PRETORIUS v MINISTER OF DEFENCE (1) 1980 ZLR 150 (G)

Author: Trodat Zimbabwe

PRETORIUS v MINISTER OF DEFENCE (1) 1980 ZLR 150 (G) 

1980 ZLR p150

Flynote

Pensions am Other Benefits Act, 1979 — section 37 (1) — rights conferred by section — whether regulation providing that persons who retire must repay sums owed by them to the State is inconsistent with section 37 (1) — validity of such regulation — whether such regulation inconsistent with Declaration of Rights. F

Headnote

The applicant had attested into the Army in terms of regulations “hereunder the State would pay him an annual salary during his training as a medical doctor and he would serve in the defence forces for four years after completing his horsemanship year. In terms of the Defence (Regular Force) (Officers) Regulations, 1976, he was to repay the State a specified sum if he resigned _G before serving for four years. Before he completed this service the applicant retired in terms of paragraph 37 (1) of the Third Schedule to the Constitution of Zimbabwe Rhodesia, 1979 (now the Pensions and Other Benefits Act, 1979), and claimed to be able to do so without repaying anything to the State. The respondent disputed this, relying on section 2A of the above regulations which provided in effect that officers who retired as the applicant had done _H would be subject to the same liability to repay as officers who resigned in terms of the regulations.

Held that section 2A of the Defence (Regular Force) (Officers) Regulations, 1976, obliged the applicant to repay the specified sum to the State because­

1980 ZLR p151

Waddington J

   (a)   its enactment was squarely within the powers given to the Defence Forces Commission by the enabling legislation, namely section 107 (1) (a) and (b) of the Constitution of Zimbabwe Rhodesia, 1979, _A which was unambiguous?

   (b)   section 37 (1) of the Pensions and Other Benefits Act, 1979, clearly and unambiguously

conferred nothing more than a right to retire and did not evince an intention to abolish pre­existing contractual liabilities? the Defence Forces Service Commission could therefore deal in teens of section 107 of the Constitution of Zimbabwe Rhodesia, 1979, with _B matters incidental to such retirements?

(c)     section 2A did not amount to an unlawful amendment of section 37 (1) of the Pensionsand Other Benefits Act, 1979, since it did not modify or qualify the right to retire conferred by section 37 (1)? it merely perpetuated pre­existing obligations? _C

(d)     section 2A did not amount to an unlawful acquisition of property in contravention ofsection 16 of the Constitution of Zimbabwe, 1980 ­ assuming it was amenable to the provisions of section 16 ­ since it did not extinguish members’ pension rights and, furthermore, could be described as providing for the acquisition of property as an incident of a contract for the purposes of section 16 (7) (d) of the Constitution. _D

Cases cited

van Heerden NO & Ors v Queens Hotel (Pvt) Ltd & Ors 1972 (2) RLR 472 (A.D.)? 1973 (2) SA 14 (RAD)?

Schierhout v Minister of Justice, 1926 AD 99.

Case information

I A Donovan, for the applicant. _E B C Brown, for the respondent.

Judgment

Waddington J: The applicant is a medical doctor. On the 27th January, 1972, he states in his affidavit, he was attested into the Rhodesian Army as a medical officer cadet pursuant to a contract of _F service a copy of which has been annexed to the affidavit. In terms of that contract which, under clause 2 thereof, was subject “to the Defence Act and the various regulations made thereunder”, the State undertook to pay applicant a generous salary out of which he was required to support himself and meet the costs of undergoing a course of university _G training as a medical doctor. On completing his course, applicant was required to serve a period of housemanship during which he would again be paid a salary. Thereafter, following his registration as a medical practitioner, the State undertook to promote him to the rank of a first­year captain or flight lieutenant in the Regular Force. As a quid pro quo f or the afore _H mentioned financial assistance in qualifying, the applicant would then be required to serve as a medical officer in the Regular Force for a period of not less than four years. Applicant was successful as a medical student and was eventually registered as a medical practitioner on the 3rd January, 1978. Thereupon the State honoured its obligation under the

1980 ZLR p152

Waddington J original contract of service and applicant was promoted to the rank of captain in the Medical Corps after which he was posted to an air base with the rank of Flight Lieutenant in the Rhodesian Air Force. It then _A became incumbent upon the applicant to serve in the Regular Force for the period of four years referred to above.

