DIS head challenges ‘ambiguous’ court order
Mpho Mokwape | Monday August 3, 2026 06:00
In a newly filed founding affidavit before court the chief spy says the court order issued in 2024 involving Pelotshweu Masilomangwe and 406 others on salary backpays will not be implemented in its current form. According to Magosi, after considering the pleadings, court orders and judgments in the matter and consultations with the Director of Directorate of Public Service Management and the Attorney General, he has come to the conclusion that the judgment cannot be executed. The dispute centres around a default order granted by former judge Zein Kebonang on June 3, 2024 and he says the order declared that the decision not to pay the plaintiffs back pay was unlawful.
The order referred to several possible dates from which the payments could be backdated, including 2001, when Directive No. 10 of 2001 came into force, and April 2008, based on Directive No. 6 of 2008 and a government Savingram. Magosi says the government believes the default order is wrong in law but accepts that court orders must be obeyed where they are clear and capable of being carried out. However, he argues that this particular order does not meet that standard. 'The essence and/or substance of the default order, as I understand it, is that the decision by the defendants not to pay the plaintiffs is unlawful,' the DIS head says. He adds that although the government considers the order legally incorrect, 'it ought to be obeyed and complied with to the extent that it is clear, unambiguous and capable of compliance.' He argues that the order is not clear because it does not give reasons for the decision and simply repeats the wording used in the plaintiffs' declaration.
According to Magosi, 'the default order is, respectfully, a cut and paste of prayers A-D of the plaintiffs' declaration together with the errors therein.' Magosi says the order is ambiguous because it was granted in the alternative and does not clearly direct what should happen. He says it does not expressly order the defendants to pay the plaintiffs, does not specify the amounts to be paid and does not state the exact dates from which any back pay should be calculated. He argues that it is also contradictory because it refers to both 2001 and 2008 without stating which date should apply. He further states that the order 'does not state or direct or determine as to when the plaintiffs ought to be paid backpays.' As a result, he says the parties are left to decide for themselves whether any payments should be calculated from 2001 or 2008. Magosi says that instead of resolving the dispute, the judgment creates uncertainty. 'The default order is confusing and unclear and leaves it up to the parties to determine as to whether any backpays ought to be from 2001 or 2008,' he says. Additionally, he describes it as 'a vague and an open-ended 'pick one' Order.' He argues that the order is in the nature of a declaratory judgment because it does not compel the government to take any specific action. Despite this, he says the plaintiffs have repeatedly threatened contempt proceedings against the defendants and have previously approached the courts for such orders.
Magosi says the government believes the order cannot be enforced because of its wording and asks the court to rescind or vary it under Order 48 Rule 1(b) so that any ambiguity can be removed. He notes the order should clearly state whether back pay is due, from what date it should be calculated and how the amounts should be determined. A major part of Magosi's affidavit focuses on Directives No. 10 of 2001 and No. 6 of 2008 arguing that neither directive gives employees an automatic right to salary progression or automatic entitlement to back pay. Instead, he says progression depends on an employee's performance. According to Magosi, the plaintiffs did not plead that they had met the performance requirements necessary for progression. He says that without any finding that the plaintiffs qualified for progression, there is no basis for calculating back pay under either directive. He states that 'Directive No. 10 of 2001 does not grant an unqualified right of automatic progression' and similarly says that 'Directive No. 6 of 2008 does not grant an unqualified right of automatic progression.' Magosi also points to what he describes as an error in the wording of the order. He says one paragraph states that 'the decision to pay the defendants' is contrary to Directive No. 6 of 2008 instead of referring to the plaintiffs.
He argues that this wording is incomprehensible because the defendants are not claiming back pay from themselves. 'Directive No. 6 of 2008 places no obligation on the Defendants/Applicants to pay themselves and nor are the Defendants owed any back pays,' he says. The DG says that because of these problems, the government does not know from which date any back pay should be calculated. He also argues that neither the 2001 nor the 2008 directive automatically entitles employees to back pay or requires payments to be backdated. He further says the default order does not contain any finding on when each individual plaintiff became entitled to progression. According to him, this makes compliance uncertain because there is no judicial determination of when each employee may have qualified. Magosi outlines the history of the litigation, saying the government has always been dissatisfied with the default order and previously sought to have it rescinded. He says that application was unsuccessful and that an appeal did not proceed because of procedural irregularities.
He makes it clear that he does not blame the plaintiffs for those procedural issues. He also notes that the plaintiffs later obtained contempt orders against the defendants, but those contempt orders were subsequently rescinded. Magosi says the parties have since engaged in lengthy discussions aimed at resolving the dispute and agreeing on how to implement the judgment, but those efforts have not succeeded. According to Magosi, the wording of the default order remains the main obstacle to resolving the matter. He says he believes removing the ambiguity would allow the judgment to be implemented and enforced properly. He argues that varying or rescinding the order would not change its substance but would instead provide certainty for both sides.
He also says the plaintiffs would not suffer prejudice if the order is clarified. Magosi sums up by asking the High Court to grant the application and the relief sought in the accompanying notice of motion. He says the government has met the requirements of Order 48 Rule 1(b) because it has demonstrated that the default order is ambiguous, contradictory and incapable of implementation in its present form.