Tsotang Seatile & 61 Others V Minister of Justice and Law & 3 Others (C of A (CIV) No. 24/2025) [2025] LSCA 55 (7 November 2025)

# Tsotang Seatile & 61 Others V Minister of Justice and Law & 3 Others (C of A (CIV) No. 24/2025) [2025] LSCA 55 (7 November 2025) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/55/eng@2025-11-07) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lsca/2025/55/eng@2025-11-07) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lsca/2025/55/eng@2025-11-07) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lsca/2025/55/eng@2025-11-07) [ __](mailto:?subject=Take a look at this document from LesLII: Tsotang Seatile & 61 Others V Minister …&body=https://lesotholii.org/akn/ls/judgment/lsca/2025/55/eng@2025-11-07) [ Download PDF (305.4 KB) ](/akn/ls/judgment/lsca/2025/55/eng@2025-11-07/source) Report a problem __ * Share * [ Download PDF (305.4 KB) ](/akn/ls/judgment/lsca/2025/55/eng@2025-11-07/source) * * * * * Report a problem __ ##### Tsotang Seatile & 61 Others V Minister of Justice and Law & 3 Others (C of A (CIV) No. 24/2025) [2025] LSCA 55 (7 November 2025) Copy citation * __Document detail * __Related documents * __Citations 2 / - Citation Tsotang Seatile & 61 Others V Minister of Justice and Law & 3 Others (C of A (CIV) No. 24/2025) [2025] LSCA 55 (7 November 2025) Copy Media Neutral Citation [2025] LSCA 55 Copy Hearing date 10 October 2025 Court [Court of Appeal](/judgments/LSCA/) Case number C of A (CIV) No. 24/2025 Judges [Musonda AJA](/judgments/all/?judges=Musonda%20AJA), [Van der Westhuizen AJA](/judgments/all/?judges=Van%20der%20Westhuizen%20AJA), [Mathaba AJA](/judgments/all/?judges=Mathaba%20AJA) Judgment date 7 November 2025 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Administrative Law](/taxonomy/case-indexes/case-indexes-commercial-administrative-law) * [Administrative Action](/taxonomy/case-indexes/case-indexes-commercial-administrative-law-administrative-action) Summary ###### Flynote Administrative Law — Legitimate Expectation — Job Evaluation and Grading — Public Service Commission’s Decision to Grade Judicial Officers — Whether Central and Local Court Presidents had Legitimate Expectation to be Placed at Grades I and H Respectively — Unsigned Answering Affidavit — Effect — Jurisdiction of High Court. Read full summary * * * Skip to document content ###### Flynote Administrative Law — Legitimate Expectation — Job Evaluation and Grading — Public Service Commission’s Decision to Grade Judicial Officers — Whether Central and Local Court Presidents had Legitimate Expectation to be Placed at Grades I and H Respectively — Unsigned Answering Affidavit — Effect — Jurisdiction of High Court. LESOTHO IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU C OF A (CIV) NO: 24/2025 CIV/APN/132/2021 In the matter between: TSOTANG MICHAEL SEATILE & APPELLANTS 61 Others AND MINISTER OF JUSTICE AND LAW 1STRESPONDENT MINISTER OF PUBLIC SERVICE 2ND RESPONDENT JUDICIAL SERVICE COMMISSION 3RD RESPONDENT ATTORNEY GENERAL 4TH RESPONDENT CORAM: MUSONDA AJA VAN DER WESTHUIZEN AJA MATHABA AJA HEARD: 10 OCTOBER 2025 DELIVERED: 07 NOVEMBER 2025 2 FLYNOTE Administrative Law — Legitimate Expectation — Job Evaluation and Grading — Public Service Commission’s Decision to Grade Judicial Officers — Whether Central and Local Court Presidents had Legitimate Expectation to be Placed at Grades I and H Respectively — Unsigned Answering Affidavit — Effect — Jurisdiction of High Court. An unsigned and unauthenticated answering affidavit has no evidential value and must be disregarded. In motion proceedings, affidavits serve both as pleadings and as evidence; failure to comply with oath requirements renders such an affidavit non-existent. The doctrine of legitimate expectation protects procedural or substantive expectations arising from a clear, unambiguous promise or a consistent past practice. Absent such promise or practice, employees cannot legitimately expect a particular grading outcome. Job evaluation and grading under Regulation 45 of the Public Service Regulations 2008 is a systematic and policy-driven process falling within the competence of the Ministry of Public Service, not the courts. Since the appellants’ positions were in fact upgraded rather than downgraded, no adverse decision arose to warrant a hearing. Their expectation to be placed at higher grades (I and H) was unreasonable and not protected by law. Moreover, complaints about grading constitute a grievance within the meaning of the Public Service Act 2005 and fall under the jurisdiction of the Public Service Tribunal and Labour Court, not the High Court. Held: Unsigned answering affidavit struck out as invalid. No established practice or promise supporting legitimate expectation. Decision to place appellants at Grade G lawful and rational under Regulation 45. High Court lacked jurisdiction to entertain a grading dispute. 