Court rejects ex- teacher’s bid to return to work
Innocent Selatlhwa | Monday August 3, 2026 06:00
Justice Ranier Busang dismissed the bid by Cassius Tamaki, finding that he failed to establish either that the decision to retire him was unlawful or that government had violated any legitimate expectation by refusing to keep him in employment until the age of 65. The ruling also reinforces government's position that public officers who move from the teaching cadre into non-teaching positions become subject to the retirement conditions applicable to their new posts.
Tamaki had through his attorney Chabuya Lowani approached the High Court seeking to review and set aside the decision by the then Acting Permanent Secretary Kgomotso Ramoroka, arguing that he was entitled to retire at 65 because he joined the public service under the Teaching Service Act (TSA), which prescribed a retirement age of 65 for teachers. He further argued that Section 5(4) of the Public Service Act protected employees who were already in service when the TSA was repealed from being subjected to less favourable conditions of service. According to court papers, Tamaki received a notice in March 2024 informing him that he had reached the compulsory retirement age of 60 and would retire after serving the required three months' notice. He challenged the decision through representations to the Ministry, arguing that although he had later become a Principal Education Officer, the protection afforded to him under the repealed TSA remained intact. Government rejected those representations and proceeded with his compulsory retirement in June 2024.In court, Tamaki argued that his promotion into a non-teaching position did not extinguish the rights and benefits he had acquired while serving as a teacher. He also relied on the doctrine of legitimate expectation, arguing that government was obliged to honour protections preserved by the Public Service Act.
The Attorney General opposed the application. Government argued that once Tamaki crossed into the non-teaching cadre, he ceased to be governed by the TSA and instead became subject to the retirement age applicable to non-teaching public officers. It further denied that he had any legitimate expectation to remain in employment until the age of 65. In his judgment, Busang explained that the doctrine of legitimate expectation is not based on what a person hopes will happen.
Instead, the judge said it arises only where a public authority has made a clear promise or established a consistent practice upon which a person can reasonably rely. Although Tamaki claimed that other public officers in similar circumstances had been allowed to continue working beyond the age of 60, the judge said he failed to identify those officers or place any evidence before court to support that assertion. Without such evidence, the court said it could not conclude that government had acted inconsistently or unfairly. The judge further noted that Tamaki's claim rested largely on broad legal arguments without factual evidence showing how the principle of legitimate expectation applied specifically to his case. Busang also rejected Tamaki's claim that the retirement decision was unlawful. The judge observed that although the applicant repeatedly relied on Section 5(4) of the Public Service Act, he failed to explain how retiring him at 60 amounted to a less favourable condition of service.
The court pointed out that the argument that retiring at 65 would have allowed him to earn a larger pension was raised only later in written heads of argument and not in the founding affidavit itself. That, the judge held, was not permissible because affidavits constitute both the pleadings and the evidence in motion proceedings. 'A litigant must stand or fall by his founding affidavit,' Busang said while citing established legal authorities. The judge also rejected the argument that Parliament intended to preserve the retirement age of 65 for former teachers who later accepted non-teaching appointments. He noted that the TSA had been repealed and replaced by the Public Service Act. 'If the legislature had intended to reserve certain provisions of the TSA for the benefit of persons in the applicant's shoes it would have done so in very clear and unequivocal terms,' the judge said. Having found no merit in either the claim of illegality or legitimate expectation, the judge dismissed the application in its entirety. 'It is ordered that the application is dismissed with costs,' Busang ruled.