In December 2004 while Dialwa was on a trip in Francistown he was transferred from Masunga to Tati Siding.
"It was then suggested by the personal officer that I should stay in Francistown because there was no accommodation in Tati Siding. Further my continued stay in Francistown was for the purpose of convenience as Francistown is central to the villages that I supply.
Francistown is also a filing point and it is the place from which I draw water and service of the vehicle is also done in Francistown. They also wrote a memo saying I will be commuted until further notice," says Dialwa.
He continued to say the commuted allowance was withheld without notice in spite of the express terms of the memo. The subsistence allowance, he continued was stopped in December 2004.
"The letter of demand was responded to by letter dated 28 September, 2005. The complaint was about accommodation in the field. R.I.E chapter 12 states that, 'when employees are sent to work out on the field, protection from the elements will be provided by temporary building... Ground sheets, blankets etc taking into consideration that health and reasonable comfort of the employees in the circumstances and economic facts.
"The provision of such protection shall not affect the payment of allowances, which are granted on other grounds.' I aver that all those were not provided to me. I wrote a letter of demand through my attorneys of record, Mothusi and Company.
"The response I got was that I had chosen to stay in Francistown and therefore was not entitled to accommodation. This I had consented to only because they had stated that there was no accommodation in Tati Siding."
Dialwa says he is entitled to payment of rentals as he has been paying rent whilst on duty in Francistown to the sum of P150 per month from July 2003 to August 2006 totalling P5, 700.
"It is the duty of the respondent to provide accommodation and all necessary equipment. Further the point of complainant is that R.I. E category II 3.16 has not been complied with to the effect that, 'in certain cases an employee is required to spend considerable time away from his duty station as part of his normal duties. These absences on duty are consistent throughout the year or throughout a particular season of the year and are not occasional absences," he declared.
His affidavit continues to state that in such cases, and provided the absences are not less than 15 days a month on average, a commuted rate of subsistence is payable. The night out allowance has not been paid from December 2004 to date at the stipulated government rate of P106.16 per night. This has not been paid and he believes he is entitled to such allowance as he was stationed in Tati Siding but residing in Francistown.
"The 669 nights at P106.16 per night totals P71, 002 by 2004. I'm also entitled to be paid weekend spend away days from December 2004 to date which makes 192 days at the rate of P91, 70 the total amount claimed being P71, 606, 40. Proper notice of intention to sue was given to the respondent dated March 30, 2006. In the premise I pray for the orders as per the attached notice of motion," he prays.
Meanwhile the NEDC, through its council secretary, Mable Mbaakanyi has filed the respondent's answering affidavit to oppose the suit. Through NEDC attorney, Nothando Mogale from Phumaphi, Chakalisa and Company prays that the applicant's notice of the motion be dismissed with costs or the punitive seal because it is vexatious and abuse of the court process.
