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.
