Namibia High Court Judge Thomas Masuku has come to the aid of Tjiuovioje Kahimise finding that the cut in his pay was not only unlawful but also not necessary to punish him more.

Kahimise, then assistant commissioner, pleaded guilty at a disciplinary inquiry, to stealing a cellphone.

As punishment he was demoted to senior superintendent in November 2018.

In December he was informed that his pay would be cut to conform with his reduction in rank.

He lodged a grievance but his protests went unheeded and, in August 2019, his pay was slashed.

He turned to the high court, arguing that the Correctional Services Act did not allow for this.

His lawyer argued that it was not open to the commissioner-general of correctional services  to “later enhance” the punishment.

He also said that in terms of legislation, pay cuts could only apply to officers who had been previously suspended, which his client had not.

But lawyers for the commissioner-general argued that once his reduction in rank was confirmed, it had the automatic effect of reducing his salary. 

Judge Masuku noted that the act provided for sanctions including dismissal, reduction in rank, a fine and written or verbal warnings. 

“There is no sanction relating to the reduction in salary and it is not open to them to have added this sanction,” he ruled.

“There is no omnibus provision allowing for the commissioner to impose any other sanction,” he said, also noting that, in the initial sanction, there was no mention made of a pay cut and this was only communicated to Kahimise much later.

Judge Masuku said he also took judicial notice of the “notorious fact that the reduction in rank, especially for members of the uniformed forces, is not empty or idle in consequence”. 

“Members pride themselves in the ranks they reach, which is ordinarily recognition of their diligence, excellence, commitment to the  cause and dedication to duty. 

“To demote one, especially from the rank of assistant commissioner, is not inconsequential. The esteem, reputation and dignity are negatively affected.

“It need not have the added sting (of a pay cut).

“His demotion in rank has the consequences that those who saluted him previously and now ranked above him, are in the position where the shoe is on the other foot. He is now required to salute them.

“That is a bitter pill to swallow but a necessary disciplinary measure.

“It was not open to the respondents to add to his misery.”

Judge Masuku said the commissioner did not have the power to “add this sanction” and only Parliament had the proper authority to amend legislation.

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