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[2015] ZASCA 153
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Opperman v Minister of Defence and Military Veterans (20752/14) [2015] ZASCA 153 (2 October 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 20752/14
DATE: 02 OCTOBER
2015
Not Reportable
In
the matter between:
MAARTEN
OPPERMAN
.............................................................................................
APPELLANT
And
THE
MINISTER OF DEFENCE
AND
MILITARY
VETERANS
..................................................................................
RESPONDENT
Neutral
citation
:
Opperman
v Minister of Defence and Military Veterans
(20752/14)
[2015] ZASCA 153
(2 October 2015)
Coram:
Maya ADP, Cachalia, Zondi and Dambuza JJA
and Gorven AJA
Heard:
4 September 2015
Delivered:
2 October 2015
Summary:
Employment – South African
National Defence Force – whether contract of employment
conferring benefits on employee to
which he is not entitled, is
enforceable.
ORDER
On
appeal from
Gauteng Division of the
High Court, Pretoria (Malindi AJ sitting as court
of first instance):
The
appeal is dismissed with costs.
JUDGMENT
Zondi
JA
(Maya ADP, Cachalia and Dambuza
JJA and Gorven AJA concurring):
[1]
The appellant, a member of the South African National Defence Force
(SANDF) employed as the Inspector-General of the South African
Military Health Service, launched an application in the Gauteng
Division, Pretoria (the high court) following a dispute between
him
and the Department of Defence (the Department) regarding the payment
of certain benefits. In that application he sought an
order declaring
that he had a contractual right to be remunerated in accordance with
the Occupational Specific Dispensation (OSD)
until 31 March 2014 and
that his being deprived of OSD income was unlawful and constituted an
unfair labour practice in terms of
s 23 of the Constitution.
[1]
On
his promotion to Inspector-General, the appellant was initially
remunerated in accordance with the OSD, but almost a year later
this
was withdrawn by the Department. It contended that the
Inspector-General post was not an OSD post and he was thus not
entitled
to OSD benefits. It treated the payments he received as OSD
benefits as overpayment, and sought their recovery from him.
[2]
In resisting the application in the high court, the respondent (‘the
Minister’) took the point that the application
was premature.
This was so, it was contended, because the performance agreement
concluded by the parties on 16 April 2012 and the
regulations
promulgated by the Minister under the
Defence Act 42 of 2002
required
the appellant to utilise the internal grievance procedures, prior to
approaching a court, which he had not done.
[3]
In relation to the merits of the appellant’s application, the
Minister denied that the appellant was entitled to OSD benefits.
She
contended that the position of Inspector-General was a senior
management service (SMS) post, which in terms of its profile
was not
an OSD post. The Minister added that the appellant’s post could
not be translated to an OSD post until a work study
to determine its
functional and organisational structure has been done. The Minister
contended accordingly that in the absence
of translation of the
appellant’s post, there was no lawful basis for the payment of
OSD benefits. Although his performance
agreement said that the post
attracted OSD benefits, the Surgeon-General, with whom the agreement
was concluded, had no authority
to determine allowances such as
those. The provision in the performance agreement providing for the
payment of the OSD benefits
to the appellant was accordingly
unenforceable, contended the Minister.
[4]
The high court (Malindi AJ) upheld the Minister’s contention
that the application was premature because of the appellant’s
failure to exhaust the internal remedies provided under the
regulations before approaching the court. It accordingly dismissed
the application with no order as to costs without dealing with the
merits of the application. The appellant appeals against the
order
and conclusions referred to above with the leave of this Court.
[5]
In the view that I take of the matter, the appeal can simply be
decided on the merits thus rendering it unnecessary to consider
whether the appellant was obliged to comply with the grievance
procedure or whether it was competent for the appellant to rely
directly on s 23 of the Constitution in asserting his right to be
paid OSD benefits. The issue therefore is whether the appellant
qualified to be remunerated in accordance with the OSD.
