BDF Commander loses de-linking suit
Lebogang Mosikare | Monday September 12, 2022 06:00
The soldiers are based at the BDF Donga Military Garrison.
The Attorney General (AG) and the BDF Commander were cited as the first and second respondents respectively in the lawsuit.
Delivering the scathing ruling recently, Justice Tshegofatso Mogomotsi said central to the applicants’ discontent is that the Commander’s decision offended against the rules of natural justice in particular, audi alteram partem rule, after creating a legitimate expectation through implementation of the policy that they were entitled and eligible to benefit from the delinking exercise, only to terminate the same without affording them the opportunity to be heard, before taking a decision that adversely affected their welfare.
The Commander of the BDF through the AG opposed the review application.
“The gist of the respondent opposition is that in 2012, the BDF over which the second respondent (Commander) has superintendence over embarked on an exercise which they referred to as delinking, as part of the retention strategy, developed pursuant to the Presidential Directive CAB 15(B) 2011.
The implementation of the exercise involved having salaries of members of the BDF with certain and identified qualifications delinked from their ranks and linked to their qualifications.
Further that, in 2019, the Commander abandoned the implementation of the delinking and instead adopted and implemented the Permanent Secretary to the President’s Circular No. 1 of 2019, which effectively aligned the second respondent’s pay structure to the Public Service Unitary Pay Structure to cater for members entry level and progression,” said Justice Mogomotsi.
Whilst not denying that in implementation of the delinking exercise in 2012, the applicants were indeed included and paid consistently for a period of eight months before taking the adverse decision, which forms part the crux of this application, it is the respondents’ contention that there was an error in including the applicants and paying them in terms of the delinking exercise as their National Craft Certificate qualifications were not amongst the 15 they had identified to benefit from the delinking, said Justice Mogomotsi.
“In terms of their notice, the applicants seek an order in the following terms: (a) reviewing and setting aside the decision of the second respondent to remove them from the delinking exercise and (b) a declarator that their removal is substantially unfair, wrongful, illegal, unreasonable and void and of no force or effect amongst other reliefs...” according to the ruling.
The ruling further states that the Commander says that contrary to the applicants' assertion that they were never afforded a hearing but learned about termination of the implementation of the exercise from their salary advice slips, which reflected reduced salaries and absence of benefits extended to them by the second respondent, argued that it held meetings on December 10, 2012 in Gaborone, Francistown and Selebi-Phikwe about the erroneous inclusion of the applicants and other members of the BDF in the delinking exercise and erroneous payments thereof, the ruling continued.
The then deputy commander, now commander of the BDF, was one of the senior BDF officers who were assigned to brief soldiers who were affected by the delinking exercise, as per the answering affidavit deposed to by Brigadier Sidney Bigman Molomo.
“The applicants who stood to be disadvantaged by the termination and cancellation of the adjusted salary scales had the right to be meaningfully heard before the implementation of the adverse decision.
The right to be heard does not suggest that but the engagement should be such that it leaves room for a reconsideration of the anticipated decision...In the present case, when the second respondent initially took the decision to include the applicants under the delinking exercise and in fact caused them to benefit from the exercise, there is nothing filed of the record to suggest that they sought their inclusion.
Secondly, the second respondent, having included and then implemented the exercise, gave them the impression that they were eligible and entitled to receive the benefit,” Justice Mogomotsi noted.
The judge added: “He never informed the applicants of the time frame over which they would benefit from the exercise, or that it was a temporary arrangement or an arrangement of a fixed period let alone that the benefit was subject to review from time to time and that it could at any stage at a further and yet unascertainable date, be withdrawn or terminated...” “In the present case, the second respondent in a rather discourteous manner to both the court and applicants, never filed any record of proceedings or found it necessary to file an explanation for the non-existence of the record of proceedings despite timeous request for the production of the same by the applicants...The applicants have not only been put out of pocket and inconvenienced due to the delay in the implementation of the decision of the court but have suffered prejudice on account of lost opportunities regarding their progression had the respondents acted with despatch as when more and more court decisions reviewed and set aside their decision to unilaterally withdraw and terminate the implementation of the delinking exercise,” the judge pointed out. She added that in her considered view, this was a proper case in which the court in deprecation of the second respondent’s high handedness in his treatment of the applicants and egregious conduct, would properly award costs on a punitive scale. Mogomotsi then ordered as follows:
(a) the decision of the second respondent to remove the applicants from the delinking exercise be and is hereby reviewed and set aside for procedural impropriety and irrationality
(b) the applicants are entitled to their salary and other benefits/allowances with effect from the time of the delinking exercise
(c) it is declared that the applicants are entitled to remuneration at salary C2 top notch from the time they were removed from the delinking exercise to 2019 (d) the second respondent shall pay the applicants salary arrears from the date of their salaries under the delinking exercise to 2019 (e) the applicants shall be paid within 30 days from the date of this order (August 24, 2022) and (f) the respondents shall pay the costs of this application on attorney and client scale.
The soldiers were represented by attorney Tiroyaone Garebone.