BDF in ‘Special Forces’ allowance dispute
Mpho Mokwape | Monday April 25, 2022 06:00
The commander is appealing and disputing that 14 employees carry duties of the Special Forces and therefore, qualify for the said allowance as alleged and wants the Court of Appeal to decide on the matter.
The employees had initially won the case at High Court after alleging that they were excluded from the allowance despite being members of the Special Forces and have been performing such duties.
However, the commander cited as the second appellant after the Attorney General in the matter alleges that the employees are not entitled to the allowance as they did not possess counter terrorism qualification which was a requirement for one to be considered for allowance enjoyed by other Special Forces members.
The State is disputing that the employees are entitled to the allowance and believes the lower court erred by amongst other grounds ruling that the CGU was trained to Special Forces Standard, and also erred in narrowing the issue to classify the employees as members of Special Forces therefore, entitling them to all benefits that come with that without considering their deployment.
Appearing for the State, Advocate Virgil Vergeer said for the court to consider that CGU were trained to Special Forces standard was wrong because they were only to be trained to an approximate standard rather than the full standard.
“With due respect to the court a quo, the CGU were to be trained not to a Special Forces standard but to a Special Forces standard in tactics being only one aspect of the Special Forces training,” he said.
Vergeer argued that the employees won at the lower court because the court limited its enquiry to the certificates relied upon by the workers to find that they had attained the necessary and required training to qualify as members of the Special Forces and thus entitled to all benefits accruing to such a classification.
He explained that the court was in error as it failed to consider that amongst others, the deployment or duties and their performance of the employees, whether they met their performance standards and whether they met the requisite to benefit from allowance.
“The starting point ought to have been an examination of the circular and to assess whether the workers met the requirements. The allowance claimed like other allowances such as a scarce skills allowance was dependent on two requirements being possession of the minimum qualifications and performance of duties,” he said.
Advocate Vergeer also argued that the employees did not dispute that they do not have or have not obtained counter terrorism qualifications that the allowance was performance-based and accept that the allowance ought to be drawn by members of the BDF who execute Special Forces duties.
He submitted that there were two significant observations regarding the soldiers that they do not allege that they are performing Special Forces duties and that even if they were (which is denied) they do not assert that they met the performance-based standard or that they are adequately performing.
Vergeer pointed out that in other words it would not be enough or sufficient that the soldiers were performing Special Forces duties for them to qualify for the allowance as they would at the very least have to allege that their performance was satisfactory or such as to warrant entitlement to the allowance.
“They would more importantly have to demonstrate or prove that their performance met the threshold to warrant payment of the allowance. It is trite that he who asserts must prove and the workers have not done that,” he noted.
However, he argued that if at all the employees were entitled to the allowance it would accordingly only be payable for the period of 2004 and 2012 when the CGU was part of or considered to be Special Forces.
Vergeer said as of now the CGU members have gone back to their initial mandate, which was State House guard, ceremonial parades, presidential escorts and VIP security.
“None of these functions fall to be considered Special Forces duties as they do not involve duties such as direct action missions, performance behind enemy lines, special reconnaissance missions, high impact offensive attacks designed to seize, capture or destroy targets and high impact missions designed to recover designated persons or materials,” he explained.
Meanwhile, the employees who the High Court held in their favour that they are qualified members of the Special Forces in the BDF and therefore, entitled to the allowance opposed the State’s appeal.
They countered their employer’s contention submitting that they are duly trained and qualified as Special Forces within the BDF and that they have undergone Special Forces training course and were issued with certificates.
Attorney Busang Manewe told court that both members of the Commando unit and CGU do the same Special Forces training and are issued with the same qualification for Special Forces.
He explained that there could not be any doubt that by training and qualification, the soldiers are Special Forces members.
“BDF cannot say otherwise about the employees being Special Forces because it is the Force which trained them and issued them with appropriate certification that they have indeed passed Special Forces training,” he said.
Manewe further submitted that in terms of the Permanent Secretary to the President Circular No.1 of 2020 and the earlier ones, it does not make the holding of an additional qualification of counter terrorism a condition precedent to earning the Special Forces allowance.
He explained that contrary to the State, the CGU and the Commando still fall under one command, the Directorate of Special Operations.
“Why would the CGU remain part of the DSO if they are not Special Forces? They are all Special Forces. There is nothing material that changed in terms of deployment post 2012. It was just cosmetic changes in names and nothing substantive,” he asked.
The decision on the matter is expected on April 29, 2022.