SSG retirees tussle employer over unpaid dues
Mpho Mokwape | Monday August 15, 2022 06:00
The nine ex officers, Tshenolo Kgaswane, Kgosietsile Malope, Otlaadisa Aabone, Tlamelo Ntabeng, Benjamin Barupi, Israel Keitumetse, Lindie Sebele, Elly Eshibaa and Tshotlo Majagoba who were all employed under the Special Support Group (SSG) are accusing the police service for failing to fulfill its promises of paying them their earned overtime allowance for a mission they participated in between 1996 and 1997.
The mission was commissioned by the former officers to help in the north of the country to eradicate the cattle lung disease. In the retirees’ court documents, they allege that the BPS has been making promises to pay their dues since and even after calling them individually in February 2018 instructing them to lodge their claims.
“The BPS made assurances that we will be paid but nothing was forthcoming for years even after we made proper claims and we were left with no choice but to seek legal intervention,” they say in court documents.
The officers’ case has been referred to the High Court to be heard afresh by a different judge after the then Justice Tebogo Tau dismissed the employees saying prescription had elapsed for the officers to seek payment.
The Court of Appeal bench comprising Justices Leatile Dambe, Isaac Lesetedi and acting judge, Tshepo Motswagole refused to agree with the BPS that prescription had elapsed. Justice Dambe explained that contrary to the conclusion by the court below, that prescription period had not been interrupted she did not think so.
“My view is that on the February 18, 2018 calls inviting the retired officers to lodge their claims and assurances given amounted to interruption. Prescription started to run anew on February 2, 2018 for another three years.
When the summons was issued on June 9, 2020 the period of prescription had not run out and the right of action was available to the ex officers,” she said. The judge pointed out that allegations made by the officers about calls made on February 18, 2018 were never refuted in the pleadings but rather the focus on the service in its plea, they pleaded that they had no knowledge of the contents which dealt with the events of that day.
She said in those circumstances, the court below should have determined the question of interruption on the basis that the former officers’ version alone stood undisputed.
“Following that approach, the court below would have found that the calls were made and assurances given and prescription was interrupted and it began to run anew from that day and it was still running when the action was lodged in 2018,” Justice Dambe said. Prior to the former officers seeking CoA intervention, the then judge, Justice Tau had dismissed the formers officers’ application in which they sought to be paid overtime earned during the cattle lung disease operation for those years within 30 days.
Also they wanted the court to declare that being housed in tents did not amount to being provided with accommodation and that for the period that the retirees were housed in tents, housing allowance at the rate of 15% of their salary should be paid to them. The BPS had argued that the cause of action prescribed in 2003 six years after 1997 the time when the operation ceased. However, the ex-officers disputed such claim submitting that prescription was interrupted in 2018 and began to run anew when each of them were telephoned by the leadership of SSG inviting them to lodge their claims and got assurances that claims would be paid.
The facts of the case are that the retired officers were employed by Botswana Police Service under SSG division until they retired at different times. From time to time while still employed had to carry out assignments out of the duty station. As per the court documents between April 1996 and July 1997 they went on a mission in the north of the country to participate in the eradication of contagious Bovine Pluero Pneumonia (cattle lung disease).
The retired workers allege that whilst on that mission they earned overtime and were not paid for it. “Sometime in February 2018 each of us received telephone calls from the leadership of the SSG asking us to lodge our respective claims. We duly submitted our claims and receiving assurances that our payments would be effected but nothing was forthcoming. We retired at different times without receiving our dues. The assurances for payment were made by the Assistant Commissioner, Lositamang Moshabi,” allege the employees.
On their second claim the employees allege that in terms of the Conditions of Service they were each entitled to free accommodation or housing allowance at the of 15% of their salary. They further alleged that for a considerable period whilst on the mission, they were housed in tents. The workers claimed that being accommodated in tents did not amount to proper decent living facility with basic amenities and for this reason they claimed housing allowance for various periods set out in their declaration. Ndadi Law firm represents the retired officers while BPS is represented by Begane Thema Modie Attorneys.