of Act 21 of 2003
11. The following section is hereby substituted for section 8 of the principal Act:
"Right to appeal against [Board's] designated institution's decision
8. (1) Any applicant who disagrees with any decision of the [Board] designated institution may [request a review of] appeal that decision by sending a written notice in the form [prescribed in Schedule 2] determined by the designated institution to the [Review Board] Appeal Board within 60 days of the date of the decision.
(2) [The Review Board has the discretion to condone any request for a review received after the period of 60 days referred to in subsection (1)] An appeal under subsection (1) shall take place on the date and at the place and time fixed by the Appeal Board.
(3) The Appeal Board may for the purposes of an appeal under subsection (1)— (a) summon any person who, in its opinion, may be able to give
information for the purposes of the appeal or who it believes has in his or her possession or custody or under his or her control any document which has any bearing upon the decision under appeal, to appear before it at a time and place specified in the summons, to be questioned or to produce that document, and may retain for examination any document so produced;
(b) administer an oath to or accept an affirmation from any person called as a witness at the appeal; and
(c) call any person present at the appeal proceedings as a witness, and interrogate such person and require such person to produce any document in his or her possession or custody or under his or her control, and such person shall be entitled to legal representation at his or her own expense.
(4) The procedure at the appeal shall be determined by the chairperson of the Appeal Board.
(5) The Appeal Board may confirm, set aside or vary the relevant decision of the designated institution.
Act No. 13, 2008 SPECIAL PENSIONS AMENDMENT ACT, 2008
(6) A decision of a majority of the members of the Appeal Board shall be a decision of that board.
(7) A decision of the Appeal Board must be in writing, and a copy thereof must be made available to the appellant and the design­ ated institution.
(8) A decision of the Appeal Board is final.".
Insertion of section 8AA in Act 69 of 1996
12. The following section is hereby inserted in the principal Act after section 8:
"Establishment and appointment of Appeal Board
8AA. (1) An Appeal Board is hereby established and must consist of three members appointed by the Minister.
(2) The members referred to in subsection (1) must be competent persons, and must include at least one person that is an advocate or attorney with at least 10 years' experience in the practice of law as the chairperson.
(3) A member of the Appeal Board is appointed for a period of three years and is eligible for reappointment upon expiry of the member's term of office.
(4) A member of the Appeal Board may resign by giving three months' written notice to the Minister.
(5) The Minister may terminate the period of office of a member of the Appeal Board— (a) if the performance of the member is unsatisfactory; or (b) if the member, either through illness or for any other reason, is unable
to perform the functions of office effectively. (6) The Minister may terminate the period of office of all members of the
Appeal Board, if the performance of the Appeal Board is unsatisfactory. (7) In the event of the dismissal of all the members of the Appeal Board,
the Minister may appoint persons to act as caretakers until competent persons are appointed.
(8) The Minister must appoint a temporary replacement member for an appeal, if before or during an appeal it transpires that any member of the Appeal Board— (a) has any direct or indirect personal interest in the outcome of that
appeal; or (b) will, due to illness, absence from the Republic or for any other bona
fide reason, be unable to participate or continue to participate in that appeal.
(9) A member of the Appeal Board may be paid the remuneration and allowances as the Minister may from time to time determine.
(10) Administrative support for the Appeal Board must be provided by the designated institution.
(11) The designated institution is responsible for the expenditure of the Appeal Board.".
Substitution of section 9 of Act 69 of 1996, as amended by section 3 of Act 75 of 1998 and section 10 of Act 27 of 2005
13. The following section is hereby substituted for section 9 of the principal Act:
"Payment of benefits
9. (1) The [Minister] designated institution must pay any pension, payable in terms of section 1 or 6Abis, on the first day of the month in which the pensioner is entitled to that payment, commencing in the month in which the pensioner is first entitled to a payment.
(2) When the first monthly payment is made to a disabled pensioner in terms of section 1(5) the [Minister] designated institution must include a lump sum covering all the pension payments due to that person from 1 April 1995 to the date of that first payment.