3 Appeal dismissed — no order as to costs, appellants being public officers whose query was ignored. JUDGMENT MATHABA AJA Introduction [1] The case concerns the decision by Public Service Commission to place Central and Local Court Presidents at Grade G following approval of organisational structure for Judiciary in 2017. The question that needs to be answered is whether Central Court Presidents and Local Court Presidents had a legitimate expectation to be placed at Grade I and H respectively. [2] The case originated in the High Court where the appellants amongst others sought an order that Central Court Presidents and Local Court Presidents be regraded and remunerated at Grade I and H respectively and a declarator that the appellants should be accorded the renumeration and benefits and privileges attaching to the above-mentioned grades effective from 21 February 2017. [3] The High Court (per Mahase J) dismissed the application amongst others on the ground that granting it would offend against the principle of separation of powers since the appellants were not reviewing the decision of the Public Service Commission. The appellants now appeal against that decision on several grounds which during argument Mr Letsika for appellants collapsed into one ground that the Court a quo erred and misdirected itself in not finding that the appellants had a legitimate expectation that their positions would be regraded and placed at Grade I and H. 4 Background [4] It is apposite to indicate at the outset that the intention to oppose was not signed. What is more, contrary to the Oaths and Declarations Regulations,1 the answering affidavit too was neither signed by the deponent nor by commissioner of oaths. Undoubtedly, there has not been substantial compliance with the Regulations. Thus, the answering affidavit is fatally defective and has no evidential value. It is trite that in motion proceedings, affidavits serve the function of both pleadings and evidence. An unsigned “affidavit” does not only fail to serve its primary purpose of being evidence, but it also undermines the integrity of motion proceedings. [5] It follows to say, unreservedly, that given that the “answering affidavit” is unsigned, it is essentially non-existent and the Court a quo ought not to have relied on it. One may be tempted to think that I am being too formalistic, technical and fastidious with this approach. That is plainly not so given that affidavit is evidence. In the circumstances, reliance will not be placed on the “answering affidavit” in setting out the relevant facts and in the actual determination of this appeal. [6] It is now convenient to set out the facts. The Ministry of Public Service developed a strategic plan for the Judiciary for the period 2016/2017 to 2019/2020. As it usually happens, the development of the strategic plan was followed by the design and approval of organisational structure. I interpose to explain that prior to introduction of the new organisational structure, the 1 Oaths and Declarations Regulations, 1964 – Government Notice No. 80 of 1964. 5 positions of Central Court Presidents and Local Court Presidents were at Grade F and E respectively. [7] The decision on the approval of the organisational structure for Judiciary was communicated to the Registrar of the High Court by a Savingram dated 21 February 2017. The structure which reflects the positions as well as their grades was attached to the Savingram. [8] The problem arises from the decision to place both positions at Grade G together with the positions of senior clerk of court and court assistant in the new structure. The appellants’ gripe is that their positions should have been placed above those of the Senior Clerk of Court and Court Assistant. As foreshadowed in paragraph 3, they contend that the position of Central Court President and that of Local Court President should have been placed at Grade I and H respectively. [9] Discontented with the grading, the appellants made effort to engage the respondents, particularly the Registrar of the High Court, to have the grading revisited and the matter resolved amicably. The appellants were ignored and their letter dated 9 February 2021 to the Registrar copied to the Attorney General did not elicit any response. I digress to note that responding to employees dismissively or ignoring their queries is worrisome. It can easily lead to severe consequences including drops in staff morale and productivity. [10] Reverting to the main issue before us, the appellants are impugning the decision on the basis that they entertained a legitimate expectation that the positions of Central Court President 6 and Local Court President would be placed at Grade I and H respectively. They contend that there is no rational basis for placing their positions on the same grade as the positions of Senior Clerk of Court and Court Assistant given that the positions perform different