Paragraph 1.5, in the introductory Chapter, declares that the Director of Public Service Management is responsible for policy governing
the recruitment, pay, conditions of employment, leave, discharge and retirement of industrial employees and permits the delegation
of certain powers to Permanent Secretaries.
The subject of subsistence, which is dealt with in Chapter 3 which deals with Pay and Allowance, and in paragraphs 3.13, divides employees
into two categories. The first is category 1 being employees engaged for duty at an "established depot, base or permanent camp"
and "who can expect to return to such places, or their homes nightly." Category II are employees "who carry out work
of an itinerant nature some distance from their establishment bases, depots or camps and cannot return to these places or their homes
nightly but have to live in temporary camps and work irregular hours."
Paragraph 3.16 which deals with the commuted subsistence allowances to employees in
Category II provides:-
"3.16 In certain cases an employee is required to spend considerable time away from his duty station as part of his normal duties.
These absences on duty are consistent throughout the year, or throughout a particular season of the year, and are not occasional
absences. In such cases, and provided the absences are not less than fifteen days a month on average, a commuted rate of subsistence
allowance is payable.
The allowance is payable monthly at such rates as may be determined by the Director of Public Service Management in consultation with
the Permanent Secretary of the Ministry responsible for Finance.
If an employee who is paid a commuted subsistence allowance is absent on leave for an aggregate of more than 14 calender days in any
one month, the allowance for that month will not be payable."
The Appellants fall into Category II. On the 31st March 1981 Personnel Directive No,. 7 of 1981 was issued. It was in the form of
a circular to all Permanent Secretaries, Heads of Department, the Attorney General and the Auditor General and was headed 'Transfers
- Industrial Class". In the first paragraph it states that the conditions of service for Industrial Class are silent on the
question of transfers but that RIE paragraphs 2.3 and 2.4 are relevant. These subparagraphs deal with the recruitment of employees
to undertake projects in the rural areas and the filling of vacancies. Paragraph 2 of the said Directive 7 deals with the subject
of the transfer allowance. The Directive continues:-
6 "3. Commuted Subsistence will be paid to itinerant workers i.e. those who spend less than six months at one place of work and
return nightly to a temporary camp. If they move to another temporary camp, within those six months they will continue as itinerant
workers. When they move to a temporary camp with a work programme exceeding six months they will cease to be itinerant workers from
the day of the move, but their camp at the new location will be their permanent place of work and they will be entitled to transfer
allowance." Paragraph 4 deals with Category 1 workers and provides that when a worker is engaged at the site of temporary camp
or within daily travelling distance he is deemed to be a Category 1 worker and "the temporary camp is his place of duty".
He receives no allowance "unless sent out to work under conditions qualifying for subsistence." If he is moved he will
either be given a transfer allowance or a subsistence allowance "according to the expected stay at the new location."
The affidavits filed on behalf of both the Applicants and the Respondents were very short. Mr. Albert Jansen, the First Applicant
who was, at the time of making his affidavit, a mechanic employed at 80 Kilometre Base Camp with the second Applicant, a welder,
and the Third Applicant, a mechanic. He describes how the Rural Roads Teams were based temporarily at six named Base Camps. He says
that all the Applicants are entitled "under normal circumstances" to a subsistence allowance because they move from one
place to another when constructing roads
7 and are "Industrial Employees who have been employed and based at Gaborone (see Annexure "CI" - "C2").
"CI" to "C2" is the Directive of the 31st march 1981 referred to earlier in this judgment. It is said that Rural
Roads Teams Industrial Class Employees are placed in temporary structures and as the roads proceed these structures are destroyed
and new structures built at a place nearer to where the construction is taking place. It is contended that to all intents and purposes
"the rural roads staff must be considered to be based at Gaborone and Molepolole." The affidavit concludes with an allegation
that since December 1993 in the case of certain applicants and May 1994 for the remainder, the Roads Department without notice stopped
paying any commuted subsistence allowance without any reason or just cause. We were told during argument that the commuted subsistence
allowance constituted a very substantial part of the total salary of each of the Appellants.
