CHAPTER 27:01
PENSIONS

 

ARRANGEMENT OF SECTIONS

 

   SECTION

 

 

 

   1.   Short title

 

   2.   Interpretation

 

   3.   Pensions Regulations

 

   4.   Amendments to Schedule

 

   5.   Pensions, etc., to be charged on revenues of Botswana

 

   6.   When pensions will not be granted

 

   7.   Pensions, etc., not to be assignable

 

   8.   Botswana Public Officers' Pension Fund

 

   9.   Pensions, etc., to cease on bankruptcy

 

   10.   Withholding of benefits

 

   11.   Gratuity where officer dies in the service or after retirement

 

   12.   Gratuities to dependants when a non-pensionable officer dies in service

 

   13.   Pensions to dependants when an officer dies as a result of injuries received or disease contracted in the discharge of his duties

 

   14.   War service to count for pension purposes

 

   15.   Contributions to certain pensions, etc., payable by the Government of Lesotho and Swaziland

 

   16.   Application

 

   17.   Designation of public service

 

   18.   Gratuity of contract officers to be free of tax

 

 

 

      Schedule - Pensions and Regulations

 

 

Law 17, 1965,
Law 23, 1965,
L.N. 84, 1966,
S.I. 50, 1967,
Act 16, 1968,
Act 38, 1969,
Act 28, 1973,
Act 4, 1978,
Act 21, 1986,
Act 4, 1998,
Act 4, 2001,
Act 11, 2008.

An Act to amend and consolidate the law relating to the granting of pensions and of superannuation and other allowances to and in respect of persons employed in the Public Service of Botswana.

[Date of Commencement: 14th January, 1966]

 

1.   Short title

   This Act may be cited as the Pensions Act.

 

2.   Interpretation

   (1) In this Act, unless the context otherwise requires-

   "legal personal representative" means the person in whom, by whatever system of law is applicable, the estate of a deceased officer is vested or, where such officer leaves a surviving spouse or other dependants, such person as the Ministry may designate as being the person who in all the circumstances of the case and in order to safeguard the interests of the surviving spouse or dependants should be awarded a gratuity;

   "Lesotho" means, in relation to any period prior to the 4th October, 1966, Basutoland;

   "non-pensionable office" means an office which is not a pensionable office;

   "other public service" means public service not under the Government of Botswana;

   "overseas officer" means an officer serving on terms of service which provide for the payment to him of an inducement allowance;

   "pensionable emoluments"-

 

   (a)   in respect of public service in Botswana include-

 

      (i)   salary;

 

      (ii)   inducement allowance;

 

      (iii)   personal allowances,

 

      but do not include duty allowance, entertainment allowance or any other emoluments whatever:

 

         Provided that for the purpose of calculating the aggregate pensionable emoluments of officers retiring from the public service subsequent to the 1st January, 1947, pensionable emoluments shall include an additional one-sixth of salary (which shall be deemed to be the value of free quarters) in respect of service prior to that date;

 

   (b)   in respect of other public service, means emoluments which count for pension in accordance with the law or regulations in force in such service;

   "pensionable office" means-

 

   (a)   in respect of an officer's service under the Government, an office-

 

      (i)   to which he has been appointed (on probation or otherwise) by the authority having power for the time being to make appointments to service of the Government on terms which include eligibility for the grant of a pension under this Act; and

 

      (ii)   which he has not ceased to hold on such terms; and

 

   (b)   in respect of other public service, an office which is for the time being a pensionable office under the law or regulations in force in such service;

   "personal allowance" means a special addition to salary granted personally to the holder for the time being of the office, but pensionable emoluments do not include such an addition if it is granted subject to the condition that it shall not be pensionable;

   "public service" means-

 

   (a)   service in a civil capacity under the Government of Botswana or any other country or territory in the Commonwealth;

 

   (b)   service under the East Africa High Commission, the East African Common Service Organization, the East African Posts and Telecommunications Administration, the East African Community, the East African Harbours Corporation, the East African Posts and Telecommunications Corporation or the East African Railways Corporation;

 

   (c)   service which is pensionable-

 

      (i)   under the Overseas Superannuation Scheme;

 

      (ii)   under any Acts relating to the superannuation of teachers in the United Kingdom;

 

      (iii)   under a local authority in the United Kingdom; or

 

      (iv)   under the National Health Service of the United Kingdom;

 

      (v)   under the Post Office, United Kingdom of Great Britain and Northern Ireland;

 

   (d)   any other service the President may designate to be public service for the purposes of this Act;

 