functions and require different skills set and academic qualifications. [11] Further, in an endeavour to differentiate the positions, the appellants contend that unlike senior clerks of court and court assistants, they are exposed to risks by virtue of their positions. Additionally, the position of Senior Clerk and Court Assistant fall under direct supervision of the President, so asserts the appellants. That said, the assertion regarding reporting lines is not accurate. In terms of the organisational structure, senior clerks of court and court assistants report to principal clerk of court and not to Central Court or Local Court Presidents. [12] In relation to legitimate expectation, the appellants assert that they legitimately expected that the positions would still be treated differently and that their expectation emanates from “previous consistent established practice in terms of which the respondents treated these positions differently by placing court presidents at higher grades than the clerks of court.” Further, the appellants contend that given the standard practice of treating the clerks and presidents of courts differently, they expected to have been heard when the Ministry of Public Service decided to deviate from the practice. [13] The appellants had pleaded discrimination in terms of section 18(2) and (3) of the Constitution, as well as asserting that 7 the respondents are guilty of contravening section 19 of the Constitution. However, this argument was not pursued both in written and oral argument before us. In fact, when the Court asked Mr Letsika if the appellants had pleaded the forbidden grounds of discrimination under section 18, he stated that the kernel of the appellants’ case is that they had a legitimate expectation that they were going to be placed at grades higher than the position of senior clerk of court. And that reference to section 18 and 19 was just incidental. [14] The fact that the appeal’s foundation is exclusively built upon the legal principle of legitimate expectation is made clearer in the appellants’ heads of argument. Not only is their attention devoted entirely to the doctrine of legitimate expectation, but they also posit the issue for determination in the following terms: “11 Collapsed in a nutshell, the issue raised by the grounds of appeal, which the honourable Court must determine in this matter, is whether the High Court was correct in holding that the applicants are not entitled to be regraded. In other words, the main issue for determination is whether the applicants entertained a reasonable/legitimate expectation to be regraded in the manner contemplated in the notice of motion.” The issues for determination [15] Obviously, the issue for determination is whether the Court a quo erred and misdirected itself in not finding that the appellants entertained a legitimate expectation that their positions would be placed at Grade I and H in the new structure and be remunerated at these grades effective from the time the structure 8 was approved in 2017 or legitimate expectation that before they were placed on the same grade with the senior clerks of court and court assistants, they would be given a chance to make representations. The law [16] Job evaluation and job grading are governed by the Public Service Act2 and the Regulations3 made under it. Section 10(2) of the Act provides that – “Without limiting the generality of subsection (1), the Minister may make provision for all or any of the following matters – (a) … (b) … (c) policy on salary administration, remuneration and benefits, job evaluation and job grading…” [17] Regulation 45 reads as follows: “45. (1) The Minister shall, after consultation with an association, if any, recognised by the Minister pursuant to section 22(2) of the Act, determine methods and systems for job evaluation and grading in the public service to determine the value and appropriate remuneration for all jobs in the public service. (2) All jobs shall be subject to evaluation and grading by the Ministry responsible for the public service.” 2 Public Service [Act No. 12 of 2005](/akn/ls/act/2005/12). 3 Public Service Regulations, Legal Notice No.78 of 2008. 