Wednesday, October 28, 2020

Public Service Act doesn’t define ‘prompt’

In a court case where promptness was a central issue, it has been discovered that the law doesn’t say what “prompt” means. Section 39 of the Public Service Act says that “disciplinary action against an employee who commits an act of misconduct shall be prompt and in accordance with the rules of natural justice.”

The spotlight was shone on this provision after a government school in Mochudi fired a nightwatchman for dabbling in partisan political activity against precise dictates of the same Act. This activism was discovered in September 2014 and it was only in January 2015 that he was fired, providing the man’s lawyers with ammunition to argue that the school did not act promptly as the law requires. The state counter-argued that since “prompt” had not been defined in the Act, the word must be taken to mean “within a reasonable time.”

In order to insulate itself from partisan interest and promote integrity, neutrality and public trust, the public service prohibits civil servants from actively participating in partisan politics. Addressing the issue of promptness, Justice Dr. Zein Kebonang said that a situation that threatens the stated ideals (the nightwatchman’s candidacy) was all the more reason why it was important to institute disciplinary hearings promptly.

“Any delay in taking disciplinary action opens government to an alternative set of interests and agendas which negatively impact on the independence and impartiality of the public service and the effective administration of government,” Kebonang’s judgement says.

The judge determined that contrary to the state’s argument, “prompt” could never be intended to mean “within reasonable time” and that what the framers of the Act had in mind was “an immediate and fairly short time frame.” Leaning on precedent, he quoted a past judgement to the effect that “the use of ‘promptly’ assumed a much higher standard than ‘acting within a reasonable time.’” With the Act not defining “prompt”, Kebonang had to rely on the dictionary for the lexical meaning of the word, in the process consulting three different dictionaries. All converge on the point that what is prompt has to happen without any delay.

“Any disciplinary action that is not prompt would be ineffectual,” the judge said in finding for the nightwatchman.

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