   (e)   except for the purposes of computation of a pension, gratuity or other allowance, service in respect of which a pension may be granted under the Governors' Pensions Act, 1957 (5 and 6 Eliz. 2 c.62);

 

   (f)   service as the holder of the office of President, Vice-President, Justice of Appeal, Registrar, officer or servant of the Court of Appeal for Eastern Africa or the Court of Appeal for East Africa;

 

   (g)   service in the service of the Interim Commissioner for the West Indies;

 

   (h)   service in the public service of the Union of South Africa in respect of any officer transferred from a pensionable office in that service to a pensionable office under service of the Government of Bechuanaland before the 1st January, 1960;

 

   (i)   pensionable service under the Government of the Republic of Southern Yemen by officers who had served in the public service of Aden;

   "Public Service Commission", in relation to an officer to whom the provisions of section 110(2) of the Constitution are applicable, means the authority which, in terms of the Constitution, is empowered to remove such officer from office or, in cases where the provisions of section 116 of the Constitution are applicable, the appropriate Commission for the purposes of that section;

   "salary" means the salary attached to a pensionable office or where provision is made for taking service in a non-pensionable office into account as pensionable service, the salary attached to that office, and includes the value of rations and fuel or any other allowance of a permanent character given as an equivalent of salary;

   "the Regulations" means the Pensions Regulations, contained in the Schedule.

   (2) For the avoidance of doubt it is hereby declared that where an officer has been confirmed in a pensionable office and is thereafter appointed to another pensionable office, then, unless the terms of such appointment otherwise require, such last mentioned office, is for the purposes of this Act, an office in which he has been confirmed.

   (3) Where a pensionable office is abolished, and the person holding that office retires from the public service in consequence, he shall, if the office is abolished before that day, be deemed to have continued to hold it until the day immediately preceding the date of his retirement.

 

3.   Pensions Regulations

   Subject to the provisions of section 116 of the Constitution, pensions, gratuities and other allowances may be granted in accordance with the Regulations in respect of officers who have been in public service under the Government of Botswana.

 

4.   Amendments to Schedule

   (1) The President may from time to time make regulations amending, adding to or revoking the Regulations.

   (2) Whenever the President is satisfied that it is equitable that any regulation made under subsection (1) should have retrospective effect in order to confer a benefit upon or remove a disability attaching to any person, that regulation may be given retrospective effect for that purpose.

   (3) All regulations made under this section shall have the same force and effect as if they were contained in the Schedule and the expression "this Act" shall, wherever it occurs in this Act, be construed as including a reference to the Schedule.

   (4) Any pension, gratuity or other allowance granted under this Act shall be computed in accordance with regulations made under subsection (1).

 

5.   Pensions, etc., to be charged on revenues of Botswana

   There shall be charged and paid out of the revenues of Botswana all such sums as may from time to time be granted by way of pension, gratuity or other allowance in pursuance of this Act.

 

6.   When pensions will not be granted

   Any person appointed to the public service as a medical officer who also practises privately as a physician, surgeon or accoucheur, shall not be deemed to be or to have been the holder of a pensionable office unless he has signed an undertaking, in a form approved by the President, to regard the claims of his private practice on his time as subordinate to those of his work for the Government and to hold himself liable, without title to advance any claim for loss of private practice, to be removed for the purposes of public service from any one place or station in Botswana to any other.

 

7.   Pensions, etc., not to be assignable

   A pension, gratuity or other allowance granted under this Act shall not be assignable or transferable except for the purpose of satisfying-

 

   (a)   a debt due to the Government of Botswana; or

 

   (b)   an order of any competent court for the payment of periodical sums of money towards the maintenance of the spouse or former spouse or minor child of the person to whom the pension, gratuity, or other allowance has been granted,

and shall not be liable to be attached, sequestrated or levied upon for or in respect of any debt or claim whatever except a debt to the Government.

 

8.   Botswana Public Officers' Pension Fund

   (1) Any person who, before 1st April, 2001-

 

   (a)   is a pensioner or receives any gratuity or other allowance under this Act; or

 

   (b)   holds a pensionable office and is eligible for a pension, gratuity or other allowance under this Act,

may, if he so wishes, transfer his benefits under the present non-contributory pension scheme to the contributory Botswana Public Officers' Pension Fund established under the Pension and Provident Funds Act.

   (2) A pensioner or other person who opts to transfer his benefits under subsection (1) shall do so within 24 months of the commencement of operations of the Botswana Public Officers' Pension Fund.

   (3) Every person who is employed in a pensionable office on or after the 1st of April, 2001 shall join and draw his benefits from the Botswana Public Officers' Pension Fund.

