Bereng Mpaki
Justice is finally set to be served for 23 police officers who have waited for their international subsistence allowances in the region of M791 660 following their official training workshop in China in 2017.
The Appeal Court last month ruled that police officers are not excluded from the provisions of the Public Service Act of 2005, in a dispute between the 23 officers and their employer, Lesotho Mounted Police Service (LMPS) over unpaid travel allowances.
The 23 officers had attended the training that was fully sponsored by China, and upon their return home, each of them claimed M34 420 for international subsistence allowance from their employer.
The appellants were Mokoena Makhetha, ‘Mabatlokoa Masoabi, Habofanoe Qhobela, Phole Masila, Letsielo Mabitle, ‘Malichaba Tallasi, Sera Makharilele, Sebili Tjokosela, Sakhele Sakhele, Moeletsi Mafatle, Raohang Mofoka, Ramososanyane Mahapa, Ntohla Sehloho, Thabo Mohai, Sephoso Sekhonyana, Tumelo Ntoane, Motsamai Kholumo, Tuba Moloi, ‘Mamoeketsi Monaheng, Moeletsi Koloko, Moorosi Tlali and Cletus Sephaphathi.
The COMPOL, Staff Officer Training, Ministry of Finance, LMPS Human Resources Officer, Ministry of Police and the Attorney General were the first to sixth respondents in the matter before the Appeal Court.
Court documents indicate that the 23 officers initially sought judicial intervention in 2019 after their claims for their travel allowances in line with Public Service Regulations (2008) were turned down by the police management.
The Appeal estimates that each police officer must be paid M34, 420 as travel allowance for the China trip.
The police officer initially suffered a setback when the court dismissed their case on the basis that the Public Service Act, its regulations and the Basic Conditions, of Employment for Public Officers did not apply to police officers.
But the Court of Appeal overturned the initial ruling by indicating that police officers were in fact not exempted from the provisions of the Public Service Act, although the Police Act of 1998 and its regulations are silent on payment of travel allowances for police officers.
“In terms of Regulations 63 and 64 of the Public Service Regulations, promulgated in terms of Section 29 of the Act, international subsistence allowance and training allowance respectively, “shall” be paid to the officer who travels beyond Lesotho on official duty or on a training programme….” part of the judgment reads.
“Clause 28 of Basic Conditions of Employment for Public Officers (“Basic Conditions”) makes provision to the same effect. These Basic Conditions were promulgated by the Minister responsible for the Public Service under Section 14 of the Act. Furthermore, under clauses 38, 39 and 40, the same Basic Conditions make provision for allowances specific to “the public officer” serving in the LMPS, National Security Services; Lesotho Defence Force and Correctional Service: those allowances are for Radio operator, Driver and Band member. The contention that the Public Service Act, Regulations and the Basic Conditions are not applicable to the appellant cannot, therefore, be correct,” the judgment continues.
The Appeal Court concluded that the appellants were by law entitled to get travel allowances.
“To my mind, the question of prejudice does not feature at all, the issue rather, is what the appellants were in law entitled to. On the facts of this case, I am persuaded that they are entitled to be paid training allowances as prescribed by Regulation 65 read with Clause 28 of Basic Conditions and Ministry of Public Service Circular no.8 of 2009,” reads part of the judgment.
“The respondents are ordered to pay the applicants’ training allowance for the training they attended in the People’s Republic of China. The conduct of respondents refusing to pay applicants’ training allowance is declared unlawful.”
In their defense, the respondents raised the point that the appellants had waived their right to claiming travel allowances ahead of the trip.
“The respondents are basing their waiver defense on the ground that, before the appellants left for China, they were informed that they would not be paid their allowances as the funds for paying the same were unavailable. In any event, the argument goes, the appellants did not suffer any prejudice as they did not incur any incidental expenses during their stay in China, as the host catered for all the necessary expenses.
“The 1st respondent in his answering affidavit avers that the appellants were informed prior to leaving for China that there would be no international subsistence allowance and the fact that they knew is evidenced by their inaction since 24 July 2017 when they returned from China. That they waited for two years until May 2019 when they lodged court proceedings to claim the said allowances. The deponent contends that the practice of not paying police officers international subsistence allowance was brought about by the fact the police received many international invitations for training and most of the time the trips are fully sponsored and that due to lack of funds the police management stopped paying police officers who have been so invited international subsistence allowance.
“They are given an opportunity to decide prior to their departure to decide whether they would still attend without being paid international subsistence allowance, and in this case the same practice was followed. The 1st respondent avers that annexures “D” and “E” which the appellants contend created legitimate expectation were not authorized as they were issued on instruction of Assistant Commissioner of Police Mapola who was an interested party as he was part of the police officer who attended training in China. It should be stated that the issue of waiver is hotly contested.”
But the appellants argued that they along with members of the army, National Security Services (NSS) and Lesotho Correctional Services (LCS) were no different from civilian public officers when it comes to their regulation.
“It is the appellants’ contention that the court below committed a misdirection by concluding that Section 3 of the Act excludes them from its remit. They contend that the court a quo failed to realise that contrary to the view it held, the Basic Conditions of Employment for Public Officers of 2011 under Sections 38, 39 and 40 deals specifically with certain specified allowances which are applicable to the LMPS members, National Security Service, the Army and the Correctional Service, such as Radio operator’s allowance, driver’s allowance and band allowance.”
They further argued that the judge disregarded their claim that they had legitimate expectation to be paid their allowance on their return home based on the promises made by LMPS senior management, and the existing practice within the LMPS in terms of which LMPS members are paid international subsistence allowance for attending fully-sponsored international conferences or seminars.
The panel of judges who presided over the case was made up of Acting Judges of Appeal Moroke Mokhesi, Dr Phillip Musonda and Polo Banyane.
