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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not Reportable

Case No:  20752/14

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later this was withdrawn by the Department.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’)

1 Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides:
‘Everyone has the right to fair labour practices’.

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

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.

Regulations5 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:

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.

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

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
2 October 2015
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not form part of the
judgment of the Supreme Court of Appeal.

Maarten Opperman v The Minister of Defence and Military Veterans (20752/2014) [2015] ZASCA 153 (2
October 2015)

The Supreme Court of Appeal (SCA) today delivered a judgment dismissing the appeal by the appellant, Mr
Maarten Opperman against the judgment of the Gauteng Division of the High Court, Pretoria.

The issue before the SCA was whether the appellant was entitled to be remunerated in accordance with the
Occupational Specific Dispensation (OSD).

The appellant’s claim arose in the following circumstances: The appellant, a medical practitioner, became a
member of SANDF in 1996. He held a rank of Senior Clinical Manager, an OSD post prior to his promotion in
April 2012 and as such, he was remunerated in accordance with the Occupational Specific Dispensation. In
April 2012 he was promoted to the rank of Inspector-General: South African Military Health Services and held a
position of Senior Manager: Medical Services, a non-OSD post.

Despite the fact that after April 2012 he held a non-OSD post, he continued to be remunerated in accordance
with the Occupational Specific Dispensation until December 2012 when the SANDF established that he was
being incorrectly remunerated. To rectify the mistake the SANDF withdrew the OSD income and sought to
recover from the appellant’s March 2013 salary payments which it contended had been incorrectly made to the
appellant. The appellant disputed this.
The decision by the SANDF prompted the appellant to launch an application in the high court seeking an order
declaring that he had a contractual right to be remunerated in accordance with the Occupational Specific
Dispensation and that the withdrawal of the OSD benefits constituted an unfair labour practice and was
unlawful. In resisting the application the Minister of Defence contended that the application was premature and

had to be dismissed, because of the appellant’s failure to utilise the internal grievance procedures before
approaching the court. On the merits the Minister contended that the appellant was not entitled to be
remunerated in accordance with the Occupational Specific Dispensation because the post he occupied was not
an OSD post.

The high court accepted the Minister’s contention that the application was premature and for that reason,
dismissed it. The appellant appealed to the SCA contending, firstly, that the high court had erred in holding that
his failure to exhaust internal remedies precluded him from approaching the court and secondly, that he was
entitled to be remunerated in accordance with the Occupational Specific Dispensation.

The SCA dismissed the appeal. It found that the post he occupied was a common post and therefore the
appellant could not be remunerated in accordance with the OSD. On the basis of that finding the SCA held that
the provision in the performance agreement concluded by the appellant and the Surgeon-General providing for
the payment of an OSD income was unlawful and unenforceable and for that reason there was no basis for the
appellant to demand to be paid an OSD income.