9 [18] It is, in my view, clear from reading regulation 45 that job evaluation and grading of positions is a systematic and methodical process which should not be done arbitrarily or willy nilly. The methods and systems of job evaluation and job grading envisioned in regulation 45 must be consistent with the policy promulgated by the Minister responsible for Public Service pursuant to section 10(2) of the Act. [19] It is quite axiomatic, it seems to me, that the issue here is not that the methods or the systems for job evaluation and ultimate job grading were not observed. At any rate, we have not even been told of the factors that are embedded in the methods and systems of job evaluation and job grading in terms of regulation 45. Mr Letsika confirmed that the complaint is not about non-compliance with the policy or the criteria used for job evaluation and grading. [20] That being the case, I proceed to examine whether the appellants had a legitimate expectation for their positions to be placed at Grade I and H in the light of case law on the subject of legitimate expectation and if their prayers were tenable. [21] The legitimate expectation doctrine is an extension of the audi alteram partem rule. Its origin can be traced from English law. In Schmidt and Another v. Secretary of State For Home Affairs4 erudite Lord Denning M.R aptly stated the following: 4 Schmidt and Another v. Secretary of State For Home Affairs [1969] 1 All ER 904 (CA) at 908 to 909. 10 “The third point is whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice. Counsel for the plaintiffs submitted that the Minister ought to have given the students a hearing before he refused to extend their stay in this country. I see no basis for this suggestion. I quite agree, of course, that where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf. But in the case of aliens, it is rather different; for they have no right to be here except by licence of the Crown. And it has been held that the Home Secretary is not bound to hear representations on their behalf, even in the case of a deportation order, though, in practice, he usually does so. It was so held in R.V. Leman Street Police Station Inspector and Secretary of State for Home Affairs, Ex p. Venicoff, which was followed by this court in Soblen’s case. Some of the judgements in those cases were based on the fact that the Home Secretary was exercising an administrative power and not doing a judicial act. But that distinction is no longer valid. The speeches in Ridge v. Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.” (Emphasis added and footnotes excluded). [22] Closer home in South Africa, a thoroughgoing exposition of the doctrine of legitimate expectation came from the judgment of the Appellate Division of South Africa in Administrator, Transvaal, and Others v. Traub and Others5 which imported the 5 Administrator, Transvaal, and Others v. Traub and Others 1989 (4) SA 731. 11 doctrine. Following examination of various authorities especially from England, Corbett CJ had the following to say: “As these cases and the quoted extracts from the judgments indicate, the legitimate expectation doctrine is sometimes expressed in terms of some substantive benefit or advantage or privilege which the person concerned could reasonably expect to acquire or retain and which it would be unfair to deny such person without prior consultation or a prior hearing; and at other times in terms of a legitimate expectation to be accorded a hearing before some decision adverse to the interests of the person concerned is taken. As Prof Riggs puts it in the article to which I have referred (at 404); ‘The doctrine of legitimate expectation is construed broadly to protect both substantive and procedural expectations.’ In practice the two forms of expectation may be interrelated and even tend to merge. Thus, the person concerned may have a legitimate expectation that the decision by the public authority will be favourable, or at least that before an adverse decision is taken he will be given a fair hearing. And, in passing, I must say, with respect, that I do not agree with the statement of Goldstone J in Mokoena and Others v Administrator, Transvaal 1988 (4) SA 912 (W) at 918E to the effect that legitimate expectation refers to the rights sought to be taken away and not to the right to a hearing. A frequently recurring theme in these English cases concerning legitimate expectation is the duty on the part of the decision-maker to ‘act fairly’. As has been pointed out, this is simply another, and preferable, way of saying that the decision-maker must observe the principles of natural justice (see O’Reilly’s case supra at 1126j-1127a; Attorney-General of Hong Kong case supra at 350g – h; Council of Civil Service Unions case supra at 954a-b). Furthermore, as Lord Roskill explained in the 12 last quoted case, the phrase, ‘a duty to act fairly’, must not be misunderstood or misused. It is not for the Courts to judge whether a particular decision is fair. The Courts are only concerned with the manner in which the decisions were taken and the extent of the duty to act fairly will vary greatly from case to case. Many features will come into play including the nature of the decision and the relationship of those involved before the decision was taken (see at 954b-c); and a relevant factor might be the observance by the decision-maker in the past of some established procedure or practice. It is in this context that the existence of a legitimate expectation may impose on the decision-maker a duty to hear the person affected by his decision as part of his obligation to act fairly. (See at 954e; cf Lloyd and others v McMahon [1987]. 