Saturday, September 26, 2020

Appeals Court defers civil servants’ claims case

The Court of Appeal has postponed to January 2010 the case in which eight civil servants want it to reverse an earlier judgement against their claim that they were paid below the salary scale to which they are entitled.
This was done in order to give the lawyers involved in the matter time to adequately prepare, the appeals court judges said.

The matter was brought before the court by Wilson Moatshe, Sebios Moloi, Kefentse Morapedi, Elson Rammoki, Leabaneng Bogopa, Nkae Molefe, Spencer Manchwe and Modukanele Modukanele.
The suit is against the attorney general representing the Ministry of Agriculture and the Ministry of Trade.
The appellants each claim according to their varying entitlements.

Moatshe wants an order declaring that he is entitled to be paid at the D2 scale retrospectively from 1993 to 2005.Moloi wants an order declaring that he is entitled to be paid at D2 salary scale retrospectively from 1994 to 2003.

Morapedi wants to be paid at D2 retrospectively from 1993 to 2000. The other five appellants make similar demands related to different dates. To back their claims, they cited Directorate of Public Service Management document Directive No 36 of 1993 dated 11 October 1993 in particular on scheme for the Department of Cooperatives of the Ministry also known as the ‘parallel progression exercise’ which was implemented in 1993.

They maintain that in terms of that scheme the post of head of division was designated at D2. An officer in charge of a regional office is designated at D4 scale.

Six of the appellants in this matter were heads of department when the scheme was implemented and they carried out all the functions of the post of head of division.

Despite the fact that they had carried out such duties, the responsible ministries refused to pay them at D2.
Two other appellants argued that they were heads of regional offices in Francistown and Serowe but that their ministries did not pay them at D4.
There was a dispute between the appellants and the respondent regarding the interpretation of the schemes of service.

DPSM’s contention is that in the implementation of parallel progression no officer should assume a higher grading on the basis of nomenclature and that the requirements of the schemes of service have to be satisfied for one to be elevated to a higher grade
Arguing that Moatshe does not have the right to represent the others in the suit, they said the lower court judge erred in finding that he did not have the necessary legal authority to represent the other appellants in this matter and that as result their application was not properly before the court.

They say that nowhere in the affidavits filed is it suggested that Moatshe claims to represent the other appellants in this action. In a representative action, they submitted, all the persons represented have the same interest in the proceedings. So, a representative action cannot generally be brought if each member has a separate claim for damages. The appellants are expected to submit that their claim is by its nature a group action in essence arising out of the same event. They should be dealt with together such as was the case in the Bhopal gas disaster and the Lockerbie air incident.

The main issues for determination in this issue, they will submit, are:
ÔÇó That the DPSM by its
ÔÇó Circular no DP 19\65 of 11 October 1963 introduced a new scheme of service for the Department of Cooperatives falling under Ministry of Agriculture.
ÔÇó That this Scheme was also known as the Parallel Progression Exercise and it was implemented by the Ministry of Agriculture with retrospective effect from 1 April 1993.
ÔÇó That under the scheme all the appellants were entitled to be paid at a higher salary scale in terms of the said scheme, and
ÔÇó That the appellants had diligently pursued their claims with the relevant authorities.

Finally, that numerous letters had been written by the appellants to the Permanent Secretary to the President about the issue to no avail.

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