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[2014] ZAGPPHC 105
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Opperman v Minister of Defence And Military Veterans (6600/13) [2014] ZAGPPHC 105 (12 March 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NO: 6600/13
DATE:
12 MARCH 2014
In the matter
between:
MAARTEN
OPPERMAN
.............................................................................
Applicant
v
THE MINISTER OF
DEFENCE AND MILITARY
VETERANS
................................................................................................
Respondent
DATE OF HEARING:
30 January 2014
DATE OF JUDGMENT:
12 March 2014
JUDGMENT
MALINDI AJ
INTRODUCTION
[1] The Applicant
seeks declaratory relief in respect of the manner in which the
applicant is remunerated by the respondent based
on an alleged
contractual right and his right to fair labour practices. In terms of
the Notice of Motion (as amended) the applicant
seeks an order:
“ 1. That it
be declared that:
1.1 the deprivation
of applicant by respondent of the income received by him in terms of
the occupation specific dispensation, as
set out in a letter of 12
December 2012 from the Directorate: Career Management, constitutes an
unfair labour practice and is unlawful.
1.2 applicant has a
contractual right to be remunerated in terms of the occupation
specific dispensation until 31 March 2014.
2 That the
respondent remunerate applicant in terms of the occupation specific
dispensation.”
[2] The applicant
alleges that he has a contractual right to be remunerated in terms of
the Occupation Specific Dispensation (OSD),
as contained in his
performance agreement dated 1 April 2012. In his rank as Brigadier
General in the South African Military Health
Services (SAMHS) his
salary level is described as “OSD (MO) MSS-3 + CAT 3/2, and
with a post designation of Inspector General
SAMHS.
[3] The applicant’s
rank designation and salary level in this contract flow from
instruction number 24/11 of 31 October 2011
in which Brigadier
General PJ Masisi gave instructions that the applicant be given the
functional promotion and OSD benefits.
[4] The OSD
dispensation means that an employee who performs 80% of their time on
functional duties and only 20% on administration
qualifies for extra
remuneration.
[5] The applicant
further relies on his right to fair labour practices in terms of
Section 23(1) of the Constitution of the Republic
of South Africa
(the Constitution).
[6] The gist of this
dispute is that the applicant received a letter dated 12 December
2012 which sought to address errors that
were made in relation to his
salary level when promoted, the effect of which was that his
remuneration would be in terms of Senior
Management Services (SMS)
post and not as an OSD post. In its practical effect, the applicant
would not benefit from the extra
remuneration that is afforded OSD
Posts. The problem that this poses to the applicant is stated as
follows:
“6.8 On the
13th of December 2012, a letter that was addressed to the Surgeon
General (for the attention of Col V Burger),
dated 12 December 2012,
with reference CD HRM/DCM/C/104/1 written by the Chief Directorate HR
Management (Directorate Career Management)
was handed to me (hereto
attached as ANNEXURE “M07”). This letter confirmed that,
despite the aforementioned documents,
the IG SAMHS post was a Senior
Management Service (SMS) post and not an OSD post with the associated
benefits of being a medical
officer and that I would be remunerated
according to the SMS system. In practical terms this meant that even
though I had consistently
been remunerated as if I have never been
promoted (i.e. as a Senior Clinical Manager), I had allegedly now
been overpaid. According
to the Chief Directorate HR Management, R24
277.01 was to be deducted from my salary in January or February 2013
for overpayment
since 1 May 2012. I did not consent to this
deduction, as is evident from my attorney’s letter, addressed
to the C SANDF;
Chief Directorate HR Management (Directorate Career
Management) and Surgeon General. (Hereto attached as Annexure “M08”).
My attorney, Tanya van Schalkwyk, has not had any response to
Annexure “M07”. I append, for the sake of completeness,
a
letter dated 8 November 2012 from the Chief Director: Human Resource
Management to the Chief of Human Resources (both of the
SANDF) which
appears to have preceded the letter of 12
December 2012
(Annexure “M07”). I mark this letter Annexure “M09”.
FINANCIAL
IMPLICATIONS
The negative impact
on my finances has been substantial. I am under-paid by R179 739 per
year. This amount is calculated as follows:
7.1 According to
paragraph 7 of the annexure to “M09-1” I should be paid
at an annual total package of R850 182. According
to the letter of 2
October 2012, which is ANNEXURE “M06”, I was paid at a
rate of R908 595,00 annual total package,
which included the OSD,
which increased to R978 819,00 in terms of the ANNEXURE “M06”.
The difference between the two
figures is R128 637. The difference
between this figure and the R179 739 referred to at the beginning of
this paragraph is due
to difference in the rate at which overtime is
calculated. I have taken the average number of hours I have
contracted to work overtime
in the past 12 months in making this
calculation.
