Wednesday, October 27, 2021

Civil servant wins David-and-Goliath duel at High Court

Armed with little more than the most rudimentary knowledge of law, an “inelegantly”-drafted affidavit and very strong conviction that he had a solid case, a civil servant took on an experienced lawyer and still managed to come of the High Court smelling of roses. Resultantly, he will be smiling all the way to the bank and back. The implications of this case are far-reaching because given the chaotic way the government works, many more civil servants may have suffered fate similar to the one that motivated Goemeone Bopadile to prosecute his rights before Justice Dr. Zein Kebonang.

On a common sense basis, the case is one that should never have gone as far as the High Court but it did. Bopadile, who holds a degree in Computer Science, joined the Ministry of Local Government and Rural Development in 2009 as a Records Officer. Two years later, he was redesignated as Assistant Systems Analyst, which position entitled him to scarce skill allowance. That was as far as his run of luck ended.

The norm in the civil service is that posts are multi-graded. This particular one wasn’t and farther down the road, that would create a problem for both employer and employee. While other officers who held similar qualifications and had been redesignated the same way were promoted, Bopadile remained stuck in the same position for five years. The official explanation was that there were no vacant positions that he could be promoted to. In Government Enclave-speak, this is referred to as being “held against” a position. When his complaint fell on deaf ears, he approached the Public Service Commission (PSC), a body that adjudicates appeals from aggrieved civil servants. The PSC dismissed his appeal, explaining in its letter of August 17, 2016 that there was no vacant upper post that Bopadile could be promoted to.

Taking up this matter with the High Court, Bopadile argued that the PSC’s decision was “irrational” because in terms of a 2008 directive, progression was not subject to the availability of posts and that this decision completely ignored the fact that he had been discriminated against. Justice Kebonang agreed that the PSC had irrationally erred because it failed to consider all relevant policies and directives.

“Had it done so, it would have been apparent to it that in terms of the 2008 directive, qualifying officers could progress without the need for ministries to request for additional posts or resources,” says the judgement. “For the PSC to dismiss the complainant on the basis that there were no additional posts to promote him to was a clear misdirection and its decision in this regard was irrational as it imported a requirement that was not there.”

The one other impropriety that Kebonang pointed out is that the letter redesignating Bopadile didn’t state that he was being held a non-multi-graded post. In its oral argument, the state had made the case that Bopadile couldn’t complain of unfair labour practice because he had been paid all due allowances during the redesignation period. Rather than persuade the judge, this argument only served to remind him of a logical fallacy deployed by a character in a Charles Dickens novel, Oliver Twist.

“In the novel, upon being told that ‘the law supposes that your wife acts under your discretion’, Mr. Brumble responded, ‘if the law supposes that, the law is a [sic] ass, a [sic] idiot’.” Aligning his own legal reasoning to Mr. Brumble’s, Kebonang said that he doesn’t believe that the law must be regarded as an oppressive instrument lacking in common sense and devoid of justice.

“I do not subscribe to the notion that the law is an arse. To this end, the submission by the respondents that the applicant must be grateful is a cynical one. The fact that the applicant may not have been financially worse off because of the allowances paid to him is immaterial to the question of whether he should have progressed,” says the judgement, adding that the allowances were not compensation but a monetary right attached to the post Bopadile held and that the state’s argument was “an attempt to excuse government’s incompetence.”

Bopadile, who has since left the ministry, was awarded damages that will be worked out by the Registrar and Master of the High Court. The case was a Herculean task on his part. With no legal training, he went up against a lawyer from the Attorney General Chambers, in the process cobbling together what Kebonang described as “inelegant papers before me.” Nonetheless, he prevailed.

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