Act No. 13, 2008 SPECIAL PENSIONS AMENDMENT ACT, 2008
(3) When the first monthly payment is made to a pensioner in terms of section 1 (4), the [Minister] designated institution must include therein a lump sum covering all the pension payments due to that pensioner from either 1 April 1995, or the pensioner's 35th birthday, whichever is the later, to the date of that first payment.
(4) The monthly payments payable to a pensioner must cease immedi­ ately upon the death of the pensioner.
(5) The [Minister] designated institution must pay any survivor's lump sum benefit payable in terms of this Act, any monthly pension referred to in section 6D or any funeral benefit referred to in section 6F to the beneficiary within 90 days of the date on which [the Board notifies the Minister that a benefit is payable to that beneficiary] an application is approved.
(6) If a [survivor's] benefit is payable to a person who is either under the age of [21,] 18 or mentally incapacitated— (a) the Master of the High Court must appoint an appropriate person to
administer that benefit on behalf of the beneficiary: and (b) the [Board] designated institution, on behalf of the applicant, must
take the necessary steps to obtain the required order from the Master of the High Court.".
Substitution of section 12 of Act 69 of 1996
14. The following section is hereby substituted for section 12 of the principal Act:
"Increases in pension amounts
12. (1) [At any time the Minister may] The Minister may in April of each year, by notice in the Gazette, increase the pensions payable to pensioners, surviving spouses, dependants or orphans on any basis that the Minister considers appropriate, subject to the appropriation by Parliament of money required to finance any increases of such amounts.
(2) An increase in terms of this section must apply to every person— (a) who is receiving a pension at that date; (b) in respect of whom a determination is made that he or she is entitled to
a pension that will commence after that date: and (c) in respect of whom a determination is subsequently made that he or
she is entitled to a pension. (3) An increase in the pension payable to a person who was 50 years of
age at the commencement date is payable from the date on which the Special Pensions Amendment Act, 2008, takes effect, irrespective of the date on which that pensioner attained the age of 65.
(4) The designated institution shall place any notice referred to in subsection (1) on its official website.".
Amendment of section 13 of Act 69 of 1969
15. Section 13 of the principal Act is hereby amended by the substitution in subsections (2) and (3) for the expression "Minister", wherever it occurs, of the expression "designated institution".
Amendment of section 14A of Act 69 of 1996, as inserted by section 13 of Act No. 27 of 2005
16. Section 14A of the principal Act is hereby amended by the substitution in subsection (2) of the expression "Minister", wherever it occurs, of the expression "designated institution".
Act No. 13, 2008 SPECIAL PENSIONS AMENDMENT ACT, 2008
Substitution of section 14B of Act 69 of 1996, as inserted by section 13 of Act 27 of 2005
17. The following section is hereby substituted for section 14B of the principal Act:
"Repayment of benefit to which person was not entitled
14B. (1) Any amount paid to a person as a benefit to which that person was not entitled or which was in excess of the amount to which that person was entitled, must be refunded by the person to the [Board] designated institution within 30 days of written demand by the [Board] designated institution.
(2) Despite subsection (1) the [Board] designated institution may— (a) allow repayment in instalments; or (b) set off any amount due to the [Board] designated institution against
any benefit payable in terms of this Act to the person conccrned[.]; [(3) Despite subsection (1) the Review Board may on the recommen­
dation of the Board and if it would be just and equitable to do so— (a)](c} allow repayment of a lesser amount; or [(b)](d) absolve a person from repayment of the whole amount or any part
thereof.".
Substitution of heading to Part 2 of Act 69 of 1996
18. The following heading is hereby amended by the substitution for the heading of Part 2 of the principal Act of the following heading:
"PART 2
[SPECIAL PENSION BOARD] POWERS AND FUNCTIONS OF DESIGNATED INSTITUTION".