Regulations which governed the contract in terms of clause 2 thereof included the Defence (Regular Force) (Officers) Regulations, 1976 (Rhodesia Government Notice 99 of 1976. The effect on applicant Of _B section 7 (11) of these regulations as amended by the Defence (Regular Force) (Officers) (Amendment) Regulations, 1976 (No. 2) (Rhodesia Government Notice 387 of 1976), as read with the definition of “cadet” contained in section 2 of the Defence (Regular Force) (Medical and Dental Officer Cadets) Regulations, 1976 (Rhodesia Government Notice _C 388 of 1976), was that were he to have terminated his service by resignation or retirement before the expiry of four years from the date of his registration as a medical practitioner on the 3rd January, 1978, he would have become liable to pay to the State certain sums of money the amounts of which would have become progressively smaller the _D longer he served. If, for example, termination had taken place within one year of the 3rd January, 1978, applicant would have been liable to repay to the State a sum equal to the full amount of his pay and allowances received by him since attestation. Similarly, if termination had taken place after the expiry of three years but before the expiry of four _E years from the 3rd January, 1978, only fifty per centum of that amount would have been repayable. If termination had occurred more than four years after the 3rd January, 1978, applicant would have been under no obligation to repay any amount. The bargain must have been a good one as far as applicant was concerned? in effect he received free medical _F training and personal maintenance covering the period of his university education and housemanship in exchange for four years’ paid service as a doctor the Regular Force. Doubtless, others would be prepared to pay more for such a prize. _G

Contemporaneously with the events outlined above, political events in Rhodesia (as Zimbabwe then was) resulted in the Legislature enacting the Constitution of Zimbabwe Rhodesia, 1979 (Act No. 12 of 1979), which, together with incidental legislation, was designed to permit the introduction of, if I may use phrase common in political circles for a _H number of years, “majority rule government” in this country. Among a number of other devices contained in that Constitution calculated, according to Mr Brown who appeared on behalf of the respondent, to induce servants of the State fearful of “majority rule government” to

1980 ZLR p153

Waddington J

continue rendering service to the State after “majority rule”, was that contained in paragraph 37 (1) of the Third Schedule to Act 12 of 1979. _A

That provision reads:

“37.(1) A member who, at the date of his retirement, will have completed not less than two years’ service as a contributor since his last appointment as such may, at any time after he has completed a period of service of not less than one year after the effective date, retire from the Uniformed Force of which he is a member:

Provided B that a member who wishes to retire in terms of this paragraph shall give not less than three calendar months, notice of his intention to retire, which shall expire not earlier than the 30th April, 1980.”

The effective date was the 30th April, 1979 (see paragraph 34 (1) of the Third Schedule to Act 12 of 1979). Just as a right to early retirement _C was in this manner conferred upon members of the different Uniformed Forces defined in paragraph 34 (1) (supra), so was the right to a pension conferred on those members electing to retire in terms of paragraph 37 (1). The inducement to members to serve the State for longer rather than shorter periods after the 30th April, 1979, is to be found in _D paragraph 38 (1) of the Third Schedule. A glance at this provision discloses that the longer the service rendered, the more favourable would be the rate of pension. Finally in this regard, paragraph 41 of the Third Schedule goes even further and confers on members retiring in terms of paragraph 37 (1) the right to commute a portion of any pension payable in _E terms of paragraph 38 (1). The operation of the above­mentioned provisions was continued under the recent interregnum of the British Crown and now, also, under the provisions of the Constitution of Zimbabwe, 1980 (see section 4 (5) (d) of the Constitution (Interim Provisions) Ordinance 1979 (Ordinance No. 1 of 1979) and section 112 as read _F with paragraph 1 (1) of Schedule 6 to the