[6]
To determine this issue, it is necessary to deal with the background
facts in some detail. The appellant, a medical practitioner
by
profession, became a uniformed member of the SANDF in 1996. On 31
October 2011 he was promoted from the rank of Senior Clinical
Manager, an OSD post, to that of Senior Manager: Medical Services, to
perform the function of Inspector-General: South African
Military
Health Service (SAMHS) with effect from 1 April 2012. According to
its profile dated 26 February 2009 the purpose of the
post is to
provide inspection services to the SAMHS. In terms of its position
within the organogram it falls under the post of
the Surgeon-General
and is described as a common post. All the other directorates that
fall under it are also common posts, ie
they are posts that need not
be occupied by medically qualified persons. Although the OSD for
medical and dental professionals
came into effect on 1 July 2009, at
the time of the appellant’s promotion there was some
uncertainty as to whether the OSD
applied to the Inspector-General
post. This uncertainty gave rise to the dispute between the parties.
[7]
The application of the OSD to a post is associated with certain
monetary benefits or allowances. But for the OSD to apply, the
work
study report commissioned by the Minister required a post to be a
production post; secondly, it required a professional career
path in
a specific field based on qualifications; and thirdly, an incumbent
of that post had to maintain or retain registration
with the relevant
professional body. In other words, as explained by the Minister, ‘an
incumbent must of necessity perform
80 per cent of his technical
skills and 20 per cent of the managerial skills’.
[8]
In a letter dated 12 December 2012, the Department’s Human
Resources Division informed the appellant that following his
promotion on 1 April 2012 he no longer qualified to be retained in an
OSD post, nor did he qualify for the accompanying allowances.
In consequence the benefits he received as the result of the
incorrect classification of his post were treated as overpayments
in
respect of which he was liable to refund the Department. He was
invited to suggest a schedule of repayments. He rejected the
invitation because, in his view, the Department’s decision to
terminate these benefits was unfair and unlawful. As a result,
the
parties reached an impasse on the issue and the Department went ahead
and deducted the amount by which the appellant was allegedly
overpaid
from his March 2013 salary. Thereafter the appellant launched the
application in the high court seeking relief to which
reference has
been made in the preceding paragraphs.
[9]
Section 55
of the
Defence Act deals
with pay, salaries and
entitlements of members of the SANDF. It provides that members of the
Regular Force and Reserve Force receive
such pay, salaries and
entitlements including allowances, disbursements and other benefits
in respect of their service, training
or duty as may from time to
time be agreed upon in the Military Bargaining Council. If no
agreement is reached in the Bargaining
Council, the Minister may,
after consideration of any advisory report by the Military
Arbitration Board and with the approval of
the Minister of Finance,
determine their pay, salaries and entitlements. It is clear that
s 55
is a statutory provision providing a mechanism according to which
pay, salaries and other entitlements that become payable to members
of the force, are determined. The Department may also become liable
for the payment of other allowances such as OSD benefits if
the
Minister has in terms of
s 82(1)(
e
)
made regulations regarding conditions under which they may be paid.
[10]
In asserting his contractual claim the appellant relied firstly, on a
letter dated 31 October 2011 in which Surgeon-General
Masisi
recommended him for promotion to the post of Inspector-General: SAMHS
and the functional rank of Senior Manager MSS-3 with
effect from 1
April 2012. Masisi certified that the recommendation was ‘. . .
in accordance with applicable DOD policy, directives,
instructions
and orders, that such were considered before making this
recommendation.’ The promotion was approved by Surgeon-General
Ramlakan on 4 November 2011 and by Lt Gen Nkabinde, the Chief Human
Resources on 27 January 2012. The appellant’s functional
promotion was finally approved by General Shoke, the Chief of the
SANDF on 2 February 2012.
[11]
Secondly, he contended that during 2010 the Director of Human
Resources and the Surgeon-General agreed that the OSD was to
apply to
the post of Inspector-General, which at the time was occupied by
Brigadier-General Cloete, the appellant’s predecessor.
In
support of this contention the appellant referred to a letter dated
20 January 2011. This is a letter from the Director of Human
Resources Service Systems (Brigadier-General Sitshongaye) to the
Surgeon-General in which the applicability of the OSD to the post
of
Inspector-General was raised. The letter reads:
‘
1.
Letter SG (IG SAMHS)/R/104/10/3 dated 22 November 2010 in which
approval is granted for the Inspector-General of SAMHS to translate
to the Occupation Specific Dispensation (OSD) for Medical Officers
refers.
2.
Please note that on date of translation SAMHS did not consider the IG
post as recognizable for translation to the OSD for Medical
Officer
and as a result the implementation date is therefore questionable. I
would be advised that the translation takes place
on the first day of
the month following the approval by the Surgeon-General i.e 1
December 2010.
