Wednesday, July 28, 2021

Top civil servants win big in scarce skills allowance case

Scores of top public servants who were affected by the Government’s decision to withdraw their scarce skills allowances will be following with interest what step government will take following a court decision that spelt out whether the extent of the statutory duties they perform make them eligible to receive scarce skills allowance or not.

A considerable number of top public servants were excluded from being paid scarce skills allowance in 2010 when government ceased payment of the allowance after the Director of Public Service Management (DPSM) issued a directive to the effect that officers whose duties did not involve the exercise of technical expertise and skills in the discharge of their duties were not eligible to be paid scarce skills allowance.

This week, Gaborone High Court Judge Michael Mothobi set aside the 2010 directive from the DPSM which resulted in scarce skills allowance for some public servants being stopped. This was after some top civil servants approached the High Court to review the directive withdrawing scarce skills allowance.

The applicants in the case are the late ombudsman, Ofentse Lepodise and Matshediso Bokole, who at the time was (is) the Director, Management and Legal Services (Executive Director) within the ombudsman’s office.

The Attorney General was cited as the First Respondent while the Permanent Secretary to the President was cited as the Second Respondent.

The directive in question stated that officers holding non- technical duties, being those on the E2 scale and above, should have their Scarce Skills allowances withdrawn.

Setting aside the directive, Mothobi ordered that “the payment to each applicant of the scarce skills allowance is to be reinstated with immediate effect”.

On eligibility for the allowance and suggestion that officers must possess relevant and appropriate qualifications, the judge found that Lepodise and Bokole were qualified and that the government is obliged to extend payment of the allowance to officers of the same qualification in the “executive Cadre positions”.

Occupations legible for the scarce skills allowance are lawyers, judges and other legal professionals on the E2 grade and above and on the D Band who are listed as legible. The court found that at the time, Lepodise and Bokole were eligible to payment.

“But the respondents argue that the undertaking was not validly executed and, by implication, before the allowance is payable the eligible employee must sign it to the effect that the allowance shall be terminated when evidence no longer indicates that the skill is in short supply,” said Mothobi. However, he disagreed with this contention.

”It has already been found that the argument that the second applicant wrongly signed the undertaking for the first applicant is without merit,” said Mothobi.

On suggestion by government lawyers that the “Scarce skills allowance undertaking” was not duly signed by Lepodise and Bokole’s supervisors and instead they signed it “for each other”, the judge found that neither the DPSM had raised this point as a ground for withdrawal and terminations nor had the Permanent Secretary to the President canvassed it when the matter was initially brought before the Court.

“In reference to the Second Applicant, the argument that the undertaking was not signed by the Second Respondent’s supervisor is inconsequential. I wish to pause and say that on the evidence, the Second Applicant’s supervisor is the incumbent ombudsman,” said Mothobi.

He said evidence placed before Court showed that Lepodise signed on his own behalf while the Permanent Secretary to the President signed on behalf of the government.

“In doing this she (Permanent Secretary to the President) acted in the capacity of Executive Director , and nothing on the papers submitted by the parties to the Court indicates that she was wrong in signing,” said Mothobi.

The judge ruled that excluding Lepodise and Bokole from receiving payment of scarce skills allowance was illegal and that they did not improperly sign the “scarce skills allowance undertaking”.

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