Repeal of sections 1 5 , 1 6 , 1 7 , 1 8 , 1 9 , 20, 21, 22, 23, 26, 27 and 28 of Act 69 of 1996
19. Sections 15, 16, 17, 18, 19, 20, 21, 22, 23. 26, 27 and 28 of the principal Act are hereby repealed.
Amendment of section 29 of Act 69 of 1996, as amended by section 8 of Act 75 of 1998
20. Section 29 of the principal Act is hereby amended by— (a) the substitution for the heading of section 29 of the following heading:
"[Minister's powers] Regulations"; and (b) the deletion of subsections (2) and (3).
Insertion of sections 29A and 29B in Act 69 of 1996
21. The following sections are hereby inserted in the principal Act after section 29:
"Fair administrative action
29A. Any administrative action taken in terms of this Act is subject to the Promotion of Administrative Justice Act. 2000 (Act No. 3 of 2000).
Indemnity
29B. No employee, consultant, contractor or agent of the designated institution or Appeal Board incurs any liability in respect of any act or omission performed in good faith under or by virtue of a provision in this Act, unless that performance was grossly negligent.".
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Amendment of section 30 of Act 69 of 1996
22. Section 30 of the principal Act is hereby amended by the substitution for subsections (2) and (3) of the following subsections:
"(2) A person who intentionally fails to notify the [department of Finance] designated institution of the death of a person who was receiving benefits in terms of this Act, and as a result of that failure is benefited in any way, is guilty of an offence.
(3) Except as is otherwise provided in subsection (4), a person or political organisation convicted of an offence in terms of subsection (1) is liable for a maximum fine of [R5 000] R15 OOP."'.
Amendment of section 31 of Act 69 of 1996, as amended by section 9 of Act 75 of 1998 and section 18 of Act 27 of 2005
23. Section 31 of the principal Act is hereby amended by— (a) the deletion of the definition of "actuary", (b) the substitution for paragraph (c) of the definition of "application" of the
following paragraph: "(c) an application on the form referred to in section 6Abis or 6G;";
(c) the substitution for the definition of "beneficiary" of the following definition: " 'beneficiary' means a person who in terms of a determination of the [Board] designated institution qualifies for a benefit";
(d) the substitution for the definition of "benefit" of the following definition: " 'benefit' means a sum of money payable in terms of Part 1, Part 1AA or Part 1A;"
(e) the deletion of the definition of "Board"; (f) the insertion after the definition of "dependant" of the following definition:
" 'designated institution' means— (a) the National Treasury; or (b) the institution designated by the Minister under section 7;";
(g) the insertion after the definition of "Minister" of the following definition: "'National Treasury' means the National Treasury established by section 5 of the Public Finance Management Act, 1999 (Act No. 1 of 1999);";
(h) the substitution for the definition of "pension" of the following definition: "'pension' means a right to the monthly payment of a pension determined in terms of section 1, section 6Abis or section 6D;";
(i) the deletion of the definition of "public service"; and (j) the deletion of the definition of "Review Board".
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Age Category as at 1 December 1996
Current Age Annual pension amount in Rands payable as at 1 April 1995
Younger than 50 6 000
At least 30 but younger than 50 Older than 50
12 000 plus 1 200 for each year of service ex­ ceeding 5 years, not exceeding a total amount of 30 000
At least 50 but
Younger than 65 12 000 plus 1 200 for each year of service ex­ ceeding 5 years, not exceeding a total amount of 30 000
younger than 65
Older than 65 24 000 plus 1 200 for each year of service ex­ ceeding 5 years, not exceeding a total amount of 42 000
65 and older
24 000 plus 1 200 for each year of service ex­ ceeding 5 years, not exceeding a total amount of 42 000. Where years of service exceed 25 years, a fixed amount of 84 000
Substitution of certain expressions in Act 69 of 1996
25. The principal Act is hereby amended by the substitution for the expression "Board", wherever it occurs, of the expression "designated institution".
Short title and commencement
26. This Act is called the Special Pensions Amendment Act, 2008, and takes effect on a date determined by the Minister by notice in the Gazette.
Substitution of Schedule 3 to Act 69 of 1996
24. The following schedule is hereby substituted for Schedule 3 to the principal Act:
Schedule 3
PENSIONS PAYABLE IN TERMS OF SECTIONS 1(6) AND 6Abis(4)