The Chief Technical Officer in the Department of Roads, Ministry of Works Transport and Communication in his affidavit denies that
the commuted subsistence allowance is not being paid in accordance with the regulations and for the Directive. The deponent proceeds
to say that the camps on a road construction project are of two kinds. There is what he calls a base camp which is an employee's
"duty station" and a "forward or flying camp" which consists of tin huts with no amenities such as showers or
recreational facilities. These flying camps house workers sent as a forward team to go and prepare the main base as the road work
proceeds, before the earlier one which is too far from the scene of activity has been evacuated. The deponent admits that the Applicants
are employed as industrial class workers but denies that they are entitled to a commuted subsistence allowance. He continues:
"Under Regulations for Industrial Class Employees as read with Personnel Directive No. 7 of 1981 commuted subsistence
8 allowance will only be paid to itinerant workers, that is, "those who spend less than six months at one place of work and return
nightly to a temporary camp." If they move to another temporary camp within six months they will continue as itinerant workers.
When they move to a temporary camp with a works programme exceeding six months they will cease to be itinerant workers from the day
of the move, but their camp at the new location will be their permanent place and they will be entitled to transfer allowance."
It is said that all of the Applicants are presently based at KM 80 and were aware that they were moving to a base camp with a work
programme exceeding six months and clearly enjoy all facilities not present at flying camps where the workers are entitled to a commuted
subsistence allowance. In the replying affidavit certain of the allegations of fact are denied but the ambit of the denials is not
always clear. It is said, for example, that none of the Applicants was employed at any of the base camps referred to in the founding
affidavit by Albert Jansen. This may mean that none of the Applicants was engaged at any of the permanent base camps referred to
in the founding affidavit.
There is an allegation that one of the facilities namely running water which is supposed to exist at base camps is available only
to the supervisor in his caravan. However, it is noteworthy that in paragraph 9 of the answering affidavit it is not said that running
water is not available in the green huts. It is also alleged that certain of the photographs (C4 and C5) reflect the facilities available
only to supervisors at the residential places. There is a conflict of evidence here. In paragraph 9.2 it is said that it is not true
that workers at Mbobe flying camp were paid a commuted allowance. This is in conflict with what is said in paragraph 11.1 of the
answering
9 affidavit, but it does not seem that the particular circumstances of this camp have bearing on the issue of principle in the present
case. It is said that all the Applicants were employed at KM 80 and this allegation is not denied.
When the matter came before Gaefele AJ on the first occasion he considered that the evidence placed before him on affidavit was inadequate
and as a result invoked the provisions of Order 12 Rule 4 sub-rule 10 and directed that oral evidence on certain specific issues
be given namely
"(a) Whether Applicants who are stationed in base camps are placed there temporarily or they are on transfer.
(b)
How and when is subsistence commuted allowance paid in so far as annexure "CI and C2" of the founding affidavit is concerned
[CI and C2 is the Directive No. 7 of 1981 referred to above.]
(c)
Has such subsistence commuted allowance been paid to the Applicants, if so on what basis was allowance paid, if not, what were the
reasons for withholding it;
(d)
Did the Applicants in category A and B receive any payment of allowance prior to December, 1993 and May, 1994 respectively.
(e)
Is KM 80 a permanent base or a temporary structure. Are
10 all the Applicants presently based at KM 80? How long have they been at KM 80."
The learned Judge directed that the deponents to the founding affidavit and the answering affidavit were ordered to appear personally
to give evidence on these issues. The hearing took place and the second Applicant and Mr. Kgotlaetsile who was Chief Technical Officer
in the Roads Department gave evidence along the lines of their earlier affidavits.
The Notice of Motion and affidavit does not require that the Court should decide any question concerning the manner in which the amount
of the commuted subsistence allowance should be calculated in each set of circumstances. This might involve a detailed comparison
between the provisions of paragraph 3.16 of the RIE and the provisions of Directive No. 7 of 1981 and whether the latter constitutes
only an "elaboration" of the former or is in fact a purported amendment of it. Both Counsel in their arguments seemed to
agree that the Directive cannot be ignored; but for the Attorney General it was contended that it did not alter the basic question
of the persons who were entitled to payment of commuted subsistence allowances. The essential question it was said was to determine
the meaning of the phrase "duty station" in paragraph 3.16 of the RIE. If the meaning ascribed to these words, as submitted
on behalf of the Attorney General, is accepted, then there has been no failure to pay any allowances due to the Applicants and the
application must fail.
The argument for the Appellant proceeded on the basis that the words "duty station" referred to the camp where they had
first been engaged and their contract of service had been entered into. All other working camps were, on this argument, not duty
stations within the meaning of Regulation 3.16. The question whether a commuted subsistence allowance was payable must therefore
be adjudged with reference to absence from these three permanently
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