In his judgment, Justice Moroka explained that terminating the exercise without giving the military nurses an opportunity to be heard was unlawful, therefore rendering it null and void. "The termination of the de-linking policy without giving the plaintiffs opportunity to be heard was procedurally wrong and therefore unlawful. The termination of the de-linking exercise is hereby declared null and void," he said. The judge also said that the 52 nurses who had taken the government to court following the termination of the policy were entitled to be remunerated as per their civilian counterparts who perform the same duties at the same level.
Justice Moroka stated that the termination of the delinking policy adversely altered the salary structure of army nurses in that their professional qualifications were in terms of the new salary structure no longer a consideration. “They had to join the queue and await their turn to be promoted alongside everybody else, qualification or no qualification. The relegation of qualification to the backseat is a material alteration of their salary entitlements and that is prejudicial,” he said. He further revealed that BDF once had a similar case with other nurses, which was about termination of de-linking and the matter was settled by the parties and a consent order was presented which Justice Tshegofatso Mogomotsi made the order of court. “The essence of that was to restore the army nurses therein to their de-linked salaries. One would have thought that given the fact that the termination of the de-linking policy affected all known and designated soldiers, the BDF would in light of court decisions in other cases in which it consented to court orders, take proactive steps and resolve the issues internally,” Moroka said. He stated that the de-linking structure meant that a registered nurse holding the rank of a private is paid much less than their counterpart in the public service and this dichotomy in progression between them despite the same qualifications created dissatisfaction among professionals employed by the BDF.
Justice Moroka said the move has resulted in the BDF losing many skilled professionals to other agencies, both government and private and this in turn had the effect of hampering the operations of the BDF and threatened to render it incapable of meeting some of its key strategic mandates. “The health and well-being of soldiers is of paramount importance for the BDF, hence the need for properly qualified health professionals such as nurses, doctors, pharmacists to mention but a few, to take care of the health of soldiers. A loss of health professionals in large numbers threatened to negatively impact on the performance of the arm itself,” Moroka said. He said for the reason that the BDF is rank-based and supervision is in accordance with rank, senior officers felt undermined by supervising officers whose salaries were higher than theirs. Justice Moroka added that BDF was saddled with a new problem and a solution was needed. In April 2019, the BDF terminated the de-linking policy and returned to the rank-based unitary pay salary structure referred to as ‘Ntlole’. “The introduction of the unitary structure led to the abrupt termination of the de-linking policy. By a stroke of a pen, the de-linking policy was gone. Its termination left erstwhile beneficiaries in the lurch. Soldiers with professional qualifications felt prejudiced by the termination of the de-linking policy. The dissatisfaction gave birth to multiple law suits before courts,” he said.
Justice Moroka explained that the justification for the introduction of the de-linked salary structure was to attract and retain soldiers who hold professional qualifications to the employ of the BDF through payment of salaries at the same level as their counterparts in the public service. However, he stated that its termination meant that this benefit was lost and the soldier was now put ahead of the professional. “Professional qualifications have once again taken a backseat in favour of rank. With the termination of the de-linking, army nurses allege that their progression has been frozen,” he said.
Justice Moroka said in its defence, the BDF’s position is that de-linking created a problem for the BDF as soldiers of lower ranks earned higher salaries than those of their supervisors. He said they argued that their same salary scale was similar to a staff Sergeant, something that illustrates the dichotomy of a senior earning less than a junior but a junior being more professionally qualified than the senior.