Constitution of Zimbabwe, 1980, contained in the Zimbabwe Constitution Order 1979 (Statutory

Instrument 1979/ 1600) as read with section 4 (1) of the Zimbabwe Constitution (Transitional,

Supplementary and Consequential Provisions) Order, 1980, published on the 20th March, 1980). Part III and _G Part IV of the Third Schedule to Act 12 of 1979 may, now, in terms of section 4 (5) of the Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions Order, 1980, be cited as the Pensions and Other Benefits Act, 1979, but for convenience sake I shall continue _H in this judgment to use the citation previously employed.

In January, 1980, the applicant was promoted to the rank of Squadron Leader. Shortly before the end of the same month, he gave notice of his intention to retire on the 30th April, 1980, in terms of paragraph 37 (1) of the Third Schedule to Act 12 of 1979, at the same time requesting that

1980 ZLR p154

Waddington J he be permitted to commute portion of his pension in terms of paragraph 41. Upon his retirement on the 30th April, he was entitled to payments, he states, covering his salary and professional allowance in respect of the _A month of April, 1980, the annual bonus in respect of 1980, cash in lieu of vacation leave and the appropriate sum in respect of the commutation of his pension.

Respondent has failed to pay any of the sums in question and seeks to justify his failure firstly on the basis that applicant, having failed to serve _B the full period of four years referred to in section 7 (11) of the Defence (Regular Force) (Officers) Regulations, 1976, is liable to repay, in terms of paragraph (c) of subsection (11), the sum of $12 493,74 which figure, if payable at all, is now not disputed. Respondent also maintains that the sum of the moneys due to applicant exceeds the figure

C of $12 493,74 by $2 602,79 and that the only reason this excess has not been paid is that the Government agency responsible for making payments of this description has been under such pressure of work recently that it has not been possible to pro less applicant’s entitlements. There is no intention on his part to withhold the sum of $2 602,79 from applicant _D but he maintains that he is entitled to set off applicant’s alleged indebtedness of $12 493,74 to the State against the State’s indebtedness to applicant. As I understand Mr Donovan who appears for the applicant, the right of set­off claimed by the respondent is not disputed. The point in dispute is whether the applicant is liable in the first place to repay any _E sum to the State.

This matter commenced as an application for an order directing the respondent to pay certain sums to applicant. Now that the parties have had the opportunity of considering each other’s positions as the result _F apparently of a commendably frank exchange of information and views, counsel have agreed that it is really a declaratory order which they wish me to make as to whether or not the sum of $12 493,74 is repayable by applicant. This I am prepared to do in order to assist the parties as there is a real dispute. _G

Before the 11th April, 1980, the Defence (Regular Force) (Officers) Regulations 1976, nowhere referred to the consequences which would Dow from the retirement of a member in terms of paragraph 37 (1) of Act 12 of 1979. On that date, however, the regulations in question were amended by the Defence (Regular Force) (Officers) (Amendment) Regulations, 1980 (No. 11), published in Statutory Instrument 213 of 1980, by the insertion of section 2A which reads:

“2A. Where an officer retires in terms of paragraph 37 of the Third Schedule to the Constitution, the provision of these regulations which provide

1980 ZLR p155

WADDINGTON

for the liabilities or entitlements of an officer on resignation or retirement in terms of these regulations shall apply, mutatis mutandis, in respect of his retirement in terms of the said paragraph 37 as if it were a resignation or retirement, as may be appropriate in his case, in terms of the appropriate provision of these regulations:

Provided that, for the purposes of sections 40 and 42, such officer shall be regarded as having retired in terms of these regulations whether or not he could have so retired on the said date.” B

