Sunday, May 16, 2021

Government loses scarce skills allowance case against Customary Court Presidents

Francistown High Court Judge, Professor Kholisani Solo last week ruled in favour of two Customary Court Presidents, Bond Mabalane of Sowatown and Gunny Moses of Monarch, Francistown who wanted the court to reverse a government decision to deny them scarce skills allowance.

The pair argued that by virtue of the duties they perform at the customary courts, they qualified for the scarce skill allowance as they both held qualifications of Diploma in Law.

The then Permanent Secretary to the President Eric Molale is cited as 1st respondent, the former Director of Department of Public Service Management, Carter Morupisi is cited as 2nd respondent while Attorney General is cited as third respondent
The applications followed government’s decision in 2008 to approve the introduction of the “Attraction and Retention Policy for the public service” which resulted in the Public Service Management Directive No 2 of 2008.

In terms of the directive, occupations or professions not mentioned in the directive did not qualify to draw the allowance except where government considers and approves submissions on those areas that require to be considered.
On the 11th of April 2011, the then Permanent Secretary to the president, Molale issued a circular savingram to further assist with the interpretation and application of the Attraction and Retention Policy.

The circular communicated that, for an officer to qualify to draw scarce skills allowance, that officer must possess relevant and appropriate qualification for the listed profession or occupation. He further stated that eligible beneficiaries must be performing the functions or duties of the listed professions or occupations.
The two Customary Court Presidents stated in their affidavit that their view was shared by the Ministry of Local Government in line with the circular. They pointed out that the ministry sent an epistle to the then Director of Public Service Management Morupisi with a request that Customary Court Presidents and their deputies be considered for payment of scarce skills allowance.
Morupisi, however, turned down the request stating that in his view these occupations had not experienced any problems of attraction and retention of appropriately qualified personnel in line with the spirit of the Attention and Retention Policy.
Unhappy with the decision from the Director of Public Service Management the two Customary Court Presidents appealed to the then Permanent Secretary to the President, Eric Molale. 

In a letter dated 3rd November 2013, Molale also dismissed the applicants appeal citing the same reason given by the Director of DPSM.
In their appeal the duo stated that the Permanent Secretary to the President failed to apply his mind to relevant factors, these being the lack of attraction of persons holding a Diploma in Law to the position of Customary Court President.
“A battery of persons presently retained as Customary Court Presidents or Deputy Customary Court Presidents are not possessed of the requisite minimum qualifications, to wit, a Diploma in Law. Out of 41 Customary Court Presidents and Deputy Court President only five have the requisite qualifications. Five posts remain vacant,” reads one of their grounds.
The applicants further contended that the then Permanent Secretary to the President, Molale’s decision was unreasonable, that no reasonable decision maker applying his mind objectively to all facts and history of this matter would have reached the decision he made.
Their lawyer Wada Nfila also submitted that the advertisement by the Ministry of Local Government dated the 20th of May 2009 bears testimony to the fact that, the duties and qualifications for Customary Court Presidents and their deputies qualifies them for scarce skills allowance.
“The advertisement is for two Deputy Court Presidents. The qualification required is a “Diploma in Law or its equivalent. Part of the experience needed is “ability to interpret and apply both customary and common law,” he told court.
Representing the respondents in part of his arguments, Ndiye Nkurumah Balule from Attorney General argued that the applicants in their duties only apply a very limited amount of common law.

In his ruling Justice Professor Kholisani Solo rejected the respondents’ arguments. He  said the duties performed by the applicants as listed in the advertisement makes it difficult to understand how they can be said not to be applying common law processes, when the advertisement stipulates the ability to interpret and apply both the customary and common law as essential. He also said that the decision to deny the applicants payment for scarce skills was not reasonable.
“I found that the applicants have demonstrated that they qualify for the scarce skills allowance because they possess Diplomas in Law and they perform the duties relevant to their qualifications. The National Development Plan demonstrates the shortage of personnel with training in modern law. The vacant posts for officers further demonstrate the shortage of qualified people to fill up the posts,” said the Judge.
In conclusion he ordered that the applicants be paid scarce skills allowance and the decision taken by Molale on the 3rd of November 2013 be set aside.

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