DIS agents want dismissal of gov’t appeal on shift allowance
Mpho Mokwape | Monday June 22, 2026 06:00
Representing the agents, lawyer Uyapo Ndadi submitted that the law makes payment of shift allowances mandatory for employees working rotational shifts and asked the court to dismiss the government's appeal against the ruling.
Ndadi contended that the Attorney General's appeal is 'devoid of merit' and that the High Court correctly found the government acted unlawfully by failing to pay shift allowances prescribed under the Public Service Regulations. The appeal is without merit, raises no misdirection in law or fact and seeks to subordinate statute to administrative convenience,' Ndadi argued in the respondents' submissions.
The dispute stems from a judgment delivered by Justice Zein Kebonang on October 3, 2025, in which the High Court declared that the government breached Regulation 9(5) of the Public Service Regulations, 2011, by failing to pay shift allowances to the officers. The court subsequently ordered payment of the allowance and costs.
The government, through the Attorney General, has appealed the decision. However, Ndadi argued that there is no dispute that the officers worked rotational shifts and therefore qualified for the allowance. According to the court papers, the 144 officers have been employed as agents within the DIS and have continuously performed shift duties since 2009. Between 2009 and 2021, they worked an eight-hour rotational shift system before being moved to a 12-hour shift arrangement.
Despite this, the officers say they were never paid a shift allowance. Ndadi argued that Regulation 9(5) is clear and leaves no discretion to the government once an employee is engaged in shift work.
'The language of the Regulation is peremptory. The use of the word 'shall' signifies a mandatory obligation once an employee is engaged in shift duty,” he submitted. He further argued that the purpose of the regulation is to compensate workers for the inconvenience associated with working outside normal office hours and that the High Court correctly applied both the literal and purposive approaches to statutory interpretation.
A central feature of the government's appeal is its reliance on Public Service Management Directive No. 14 of 2000. But Ndadi argued that the directive cannot override the Public Service Regulations, which came into force years later. According to the respondents, the directive was merely an administrative instrument intended to address confusion surrounding earlier policies and cannot be used to limit rights created by legislation.
'A directive is an administrative policy instrument and does not have the force of law,' Ndadi said. He further submits that where there is any inconsistency between the directive and the regulations, the regulations must prevail. The respondents also challenge the government's contention that payment of shift allowances would amount to double compensation. Ndadi argued that shift allowances and overtime payments serve different purposes and are not mutually exclusive.
According to the respondents, ordinary salaries compensate employees for carrying out their duties, while shift allowances compensate them for the inconvenience of working unsociable hours. The officers further argue that nothing in the Public Service Regulations excludes shift workers from receiving overtime pay for working beyond their scheduled shifts.
'If such a limitation existed, the law giver would have said so either at Regulation 9 or 12,' Ndadi submitted. He also pointed to evidence placed before the High Court, which allegedly showed that some public servants receive both overtime and shift allowances. The respondents argued that the government failed to present evidence that the payment of shift allowances would result in double compensation.
Ndadi further submitted that administrative practices cannot override clear statutory provisions and warns against reading limitations into Regulation 9(5) that do not appear in the wording of the law. 'Any attempt to read implied limitations into the Regulation would amount to impermissible judicial re-drafting,' he argues. On the issue of retrospective payment, the respondents maintain that compensation for past unpaid allowances is the natural consequence of the government's failure to comply with the law.
Having found that the government breached Regulation 9(5), the High Court was obliged to restore the officers to the position they would have occupied had the allowance been paid when it fell due, Ndadi argues. The respondents are asking the Court of Appeal to dismiss the appeal, confirm the High Court judgment and order the Attorney General to pay the costs of the appeal.
'The Respondents established a clear statutory entitlement to shift allowance,' Ndadi stated. The outcome of the appeal could have implications for other public servants working rotational shifts across government, particularly where disputes arise over the interpretation and application of shift allowance provisions contained in the Public Service Regulations.
Meanwhile, the government, in its appeal, has asked the court to overturn a ruling that allows intelligence officers to receive two separate allowances for what it says is the same work-related hardship.
The state argued that the officers already receive a commuted overtime allowance, but a High Court ruling last year also granted them a shift allowance worth 15% of their basic salary.
Now the government is challenging that outcome, arguing it creates “double payment” for the same extended working hours. At the time, the High Court had agreed with the officers, finding that the provision gives a clear entitlement and should be applied as written. But the state says that interpretation ignores the broader structure of public service pay rules, particularly provisions on overtime and working hours in Regulations 8 and 12. According to the government, those rules already cover compensation for work beyond the standard eight-hour day.
In its written arguments, the Attorney General’s office said the two payments overlap in purpose.“Commuted overtime and shift allowance serve the same purpose in that an officer already receives a commuted allowance which is specifically calculated to cover extended or irregular working hours,” argued the government. The government submitted that paying both allowances would amount to unjustified duplication.
It says the officers are already compensated through a commuted overtime system designed to account for irregular and extended shifts, including the 12-hour rotation pattern they work under.
A key part of the government’s case is a policy document, Public Service Management Directive No 14 of 2000, which states that shift allowance should not be paid where an officer is already receiving another form of overtime-related compensation. The state said this directive has guided pay practice across government for more than two decades and has never been successfully challenged until now. It argued that the High Court was wrong to dismiss it as outdated simply because it predates the current regulations.
The Attorney General’s office maintains that such directives remain valid unless they are formally revoked or clearly conflict with legislation. In this case, it says, the directive is consistent with the regulations and helps ensure uniform pay administration. The government also warns that the ruling could have broader financial consequences for the public service.
It argued that allowing both allowances would create what it describes as “irrational and fiscally unsustainable” duplication of benefits across employees working similar shift patterns.
Beyond the financial issue, the state also says the High Court’s interpretation removed flexibility from public service administrators who are responsible for implementing pay structures. It is asking the appellate court to set aside the High Court decision and rule that officers must choose between either a shift allowance or a commuted overtime allowance, but cannot receive both. As an alternative, the government has suggested the matter be referred back for administrative reconsideration under the Public Service Management framework. The outcome of the case could affect how shift workers across the public service are compensated, particularly in roles that involve long or irregular hours.