7.2 A possible
further negative effect of the unilateral conduct by the Human
Resource Division of the SANDF is that I could forfeit
my right to
continued membership of the Professional Provident Society of South
Africa. This body provides cover for
long and short term
disability of its members, who have to be graduate professionals who
are using their knowledge gained at University
in the applicable
professional field. Whilst I might convince PPS that I am doing so as
IG of SAMHS, the fact that my employer
believes I do not need to be
registered as a medical practitioner or need to have a professional
qualification to do the job, could
well persuade PPS to terminate my
membership, commenced shortly after I left University.
8. To support the
fact that I have been remunerated as an OSD Senior Clinical Manager,
I attach my previous 3 months’ salary
advice (pay slips) dated
October 2012, December 2012 and January 2013, respectively, as
ANNEXURE “M010.1-3”.
9. This underpayment
also has an effect on my pension, since pension is calculated on a
member’s salary notch, which in my
case has been substantially
less than it should have been. This has a direct effect on my
retirement planning.”
[7] A brief synopsis
of the applicant’s claim is set out in the respondent’s
heads of argument as
follows:
“2. From the
founding papers it appears that the applicant’s case is
premised on the following grounds:
2.1 That he was
promoted from Senior Clinical Manager at the Directorate Medicine to
Senior Manager Medical Services in the post
of IG SAMHS with effect
from 1 April 2012.
2.2 That the
question whether the OSD applied to his new position was canvassed
extensively and it was agreed that the OSD was to
be applied to his
predecessor in the post of IG SAMHS, Brig. Gen. Cloete.
2.3 That in terms of
the criteria apparent from Annexure M03 he qualifies, as other
occupants of the post since 1996, to be remunerated
in terms of the
OSD.
2.4 That in terms of
Annexure M04 he was promoted with two other medical officer
colleagues whose functional promotions also refer
to OSD grading.
2.5 That on 16 April
2012 he entered into a Performance Agreement with the Surgeon General
for the period 1 April 2012 to 31 March
2013 which agreement inter
alia confirmed his salary package as R914 784 + R343 545 (the latter
being in respect of Commuted Overtime)
and his salary level as OSD
(Medical Officer) MSS-3 + CAT 3/2”. That he is accordingly
contractually entitled to be
remunerated in terms
of the OSD and also had a legitimate expectation to be remunerated in
terms of the OSD."
[8] The respondent
opposes the application on the basis that the applicant does not
qualify for OSD because in his current post
he is not expected to
perform any clinical duties and is also not expected to supervise
people performing clinical duties, and
that the applicant does not
perform 80% of his technical skills and 20% of managerial skills,
which places him outside of the OSD
scope.
[9] Whilst the
applicant does not deny that his current post falls outside the OSD
scope, he contends that the extra remuneration
in terms of OSD is a
contractual term of his contract of employment and that to take it
away at this stage would amount to a breach
of his contract and an
unfair labour practice.
[10] The respondent
contends that due to an administrative error the applicant continued
to be paid as if he was entitled to OSD
and that this error was only
noticed in October 2012. The issue was settled by the Military Ombud
on 6 May 2013 when he ruled that
the post of Inspector General of the
South African Military Health Services is a common post and is not
classified as a career
path post and therefore falls outside the
scope of OSD for medical officers. The Military Ombud made this
ruling in respect of
Brigadier General Cloete who occupied the
position until his retirement in 2012 and the applicant succeeded
him.
[11] The respondent
further opposes the application on the grounds, inter alia, that the
applicant has failed to follow the dispute
resolution mechanisms and
the grievance procedures of the department before bringing this
application.
[12] In his founding
affidavit the applicant anticipates that the respondent would put up
a defence that he has not utilized the
grievance procedure published
by the Minister of Defence in government notice 572 of 30 June 2010
(the Individual Grievances Regulations)
before approaching this
court. He states that he has not done so since the definition of
grievance excludes matters related to
remuneration and that it would
serve no purpose to lodge a grievance against the very same division
which would adjudicate the
grievance or convene a grievance board.
[13] The applicant’s
case is therefore that he should be afforded OSD benefits although he
does not qualify therefor merely
on the basis that it’s a
contractual term and that to take away a benefit which he does not
qualify for would constitute
an unfair labour practice as this would
be tantamount to taking away a vested right.
[14] The Regulations
define grievance as follows: “grievance” includes, but is
not limited to, a written expression
of dissatisfaction by a member
or employee regarding any act or omission of a person to whom the Act
applies relating to his or
her promotion, placement, course
nomination, assessment or service benefits, excluding dissatisfaction
relating to ...”
[15] Regulation 17
states that a member or employee may only take further action to
address a grievance once he or she has exhausted
all his or her
internal remedies in the department.
[16] The applicant’s
counsel made it clear that this application is not about the merits
whether the applicant’s position
falls within the OSD scope,
but about whether he has unfairly been deprived of an income.