 

9.   Pensions, etc., to cease on bankruptcy

   (1) Where any person to whom a pension or other allowance has been granted under this Act is adjudicated bankrupt or is declared insolvent by judgment of any competent court, then such pension or allowance shall forthwith cease.

   (2) Where any officer is adjudicated bankrupt or declared insolvent by judgment of any competent court either-

 

   (a)   after retirement in circumstances in which he is eligible for pension, gratuity, or other allowance, under this Act, but before the pension, gratuity, or other allowance is granted; or

 

   (b)   before such retirement, and he has not obtained his discharge from bankruptcy or insolvency at the date of retirement,

then in the former case, any pension or other allowance eventually granted to him shall cease as from the date of adjudication or declaration (as the case may be) and, in the latter case, the pension or other allowance may be granted, but shall not be paid to him and in either case the gratuity may be granted, but shall not be paid to him.

   (3) Where a pension or other allowance ceases or is not paid, or where any gratuity is not paid, by reason of this section, it shall be lawful for the President with the concurrence of the appropriate Commission in accordance with section 116 of the Constitution from time to time during the remainder of such person's life, or during such shorter period or periods, either continuous or discontinuous, to direct all or any part of the moneys to which such person would have been entitled by way of pension, gratuity, or other allowance had he not become bankrupt or insolvent, to be paid to, or applied for, the maintenance or benefit of all or any to the exclusion of the other or others, of the following, that is to say, such person and his wife, child, or children, or such other dependants as the President with the concurrence of the appropriate Commission in accordance with section 116 of the Constitution may determine, in such proportion and manner as he thinks proper; and such moneys shall be paid or applied accordingly.

   (4) Moneys applied for the discharge of debts of the person whose pension or other allowance has ceased or has not been paid, or whose gratuity has not been paid, by reason of this section shall, for the purposes of this section, be regarded as applied for his benefit.

   (5) Where a person whose pension or other allowance has ceased or has not been paid, or whose gratuity has not been paid, by reason of this section obtains his discharge from bankruptcy or insolvency, it shall be lawful for the President with the concurrence of the appropriate Commission in accordance with section 116 of the Constitution to direct that the pension or other allowance shall be restored or paid and the gratuity or so much thereof (if any) as remains after deducting any payments made under subsection (3), paid as from the date of such discharge or any later date; and the pension or other allowance shall be restored or paid and the gratuity or such remainder thereof (if any) paid, accordingly.

   (6) For the purposes of this section "child" includes an illegitimate child, a step-child, an adopted child and a child for whom by any applicable customary law the officer is responsible, but shall not include a child who has attained the age of 21 years or, in the case of a female child, has married.

 

10.   Withholding of benefits

   (1) Where a public officer or former public officer who is entitled to payment of pension, gratuity or other allowance under this Act is convicted of one or more offences, under Part II of the Penal Code (relating to crimes of treason and other offences against the State's authority), or under the National Security Act, for which he has been sentenced to a term of imprisonment of at least 10 years, or has been sentenced on the same occasion to two or more consecutive terms amounting in aggregate to at least 10 years, the President may, if he thinks it is in the public interest to do so, withhold any pension, gratuity or other allowance payable to such officer under this Act.

   (2) Where the President decides to withhold any benefits payable under this Act to any officer, he shall give such officer an opportunity to make such representations as the officer may wish to make to him.

   (3) Where any benefits are withheld in accordance with the provisions of this section, the President may direct that all or any part of the benefits to which such officer would have been entitled by way of pension, gratuity or other allowance, but for the provisions of this section, should be paid or applied in the same manner in all respects as provided in section 9, and such benefits shall be paid or applied accordingly.

   (4) Where any person whose pension or other allowances ceases or is not paid or whose gratuity is not paid, by reason of this section after conviction at any time receives a free pardon, the pension or allowance shall be restored or paid with retrospective effect, or his gratuity shall be paid, but in determining whether arrears of such pension or allowance are payable to such person and in computing the amount thereof and the amount of any gratuity, account shall be taken of all moneys paid or applied under subsection (3).

   (5) Where any pension or other allowance ceases or is not paid, or a gratuity is not paid, by reason of this section, it shall be lawful for the President at any time, and upon such terms and from such date (including any past date) as he thinks fit to restore or direct the payment of, either in whole or in part, such pension or allowance or to direct the payment of such gratuity or any part thereof, but in determining whether arrears of such pension or allowance are payable and in computing the amount thereof and the amount of any gratuity, account shall be taken of all moneys paid or applied under subsection (3).

   (6) In the exercise of his functions under this section the President shall act with the concurrence of the appropriate Commission in accordance with section 116 of the Constitution.

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