This amendment purports to have been made by the Defence Forces Service Commission in the exercise of the enabling powers contained in section 107 of Act 12 of 1979 and is a law saved in terms of section 4 (1) of the Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order, 1980. Mr Donovan argued, however, _C that the amendment in question is ultra vires the enabling provisions contained in section 107 of Act 12 of 1979 while Mr Brawn argued that the opposite is the case. If Mr Brown’s argument is correct, cadit quaestio? it would follow that section 7 (11) (c) of the Defence (Regular Force) (Officers) Regulations, 1976, applies to the applicant and that he _D would in consequence be liable to repay the sum of $12 493,74 as contended for by the respondent. I shall now address myself to the question of the validity of section 2A contained in Statutory Instrument 213 of 1980.

Section 107 (1) of Act 12 of 1979 (which Mr Brown relied on as constituting _E the only enabling provision applicable in this case) reads as follows:

“107. (1) Subject to the provisions of this section, the Defence Forces Service Commission may make such regulations as it considers to be necessary or expedient ­ F

(a)      for the general well being and good administration of the Defence Forces and the maintenancethereof in a high state of efficiency?

(b)      providing for the conditions of service of members of the Defence Forces.”

Mr Donovan’s attack on the validity of Statutory Instrument 213 of 1980 _G is that as the effect of the extension of section 7 (11) of the Defence (Regular Force) (Officers) Regulations, 1976, to retirements in terms of paragraph 37 (1) of Act 12 of 1979 is to penalize a person in the position of the applicant seeking to exercise his right to retire, section 2A must properly be regarded as repugnant to the Act and grossly unreasonable. He _H argued also that it was beyond the powers of the Defence Forces Service Commission to qualify or to penalize the right to early retirement conferred by paragraph 37 (1) and that section 2A contains an unlawful amendment of that statutory provision. But the real issue is not whether section 2A is unreasonable in its effect: the question is whether section

1980 ZLR p156

Waddington J

107 of Act 12 of 1979 gave the Defence Forces Service Commission the power to make the regulation in question. This subject was succinctly dealt with as follows by BEADLE CJ, (as he then was), in van Heerden NO, & Ors v Queens Hotel (Pvt) Ltd & Ors 1972 (2) RLR 472 (AD) at 481F­

482G, 1973 (2) SA 14 at page 16D et seq.: _A

“I repeat what CHASE CJ, said many years ago in Shortridge v Mason (U.S. Circuit Court of Appeal, N Carolina):

‘Courts have no policy. They only declare the law.’ B

The issue before the Court is a crisp one. Did sec. 3 of the Act give the Minister the power to make the

Regulations? If it did, cadit quaestio. In some of the affidavits supporting the application it is suggested that the Regulations are ‘ultra vires on the grounds of unreasonableness’, and in this Court there was argument advanced on the unreasonableness of the Regulations. This case, C however, concerns the powers given to the Minister under sec. 3 of the Act to make the Regulations, and this is a question of interpreting an Act of Parliament and not of interpreting the Regulations. While there is always a presumption that Parliament never intended an unreasonable result, if from the language of the statute it is plain what the intention of the legislature is, the Court must give effect to it, no matter how unreasonable the result may be. D This Court has no power to adjudicate on the reasonableness or unreasonableness of an Act of Parliament. See the remarks of LEWIS, J (as he then was), in Chingachura Exploration Co. (Pvt) Ltd v Hatty,

NO, 1963 (1) SA 46 (SR) at 55, and cases there cited. The desirability or otherwise of these particular Regulations is a matter for Parliament, not for the Courts. In determining whether or not sec. 3 did give the Minister the right to make these E Regulations, the Court must look to the intention of the legislature as expressed in the language of the Act as a whole. In S v Takaendesa, 1972 (4) SA 72 (RAD) I referred to the elementary rules applying to the interpretation of statutory instruments as set out in Maxwell, Interpretation of Statutes (12th edition) at page 8, and I might usefully repeat these here: F

