Mohalenyane Phakela

THE government and the judiciary have been slapped with yet another lawsuit over their failure to award salary increments to 79 court clerks. The clerks argue the increments are in line with the Judiciary Structure for grades and promotions which was approved in March 2017.

In their High Court application filed last week, the clerks want the judiciary and government to be compelled to move them from Grade C to Grade F as per the Judiciary Structure.

They also want the High Court to order that the judiciary and government to pay them salary arrears backdated to March 2017 when they were supposed to have been promoted to Grade F in terms of the structure.

Their lawsuit follows a similar one by 40 court messengers who a fortnight ago petitioned the High Court to order the Ministry of Finance and the High Court Registrar, ‘Mathato Sekoai to move them from Grade A to D and award them salary increments commensurate with their new grade. The messengers also want the ministry and the judiciary to pay them salary increments backdated to March 2017.

The messengers argue that it is discriminatory that Advocate Sekoai has been elevated from Grade K to L as per the 2017 structure and paid her arrears whereas they have been left behind.

Given that the messengers’ application has not been heard, it is possible that it will be consolidated and heard as a joint application with the latest one by the court clerks. The grounds for both lawsuits and orders sought are similar.

In their court papers, the clerks, argue that they had a “legitimate expectation” to be remunerated at Grade F from March 2017 and the failure to do so is prejudicial to them.

Adv Sekoai, the Ministry of Public Service Principal Secretary, the Ministries of Public Service and Finance and the Attorney General Rapelang Motsieloa are the first to fifth respondents respectively in the application.

“Around March 2017, a much-anticipated new structure for the judiciary was approved, in terms of which the applicants were elevated from Grade C to F,” one of the clerks, ‘Manaleli Makosholo states in her founding affidavit.

“Notwithstanding the approval and implementation of the judiciary structure, the applicants continue to be remunerated at Grade C as opposed to the legitimate expectation that they would be remunerated accordingly. The applicants are privy to the fact that their colleagues in the High Court filed an application under case number CIV/APN/24/2017 in which the High Court directed the first and second respondents herein (Sekoai and PS Public Service) to ensure that all those affected by the approved judiciary structure would enjoy equal treatment, protection, rights and status as contemplated in the judiciary structure. The said approved structure has, in so far as the applicants are concerned, not been implemented.

“The applicants have since discovered that around March 2017, the first and second respondents convened and arrived at a decision to reverse the applicants’ grading from F back to C. The reversal was never communicated to the applicants and no rational basis has been laid for the unfortunate decision.”

Ms Makosholo further argues that Adv Sekoai did not have the power to reverse their grading without consulting them.

“I assert strongly that the reversal is prejudicial to the applicants’ rights and therefore irrational. The first and second respondents therefore acted beyond the powers vested in them in arriving at the impugned decision.

“I aver that whatever influenced the reversal decision is unknown to me and my co-applicants and we can only at this stage conclude that irrelevant considerations were taken into account resulting in a wrong decision,” Ms Makosholo argues.

The 79 clerks therefore want the High Court to order that, “the decision to reverse the grading of the applicants from Grade F to C be reviewed, corrected and set aside as irregular”.

They also want the court to “direct the fourth respondent (Ministry of Finance) to process and pay all salary arrears that are due to the applicants in the event of their success in having the impugned decision set aside”.