Some provisions in the General Orders that have traditionally been loosely enforced could create a fiscal nightmare for the government if the affected parties follow the example of Reason Lekutlane, a Project Manager in the Ministry of Transport and Communications.
Clause 14.9 of the General Orders says that acting appointments for vacant posts shall be for an initial period of six months and may be extended so that the total acting service doesn’t, in the case of qualified officers, exceed 12 months. Thereafter, if an officer in acting service is qualified for appointment, s/he “shall be deemed to be substantively appointed, if his acting appointment has not been formally terminated.” Complementing the latter, Clause 14.10 says that no officer shall be appointed to act in a vacant post unless he is qualified in terms in terms of a 2001 directive for substantive appointment to that post unless the Director of Public Service Management consents to such acting appointment.
In 2011, Lekutlane was appointed Project Manager in an acting capacity and accordingly paid at the appropriate E2 salary scale for the post. He held the position for more than 12 months but was rebuffed when he attempted to invoke the stated clauses of the General Orders. The explanation for the latter was that to be promoted to the position (which was now paid at E1), he needed to have been paid at D1 scale for two years ÔÇô which wasn’t the case with him. That same argument was repeated in court by attorney Olayemi Aganga who represented the ministry but was shot down by Justice Dr. Zein Kebonang who asserted that nowhere does the 2001 directive say that an officer needed to have been at paid at D1 before he could be promoted to a position paid at E1. On assessing circumstances of Lekutlane’s acting appointment, the judge determined that it was done in terms of Clause 14.10, that Lekutlane was qualified for such appointment and therefore entitled to be appointed on a permanent basis at the end of his acting appointment.
“Having acted in excess of the 12-month period and being a qualified person for purposes of appointment, the legislature intended that by operation of the law, the plaintiff must be deemed to have been substantively appointed to the position of project manager. This is not a matter in which the defendant has or had a discretion. Once it allowed the plaintiff to act in excess of 12 months, it should have recognised the legal consequences of its commission or omission,” says Kebonang in his judgement, adding that the ministry has no discretion to disregard provisions of the General Orders.
The acting appointment ended in 2012 and throughout the acting period, Lekutlane was paid acting allowance. Only last year was he appointed Project Manager on a substantive basis. His case was that he should be paid all the monetary benefits attached to the position for the period that he deemed to have been substantively appointed in line with Clause 14.9. Lekutlane’s calculations put his benefits at P776 825 but Justice Kebonang rejected the figure because it was not particularized. Taking a lenient approach though, the judge referred Lekutlane to the Registrar to work out a particularised figure.
It is unclear whether the government will appeal the judgement and as unclear how the Court of Appeal will rule. If the judgement withstands all legal challenge, the government could find itself swamped with similar lawsuits from across the entire civil service by officers whose acting service, like Lekutlane’s, exceeded 12 months but were never automatically promoted on a substantive basis.