‘The rule of construction is to intend the Legislature to have meant what they have actually expressed”. The object of all interpretation is to discover the intention of Parliament, “but the intention of Parliament must be deduced from the language used”, for “it is well accepted that the beliefs and assumptions of those who frame Acts of Parliament cannot make the law”. G

Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. “The decision in this case”, said LORD MORRIS OF BORTH­Y­GEST in a revenue case, “calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision”. Where, by the use of clear H and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. The interpretation of a statute is not to be collected from any notions which may be entertained by the Court as to what is just and expedient: words are not to be construed, contrary to

1980 ZLR p157

Waddington J

their meaning, as embracing or excluding cases merely because no good reason appears why they should not be embraced or excluded. The duty of the Court is to expound the law as it stands, and to “leave the remedy (if A one be resolved upon) to others”.’ See also Craies on Statute Law (6th edition) at page 70:

‘The Judges may not wrest the language of Parliament even to avoid an obvious mischief.”.

Section _B 107 (1) (a) and (b) enabled the Defence Forces Service Commission to make regulations for the well­being of the Force, its good administration, its maintenance in a high state of efficiency and for the conditions of service of its members. It clearly redounds to the well­being of the Force to discourage doctors from resigning or retiring therefrom? _C the permanent availability of doctors to tend to the health of members of the Force is calculated to maintain it in a high state of efficiency? finally, provisions such as are contained in section 7 (11) of the principal regulations obviously form part of the conditions of service of members who contract, as the applicant did, on their appointment to serve the _D State in accordance with the Defence Act and regulations framed thereunder from time to time (cf Schierhout v Minister of Justice, 1926 AD 99 at 108). It might be observed en passant that when the applicant attested into the Force in 1972 the liability to pay similar but not identical refunds of the type provided for in section 7 (11) of the principal _E regulations was already in existence ­ see section 7 of the Defence (Regular Force) (European Members) Regulations, 1971. The effect of section 2A as read with section 7 (11) is consonant with most, if not all, of the matters referred to in section 107 (1) of the Act. The meaning of section 107 (1) in my view is plain and unambiguous and it is the duty _F of the Court to give effect to it.

I turn now to deal with Mr Donovan’s argument that section 2A contains provisions repugnant to paragraph 37 (1) of Act 12 of 1979 and that its effect is to amend paragraph 37 (1). Counsel agreed that before the enactment of paragraph 37 (1) the limited circumstances in _G which a member might resign or retire were specified in the previously existing legislation and that not all members enjoyed such rights.

Paragraph 37 (1) by contrast conferred on all members who had completed not less than two years’ service as contributors to the Consolidated Revenue Fund for pension purposes the right to retire when a period _H of not less than one year’s service after the 30th April, 1979, had been completed. Only this right was apparently conferred and nothing more. Paragraphs 38 to 42 conferred or adverted to pensions payable to members retiring in terms of paragraph 37 (1). Nowhere in these provisions is there any suggestion, either express or implied, that in enacting them it

1980 ZLR p158

Waddington J was the intention of the Legislature to abolish all pre­existing contractual or other liabilities either actual or contingent. I agree with Mr Brown that such a provision would have constituted a startlingly generous waiver of the State’s rights and duties and a benignity in dealing with _A debts and contingent debts wholly inconsistent with a desire to confer a mere right to retire early. The wording of paragraph 37 (1) is clear and unambiguous. It would consequently be wrong for the Court in these circumstances to construe section 107 (1) of the same Act in which paragraph 37 (1) appears as not going far enough in its terms to enable _B the Defence Forces Service Commission to deal by regulation with matters incidental to retirements under paragraph 37 (1) in the same way as regulations dealt with retirements before the enactment of paragraph 37 (1). The Legislature, when it enacted paragraph 37 (1), must be credited with the knowledge of what was contained in its own enactments _C and regulations. Had it intended in enacting that provision to relieve persons in the applicant’s position from the possibility of meeting the liabilities they would have incurred had they retired or resigned prematurely under the previously existing legislation, it would have been a simple matter to circumscribe the wide powers to make regulations _D contained in section 107 of the Act. Viewed correctly, in my opinion, the effect of section 2A is not to penalize a member who wishes to retire but is to protect the State’s interests in exactly the same way that those interests were protected before the promulgation of the section in question. Paragraph 37 (1) contains no ambiguity that could lead to the _E view that it was the intention of the Legislature to preclude the protection of the State’s interests by the making of appropriate regulations in terms of section 107 (1) of the Act. _F

