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Employees win big against Ministry of Agriculture

Publishing Date : 20 January, 2020

Author : DAVE BAAITSE

Six disgruntled employees in the Ministry of Agricultural Development and Food Security have succeeded in their court bid seeking the review and setting aside of the decision of Permanent Secretary, in which two employees were promoted unlawfully.


In delivering his judgement on the 5th of December last month, High Court Judge Komboni, came to the conclusion that the procedure followed by the Permanent Secretary in making the appointments contravened Section 7(c) of the Public Service Act. The application which was made by 1st applicant, John Mthetho, 2nd applicant Tobin Phirinyane, 3rd applicant Gothusaone Mathiba, 4th applicant Inspector Phineas Moloi, 5th applicant Eric Mesho and lastly Sala Keipidile, sought a declaratory to the effect that where a post exists within a government ministry, public officers within the ministry who qualify to take up the position are entitled to be considered for it.


A further declaratory was sought to the effect that the 1st respondent (Permanent Secretary), acted unlawfully in failing to consider the Applicants for the positions to which 3rd respondent Aubrey Ranko and 4th respondent Jeffrey Balogi were promoted. Both Ranko and Balogi were, until the promotions which are sought to be set aside and reviewed, employed as Principal Scientific Officers in the Ministry of Agricultural Development and Food Security. They are currently occupying positions of Chief Scientific Officers at D1 job grade or scale. The basis of the review application aforesaid is that the promotions of both Ranko and Balogi were done in contravention of the Public Service Act Cap 26:02 and the General Orders.


While presenting the facts, High Court Judge Komboni said the 3rd respondent in the matter, Aubrey Ranko was promoted to the position of Chief Scientific Officer D1 grade to occupy the position of Farm Manager at Lobu Farm, following a presentation to the Promotion’s Board of the Ministry of Agricultural Development and Food Security by Dr. Phillemon- Motsu, the Director of Animal Production, on the 30th May 2018. Ranko was therefore hand- picked for the position without competition arising from other officers such as the Applicants.


According to Judge Komboni, the 4th respondent Jeffrey Balogi was appointed to the position of Chief Scientific Officer following an interview by the Promotions Board of the Ministry of Agricultural Development and Food Security on the 5th June 2018. He competed for this position with another officer, Motshegetsi Senku.


The Judge said from the record filed by the respondents, as reflected in the minutes of the promotion’s board on the 30th May 2018, it is clear that the 2nd Applicant being Tobin Phirinyane had submitted a grievance regarding the hand picking of Aubrey Ranko for the post and when this issue was raised by the board Dr. Phillemon Motsu stated that though most officers have similar qualifications as Ranko, the latter had vast experience and strong competencies and further that he is also mature, reliable and trustworthy.


It is these appointments on promotion of Aubrey Ranko and Jeffrey Balogi that triggered the application for review. The judge said it is now settled in the jurisprudence of Botswana that the well- established grounds for review of administrative or executive action are an illegality, irrationality and procedural impropriety. The court further settled that the court in a review application does not act as a court of appeal to enquire into the merits of a decision made by the person empowered to make that decision by statute.


The circumstances under which a declaration of rights or instances where declaration of rights can be granted by a court were ably summarized by the court of appeal in the case of Motlhala v Attorney General 2006 (1) BLR 282 at page 288 G-H where the following words of Zeitsman J.A appear;  


“(a) In terms of the Roman Dutch Law the declaratory order can be granted provided that there is an alleged infringements of rights and concrete controversy between the parties;
(b) The court will not give advice or pronounce upon abstract questions were no concrete advantage will accrue to the applicant if the application is granted;
(c) A declaratory order can be granted where consequential relief can be claimed but it is not claimed. However, the court has discretion and will in general not deal with matters piecemeal; and
(d) A declaratory order will not be granted if it does not decide finally an issue between the parties. The order so granted must be hiding in the sense of being res judicata”.


Section 7(c) of the Public Service Act provides that; “In making decisions in respect of the appointment, or other matters affecting human resource management every appointing authority and every supervising officer shall treat employees fairly and shall not subject any employee to nay arbitrary or capricious administrative decision”.


Clause 8.4.2 of the Public Service General Orders provides that; “If the post is one that can be filled by the promotion of a serving officer within the ministry department, the permanent secretary will include in his report the name of the officer he recommends for promotion for the post and will furnish to the appointing authority his record of service. He will also forward the name of any other officers who will be passed over if his recommendation was accepted and he will give in full the reasons for his recommendation”.    


 It was argued on behalf of the Respondents that they acted in terms of paragraph 8.3.3 of the General Orders which states that “in selecting candidates for appointment the main consideration is the efficiency of the public service”.  It is then argued that in making the appointments, the Permanent Secretary considered the said efficiency of the public service. In reaching the conclusion the Judge came to the conclusion that the procedure followed by the Permanent Secretary in making the appointments contravened Section 7(c) of the Public Service Act.


It was also concluded that the Applicants who held same qualifications and positions with both Ranko and Balogi were not treated fairly and the decision to exclude them from the promotion process was arbitrary and capricious. It is clear from the record that not only did the applicants hold similar positions and qualifications with Ranko and Balogi but in respect to some of the Applicants, they hold Master of Science Degrees, whereas they hold Bachelor of Science Degrees only, the court established.


It is also clear from the record that the average performance in percentage terms of some of the applicants exceed those of Ranko and Balogi. The Judge said from the papers it is clear that the applicants are not saying that they should have been the persons appointed. They are saying that they should have been given an opportunity to compete for the promotion in view of the above mentioned provisions of the Public Service Act and General Orders read together with their qualifications.


“I therefore come to the conclusion that the applicants have made a case for the orders they seek,” the Judge said. The Judge therefore made orders that; the decision of the Permanent Secretary to promote both Aubrey Ranko and Jeffrey Balogi be reviewed and set aside; declared that where a post exists within a government ministry, public officers within the ministry who qualify to take up the position are entitled to be considered; declared that the Permanent Secretary acted unlawfully in the failing to consider the Applicants for the positions which both Ranko and Balogi were promoted to and lastly ordered that Permanent Secretary and Ministry pay the costs of the application.


When questioned by WeekendPost, some employees of the Ministry of Agriculture who spoke on conditions of anonymity, revealed that some of the applicants are being intentionally sidelined by their superiors because they feel threatened. “For example, John Mthetho and Tobin Phirinyane are both reading for their final year in Doctorate so they pose a big threat to their bosses. At the same time they have critical analytical skills in their respective fields but they have since been grounded.


The idea is to frustrate them so that they leave voluntarily,” said an insider. Another employee said in their Ministry the bosses have introduced a divide and rule policy whereby you have to align to a certain faction in order to get all the favors including promotions and international trips. “It is not surprising that when they started pursuing the matter, some of them dropped along the way because they were promised incentives”.


At the time of going to press Attorney Chillisa M.M appearing with Attorney Modise S wrote to the Attorney General’s Chambers to state the time frame in which the orders of the high court including the review of the decision of the Permanent Secretary to review and set aside the promoted Ranko and Balogi be effected because nothing has been done to date. The respondents were represented by attorney Nkau R.D. 

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