Court name
High Court Main Division
Case name
Leonard v Veterans Appeal Board
Media neutral citation
[2020] NAHCMD 488
Case summary:

Appeal – In terms of the Veterans Act 2 of 2008, s 40 – Court finding that Veterans Appeal Board misdirected itself on the law – Appeal Board upheld the decision of the first instant Veterans Board in rejecting appellant’s application to be registered as a veteran in terms of Act 2 of 2008 – Appeal Board and Veterans Board applied requirements not prescribed by the Act – Court held Appeal Board (and Veterans Board) acted ultra vires – Consequently decision unlawful and invalid – Appeal succeeded.

Headnote and holding:

Appeal – In terms of the Veterans Act 2 of 2008, s 40 – Appellant applied to Veterans Board to be registered as a veteran – The application was rejected on the basis that activities performed by appellant were minimal and carried out on instructions of appellant’s parents – Appellant was 19 and she carried the activities out consistently and persistently within the meaning of s 1 of Act 2 of 2008 from 1979 to 1989 – Veterans Appeal Board upheld the Veterans Board decision – Court finding that Board relied on extraneous requirements and therefore they acted ultra vires the Act – Consequently, appeal succeeded – Matter remitted to Appeals Board for it to reconsider the matter by applying only the statutory requirements.

 

 

ORDER

 

1.         The appeal succeeds.

2.         The matter is remitted to the Veterans Appeal Board for the Board to reconsider the appeal by applying the correct statutory requirements in terms of the Veterans Act 2 of 2008, as explained above.

3.         No person who sat on the appeal before this order was made shall be a member of a differently constituted Veterans Appeal Board charged with reconsidering appellant’s appeal in terms of this order.

4.         One of the members of the Veteran Appeal Board must be (a) a magistrate or (b) a retired magistrate in terms s 41 (2)(a) of Act 2 of 2008.

5.         The matter is finalized and removed from the roll.

Judge
Parker AJ

[1]        The appellant appeals from the decision of the Veterans Appeal Board in terms of Part VI of the Veterans Act 2 of 2008 (‘the Act’). An important object of the Act is to establish a fund to benefit veterans and connected and incidental matters. In that regard, the primary provision of the Act is to provide requirements which a person should satisfy in order to qualify to be registered as a veteran under the Act.

 

[2]        Section 1 of the Act enacts that a ‘veteran’ is any person who-

 

‘(a)       was a member of the liberation forces;

(b)        consistently and persistently participated or engaged in any political, diplomatic or under-ground activity in furtherance of the liberation struggle; or

(c)        owing to his or her participation in the liberation struggle was convicted, whether in Namibia or elsewhere, of any offence closely connected to the struggle and sentenced to imprisonment; But does not include a person who during the war deserted the liberation struggle unless that person subsequently rejoined the struggle;….’

 

And ‘liberation struggle’-

 

‘means the political, diplomatic, military or under-ground struggle waged against colonialism and apartheid which struggle was waged in Namibia and other countries and resulted in the attainment of the independence of Namibia on 21 March 1990;…’

 

[3]        Appellant applied to be registered as a veteran, but her application was unsuccessful. The application was rejected by the first instance Veteran Board. Aggrieved by the decision of the Veteran Board, appellant appealed to the Veterans Appeal Board. As the Veterans Appeal Board found, the reason why the first-stance Veterans Board rejected appellant’s application was that-

 

‘Your activities under the instructions of your parents were of minimal contribution to the liberation struggle’.

 

[4]        The Veterans Appeal Board accepted the reason of the Veterans Board for rejecting appellant’s application. Appellant’s central ground for challenging the Veterans Appeal Board’s decision is that the Appeal Board erred in holding that the appellant did not prove her case for registration as a veteran under the Act. She sets out eight constituent grounds. I have considered all of them.

 

[5]        It was placed before the court by appellant that she and her sister Hilma Leonard, who was assisting her in the matter, caused the process to be uploaded on the e-justice system at the court’s Service Bureau. There, they were informed that a copy of the process would be given to the Veterans Appeal Board, and that if they received a notice of set down of the appeal then it meant the Veterans Appeal Board had been notified of the appeal. Appellant is an ordinary Namibian living in Omaruru. She had applied for legal aid at the Legal Aid Directorate: Ministry of Justice. The court was informed that the Legal Aid Directorate informed them that they would consider the application when funds were available. The upshot is that one cannot say reasonably when appellant could receive legal aid. She is 60 years old and lives in Omaruru, and the matter has been coming since 2017. It is not in the interest of due administration of justice to postpone the matter indefinitely waiting for the time the Directorate of Legal would have funds and then consider her application. In any case, as demonstrated below, the decisions of both the Veterans Board and Veterans Appeal Board are per incuriam, and they cannot stand.

 

[6]        As I see it, the determination of the instant appeal turns on the interpretation and application of s 1 of the Act as to who qualifies as a veteran under the Act (see para 2 above). The requirements (there are three of them) an applicant should satisfy in order to succeed are captured neatly and concisely in paras (a), (b) and (c) of s 1 of the Act. Appellant does not rely on either para (a) or (c). She relies rather on para (b) thereof.

 

[7]        The key elements in the requirement in para (b) are ‘consistently and persistently participated or engaged in’ any of the activities adumbrated in para (b). There is no requirement that an applicant’s participation or engagement in any of those activities should be maximal, as both the Veterans Board and the Veterans Appeals Board understood the nature and extent of an applicant’s participation or engagement in the activities set out in s 1(b) of the Act to be. The Appeals Board applied yet another requirement namely that appellant acted under the instructions of her parents. The Act does not require the applicant for registration to have carried out any of the prescribed activities on his or her own volition and not under the instructions of another person.

 

[8]        The adverb ‘consistently’ connotes a happening in the same way and continuing for a period of time; and the adverb ‘persistently’ connotes a determination to do something despite difficulties and continuing for a long period. (See the Concise Oxford English Dictionary, 11th ed.)

 

[9]        As I have demonstrated above, the Veterans Board and the Veterans Appeal Board relied on extraneous requirements to reject appellant’s application. They are not entitled to do that in terms of the Act. They acted ultra vires the Act. It follows that their decision cannot reasonably be allowed to stand. Consequently, the appeal ought to succeed; and it succeeds.

 

[10]      Based on these reasons,

 

1.         The appeal succeeds.

2.         The matter is remitted to the Veterans Appeal Board for the Appeal Board to reconsider the appeal by applying the correct statutory requirements in terms of the Veterans Act 2 of 2008, as explained above.

3.         No person who sat on the appeal before this order was made shall be a member of a differently constituted Veterans Appeal Board charged with reconsidering appellant’s appeal in terms of this order.

4.         One of the members of the Veteran Appeal Board must be (a) a magistrate or (b) a retired magistrate in terms s 41 (2) (a) of Act 2 of 2008.

5.         The matter is finalized and removed from the roll.

 

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C PARKER

Acting Judge

 

 

APPEARANCES:

 

APPELLANT:                                               S Leonard (In person)

RESPONDENT:                                           No Appearance