1 All ER 1118 (HL) at 1170f-g.)”6 [23] Corbett CJ concluded the exposition in Traub, (supra), by posing a veritable question whether South African law should not follow suit and give recognition to the doctrine of legitimate expectation. He answered the question in the affirmative but with a caution that “[a] reasonable balance must be maintained between the need to protect the individual from decisions unfairly arrived at by public authority (and by certain domestic tribunals) and the contrary desirability of avoiding undue judicial interference in their administration.”7 [24] In this jurisdiction, in the case of Lebona v. Bereng and Another,8 Cullinan CJ (Mohamed JA and Aaron JA concurring), said the following speaking of the doctrine of legitimate expectation 6 Supra, page 758 to 759 D – A. 7 Surpa, page 761 E – G. 8Lebona v. Bereng and Another LAC (1985 – 1989) 348 at 353. 13 following a survey of a spectrum of cases on the doctrine from other jurisdictions, mostly from England: “I proceed on the basis, therefore, that where there is no question of any legal rights as a matter of private law, ‘sufficient interest’ is established to paraphrase the combined dicta of Lord Fraser of Tullybelton and Lord Diplock, where the Court, in the exercise of its discretion, considers that the applicant entertained a legitimate expectation to be permitted to continue to enjoy some benefit, advantage, or privilege, until advised of the grounds, which he might oppose, of any proposed withdrawal thereof, such expectation arising from: (i) an express promise by or on behalf of the decision-maker, or (ii) the existence of a regular practice.” [25] It is noteworthy that the doctrine of legitimate expectation had previously been alluded to by this Court in Central Bank of Lesotho v. Phoofolo9 where it observed that audi alteram partem rule had been extended to situation in which the affected individual could be said to have a legitimate expectation to be heard although no right is being taken away from him. [26] In similar vein, in Moorosi Matela and 12 Others v. The Government of the Kingdom of Lesotho and 6 Others10 Mokhesi J provided a meticulous and conscientious exposition of the doctrine of legitimate expectation, particularly substantive expectation. Mosito P endorsed with admiration and adopted the said exposition and legal principles when the same matter came 9 Central Bank of Lesotho v. Phoofolo LAC (1985 – 89) 253 at 258 A – B. 10 Moorosi Matela and 12 Others v. The Government of the Kingdom of Lesotho and 6 Others (CIV/APN/197/2019) [[2019] LSHC 113](/akn/ls/judgment/lshc/2019/113) (14 November 2019. 14 before this Court in The Government of the Kingdom of Lesotho and Others v. Moorosi Matela and 12 Others.11 [27] As Mosito P observed in Matela, (supra) the doctrine of legitimate expectation is certainly part of our law. Though a concern is raised in many authorities about the imprecise limits of the doctrine, one thing is certain about it. The doctrine has two facets, viz. substantive expectation where a person concerned may have a legitimate expectation that a public authority will arrive at a decision favourable to him, or procedural expectation where a person has expectation that at least before an adverse decision is made he will be given a fair hearing.12 This matter implicates the doctrine in both its facets. [28] In sum, examination of the decisions in Traub, Matela and Lebona (supra), reveals that legitimate expectation can arise from a long standing past practice or from a promise made by a decision-maker. Heher J in National Director of Public Prosecutions v. Phillips and Others13 felicitously stated the following in enumerating the four requirements of legitimate expectation as distilled from several authorities: “[28] The law does not protect every expectation but only those which are ‘legitimate’. The requirements for legitimacy of the expectation, include the following: (i) The representation underlying the expectation must be ‘clear, unambiguous and devoid of relevant qualification’: De Smith, Woolf and 11 The Government of the Kingdom of Lesotho and Others v. Moorosi Matela and 12 Others C of A (CIV) No. 85/2019. 12 The Commissioner of Police v. Lepoqo Masupha (C of A (CIV) No 36/2024) [[2024] LSCA 30](/akn/ls/judgment/lsca/2024/30) (1 November 2024) at para 38. 13 National Director of Public Prosecutions v. Phillips and Others 2002 (4) SA 60(W) at para 28. 