Judges’ drivers cry foul over standby allowance
Lebogang Mosikare | Monday November 27, 2023 06:00
The drivers, who spoke to Mmegi on condition of anonymity for fear of possible victimisation by their employer, said the 120 days that the AoJ was given by Moesi to have complied with the order have elapsed. They bemoan that they are yet to receive their dues despite the AoJ having not appealed Moesi’s ruling.
In response to a questionnaire sent by Mmegi about the drivers’ gripe with the AoJ’s non-compliance with Moesi’s order, principal public relations officer of the AoJ (The office of the Chief Registrar), Tshepiso Jankome, briefly said: “The AoJ is engaging the drivers in order to implement the order referred to.” However, the response from the controversy-plagued AoJ by design or for other reasons known by it, did not address the issue that there is concern that the AoJ’s non-compliance with orders made by the courts that it oversees has the potential of leading other members of the public to also disrespect court orders-a situation that will lead to chaos.
The applicants, Chusin Tshenolo and 31 others, had taken the Attorney General (representing the then Ministry of Defence, Justice and Security) to court seeking a declaratory that their peculiar circumstances entitle them to a payment of standby allowance, that they be paid retrospective payment of standby allowance from the time of their employment as drivers until date of full payment, costs of the suit and further or alternative relief. When delivering judgment on the matter, Moesi said it was common cause that one of the several ministries of the government is the Ministry of Justice which is the product of the division into two of what used to be known as the Ministry of Defence, Justice and Security. “The Ministry of Justice is the parent of the Department of the Administration of Justice (AoJ) for whom the applicants serve as judges’ drivers. It is further a common matter that the government is also the employer of the drivers who work under the Ministry of Health (MoH),” said Moesi. At issue, Moesi clarified, was whether the government is inconsistent in the application of the parity principle in relation to the payment of an allowance known as standby allowance when it comes to the duties of the applicants and MoH drivers...
“The application is opposed by the respondent whose case is stated in the answering affidavit of one Tshegofatso Dioka who describes herself as a senior manager corporate services in the AoJ. She professes knowledge of the facts of the dispute by virtue of being in possession of related records and maintains that the application lacks merit and prays that it therefore, be rejected while yet she endeavours in the same breath to wash her hands of the matter claiming that the Director of Public Service Management would be best placed to answer...,” said Moesi.
“Be that as it may, my appraisal of the matters as put forth by both sides is that there is no dispute that judges’ drivers and as per their 2018 job effectiveness description, the applicants are always on 24 hour call being required to work beyond their normal hours occasioning the undertaking of unscheduled trips transporting judges and or judges and their families from time to time and that this qualifies the nature of the applicants’ duties to be characterised as peculiar or abnormal.” In the light of the foregoing, Moesi noted, the inquiry distils itself into two questions that require determination by the court namely (a) whether the applicants and Ministry of Health (MoH) drivers operate under similar circumstance in that they are all required to be on 24 hour call to be ready to provide their services during unscheduled trips and (b) whether the government pays MoH drivers standby allowance whilst such an allowance is not paid to the applicants... “I now turn to the respondents' case. As already noted in an earlier passage of this judgment, the respondents' case is stated in the answering affidavit of Dioka who describes herself as a senior manager corporate services in the AoJ.
Before going any further with the respondents' case, I must address what I consider to be an overriding concern on the part of the court stemming from Dioka’s position as regards the basis of her deposing the affidavit in question which she stated as being in her possession of the related records and then turning around to profess ignorance about the same matter. By my assessment, this posture of Dioka is not free from difficulty since to state the obvious, a deponent to an affidavit is like a witness testifying orally on oath or affirmation regarding facts within their knowledge,” Moesi stated. Thus, Moesi explained, the accepted principle being that the facts set out in an affidavit should lie within the deponent’s own knowledge, it cannot be competent for a deponent to profess knowledge of the facts of the dispute by virtue of being in possession of related records and then turn around to say in the same breath that someone else is better placed to respond to another party’s case... “Dioka also claimed that working outside normal hours is the nature of the job of chauffeuring judges; that annexure “B” does not state the driver of MoH as beneficiaries of the standby allowance, that the source of the annexure is unspecified rendering it unhelpful for the purpose of comparing drivers of the MoH and those of the AoJ.
She also maintains that the applicants are paid overtime allowance for rendering work outside working hours and that they would be receiving a double benefit were they to be paid the standby allowance as well...As already observed, it is common cause that the applicants’ duties are of a peculiar nature,” said Moesi.
He added: “It was suggested that being on 24 hour call by the applicants is the nature of the job of chauffeuring judges and therefore, warrants no compensation. Once again, I would say that this assertion, coming as it does from Dioka who undervalued her own testimony as already found, has no legal legs to stand on. There is as a result no evidence before court nor did my research turn up any in the form of a circular by the Director of Public Service Management providing to the contrary or specifically stating that no standby allowance is to be paid to the applicants because of the very exigencies of their services. Indeed, such a directive would in my view, be a travesty amounting to an unfair labour practice.” In the circumstances, Moesi noted: “I hold that the applicants have discharged the onus that lies upon them and established on a preponderance of probabilities a case for the reliefs they seek.” “The application will therefore, succeed.
With regard to costs, I can see now obvious reason why these should not follow the result. In the result, it is ordered that (a) the application succeeds (b) the applicants’ peculiar circumstances entitle them to a payment of standby allowance (c) the applicants shall individually be paid retrospective payment of standby allowance from the time of their employment as full time drivers (d) the respondent is ordered to pay the costs of the application. Pursuant to Section 7 of the State Proceedings (Civil Actions by or against Government or Public Officers), (Cap 10: 01), the respondent is hereby allowed a period 120 days to satisfy this order,” said Moesi.