- The Court of Appeal dismissed a case in which former senior government official sought compensation for scarce skills allowance.
Colonel Duke Masilo, worked as Deputy Permanent Secretary in the Office of the President at the time when President Ian Khama was in office. He served in several high-ranking positions within the public service and holds a LLB from the University of Botswana.
The dispute centered on the interpretation of three directives issued by the Directorate of Public Service Management in 2008, 2010 and in 2011. Col Masilo contended that his legal qualifications entitled him to the scare skill allowance in accordance with government directives issues when he was in office.
However, the court found that Masilo did not meet the necessary criteria, arguing that holding qualifications alone without performing the specific duties of the listed occupations was insufficient.
The Court of Appeal examined the three directives—the 2008 Directive, the 2010 directive, and the 2011 Savingram—considering them both individually and collectively to ascertain their scope and effect. The Court ruled that these directives should be read together, as each directive built upon or clarified the terms of its predecessors. By analysing the directives chronologically, the Court highlighted how the 2010 and 2011 directives refined the eligibility requirements initially set out in the 2008 directive, specifically focusing on the necessity of performing the functions associated with the listed scarce skills occupations, not merely holding the qualifications.
The 2008 directive initially allowed for a variable temporary attraction and retention/scarce skills allowance of up to 40 percent of the basic salary for eligible occupations, requiring relevant and appropriate qualifications. The 2010 directive later restricted this allowance, terminating it for officers on E2 level and above who were not in technical positions. The 2011 savingram clarified that eligibility for the allowance required not only possessing the relevant qualifications but also performing the specific duties associated with the scarce skills occupations.
Masilo argued that his legal qualification obtained in 2009 and his admission as an attorney later that year, placed him within the eligible category under the 2008 directive. He claimed that during his tenure in various administrative roles, including as Deputy Permanent Secretary, he performed legal duties that justified his entitlement to the allowance. Representing the government, the Attorney General, countered that Col Masilo’s positions were fundamentally administrative and not legal in nature, arguing that his roles did not align with the specific scarce skills occupations defined in the directives.
A critical issue in the case was whether Masilo’s contract of employment explicitly included the provision of legal services. The court noted that during cross-examination, Masilo admitted that his contract, which was not produced as evidence, did not contain a term requiring him to provide legal advice. The Attorney General argued that the primary responsibility for legal advisement in the roles held by Col Masilo rested with the Attorney General’s office, not with administrative positions like those he occupied.
The High Court had previously ruled in favor of Col Masilo, concluding that the 2008 directive did not necessitate the actual performance of scarce skills functions but only the possession of the relevant qualifications. The lower court found that the subsequent 2010 Directive and 2011 savingram did not amend the 2008 Directive lawfully, as they were not issued as ‘Presidential Directives.’ Therefore, the High Court ruled that Col Masilo, by virtue of his qualifications, was entitled to the allowance.
However, the Court of Appeal disagreed with the High Court’s interpretation, arguing that the term “occupation” in the 2008 directive implied not just having qualifications but also performing the associated work. The court noted that while Col Masilo occasionally engaged in legal tasks, these did not constitute his primary duties, which were administrative in nature. The court underscored that the purpose of the scarce skills allowance was to attract and retain professionals actively performing the functions of the listed scarce skills occupations, not to compensate qualifications alone.
The Court of Appeal further elaborated on the distinction between holding legal qualifications and practicing in a legal role. The judgment pointedly noted:
“Admission as an attorney also does not, however, automatically translate into making one hold the occupation of attorney. If, after admission as an attorney one goes off to become a big-game hunter, having nothing more to do with the work of an attorney, what becomes one’s occupation? A big-game hunter, I venture, not an attorney.”
This analogy illustrated the court’s stance that one’s occupation is determined by the work performed rather than qualifications alone, and that simply being admitted as an attorney without practicing did not suffice for the scarce skills allowance.
In conclusion, the Court of Appeal set aside the High Court’s order and dismissed Col Masilo’s claim, ruling in favour of the government. The judgment clarified that Col Masilo’s administrative roles did not qualify as scarce skills occupations under the relevant directives, and that his legal qualifications, although necessary, were insufficient without the corresponding performance of duties. This judgment reinforces the interpretation that eligibility for the scarce skills allowance requires both qualifications and the active performance of specific functions tied to the listed occupations, aligning with the intended purpose of the allowance to retain professionals in critical roles.
