Court confirms BDF de-linking
Mpho Mokwape | Monday March 4, 2024 06:00
BDF, which had embarked on a de-linking exercise involving linking salaries of BDF staff to their qualifications to improve and adjust salary scale of officers, found itself before the court of law fighting with some of its officers for the mistake made during the de-linking exercise.
Reportedly, 18 officers who held certificates not recognised under the de-linking exercise were included and benefited for a while from the dispensation when they were not supposed to. Upon realising its mistake, the BDF stopped the de-linking exercise and informed the officers about the stoppage of the benefits.
The officers, arguing that they had legitimate expectation, filed a case at court and the court ordered through a draft consent order that the officers were free to file a review application seeking to have the BDF decision to stop the de-linking exercise set aside. Then, the officers reportedly wanted the BDF Commander’s decision to stop the de-linking exercise be set aside and they continue enjoying the benefits as they had legitimate expectation. BDF appealed the decision and recently the Court of Appeal (CoA) granted it the appeal on reasons that the High Court endorsing a draft consent order was a serious misdirection.
The President of CoA, Justice Tebogo Tau, said the consent order, which was adopted and issued on March 23, 2022 by the High Court granting condonation to the officers to file a review application out f time, was a nullity and it rendered the proceedings invalid. “I agree with counsel for the BDF that the court did not interrogate the application that was before it judiciously as to whether it was properly before it. I would come to the same conclusion even if the court were to treat the application for condonation as application for leave. It is the court which has to exercise its direction to grant leave and not the parties,” she said. Justice Tau explained that counsel for the officers conceded that leave was not sought and that the application, which was before the High Court, was a nullity and also conceded that the court in endorsing the draft consent order presented to it by the parties abdicated its responsibility to judiciously determine what was before it. She further pointed that attorney for the officers also conceded that as the order was a nullity, it invalidated the order which was issued for the review application.
The judge said at the time of the filing of the condonation for the late filing of the review, application had not been filed and that it was only filed on March 30, 2022 after court issued an order for condonation. Justice Tau stated that it was therefore, improper to seek condonation of what was not properly before court and that as the application was not before court, the question of condonation of any failure to file the review application did not arise as there was nothing to condone. “The application for condonation was therefore, a nullity and should have been struck out,” Tau said.
The judge further emphasised that since the time of filing of condonation application over 60 months had elapsed since the decision, which the officers sought to take then they were therefore, required to seek leave of court before filing their application. She said leave granted is a condition precedent to the filing of review application and that it is a bridge, which one should cross before filing an application for review. “If it has not been filed where more than four months had elapsed before the review application was filed, the court would not entertain the application for review,” she concluded. Meanwhile, the legal battle between the parties is that the BDF reportedly embarked on an exercise of de-linking as part of the retention strategy, which was developed pursuant to the Presidential Directive of 2011.
The court papers shows that the implementation of the exercise involved linking salaries of BDF staff members to their qualifications and 15 qualifications were recognised by the Presidential Directive. Further, according to court papers, in April 2012 the BDF adopted and implemented the de-linking exercise, which adjusted upwards the salaries of some staff from B2 salary scale to the top notch of C2 salary scale, in recognition of their qualifications. “The officers that received adjusted salaries were qualified and holders of various National Craft Certificates in the following vocational trades; Auto Mechanics, Electrical and Installation, Auto Electrical, Panel Beating and Spray Painting, Heavy Plant Mechanics, Welding and Fabrication, Carpentry and Joinery,” reads the court papers. From April 2012 to January 2013 the officers allegedly benefited from the exercise until they were informed in a general meeting held by the Commander of BDF on December 10, 2012 that payments received were erroneously made and will be accordingly stopped. The National Craft Certificate was said to be not amongst the 15 approved qualifications, which the affected officers held. “Between December 2012 and January 2013, the Commander terminated the implementation of the de-linking exercise especially in respect of the officers who held the National Craft Certificate and withdrew all the associated benefits. Then, the officers sued the Commander of the BDF seeking an order reviewing and setting aside his decision to stop their payments, on the basis that they were not consulted and arguing that they had a legitimate expectation.
They contended that the decision to remove them from the de-linking exercise was substantively unfair, wrongful, unlawful, illegal, unreasonable and of no force or effect. They also said that they were entitled to be remunerated at a scale of C1 top notch from the time they were removed from the de-linking exercise until their retirement. The officers argued further that the Commander’s decision to remove them from the de-linking exercise and its implementation after almost a year, offended against the rules of natural justice as they were not afforded a hearing before the adverse decision was taken against them. “They submitted that they were entitled and eligible to benefit from the de-linking policy,” read the court papers.