Friday, September 25, 2020

High Court dismisses top civil servants seeking promotion

By Khonani Ontebetse

High Court Judge Tebogo Tau has dismissed an application in which top public officers had taken the Ministry of Local Government and the Director of Public Service Management (DPSM) to court over non-implementation of a directive intended to close gaps in the public service pay structure.

 The 24 applicants who were led by Emmanuel Swapo are principal and senior officers under various grades in the Ministry had argued that they had been prejudiced by failure by the Permanent Secretary in the Ministry Molefi Keaja’s failure to implement a 2008 directive from the Permanent Secretary to the President which entitled them to have their posts being properly graded.  

They argued that the directive “grading of posts of Heads of Department and the closing of gaps that exist in the Public Service pay structure” was still pending.

They further argued that the directive was not implemented and the gap that existed between officers on the D4 and D1 scales has not been closed as envisaged, thus “gravely hampering our progression to higher posts”.

They accused Keaja of refusing and neglecting to implement the objectives of the directive notwithstanding the intervention of the Ombudsman who made recommendation for compliance with the directive.

The applicants also cited a Special Report from 2012 of the Ombudsman which had recommended compliance with the directive. They further argued that the directive was meant to close gaps in the Public Service and as they are public servants, the gaps that exist in their posts needed to be closed by implementing the Directive in their favour. Hence they argued that the decision not to implement the directive in their favour is unlawful and should be set aside.

According to court papers, the First witness of the applicants testified that he was employed in the Ministry of Local Government and Rural Development as Chief Education Secretary responsible for all Primary Schools at a D1 salary scale. He said that before his promotion he was senior education secretary at C1 level and was thereafter promoted to Principal Education Secretary at D4 salary scale. He stated that the directive indicate the structure should be like. His evidence was that the Government’s structure the Secretary Education Secretaries at D4 salary scale and principal Education Secretaries at D3 salary scale respectively and that the senior and Principal Education Secretaries were currently at C1 and D4 respectively, a gap existed with needed to be closed by the Directive. He also said there was an anomaly in the structure in that the Chief Education Secretary was at D1 leaving a gap of D2 and D3 in the structure of Education Secretaries. He further stated that other Departments within the same Ministry were graded in accordance with the structure formulated by the Directive. The witness admitted that for a post to be graded it had to be assessed to determine if it warranted payment at such grade.

Another witness testified that he had been in the employ of the Directorate of Public Service Management since 1999 and he progressed through the ranks. He said he worked as a policy advisor and advised Government on Human Resource issues. He has been involved in matters relating to job evaluation for the past 17 to 18 years. He stated that the Directive was meant to address the gaps created by the Parallel Progression Policy. He further said the Parallel Progression Policy jeopardised job evaluation which resulted in directors being graded differently. He indicated that some directors were graded at E2 whilst others were graded at E1, hence the heading of the Directive which referred to the grading of heads of departments. He said when directors who were heads of departments were graded at E1 that would obviously create a gap in relation to the directors who were not heads hence the use of the words “close of gaps” in the directive.  He further explained that the gaps did not relate to those which existed in other cadres in the Public Service prior to the establishment of the Parallel Progression Policy, but those which would be created the implementation of the directive.

Delivering judgement, tau said words used in the directive were clear and unambiguous. She noted that the heading of the directive clearly demonstrated that there was an anomaly in the grading of Heads of Department s and that the directive was meant to correct that anomaly.

“The last paragraph is also clear that the anomaly was created by Parallel Progression Policy. The object and intention of the directive was therefore to re-designate the position of heads of department and to close gaps which existed in the grading of heads of departments.  I therefore find that explanation of the defendants (Ministry and DPSM) plausible.

She added that “I agree with defendants that the salary graded stated in the directive could not be applied across the board of all Public Servants. Some Public Servants would have graded above others even though they are referred t as Principal or senior officer.”

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