From what I have said above it is equally clear that the promulgation of section 2A does not amount to an unlawful amendment of paragraph 37 (1). The effect of paragraph 37 (1) is simply and plainly to confer on a class of members the right to retire. It is no narrower or wider than that and nothing more nor less than that is implied. Section 2A does not _G detract from the right to retire conferred by paragraph 37 (1) or from the right to receive the pensions specified in paragraph 38. Those rights are left intact. Section 2A does not modify or qualify the right to retire itself nor does it alter the conditions precedent to the exercise of that right. By applying the provisions of section 7 (11) of the principal _H regulations to retirements under paragraph 37 (1) it does no more than perpetuate the quid pro quo originally demanded of a member who in the first place freely agreed to give it in consideration of the financial assistance received from the State to qualify as a doctor. While it may

1980 ZLR p159

Waddington J discourage a member from retiring prematurely, I fail to see how it can be said that it has the effect of amending paragraph 37 (1). _A

Mr Donovan raised another argument relating to section 2A albeit, seemingly, without much confidence. Pointing to the provisions of section 124 (1) and (4) of Act 12 of 1979 and the identical provisions contained in subsections (1) and (3) of section 16 of the Constitution of Zimbabwe, 1980, he advances the argument that section 2A was _B inconsistent with the right to protection from deprivation of property contained in section 16 (1). Subsection (1) of section 16 provides:

“(1) No property of any description or interest or right therein shall be compulsorily acquired except under the authority of a law that . . .” C

Subsection (4) of section 124 and subsection (3) of section 16 are also identical and read:

“Where any person by virtue of a law, contract or scheme relating to the payment of pensions benefits, has a right, whether vested or contingent, to the payment of pensions benefits or any commutation thereof or a refund D of contributions, with or without interest, payable in terms of such law, contract or scheme, any law which thereafter provides for the extinction of or a diminution in such a right shall be regarded for the purposes of subsection (1) as a law providing for the acquisition of a right in property.” Section 2A, having been promulgated before the Constitution of _E Zimbabwe, 1980, came into operation, is an existing law for the purposes of section 4 (1) of the Zimbabwe Constitution (Transitional, Supplementary and Consequential Provisions) Order 1980, which, inter alia, continues in force and effect laws existing on and after Independence Day. However, that provision must be read subject to the provisions _F of the Constitution of Zimbabwe, 1980. (Section 4 (1) commences with the words ‘ Subject to the provisions of the Constitution . . .”.) Section 26 (2) of that Constitution provides that:

“. . . nothing contained in or done under the authority of any written law G shall be held to be in contravention of the Declaration of Rights to the extent that the law in question ­

(a)      ....?

(b)      is a law . . . that had effect as a law immediately before the appointed day and has continued tohave effect as law since that day . . .” H

Section 26 (3) of the same Constitution provides:

“The provisions of subsection (2) (b), (c) and (d) ­

   (a)     shall not apply in respect of any law relating to the compulsory acquisition of property of any description or of any interest or right therein? . . .”

Waddington J

Section 26 (5) also provides:

“In relation to any person who is a member of a disciplined force of Zimbabwe, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be in contravention of any of the provisions A of the Declaration of Rights, other than sections 12, 14, 15, 16 and 23.”