15 Jowell (op cit at 425 para 8-055). The requirement is a sensible one. It accords with principle of fairness in public administration, fairness both to the administration and the subject. It protects public officials against the risk that their unwitting ambiguous statements may create legitimate expectations. It is also not unfair to those who choose to rely on such statements. It is always open to them to seek clarification before they do so, failing which they act at their peril. (ii) The expectation must be reasonable: Administrator, Transvaal V Traub (supra at 756I–757B); De Smith, Woolf and Jowell (supra at 417 para 8–037). (iii) The representation must have been induced by the decision-maker: De Smith, Woolf and Jowell (op cit at 422 para 8–050); Attorney General of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346 (PC) at 350h–j. (iv) The representation must be one which it was competent and lawful for the decision-maker to make without which reliance cannot be legitimate; Haupfleisch v Caledon Divisional Council 1963 (4) SA 53 (C) at 59 E–G).” Consideration of the Appeal [29] The nub of the appellants’ case is that they expected Central Court Presidents and Local Court Presidents to be placed at Grade I and H respectively given the established practice of the respondents “which has been ceremoniously and consistently observed for decades”. [30] The appellants are vague in their founding Affidavit which established practice they rely on for the proposition that they expected to be placed especially at Grade I and H, save to 16 argue that traditionally their positions were above those of Clerks of Court and Court Assistants. There is absolutely nothing on evidence in support of the expectation by the appellants to be placed specifically at Grade I and H. [31] It is common cause that Central Court Presidents and Local Court Presidents were at Grade F and E respectively, before the introduction of the new organisational structure in 2017. In my view, it is self-evident therefore that the appellants cannot claim that there was a consistent practice of placing them at Grade I and H respectively. Similarly, there is no evidence that by word or conduct, the Ministry of Public Service promised or represented to the appellants that they were going to be placed at Grade I and H. [32] Such expectation as the appellants may have entertained that their positions would be placed at Grade I and H was not informed by established practice or promise to place their positions at such grades. Absent a promise or established practice, employees cannot legitimately expect that the review of organisational structure will automatically result in their positions being upgraded. Given that job evaluation is used to assess relative worth of different jobs, depending on the strategic direction an institution wants to take, other position may get downgraded during the organisational review if they add little value. For the above reasons, the appellants’ expectation to be placed at Grade I and H was unreasonable and cannot find protection under the doctrine of legitimate expectation. 17 [33] Besides, regulation 45 envisioned job evaluation and job grading to be undertaken following a systematic or methodical process. Thus, this Court cannot arbitrarily place the appellants at Grade I and H as that will undermine the manifest purpose of regulation 45. Besides, job evaluation and grading falls within the remit of the Ministry of Public Service. This Court is not informed of the job evaluation or grading system that was used and cannot even begin to assess if it was properly applied or not. [34] Concerning the appellants’ expectation to be paid at Grade I and H, it seems to me that their claim in this regard was depended on them succeeding in their proposition that they had a legitimate expectation to be placed at these grades. Given the conclusion that the appellants could not have entertained legitimate expectation to be placed at Grade H and I, there is no basis for an order that the appellants should be paid at these grades. There is no evidence that there was a practice in terms of which the appellants were paid at these grades, neither do they contend that there was ever a promise made to pay them remuneration commensurate with these grades. [35] As I see it, it would not have even been competent for the Ministry of Public Service or the Judiciary to make a promise to the appellants to place them at Grade I and H or pay them at those grades without following job evaluation and job grading envisioned in regulation 45. In this case the Ministry of Public Service determined that the positions are at Grade G. [36] Having said this, it remains necessary to consider whether the appellants had a legitimate expectation to be heard 18 when the Ministry of Public Service made the decision to place them at Grade G together with Senior Clerks of Court and Court Assistants. Evidently, the appellants’ discontentment arises from the fact that they are placed at the same grade with Senior Clerks of Court when traditionally their positions were above those of the Senior Clerks of Court. [37] We are told by the Respondents that a month after the approval of the new structure, the Ministry issued a corrigendum to the Judiciary in terms of which it reversed