Govt moves to block DIS shift pay
Mpho Mokwape | Monday October 27, 2025 12:13
The move, the government argues, contradicts established public service policy and creates a situation of double remuneration. The High Court had ruled that the officers of DIS are entitled to receive shift allowance under the Public Service Regulations.
Justice Zein Kebonang delivered the judgment in favour of Mohlouoa Motseko and 143 officers against the Attorney General (AG) after concluding that the officers had made a clear case and were legally entitled to the shift allowance.
The officers had claimed that they work shifts longer than eight hours and are entitled to a shift allowance in terms of Regulation 9 Rule 5 of the 2011 Public Service Regulations, while the government disagreed, saying they already received a commuted overtime allowance and could not be paid both.
According to the appeal filed on October 17, 2025, AG, acting on behalf of the Director of Public Service Management (DPSM), is now asking the CoA to overturn the High Court’s decision on multiple legal grounds.
In the notice of appeal, the government asserts that the High Court misinterpreted Regulation 9(5), arguing that the provision does not automatically confer the right to receive both allowances simultaneously.
Instead, the state maintains that the regulation must be read in the context of established public administration policy, which aims to prevent duplicate payments for the same category of work.
“The court a quo erred in law in holding that Regulation 9(5) creates an unconditional entitlement to a shift allowance. The expression ‘shall be entitled’ was incorrectly interpreted as mandating concurrent payment of both allowances,” the appeal reads
According to the state, the long-standing practice within the public service has been that an officer is entitled to either the commuted overtime allowance or the shift allowance, but not both, as both are forms of compensation for working outside standard hours.
The government also argues that this practice is not arbitrary but based on sound administrative and budgetary reasoning. It says that allowing both payments would lead to double remuneration for the same inconvenience, which contradicts the principles of fair and efficient public financial management.
Furthermore, a key point of contention in the appeal is the legal status and applicability of Public Service Directive No. 14 of 2000, which explicitly outlines the non-concurrent payment of commuted overtime and shift allowances.
The directive was issued by the DPSM under the authority of the Public Service Act, and according to the AG, it has never been repealed or rendered inconsistent by subsequent legislation or regulations.
The High Court, however, had dismissed the relevance of the directive, ruling that since it predates the 2011 Public Service Regulations, it could not influence the interpretation of the current law.
This position is now under scrutiny in the appeal as the government argues that the learned judge misdirected himself by holding that the Public Service Directive No. 14 of 2000 was irrelevant and incapable of guiding the interpretation of the 2011 Public Service Regulations.
“The directive remains a binding policy instrument regulating allowance payment. The administrative circulars and directives, such as Directive No. 1,4, form part of the interpretative context of public service regulations. They are not to be brushed aside simply because they were issued earlier in time,” contends the government.
The appeal further criticizes the High Court for failing to give weight to the doctrine of administrative consistency and practice, which holds that long-standing and consistent interpretations by competent authorities carry persuasive legal force.
“Since the issuance of the Public Service Directive No. 14 of 2000, the consistent government practice has been to pay either commuted overtime or shift allowance, not both. The learned judge failed to consider the legal weight of this consistent interpretation,” reads the appeal.
The state maintains that public officers have never before received both allowances concurrently and that the High Court’s ruling undermines decades of settled practice.
It warns that the judgment may set a disruptive precedent affecting not just the 144 applicants but many other categories of employees, thereby opening the floodgates to large-scale claims and fiscal strain.
The government’s grounds of appeal also point out one of the most strongly contested elements of the High Court’s decision, being the order that the shift allowance be paid retroactively from the date the 12-hour shifts were introduced.
The court had directed that the affected employees receive 15% of their basic salary as a backdated shift allowance, while the government argues that this quantum was excessive and lacked proper foundation in evidence or legal authority.
“The court erred in ordering payment without evidence, budgetary provision, or authorization. This creates an unfunded liability and sets an unjustified precedent for retroactive remuneration,” the appeal says.
The state insists that financial decisions of this magnitude must be grounded in budgetary policy, legislative authority, and fiscal sustainability, not merely judicial interpretation of administrative texts.
On the argument of a case with broader implications, the government thinks that although only 144 employees are listed as applicants in the case, the implications of the final ruling may stretch much further.
The government’s position suggests that the High Court’s interpretation could encourage similar claims across the public service, particularly in departments where shift systems and commuted overtime have been applied interchangeably or simultaneously.
It argues that if the higher court upholds the High Court ruling, the state may be liable for millions in retroactive payments, depending on how broadly the decision is applied.
The state maintained that the matter is not only a legal dispute over regulatory language but a clash between judicial interpretation and administrative discretion.
“It tests the balance between employee entitlements and fiscal responsibility, between literal readings of statutes and the practical realities of running a public administration,” reads the appeal.
In its concluding relief, the government is asking the CoA to allow the appeal and set aside the judgment of the High Court. It proposes that the court should substitute that judgment with an order dismissing the respondents’ application in full, with costs. Alternatively, the government suggests that the court may opt to refer the matter back to the Director of Public Service Management for administrative reconsideration under the Public Service Act and the applicable directives.
“The proper forum for implementation of allowance policy is the DPSM, which is empowered by law to regulate terms and conditions of employment in the public service,” the state argues.
Meanwhile, affected employees continue to express optimism. One public servant, who asked not to be named, said, “We are simply asking the government to honor what the law says. We are not asking for favors. We work long hours, and we believe we deserve both allowances.” The respondents are represented by Ndadi Law Firm, while the appellants are represented by the Attorney General’s Chambers.