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Sunday 21 July 2019
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State to compensate estate constable for withholding salary

PERMANENT secretaries do not have the power to stop a public servant’s salary.

This was the finding of a High Court judge who ordered the State to compensate an estate constable for contravening his constitutional rights by withholding his salary for three months in 2018.

Justice Ricky Rahim ruled in favour of Anthony Noel Egbert and ordered the State to compensate him for the breach of his rights because of the “arbitrary and unfair” move by the permanent secretary of a ministry.

The quantum of damages, including vindicatory damages, will be assessed by a Master of the High Court.

The State was also ordered to pay Egbert’s costs. He was represented by attorney Farai Masasai.

Egbert sued the State challenging the decision of the permanent secretary of the Ministry of Works and Transport (MOWT) to withhold his salary for June, July and August 2018.

He was assigned to the MOWT and before then was posted to the Ministry of the Attorney General and Legal Affairs (AGLA), and the Ministry of Education. According to his lawsuit, Egbert, who changed his name from Anthony Hosein, was transferred by the Public Service Commission from the AGLA to the MOWT in March 2018.

He was given approval for vacation from April 10-May 12, 2018 and went to the Uk. While on vacation, he applied for and was granted extended sick leave from April 25-July 23.

He got his salary for May from the MOWT but by June 30, he had not received his salary, nor did he receive one for July and August.

Egbert returned to work at the AGLA on July 24, and was released from duty at 11 am so that he could take up work at the MOWT.

He filled out the necessary paperwork and was posted at the Drainage Division in El Socorro.

While going there, he fell ill and after seeking medical attention, was given four days’ sick leave. He continued on extended sick leave from July 24-August 9 and resumed work on August 10 after submitting a fitness certificate. However, he refused to submit another assumption of duty form since, he said, he had already done so on July 24.

Eventually, he submitted the second assumption-of-duty form on August 27. He also sought an injunction on September 21, and was paid his outstanding salaries.

Rahim was asked to determine if the stoppage of his salary constituted an infringement of his right to enjoyment of property without due process of law; whether he was denied the right to equality before the law when he was asked to submit the second form; whether he was denied the right to equality of treatment and fairness when the permanent secretary stopped or authorised the withholding of his salary; and whether he was entitled to compensation.

The judge, in his ruling, said the powers of a permanent secretary were obtained under section 127 of the Constitution by delegated powers from the PSC and none of those powers given to an accounting officer allowed for the stopping of a public servant’s salary.

“The result was that a public servant was denied his entitlement to property of which he met his daily expenses and cost associated with the basic needs to live,” the judge said.

Rahim granted the declarations sought by Egbert that his rights were infringed and ordered the State to compensate him for these breaches.

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