Recently, Justice Tshegofatso Mogomotsi reviewed and set aside Segokgo’s decision to remove 16 soldiers from the delinking exercise for impropriety and irrationality.
According to the background of the lawsuit, in 2012, the BDF over which the second respondent (commander) has superintendence over embarked on an exercise which they referred to as delinking, as part of its retention strategy, developed pursuant to the Presidential Directive CAB 15(B) 2011.
The implementation of the exercise involved having salaries of members of the BDF with certain and identified qualifications delinked from their ranks and linked to their qualifications.
Delivering a scathing ruling, Mogomotsi said in her considered view, the case of the 16 soldiers who are based at Donga Military Garrison was a proper case in which the court in deprecation of the second respondent’s high handedness in his treatment of the applicants and egregious conduct, would properly award costs on a punitive scale.
The applicants further said that in 2019, the commander abandoned the implementation of the delinking and instead adopted and implemented the Permanent Secretary to the President’s Circular No. 1 of 2019, which effectively aligned the second respondent’s pay structure to the Public Service Unitary Pay Structure to cater for members’ entry level and progression.
In all these cases, the applicants sought an order in the following terms: (a) reviewing and setting aside the decision of the second respondent to remove them from the delinking exercise and (b) a declarator that their removal is substantially unfair, wrongful, illegal, unreasonable and void, and of no force or effect amongst other reliefs...” according to the ruling.
On other hand, the respondents (Attorney General) and the BDF commander, averred that the applicants’ qualifications did not form part of those qualifications envisaged by the Presidential Directive CAB 15(B) 2011 and that their inclusion was an error.
On Thursday, Segokgo was once again legally gunned down by four soldiers, based in Francistown and Selebi-Phikwe, who were similarly circumstanced like the 16 soldiers mentioned above.
In a judgment that was delivered by Justice Bengbame Sechele, the applicants just in the previous cases mentioned above, impressed upon the court that the respondent’s "recalcitrance knows no bounds" as he has for the longest time been aware of several High Court decisions concerning similarly circumstanced BDF personnel and which decisions unequivocally stated that the beneficiaries of the delinking exercise not only had a legitimate expectation that they will continue to receive their emoluments in accordance therewith but ought to have been afforded an opportunity to make representations before an adverse decision terminating their benefits was taken.
Both Sechele and Mogomotsi said Segokgo’s recalcitrance came against the backdrop of the following similar cases: MAHFT-000207 delivered by Justice Kholisani Solo (as he then was) on March 2015 and MAHFT-000243-18 delivered by Justice Phadi Solomon (as she then was) on April 2019 which the BDF lost with costs. Sechele and Mogomotsi came to the same conclusion that (a) the decision of the second respondent to remove the applicants from the delinking exercise be and is hereby reviewed and set aside for procedural impropriety and irrationality (b) the applicants are entitled to their salary and other benefits/allowances with effect from the time of the delinking exercise
(c) it is declared that the applicants are entitled to remuneration at salary C2 top notch from the time they were removed from the delinking exercise to 2019
(d) the second respondent shall pay the applicants salary arrears from the date of their salaries under the delinking exercise to 2019 (e) the applicants shall be paid within 30 days from the date of this order (August 24) and (f) the respondents shall pay the costs of this application on attorney and client scale.