I understood Mr Donovan to argue that in consequence of these provisions, section 2A is amenable to the Declaration of Rights contained in the 1980 Constitution. He did not, however, in terms of section 24 (2) _B of the 1980 Constitution request me to refer the matter to the Appellate Division of the High Court. Neither did he suggest that I should, in terms of subsection (5) of section 24, issue a rule nisi calling upon the responsible Minister to show cause why section 2A should not be declared to be in contravention of section 16 (1) of the Declaration of Rights. _C

In view of the conclusion to which I have come, however, I do not propose exercising my discretion in terms of section 24 (2) by referring the matter in question to the Appellate Division. Although counsel did not advert specifically during their arguments to the question, I shall assume for the purposes of this judgment that section 2A is amenable to _D the Declaration of Rights.

I have already indicated in this judgment that in my view the effect of section 2A is not to modify or qualify the right to retire conferred by paragraph 37 (1) of Act 12 of 1979. Similarly, its effect is not to modify or qualify the right to receive a pension conferred by paragraph 38. The _E right to that pension, despite the provisions contained in section 2A, remains intact. Any refund payable by virtue of the operation of section 2A as read with section 7 (11) of the principal regulations is a refund of salary and allowances earned and not of a pension earned. In addition, _F the object of section 2A is to vary one of the conditions of service of a member by perpetuating, as I have said, the quid pro quo originally demanded of the member who agreed to give it in consideration of the financial assistance received from the State to qualify as a doctor. Section 16 (7) (d) of the 1980 Constitution provides that nothing contained _G in or done under the authority of any law shall be held to be in contravention of the right to protection from deprivation of property to the extent that the law in question makes provision for the acquisition of any property or any interest or right therein­

“as an incident of a contract, including a lease or mortgage, which has been H agreed between the parties to the contract . . .?”

Section 2A was promulgated, inter alia, in my view, not for the purpose of reducing the pension of a member who retires in terms of paragraph 37 (1), but for the purpose of ensuring the perpetuation of the State’s

1980 ZLR p161

Waddington J

right to receive refunds in question. When a member who is a cadet subject to the provisions of the Defence (Regular Force) (Medical and _A Dental Officer Cadets) Regulations, 1976, attested, he agreed, as did the applicant in this case when he originally entered into the contract of service, to be bound by the Defence Act and regulations framed thereunder. He must, therefore, have appreciated that the State’s interest in providing financial assistance was in obtaining his services as a trained doctor for _B a minimum period of four years and was not eleemosynary in nature. It was, therefore, to be expected that the State would take whatever additional steps were necessary to ensure the repayment of the sums mentioned in section 7 (11) of the principal regulations should that ever become necessary. That is precisely what has happened in this case. The _C nature of section 2A may, in my view, fairly be described as the making of provision for the acquisition of property as an incident of a contract therefore. There is no question of the respondent in this case denying the State’s liability to pay applicant a pension in terms of paragraph 38 of Act 12 of 1979. A member retiring in terms of paragraph 37 (1) may _D choose to pay the appropriate refund out of the proceeds of the commutation of that pension, but this does not mean that the effect of section 2A is to provide for the extinction of or diminution of the right to that pension. Nor would that be the position if the member concerned possessed no funds other than his commutation with which to pay the _E refund.

I conclude, therefore, that there is no reason to suppose that section 2A is either ultra vires or inconsistent with the Declaration of Rights currently in force or which, for that matter, was in force at the time Statutory Instrument 213 of 1980 was promulgated. Having reached that _F conclusion it is unnecessary for me to consider the additional legal arguments advanced by counsel in this case. I accordingly declare that the applicant is liable to refund the sum of $12493,74 to the State in terms of section 2A as read with section 7 (11) (c) of the Defence (Regular Force) (Officers) Regulations, 1976. _G

The applicant will pay the costs of these proceedings.

Winterton, Holmes and Hill, attorneys for the applicant.

The State Attorney, for the respondent.