3.
Please note that the post must be converted to an OSD Medical Officer
post on the SMCS that implies no other profession will
be allowed to
be appointed as IG SAMHS in future.’
[12]
Thirdly, he relied on the performance agreement he concluded with
Surgeon-General Ramlakan, on behalf of the Department on
16 April
2012 for the period 1 April 2012 to 31 March 2013. In this agreement
the appellant’s salary level was stipulated
as being OSD (MO)
MSS-3 + CAT 3/2. When the period stipulated in that agreement expired
the appellant and Surgeon-General Sedibe
on behalf of the Department
extended the duration of the agreement for the period 1 April 2013 to
31 March 2014. The extended agreement
specified the appellant’s
occupational classification as ‘Medical Officer (OSD)’
and his salary level as being
‘Senior Manager Medical (MSS-3) +
OSD Benefits.’ The appellant relies on these documents for the
contention that the
agreement he had with the Department obliged it
to pay him the OSD benefits at least until 31 March 2014 and that the
Department’s
withdrawal of these benefits constituted an unfair
labour practice.
[13]
In my view, the appellant’s contractual claim should fail.
First, his assertion that the Director of Human Resources
and the
Surgeon-General agreed that the OSD should apply to his post is
contradicted by the Director of Human Resources (Brigadier-General
Sitshongaye). His evidence was that when he received a letter of
Brigadier-General Cloete dated 22 November 2010 in which it was
suggested that the Surgeon-General had approved the translation of
the Inspector-General post to the OSD for Medical Officers,
he
informed the Surgeon-General by a letter dated 20 January 2011 that
the OSD could not apply to that post before it was converted
to an
OSD post. He pointed out that the Surgeon-General did not have
authority to do so. Such authority was reserved for the Minister.
Brigadier-General Sitshongaye’s evidence in this regard was not
contradicted by the appellant.
[14]
That the Department regarded the post concerned as a common post, is
also borne out by the Chief Human Resources’ letter
addressed
to the Surgeon-General on 22 December 2011 advising him to request
DIMS (Director: Integrated Management Systems) for
a new work study
to be conducted if he wanted to have the current functional and
organisational structure of the SAMHS Inspectorate
translated to an
OSD post. The Surgeon-General was informed that the post was to
remain a common post until that was done. Brigadier-General
Cloete,
who occupied the position of the Inspector-General at the time
challenged the Department’s refusal to translate that
post from
a common post to an OSD post. His challenge was dismissed by the
Military Ombud on 6 May 2013.
[15]
Therefore in light of Brigadier-General Sitshongaye’s evidence,
Surgeon-General Ramlakan did not have any authority to
classify the
appellant’s post as an OSD post or to conclude the performance
agreement with the appellant which imposed an
obligation on the
Department to remunerate him in accordance with the OSD dispensation.
Moreover, in terms of
s 55
of the
Defence Act, the
appellant could be
entitled to the OSD benefits only if an agreement to pay them had
been reached at the Military Bargaining Council
or the Minister had
determined them. Those requirements were not considered in this
matter when the performance agreement was concluded
with the
appellant. The stipulation in the performance agreement that obliged
the Department to pay the appellant in accordance
with the OSD
dispensation was therefore unlawful and unenforceable.
[16]
Secondly, the appellant must have been aware that the post to which
he was promoted was not an OSD post as the functions he
performed did
not meet the OSD requirements. He did not perform clinical work.
Moreover, in terms of the performance agreement
the key result areas
on which his performance was to be assessed did not involve the
performance of any clinical duties. As the
performance agreement did
not require him to perform these functions, there existed no basis
for him to be paid or to claim the
OSD benefits. In argument before
us counsel for the appellant was constrained to concede that there
was no legal basis for the
appellant to be paid the OSD benefits. For
the reasons that I have set out, that concession was correctly made.
[17]
However, having made that concession, counsel changed his line of
argument. He submitted that the Department’s failure
to consult
with the appellant before terminating the OSD benefits constituted an
unfair labour practice. He argued that, even if
contractually the
appellant was not entitled to the OSD benefits, he had a right to be
heard by the Department before it took a
decision to withdraw those
benefits and that its failure to afford that opportunity rendered the
decision procedurally unfair.
