Friday, December 4, 2020

Government appeals against judgment in Public Service case

In a rare case of its kind, the Attorney General recently appealed against a High Court judgment which ruled that Victoria Maphanyane was unfairly retired from her job in the Directorate of Public Service Management.

In their appeal, prepared by Dittah Molodi, of Muguni, Molodi Law Practitioners, Molodi, when countering a submission made by Maphanyane’s lawyer, Bugalo Maripe, that she was retired from service because she was over 45, which was discriminatory as they were many other employees in the same age bracket who had not been similarly retired, Molodi submitted that general order provides for that.

He said that the General Order states clearly that. ”If the Permanent Secretary considers that the services of a pensionable officer should be dispensed with on attaining the age of 45 years or at any time after that, he shall recommend accordingly to the Director in writing giving reasons in full.”

On the submission made by Maripe that she had been discriminated against, which the Court has agreed with in its judgment, Molodi submitted that the Court had, in doing so, “totally ignored the points raised by DPSM in its affidavit where she denies violation of the right to protection of law and that the General Order gives DPSM discretionary powers to retire anyone above the age of 45 years if he considers it necessary to do and is in public interest”.

On the other submission raised by Maphanyane’s lawyer that she was not given reasons for retiring her, Molodi submitted that the General Order on this point clearly shows that the only person who can rightly demand to be furnished with reasons why an officer was being retired was the Director of Directorate of Public Service Management and was not for consumption by one who has been retired and Maphanyane cannot claim their entitlement.

Molodi also submitted that the General Order was inapplicable on account of the fact that Maphanyane was employed by DPSM and not some ministry where it would have been necessary that the Permanent Secretary of that Ministry makes a recommendation.

Turning to another submission by respondent’s lawyer, that absence of a recommendation as required by General Order should necessarily vitiate the decision to retire her Molodi submitted that the government decentralization of powers to heads of Ministries and Departments policy made the General Order obsolete, following that Permanent Secretaries have in their various Ministries been delegated powers to appoint, promote exercise disciplinary control and remove officers in their Ministries.

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