THIRTY police officers who attended a two-month training in the Peoples Republic of China between May and July 2017 will be paid a training allowance, not per diem, as they had demanded.
Dec. 1, 2023
5 min read
Court rules 30 cops entitled to training allowance
Justice Moroke Mokhesi
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They had claimed an international subsistence allowance (per diem) at the rate of 25 percent of the host country's per diem, but the Court of Appeal recently ruled that the officers should be paid a training allowance, not an international subsistence allowance.
The court cited the government’s Human Resources Management and Development Policy Manual, which states that short-term training is one that lasts a day or up to but not exceeding six months.
A subsistence allowance would see each police officer walk away with over R100,000, but they will each receive just M34,420 after the court found that it is a training allowance they are entitled to, not a subsistence allowance.
Acting Judges of the Appeal Court: Polo Banyane and Phillip Musonda agreed with Justice Moroke Mokhesi’s finding that the 30 police officers attended a short training and are, as a result, entitled to 10 percent of the host country per diem to take care of their incidental out-of-pocket expenses.
“Clearly, the appellants were not attending a meeting or a conference but a short-term training, and in terms of Regulations and the Basic Conditions, they were entitled to a training allowance,” reads the judgement in part.
Justice Mokhesi also ruled that the contention that the Public Service Act, Regulations, and Basic Conditions are not applicable to police officers is not correct. The 30 officers had to approach the courts after their demand for the allowance was ignored, allegedly because the government was broke. They argued that the government’s refusal to release their allowances was unlawful.
However, High Court Judge Keketso Moahloli cleared the government of any wrongdoing in its refusal to pay the allowances on November 11, 2022. He ruled that Public Service Regulations 2008 and Basic Conditions of Employment for Public Officers Notice 2011, on which the officers base their claims, do not apply to them as members of the police.
“Provisions of the Public Service Regulations and the Basic Conditions of Employment for Public Officers Notice do not apply to the Commissioner of Police and members of the Police Force as they are specifically excluded from the scope of application of the Public Service Act,” Judge Moahloli said.
Section 64 of the Public Service Regulations speaks to the international subsistence allowance. It states that the allowance shall be paid to an officer who travels outside Lesotho on official duty and spends the night away from his or her duty station, as may be determined by the minister in consultation with the minister responsible for finance.
A subsistence allowance is a payment in lieu of maintenance expenses that an officer incurs on an official trip where a night is spent away from the officer's duty station. It is provided to cover expenses that include accommodation, meals, local travel, laundry, medication, and airport taxes.
The Basic Conditions of Employment on the other side state that a public officer who travels outside Lesotho on a study tour, conference, or meeting and spends a night away from his or her duty shall be entitled to a payment of international subsistence allowance at the rate of 25 percent of the host country per diem if the event is fully sponsored by the host country or any organisation, and 100 percent of the country’s per diem if the event is not sponsored by the host country or any organisation.
The seminar attended by the 30 police officers was fully sponsored by China and was on Grand Events Control System Construction for Lesotho. In its judgement, the Appeal Court said the complainants 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 2008. It also declared the government’s refusal to pay the police officers unlawful.
The police officers had argued that since they travelled outside Lesotho to China to attend a seminar and spent 68 nights away from their duty station, they are entitled to an international subsistence allowance at the rate of 25 percent of the host country.
The government, in opposing the matter, said the Public Service Act does not apply to police officers, as they are catered for under the Police Service Act. It was argued that the High Court correctly concluded that police officers are not public officers.
However, Advocate Ntsane Lesenyeo had argued on behalf of the 30 police officers that, despite being governed by the Police Act, police officers are public officers and therefore qualify for the International Subsistence Allowance as laid down by the Public Service Act and Basic Conditions of Employment for Public Officers Notice 2011.
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Lesenyeho said the High Court’s finding that his clients aren’t public officers was a wrong interpretation of the law. “It can’t be said that they are not public officers; even though they have their own acts, we are public officers and should be granted the allowance.”
He added, “We need not be here today litigating about this, as there was an undertaking from the then Commissioner of Police and Minister that the allowance would be paid.”
The complainants asked the court to rule in their favour, saying they had a legitimate expectation that the allowance would be paid. “We left our jobs and did a study, and we were promised that upon our return, we would submit our claims and be paid.”
Superintendent Mokoena Makhetha, who had deposed to an affidavit on behalf of fellow colleagues, told the court that the then Acting Deputy Commissioner of CID, Janki Hlaahla, had said Lesotho had no funds to pay subsistence allowance at the time of their departure but that it could not be a barrier to prevent the officers from performing their duties, indicating that upon return, participants would be given a chance to apply for the allowance as it is their entitlement.
Advocate Thomas Thakalekoala for government had also told the court that at the time when the complainants attended the seminar, there was a government policy to the effect that per diems would not be paid in that financial year, and therefore, in terms of Section 112 of the Constitution, the policy was binding on the police officers.
The Appeals Court was not convinced and said that, in terms of the law, the 30 peace officers were and are entitled to a training allowance.
“My calculation of what the appellants were entitled to is M34, 420; this is 10 percent of the subsistence allowance for incidentals applicable to China at that time,” Justice Mokhesi said.