Opperman v Minister of Defence and Military Veterans (SCA 20752/14) [2015] ZASCA 153 (2 October 2015) per Zondi JA [Maya ADP, Cachalia, Dambuza JJA and Gorven AJA concurring]

The Supreme Court of Appeal disallowed the appeal and confirmed that there was no lawful right to contest the removal of a benefit that had been bestowed on him my mistake.  The appellant was a member of the SANDF employed as the Inspector-General of the South African Military Health Service.  There was a dispute between him and the Department regarding  payment of certain benefits.  He applied to the High Court for an order declaring that he had a contractual right to be remunerated in accordance with the OSD until 31 March 2014.  He further alleged that being deprived of the OSD income was unlawful and was unfair in terms of s 23 of the Constitution.

The High Court (Malindi AJ) upheld the Minister’s contention that the application was premature because of the failure to exhaust the internal remedies provided under the regulations.  According to the SCA the issue was whether he qualified to be remunerated in accordance with the OSD.  The SCA rejected his contractual claim based on his reliance on (a) a letter recommending him for promotion to the post; (b) a contention 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 and (c) the performance agreement he concluded with Surgeon-General.

In passing the SCA mentioned that as public funds were involved the unauthorised remuneration which was made without a lawful basis must be recovered and the Department was duty-bound to do so once the mistake was detected.

Excerpts:

[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’.

[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.