[17] The ordinary
and unambiguous reading of the Regulations is that the applicant is
entitled to lodge a grievance regarding any
act or omission relating
to his promotion, placement or service benefits. He may only take
further action to address his unresolved
grievance once he has
exhausted all internal remedies.
[18] The applicant
has not provided any exceptional circumstances why he should be
exempted from exhausting internal remedies first,
save for alleging
that it would be a futile exercise since the grievance body would be
appointed by the people against whom he
would be
complaining. This
has no merits as the applicant has not alleged any bias or mala fides
on the part of the relevant persons.
[19] The applicant
relies on the exclusion from reliance on the Labour Relations Act
(LRA), and therefore approaching the court
in terms of the
contractual claim and constitutional claim, because section 2(a) of
the LRA excludes members of the South African
National Defence Force
(SANDF) from the ambit of the LRA.
[20] The applicant
did not pursue his argument that Regulation 17 is invalid since it is
ultra vires the empowering statute or that
it permits a deviation
therefrom as the use of the word “may” gives a discretion
whether to exhaust internal remedies
first or to proceed directly to
take further action.
[21] In South
African National Defence Union v Minister of Defence and others
1
the following was stated:
“51 Section
23(5) expressly provides that legislation may be enacted to regulate
collective bargaining. The question that
arises is whether a litigant
may bypass any legislation so enacted and rely directly on the
Constitution. In Naptosa and Others
v Minister of Education, Western
Cape, and Others, the Cape High Court held that a litigant may not
bypass the provisions of the
Labour Relations Act, 66 of 1995
, and
rely directly on the 1
[2007] (5) SA 400
(CC); [2007] 28 ILJ 1909
(CC) Constitution without challenging the provisions of the
Labour
Relations Act on
constitutional grounds. The question of whether this
approach is correct has since been left open by this Court on two
subsequent
occasions. Then, in Minister of Health And Another NO v
New Clicks South Africa (Pty) Ltd and Others (Treatment Action
Campaign
and Another as Amici Curiae), Ngcobo J writing a separate
judgment held that there was considerable force in the approach taken
in Naptosa. He noted that if it were not to be followed, the result
might well be the creation of dual systems of jurisprudence
under the
Constitution and under legislation. In my view, this approach is
correct: where legislation is enacted to give effect
to a
constitutional right, a litigant may not bypass that legislation and
rely directly on the Constitution without challenging
that
legislation as falling short of the constitutional standard.
52. Accordingly, a
litigant who seeks to assert his or her right to engage in collective
bargaining under section 23(5) should in
the first place base his or
her case on any legislation enacted to regulate the right, not on
section 23(5). If the legislation
is wanting in its protection of the
section 23(5) right in the litigant’s view, then that
legislation should be challenged
constitutionally. To permit the
litigant to ignore the legislation and rely directly on the
constitutional provision would be to
fail to recognise the important
task conferred upon the legislature by the Constitution
to respect, protect,
promote and fulfil the rights in the Bill of Rights. The proper
approach to be followed should legislation
not have been enacted as
contemplated by section 23(5) need not be considered now."
[22] In this case
legislation does exist in the form of the Regulations in terms of
Government Notice 572, in particular Regulation
17 which provides
that a member or employee may only take further action to address a
grievance once he or she has exhausted all
his or her internal
remedies in the Department. The definition of “grievance"
includes the subject matter of this application.
He alleges that the
employer’s unilateral decision to promote him and designate him
to a particular post designation resulted
in a negative impact on his
service benefits.
[23] I am of the
view therefore that the application is premature and no special
circumstances have been pleaded or established
as to why the
applicant should be exempted from exhausting internal remedies.
[24] The dicta in
South African National Defence Union was much more recently applied
in MEC for Education, KwaZulu-Natal and others
v Pillay
2
that “a litigant cannot circumvent legislation enacted to give
effect to a constitutional right by attempting to rely directly
on
the constitutional right." In the absence of a direct challenge
to an Act, the
courts must assume
that the act that has been an acted to give effect to a
constitutional right is consistent with the constitution
and such
claims must be decided within its margins.
[25] In the event, I
make the following order:
1. The application
is dismissed.
2. No order as to
costs.
SIGNED AT
PRETORIA ON THIS 12™ DAY OF MARCH 2014
MALINDI AJ
Acting Judge of
the High Court Appearances:
For
Applicant: Adv. RG Beaton SC
Instructed
by: Van Schalkwyk Attorneys
For
Respondent: Adv Z.Z. Matebese
Instructed
by: State Attorney Matladi J
1
1
[2007] (5) SA 400
(CC); [2007] 28
ILJ 1909 (CC)
2
[2007] ZACC 21
;
[2008]
(1) SA 474
(CC) at Para
[40]