High Court Judge Collins Parker has ordered the Department of Correctional Services to refund all deductions made unlawfully from the salaries of Correctional Officers on or before June 17, 2010 .
The deductions were made unilaterally by Correctional Services after the members received backdated salaries with effect from December 1, 2009 pursuant to a decision by the Prime Minister’s office on January 25, 2010. The payments were made in April and May 2010. However, soon after the payments were made the department had a change of heart, and acting on advice that the payments were not in accordance with the decision indicated in the Prime Minister’s letter, the department decided to deduct various amounts from the salaries of the officers to recover the alleged unauthorised payments.
The officers, not satisfied with the situation, decided to bring an application before the High Court to rectify the situation. They were represented by Steve Rukoro, on instructions of Mese Tjituri.
Cited in the suit was the Prime Minister, the Minister of Safety and Security, the Commissioner General of the Namibian Correctional Service and the permanent secretary in the Ministry of Safety and Security.
The respondents all opposed the application and were represented by Silas Kashindi, instructed by the Government Attorney.
Kashindi challenged the application by questioning the locus standi of the first applicant, Anna-Rosa Katjivena, to act on behalf of the members of the service.
Judge Parker, however, found Katjivena did have the necessary authority to bring the application. In fact, he said, Kashindi’s way of raising the challenge of the locus standi amounts to an ambush, not only of the court, but the applicants as well and was to their prejudice.According to the judge the crux of the matter is whether the respondents acted lawfully in making and continuing to make the deductions.
“Doubtless, the determination of the application turns primarily and squarely on the interpretation and application of the Prime Minister’s decision contained in the letter,” he said on Wednesday. Judge Parker said the wording in the Prime Minister’s letter are clear and unambiguous. “The applicants became entitled as of right to the approved salary scales, salary notches and increments attached to the grades of the new job category, ‘Correctional Officer’, with effect from 1 December 2009. This is the critical date on which their right inured.”
He said it does not lie in the mouth of a public servant, or indeed any person, to say the Prime Minister acted unlawfully when he decided the approved revised salary structure was with effect from December 1, 2009.
The judge reiterated that only a competent court can review and set aside a decision by an administrative body, or official, and that it would be sheer idle contention to argue the salaries attached to the appointments should not be with effect from the critical date set out in the Prime Minister’s letter.
In the end, the judge said, the respondents had no power in law to make and continue to make the deductions. He thus ordered the deductions unlawful and null and void and interdicted and restrained the respondents from making any or further deductions from the salaries of the officers.
He further ordered the respondents to pay back any monies unlawfully deducted from the salaries of the applicants and ordered the respondents to pay the costs of the applicants.