Govt, Phalala ordered to reimburse civil servant
MBABANE – Judge Titus Mlangeni has ordered government and the administrator of Phalala Fund to reimburse a civil servant, who spent his own money to travel to Nelspruit and paid his medical expenses.
The civil servant is Jabulani Mndzebele, who is a permanent and pensionable employee stationed at the Institute of Management and Public Administration under the Ministry of Public Service.
Mndzebele had been referred to Nelspruit Mediclinic by the Medical Referral Board. He approached the High Court for an order directing the principal of Eswatini Institute of Management and Public Administration and the administrator of Phalala Medical Referral Fund to facilitate the reimbursement of his transport and subsistence allowances in terms of Government General Order A845 read with Establishment Circular No.17 of 1995.
He also wanted the court to declare their conduct as unlawful, unconstitutional and outside the scope of their employment, and unnecessarily exposing government to vicarious liability.
Proof
Judge Mlangeni granted Mndzebele’s application. The court ordered Mndzebele to submit to the attorney general, satisfactory proof in respect of all the medical trips that were the subject of the application. The court also ordered the respondents to quantify the reimbursement that was due to Mndzebele and pay it within 14 days from the receipt of proof from him.
The respondents were further ordered to pay costs of the application. The respondents in the matter were the principal of Eswatini Institute of Management and Public Administration, minister and principal secretary (PS) in the Ministry of Public Service, administrator of Phalala Medical Referral Fund, minister and principal secretary in the Ministry of Health and others.
At first, Mndzebele appeared unrepresented in the matter and engage an attorney at a later stage. He had a medical condition which resulted in the amputation of his leg. He is presently being attended to by specialist surgeons from Cape Town, South Africa.
Referred
In his papers, Mndzebele told the court that August 23, 2019, he was referred by the Medical Referral Board to BMKOrthopaedics in Nelspruit Mediclinic for a prosthetic leg. He said although he was referred to Nelspruit, he was actually attended to at Cheshire Homes in Matsapha, by the same BMKOrthopaedics.
Mndzebele submitted that he subsequently travelled to Nelspruit on the December 4, 2019 for the fitting of the prosthesis. He said he used his own transport to travel to Nelspruit, and his case was that he was entitled to be reimbursed the expenses for the trip, but the respondents refused to reimburse him.
He listed further dates on which he travelled to South Africa for treatment. Mndzebele told the court that he travelled six times to Nelspruit Mediclinic between December 4, 2019 and June 30, 2021. On February 26, 2020, he went to Cheshire Homes in Matsapha and to Cape Town on January 1, 2022.
Mndzebele also stated that on all the trips for medical attention, he travelled at his own expense and paid the medical bills. “If his allegations are true then he has certainly undergone extreme hardships that many people would not be able to handle,” said Judge Mlangeni.
In support of the claim, he cited Government General Orders A522, A845 and Establishment Circular No.17 of 1995. The net effect of the General Orders cited, read with Establishment Circular No.17 of 1995, according to the judge, was not in dispute.
Expenses
“It is that government employees and their dependents may be sent for expert medical attention outside the country where such expertise is not available in the country. The medical services and expenses relating to travel and sustenance are paid by the government.
“In some instances government avails transport, and where this is not possible, the beneficiary may use own transport and claim reimbursement later. In the present case the applicant has incurred all the expenses, including transport and sustenance. He avers that he has done everything to get reimbursed, to no avail. Hence, he has approached this court for relief,” said Judge Mlangeni.
The respondents did not deny that Mndzebele undertook numerous trips for medical attention. They did not argue that he was not entitled to the benefits in terms of the relevant Government Orders and Establishment Circular No.17 of 1995.
As a matter of fact, according to the court, their deponent, the PS in the Ministry of Health, Dr Simon Zwane, stated in the opposing affidavit that General Order A852 was applicable to Mndzebele’s case.
“A852 (i) provides that the Medical Referral Scheme is to enable government employees who are Swazis and their dependents to receive treatment in the Republic of South Africa when such care is not available in Mbabane Government Hospital...”
In their defence, the respondents argued that specialist treatment outside the country was not authorised by the Medical Referral Board, and that it was a private arrangement between Mndzebele and the service provider.
In essence, said Judge Mlangeni, the respondents were saying that procedure was not followed by the civil servant or whoever was dealing with the matter. In his replying papers, Mndzebele had attached a memorandum from the senior medical officer of the Mbabane Government Hospital, among other annextures, April 30, 2021.
Allowance
According to this memorandum, Mndzebele was referred to South Africa by the Medical Board and ‘this memo serves to request your office to provide the officer with subsistence allowance as per General Order A845’.
On the September 21, 2021, according to the court, the PS in the Ministry of Public Service wrote to the accountant general, requesting payment of subsistence allowance to Mnzebele, who ‘was referred by the Eswatini Medical Board to South Africa for specialist treatment’.
On the January 12, 2022, the senior medical officer at the Mbabane Government Hospital wrote to the PS in the Ministry of Public Service, informing that Mndzebele had been referred by the Medical Board to Matley & Partners, for treatment and requesting ‘your office to provide the officer with subsistence allowance as per General Order A845’.
Responsibility
Judge Mlangeni said it was apparent to the court that the respondents were fully aware of the medical needs of Mndzebele, and were equally aware of the responsibility of government him. “The purported defence is nothing but blowing hot and cold, and I hereby dismiss it. But even assuming that at some point in time some aspects of procedure were not complied with, there is something known as ‘ratification. To ratify is to ‘give formal consent to; make officially valid’.
Invariably, said the judge, ratification came after the event. Judge Mlangeni submitted that Government General Orders were tools for the administration of the business of the Crown and were not meant to visit or perpetuate hardship upon servants of the Crown.
“I am convinced that someone somewhere could and should have exercised discretion to approve reimbursement to the applicant (Mndzebele) in the event that there was in fact a procedural deficit in the matter. Discretion is an integral part of administration,” said Judge Mlangeni.