Some 175 employees of the Ministry of Agricultural Development and Food Security may soon be smiling all the way to the bank to collect back pays running into millions of pula.
This after three Court of Appeal judges led by Zibane Makwade ruled in favour of the employees who were challenging government’s failure to implement a savingram from the Department of Public Service Management (DPSM) to introduce multiple grading and tilting of all positions in the C-Band in the public service.
According to court papers, the class action lawsuits, which was led by one Save Andreas Pheresu Sefore on behalf of 175 others, alleges that in 2001 government issued a directive whose objective was, among others, to allow for direct appointment of graduates with the appropriate academic qualifications at entry level but without experience.
According to the papers, DPSM Directive No. 6 of 2008 was in furtherance of a follow-up of a 2007 Savingram on multiple grading and titling of all C-band positions. It was also aimed at facilitating faster progression of serving officers who qualify for promotion with the need for ministries to request additional posts or resources.
The ministry appealed the decision of the High Court, which then ruled in favour of the respondents (the 175 employees)
Delivering the judgment, a panel of three judges, Isaac Lesetedi, Mercy Gaarekwe and Zibane Makwade, ruled in favour of the employees.
The respondents caused a writ of summons to be issued against the appellants (the government/Ministry of Agriculture). In their declaration, they prayed for an order in the following terms:
An order declaring unlawful, the defendants’ failure to apply and extend the benefits of Directive No. 10 of 2001 and multiple grading and titling of posts as provided for in the DPSM Savingram dated the 30th of May 2007. An order directing the defendants to implement Directive No. 10 of 2001 and multiple grading and titling of posts as provided for in the DPSM Savingram dated the 30th of May 2007 in favour of the plaintiffs with retroactive effect, within one month from the date of the court order.
They also wanted an order directing the defendants to pay the plaintiffs/respondents the salary arrears that resulted from the wrongful implementation of the Directive No. 10 of 2001 and multiple grading and titling of posts as provided for in the DPSM Savingram dated the 30th of May 2007 within one month from the date of the court order.
The High Court concluded that the respondents had a legitimate expectation that the directive would be applied to them. This conclusion was based on the directives from DPSM as well as the undertaking by the Director of Crop Production on behalf of the Permanent Secretary.
The three judges said contrary to the submissions on behalf of the appellants, the court correctly identified the basis for its decision and concluded that the respondents had proved that indeed they had legitimate expectations. An attempt by the appellants to link legitimate expectation with proof of performance is clearly untenable.
The judges, led by Makwade said, the rest of the grounds that appear in the notice and grounds of appeal did not feature in the heads of argument nor were they argued at the appeal. “They are clearly without merit,” said the judges.
“The only comment is that the evidence of PW1 clearly explained what multi grading and multi titling meant as well as how financial resources were to be mobilised in order to apply the principle. It was also clear that one would occupy the same post as long as one is on C grade and no new posts were envisaged. It was also made clear that it was the responsibility of each ministry to ensure that financial provision was made for the existing posts.
Makwade said the state had failed to prove its case and dismissed the appeal with costs.