the grading of the Senior Clerks of Court from Grade G to its former grading. This unfortunately emerges from unsigned “affidavit” which constitutes inadmissible evidence and cannot be relied on. [38] My initial instinctive reaction was that it was indeed an anomaly to place the appellants at the same grade with Senior Clerks of Court. That said, it must be remembered that job evaluation and grading is undertaken following a methodical and systematic processes. As a result, one cannot reasonably anticipate where his position will be placed relative to others in the new structure unless where the job content for positions as well as the job evaluation criteria remains the same. [39] The appellants’ complaint that their positions are grouped together with positions that are not similarly circumscribed is devoid of merit. It bears repeating that job evaluation is used to determine the relative worth of a position or a job in an organisation to ensure that employees are fairly remunerated. Therefore, different positions that are determined by 19 job evaluation criteria to have the same worth to an institution should be placed on the same grade. [40] Moreover, and perhaps more importantly in this context, it must be remembered that the positions of the appellants were not downgraded. Rather, they were upgraded. As a result, no adverse decision was taken against them warranting them to be given a hearing. It is with this consideration in mind that I am not persuaded by the contention that the decision to place the appellants at the same grade with Senior Clerks of Court and Court Assistants necessarily deprive them of the benefit of rights accruing to them. Besides, the suggestion of a standard practice relevant to grading in casu is an exaggeration as it creates the impression that there was a regular practice of reviewing the grading which resulted in the appellants always being graded above the Senior Clerks of Court and Court Assistants. [41] Overall, it seems to me that the appellants could not have entertained a legitimate expectation to be placed and paid at Grade I and H. Therefore, the appellants have not made a case for this Court to interfere with Mahase J’s judgement. [42] For certainty, particularly to ensure that civil servants aggrieved by job evaluation or job grading pursue their grievances through appropriate channels, I conclude this judgment by indicating that, had a preliminary point of jurisdiction been raised by the respondents, it would certainly have been decided in their favour. [43] Undoubtably, the appellants’ complaint about job evaluation or job grading falls squarely within the definition of a 20 grievance in the Public Service Act, 2005 (as amended) and the Grievance Code 2008 made pursuant to the Act. Therefore, in line with the decision of this Court in Mantaote Patience Ntaote v. The Principle Secretary Minister of Finance and Planning and 4 Others14, the High Court did not have jurisdiction to entertain their claim. Rather, given the substance of their complaint, the appellants ought to have invoked internal dispute resolution mechanism before eventually appealing to the Public Service Tribunal and then to the Labour Court which has exclusive jurisdiction over such claims. Disposition [44] The appellants’ expectation to be placed specifically at Grade I and H and to draw remuneration commensurate with these grades was not informed by established practice or promise made either by the Ministry of Public Service or even the Judiciary. Such expectation as they may have entertained, was unreasonable and cannot be protected by the doctrine of legitimate expectation. More tellingly, the appellants’ positions have been upgraded. Thus, no prejudicial decision was taken against them warranting them to be heard. It is clear from the preceding reasons that this appeal cannot succeed. Costs [45] Turning to the issue of costs, it should be remembered that the appellants are public officers who ended up seeking judicial intervention because their query was ignored. Perhaps this 14 Mantaote Patience Ntaote v. The Principle Secretary Minister of Finance and Planning and 4 Others C of A (Civ 55/2024). 21 litigation could have been avoided had the employer behaved responsibly or the employees could have been apprised of the appropriate internal dispute resolution mechanism to invoke. It is for these reasons that I am inclined not to award the respondents costs. Order [46] In the circumstances, the following order is made: (a) The appeal is dismissed with no order as to costs. ______________________________ A. R. MATHABA ACTING JUSTICE OF APPEAL I agree _______________________________ P. MUSONDA ACTING JUSTICE OF APPEAL I agree ______________________________ J. VAN DER WESTHUIZEN ACTING JUSTICE OF APPEAL FOR APPELLANTS: MR. Q. LETSIKA WITH ADV. M. LEROTHOLI FOR RESPONDENTS: ADV. L. TAU #### __Related documents ▲ To the top >