[2]
[18]
I have two difficulties with counsel’s submission. First, the
case based on breach of a duty to consult is not made out
in the
papers. Counsel was unable to refer us to any passage in the
appellant’s papers in which such a cause of action is
pleaded
or from which it could be inferred.
[3]
The
affidavits in motion proceedings must contain the factual averments
that are necessary to support the cause of action on which
the relief
that is being sought is based.
[4]
Counsel
referred us to paragraphs 11 and 14 of the appellant’s founding
affidavit, which he submitted contain the necessary
factual averments
to support this cause of action. However, on a proper reading of the
relevant paragraphs, they do not. In paragraph
11 the appellant
contends that in terms of the performance agreement (which was
annexed thereto) he was ‘contractually entitled
to be
remunerated in terms of the OSD dispensation’ and that ‘the
conduct of the [Department’s] officials in
seeking to deprive
[him] of [that] right unilaterally [was] patently unfair’. What
the appellant seeks to establish in this
paragraph is that
substantively, the Department had no valid reason to deprive him of
the right to be remunerated in terms of the
OSD dispensation, not
that the Department had` failed to afford him an opportunity to be
heard before it took a decision to withdraw
the OSD benefits.
[19]
In paragraph 14 the appellant contends that the Department’s
decision to exclude from his remuneration the OSD benefits
constituted a deprivation of his professional status contrary to the
provision of reg 10(3) of the General Regulations
[5]
made
under the
Defence Act. This
regulation provides that no officer shall
without his own consent be reclassified where such reclassification
will deprive him
of his professional status. These allegations do not
support the contention that the Department’s decision to
withdraw the
OSD benefits was procedurally unfair and thus
constituted an unfair labour practice.
[20]
Secondly, in a memorandum dated 8 November 2012 the Chief Director:
Human Resource Management, in seeking approval for the
withdrawal of
the appellant’s OSD benefits and recovery from him of the
amount by which he was overpaid, explained that the
payment to the
appellant of the OSD benefits was a mistake. He fully explained how
that mistake came about. The additional remuneration
received by the
appellant as result of erroneous classification of his rank therefore
constituted wrongly granted remuneration.
[6]
Where
public funds are involved, unauthorised remuneration means that it
has been made without a lawful basis and must be recovered.
The
Department was thus duty-bound to recover it from him once the
mistake was detected. The claim based on the case for the right
to be
heard must therefore fail.
[21]
As mentioned, in the light of my conclusion on the merits, the
procedural issues fall away. It is therefore not necessary to
consider the status of the grievance procedure and whether or not it
gives effect to the right to fair labour practices found in
s 23
of the Constitution.
[22]
With regard to costs, each side was represented by two counsel. In my
view, the matter did not warrant the employment of two
counsel and
for that reason, costs awarded will be limited to those of one
counsel.
[23]
In the result the following order is made:
The
appeal is dismissed with costs.
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: R G Beaton SC (with him C Prinsloo)
Instructed
by:
Van
Schalkwyk Attorneys, Pretoria
c/o
Honey Attorneys, Bloemfontein
For the
Respondent: Z Z Matebese (with him M Gwala)
Instructed
by:
The
State Attorney, Pretoria
The State
Attorney, Bloemfontein
[1]
Section 23(1) of the Constitution of the Republic of South Africa,
1996 provides:
‘
Everyone
has the right to fair labour practices’.
[2]
Procedural fairness is listed as one of the grounds of review in the
Promotion of Administration Justice Act 3 of 2000 (the PAJA)
and s
6(2)
(c)
permits a court to review administrative action on the ground that
the action was procedurally unfair. But in attacking the unfairness
of the Department’s decision to terminate the OSD benefits,
the appellant did not rely on s 6(2)
(c)
of the PAJA.
[3]
See
Radebe
& others v Eastern Transvaal Development Board
[1988] ZASCA 8
;
1988 (2) SA 785
(A) at 793C-E.
[4]
Transnet
Ltd v Rubenstein
[2005]
ZASCA 60
;
2006 (1) SA 591
(SCA) para 28.
[5]
General Regulations for the SA Defence Force and the Reserve, GN
R2213,
GG
3327, 10 December 1971.
[6]
Section 38 of the Public Services Act of 1994.