CoA Justices, Isaac Lesetedi, and Mercy Garekwe all concurred with the apex court's president, Tebogo Tau, last Friday that the Attorney General has failed to meet the requirements for the special plea of issue estoppel, and therefore, dismissed. The ongoing legal battle of whether by-law officers are eligible for scarce skills allowance had reached CoA after the Attorney General (AG) and the Directorate of Public Service Management (DPSM) appealed the High Court’s decision to refuse their special plea of issue estoppel in October 2022 in the matter against 25 bye-law officers employed by AG. The by-law officers had brought action against AG and DPSM seeking declaratory orders on the basis of their qualifications of Diploma in Law and Diploma in Criminal Justice, as well as the duties they perform, entitled them to scarce skills allowance as per Directives of No.2 of 2008 and No. 1 of 2009. The officers believe, as per the Circular Savingram DP 2/5 XI dated April 23, 2008, they are qualified and eligible to be paid scarce skills allowance at the eligible rates of 35%, 30%, and 25% for bands E, D, and C, respectively. However, the employer opposed their case, raising a special plea of issue estoppel that the issue of by-law enforcement officers has been traversed and resolved by the High Court and Court of Appeal decisions of Bigani Kgomotso v Attorney General and another, where the court dismissed the appeal against the decision refusing payment of scarce skills allowance. They pleaded with the court that the employees were estopped from pursuing the same issue determined by the courts in the Bigani Kgomotso case. When dismissing the appeal, Justice Tau said the matter failed to meet the well-established requirements of exception or issue estoppel. These include that the previous judgment was given in litigation between the same parties, based on the same cause of action and with regard to the same subject matter or thing. “During the argument, counsel for the appellants conceded that the parties in the current cause are different from the parties in Kgomotso’s case. Having failed to meet that requirement, the special plea is therefore bound to fail. Even if we consider whether the other requirements have been met, Counsel conceded that the qualifications in the two cases are different, one being a Diploma in Law enforcement for Kgomotso’s case and a Diploma in Law as per the current case. That means that they failed to meet the second requirement of the same cause of action,” read Justice Tau’s judgment in part. Tau also dismissed the AG’s argument that the courts have relaxed the requirements of issue estoppel, stating that it is insufficient in this matter.
