Former High Court judge lose appeal
Goitsemodimo Kaelo | Wednesday August 2, 2017 16:44
A bench of the Court of Appeal (CoA) Lordships which included CoA Judge president Ian Kirby, Abernethy and Hamilton last week upheld the High Court’s judgement, which dismissed Tshosa’s claim for gratuity. Tshosa had instituted summons in the High Court, claiming the sum of P519, 817.50 with interest and costs following his resignation in 2012 after a two year and six months service as High Court judge. His claim was made in terms of the Judges (Miscellaneous Provisions) Act Cap 04:03 but was refused on the basis of section 11 of the Judges Pensions Act Cap 04:07. Justice Leburu of the High Court dismissed his claim, hence the present appeal.
The CoA justices dismissed Tshosa’s grounds of appeal noting that the trial court was correct to hold that the appellant is not entitled to a gratuity under the Judges (Miscellaneous Provisions) Act and that his service was pensionable on the basis of his letter of appointment.
The CoA bench also concluded that the service of a judge does not have to be compensated by pension, or where no pension, a gratuity, but conceded that each is an earned reward for long service for the prescribed period.
Kirby, who handed down the judgement noted that the former judge did not qualify for gratuity because he served for no less than five years as provided for by the Judicial Pensions Act.
“The corollary to this is that where a Judge resigns before reaching the five year threshold, he or she is not entitled to receive a gratuity. The appellant resigned after serving for only two and a half years, and it is for that reason that he was denied his request for the payment of a gratuity,” Kirby said in the judgement.
The CoA judge president pointed out that a gratuity is not automatic but it is earned by continuing to work for a specified period. He made reference to Tshosa’s appointment letter, which he said details each of the benefits to be enjoyed by the Judge, including his entitlement to “a non-contributory pension” but without any suggestion of any entitlement to a gratuity or any expectation of such.
As set out in his appointment letter, Tshosa was entitled to free furnished accommodation or about P6,000 monthly housing allowance, 50% subsidy for utilities, 35% scarce skills allowance of basic salary, entertainment allowance at the rate of P11,508 per annum and a chauffeur driven vehicle.
Tshosa was appointed High Court Judge on December 18, 2009 and resigned on August 7, 2012.