Thursday, February 9, 2023

Judges’ drivers win lawsuit against State over allowances

Francistown High Court Judge Bashi Moesi has ruled in favour of 32 Judges’ drivers who had taken the government to court demanding standby allowances. The judgment was delivered last week. The applicants, Chusin. M Tshenolo and 31 others filed a claim before Francistown High Court on the 23rd March 2022 seeking orders against their employer being the  Ministry of Justice. The asked the court for a declaratory that their peculiar circumstances entitle them to payment of standby allowance.

They also sought to be paid retrospective payment of standby allowance from the time of their employment as drivers until the date of full payment. They also demanded the respondent (Ministry of Defence) to pay the costs of suit. The respondent was represented by the Attorney General (AG) while private attorney Gift Pilato from Olatotse Attorneys represented the applicants. On behalf of the applicants, Pilato said in the court papers that the applicants’  duties as Judges’ drivers includes undertaking unscheduled trips and being always on call. The applicants’ further stated in their court papers that they are always on 24 hour call, the only exception being only on leave. They also averred that they do transport Judges to and from work, during circuit court and undertake other unscheduled trips and are always on call.

These unscheduled trips include transporting Judges and their families. The applicants maintained through their lawyer that the respondent is duty bound to pay them the stand by allowance similar to the Ministry of Health (MoH) drivers who are currently enjoying the same benefit. They maintained that due to the similar circumstances they find themselves in, they have to be afforded the same benefit. The applicants further maintained that the matter of non- payment of standby allowance to them is a continuing one and that several complaints to the respondent in this regard have yielded no solution. Opposing the application, the respondent in the answering affidavit, through Tshegofatso Dioka who is the Senior Manager Corporate Services at the Administration of Justice (AoJ) professed knowledge of the facts of the dispute.

She said the application lacks merit and prayed that it should be rejected by the court. In the same vein she distanced herself from the matter claiming that the Director of Public Service Management (DPSM) would have been better placed to answer. Delivering Judgment Justice Moesi took issue with the contents of the affidavit from Dioka who claimed to have knowledge of the dispute at the same time turning around claiming ignorance of the matter.

“By my assessment this posture on Tshegofatso Dioka’s part is not free from difficulty since, to state the obvious, a deponent to an affidavit is like a witness testifying orally on oath or affirmation regarding facts within their knowledge,” quipped the Judge. “Thus the accepted principle being that the fact set out in an affidavit should lie within the deponent’s own personal knowledge, it cannot be competent for a deponent to profess knowledge of the facts of dispute by virtue of being in possession of the related records and then turn around to say in the same breath that someone else is better placed to respond to another party’s case. Yet this is exactly the position adopted by Tshegofatso Dioka,” added the Judge.

The Judge said by adopting the position that she did (Dioka) in essence failed to convincingly deny an allegation which she felt someone else was in a much better position to challenge. The Judge said nothing stood in the way of government to cause the Director of Public Service Management to depose to an answering affidavit or alternatively to furnish a confirmatory affidavit if it was felt so strongly that he or she was the better placed person to answer the applicants’ case. Dioka had claimed in part of the court papers that working outside normal hours is the nature of the job of chauffeuring Judges. She however failed to convince the court on why the MoH drivers are paid a similar allowance but not the Judges’ drivers.

Justice Moesi said he found the respondent to have failed to deny an important allegation as raised by the applicants. He said it is common cause that the applicants ‘duties are of a peculiar nature. He said Dioka had undervalued her own testimony and it had no legs to stand on. The Judge further said there is no evidence before the court nor did his own research turn up any in the form of a Circular issued by the DPSM providing to the contrary or specifically stating that no standby allowance is to be paid to the applicants because of the exigencies of their services. “Indeed such a directive would be in my view a travesty amounting to an unfair labour practice. In the circumstance I hold that the applicants have discharged the onus that lies upon them and established on a preponderance of probabilities a case for the relief they seek. The application will therefore succeed. In regard to costs I can see no obvious reason why these should not follow the result,” he said.

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