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Judgment reserved in ‘premature’ retirement suit


Brian Chiwanza

THE High Court on Tuesday reserved judgment in a case in which a former Public Works and Transport ministry transport officer is challenging his “premature” retirement following a dispute over his date of birth.

The applicant, Mohloli Lisene, who is represented by Advocate Molefi, cites the Principal Secretary in the Prime Minister’s Office, the ministries of Public Service, Public Works and Transport, the Public Service Commission and Attorney General as first to fifth respondents respectively in the lawsuit.

In his heads of argument, Mr Lisene argues that he was forced into an “early” retirement after receiving a letter from the first respondent notifying him to that he would be 60 years old on 12 January 2015 and thus expected to retire from the public service.

However, upon approaching the Principal Secretary in the Prime Minister’s Office, “to bring to his attention that there must have been a mistake regarding his date of birth”, Mr Lisene states that he showed the former documents, which included his passport, showing his date of birth as 12 December 1955.

The first respondent, he further argues, advised him to correct the “mistake” by making an affidavit “and he duly complied”. He, thus, implored the court to rule on whether he was entitled to correct his date of birth.

“Your Lordship will realise that respondents do not dispute applicant’s date of birth. Neither do they dispute the authenticity of applicant’s passport reflecting his age (sic) as the 12th day of December 1955.

In fact, it is disputable as to whether applicant provided a wrong date of birth,” said Mr Lisene.

Mr Lisene also states his public service form, called GP 103, only reflected the year of birth and not the date and month.

In his application, Mr Lisene called for his reinstatement until 12 December 2015, remuneration back dated to February and reimbursement for the costs of the suit.

He said the respondents’ argument that he is bound by his earlier representation that he was born on 12 January 1955 cannot be used against him since it infringes on his rights.

However in his submission, Advocate Mohloki, for the defence disputed Mr Lisene’s claim that he approached the Principal Secretary in the Prime Minister’s Office indicating a mistake regarding his date of birth.

“The respondents dispute further that the first respondent was convinced about his (Mr Lisene) new date of birth and brought this to the attention of the Director of Human Resources and that the director advised the applicant to correct such in the form of an affidavit,” argued Advocate Mohloki.

The defence also casts aspersions on Mr Lisene’s assertion that he corrected his date of birth with an affidavit which was placed in his file. They also dispute the veracity of the date of birth on his passport.

“Our submission is that the applicant has been retired by the first respondent based on the date of birth which the applicant had been using during his days of employment,” said Advocate Mohloki.

“For example, in 1995 and 1996 respectively, when the applicant was placed at Customs and Excise, his appraisal forms had shown that he was born on 12 January 1995. This made the applicant to retire on 12 January 2015.”

He added that Mr Lisene had failed to give reasons for giving a different date of birth in the First Appointment Form, which is filled by an employee when he is first engaged into the public service and as a result, “is bound by his representation”.

“Finally, the applicant has failed to prove his legitimate expectation to have retired on the 12th day of December 2015 as opposed to the 12th day of January 2015,” Advocate Mohloki argued.

Justice Tšeliso Monaphathi deferred ruling on the matter saying “don’t be surprised if I call you next week”.

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