The Directorate of Public Service Management (DPSM) has won its legal battle against the Botswana Sectors of Educators Trade Union (BOSETU) in which the government recruitment agency had discontinued the scarce skills for school managers.
The Public Service Management had decided to appeal a 2021 court order, which directed that school managers once employed as teachers and held prerequisite skills that attracted scarce skills before being promoted to managerial positions be paid their due scarce skills allowance. The school managers per the court papers include school heads, heads of department, principal education officers and deputy school heads amongst others and were represented by BOSETU. The judgement pointed out that the guidelines of the directive that the school managers relied on was not in their favour because as the supervisees they are not doing the job listed in the directive. “It is obvious that a guideline to the implementation of the directive can only have efficacy in favour of the school managers if their supervisees are in occupants listed in the directive and certainly they were not,” reads the judgement.
Justices Isaac Lesetedi, Lakhvinder Singh Walia and Mercy Garekwe agreed that the criteria set in the directive and its guidelines listed the occupations whose skills were considered scarce and eligible for the allowance. Justice Lesetedi explained that nowhere in the directive was occupation of teaching included. “Qualifications are provided in the directive as an additional criterion for qualifying to entitlement for allowance and teaching being one of those criteria,” he said. He emphasised that it was important that a party in motion proceedings must make out its case in its founding papers not in its replying papers. Lesetedi said the reason for that was that the respondent’s answer to a case presented in the founding papers as the purpose of a replying affidavit was not to bring in new material in support of an applicant’s case but to reply to allegations in the answering affidavits, which were unanticipated by the appellant. “To allow an applicant to build its case in replying affidavits is to permit litigation by ambush to a respondent who ordinarily has one opportunity to answer the applicant’s claim. This opportunity is through an answering affidavit,” he said.
The judge pointed out that the points he mentioned was being fatal to BOSETU’s case especially that DPSM’s grounds of appeal appeared to have merits. In conclusion he said the DPSM appeal was upheld with costs and that the decision of the High Court was set aside. The appeal was against a Lobatse High Court judgement made by Justice Jennifer Dube that stated that as per the guidelines of the Public Service Management Directive No. 2 of 2008, on attraction and retention policy the managers qualified for the scarce skills regardless of any promotion. The DPSM and its director appealed the judgement on grounds that the managers were no longer teaching or carrying the same duties, therefore, they were prompted to withdraw such allowance on that account. The judgement and appeal followed a case in which BOSETU had taken the DPSM to court on behalf of its members, who were employed as teachers by the Ministry of Basic Education and subsequently promoted to higher positions within the ministry. BOSETU at the time wanted the court to declare that the decision by payment of the Scarce Skills Allowance be extended to school managers holding scarce skills qualifications in accordance with guidelines for implementation of DPSM Directive No. 2 of 2008, on the attraction and retention policy.
The union also wanted the court to direct that their members be reimbursed emanating from arrears accumulated from the time the allowance was stopped to the date of payment. The union had at the time argued that the concerned members held scarce skill qualifications in Mathematics, Chemistry, Physics, Biology, and Business Studies which DPSM had admitted that it attracted payment for scarce skills allowance in terms of the Guidelines of 2008 directive. However, the DPSM had in its papers denied that they violated provisions of the guidelines of the Public Service Management and that what they did was lawful and logical since those skills were no longer in use.