Now, in a filed rescission application dated June 11, 2024, they seek leave to defend the main action blaming the non appearance during scheduled set down of the matter to an honest mistake that resulted from Justice Kebonang’s switching courts. In an affidavit deposed by Tsoebebe Mokhosoa, employed by the DIS as the Director of Corporate Services, he explains that non appearance and or late appearance in court by the substantive attorney was not owing to any negligence or disobedience of the court but rather to the honest mistaken error. “This was owing to the fact that she had gone to Broadhurst Magistrate’s Court as usual and did not know that the judge was not sitting in Broadhurst during that fateful day,” he said. Mokhosoa stated that reasons for seeking rescission of the default is that they had filed the plea timeously in the matter and that the default order was done erroneously as there is no rule in the Rules of the court that provides for granting of default judgment. He explained that the non appearance or late arrival in court in the situation was not on account of disrespect to the court or utter neglect of the rules of the High Court, but rather out of the unfortunate mistaken turn of events. On grounds for rescission and prospects of success, Mokhosoa said both parties’ position is that the judgment and the order were entered in favour of the applicants as a result of the unfortunate sequence of events. “The judge had an option of ordering wasted costs for that day and postponing the roll call or setting the matter for status hearing as the parties had already filed their relevant papers,” he said.
He further emphasised that the officers will not suffer any prejudice as they will have an opportunity to be heard, when the matter proceeds to the hearing and arguments being presented by parties, with the judge deciding whether they are entitled or not. Mokhosoa mentioned that the default judgment awarded by Justice Kebonang will greatly prejudice the applicants as they will not have an opportunity to prove their case at all. “Should the judgment not be rescinded, the officers will be unjustly enriched as they are not entitled to the claims they were granted in default of non appearance. The said non appearance or late appearance by the substantive attorney was not owing to any negligence or disobedience of the court but rather to the mistaken turn of the unfortunate events,” Makhosoa said. Mokhosoa further on their defence said the officers had failed to plead before the court on how in terms of their contract they are entitled to payment of all other claims in their papers.
Moreover, he said with regard to the claim of progression, when looking at the statues and directives, which govern the officers’ conditions of employment, they are not entitled to any payment and that as directors they would suffer by unjustly enriching the officers. “They have also failed to prove how they are entitled to progression and how it is a right and where they derive their claims from as progression in the public service is not a right nor entitlement but depends on various factors,” he said. On prejudice that the other party might suffer, he explained that the officers are entitled to oppose the rescission application and that in the event rescission is granted, they will still get another opportunity to advance their case when the trial proceeds. Meanwhile on June 3, 2024, Justice Kebonang declared failure by the DPSM, the DIS to pay salary back pays to officers unlawful following a non appearance by the State.
The background of the lawsuit is that about 406 employees last year issued a writ of summons against the DPSM, the DIS and the Attorney General on grounds that the decision taken by the government not to pay salary back pays effective from April 2008 was unlawful. The writ of summons came from a long standing issue between the officers and their employer on the fast tracking of employees’ progression, as the officers have in the past bemoaned that the DIS continues to ignore a court order that was issued against all ministries for salary scales and a subsequent directive by the DPSM enforcing the judgment. The employees' concerns were in relation to the DPSM’s Directive reportedly meant to fast track progression of public servants in the C-band category but at the DIS, it has been alleged by some employees that things have not been effected as per the Directive.
According to the officers, in 2007 the government introduced multiple titling and grading of C-band positions through a Savingram DPSM 13/34/9 (43) dated May 30, 2007. The Directive was reportedly meant for all ministries but with the government realising many were not complying as a follow up to the 2007 Savingram, the government issued Directive No. 6 of 2008, where the objectives of multiple grading and titling was vividly set out. However, the DIS on the other hand denied any breach of contract with its employees. In a response to the lawsuit, the DIS defended its decision not to fast track progression of the said employees on grounds that there was no contract breach and that progression is not automatic or an entitlement. “We deny that there was a contract breach as promotions in the public sector is based on certain factors. Promotion is not automatic nor an entitlement,” said the DIS.
