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IN THE HIGH COURT OF SOUTH AFRICA

(DURBAN AND COAST LOCAL DIVISION)

Case No 12670/07

In the matter between :

MADODA IRVINE NOFEMELE Plaintiff

and

MINISTER OF DEFENCE First Defendant

MAJOR L J NGCOBO Second Defendant

______________________________________________________________

J U D G M E N T

______________________________________________________________

NICHOLSON J

1. The applicant is a captain in the South African National Defence Force (the Defence Force) and he seeks a declaration that he is entitled to an acting allowance for the time he spent as Acting Client Services Manager in the Area Military Health Unit, KwaZulu-Natal. The matter was brought by way of application but referred to oral evidence. I heard the evidence of applicant and his witness Colonel Dippenaar and the first respondent (the Defence Force) led the evidence of Colonel Baloyi.

2. The applicant's background is that of a psychiatric nurse. In August 2003 he testified that he was appointed as Acting Client Services Manager (ACSM). It is common cause that he performed the duties of ACSM and received high marks in the assessments of how he performed. There is documentary support for his taking up the position and being issued with a duty sheet to carry out the work as an ACSM. In fact the last mentioned document dated 22 September 2006 under the hand of the Officer Commanding Area Military Health Unit KZN Colonel Mbiza states that applicant "is hereby appointed to represent the Client Services Manager at the Area Military Health Unit, KwaZulu".

3. The evidence revealed that the rank of ACSM is equivalent of Lieutenant Colonel and would in the ordinary course of events be remunerated as such. The applicant then embarked on a lengthy exercise in trying to recover the moneys in excess of his captain's salary the new post entitled him.

4. It is common cause that the basis for any such claim lies in a Directive issued by the Minister of Defence on 30 November 2005. It records that prior to its issue members of the Defence Force were not paid allowances when dealing with acting appointments whereas the other members of the public service were. It remedies that situation and provides for allowances with their mode of compensation.

5. Clause 8 of the directive provides for an acting allowance to be paid to a member, appointed in writing, by an appointing authority, who is defined as a supervisor so authorised, who is at least one post level higher. It is common cause that Colonel Mbiza was at least one level higher.

6. Colonel Baloyi stressed in his evidence that according to Defence Force regulations and practice the applicant had to be appointed by a level 2 officer, which would include the Surgeon General or someone authorised by him. Colonel Baloyi also testified that the position also had to be vacant and funded and could not last longer than 12 months. The last two requirements emanate from the provisions of the directive.

7. It seems clear on the evidence that the position was vacant and could have become funded should the necessary staff have carried out the right processes. There are 9 CSMs in the Republic all of which are funded and the position is acknowledged to be very important.

8. What is clear is that the Defence Force had the benefit of the services of applicant as ACSM for the period in question during which he had not been paid on the wage level which is appropriate for that position. Insofar as the applicant was concerned he assumed that all the legal requirements pertaining to his appointment had been fulfilled. At best for the Defence Force Colonel Baloyi's evidence established that in appointing applicant to the position over the period they did, the Defence Force disregarded their own internal directive. None of this was known to the applicant.

9. The Labour Relations Act No 66 of 1995 (the LRA) expressly excludes members of the Defence Force. In Murray v Minister of Defence [2008] ZASCA 44; [2008] 3 All SA 66 (SCA) the Court held as follows :

"[5] (S)ection 23(1) of the Bill of Rights … provides that 'Everyone has the right to fair labour practices.' This includes members of the defence force. The parties agreed in argument that the plaintiff was entitled to rely directly on this right, as also on the right to dignity, which is a close associate of the right to fair labour practices. However, it is in my view best to understand the impact of these rights in this case through the constitutional developments of the common law contract of employment. This contract has always imposed mutual obligations of confidence and trust between employer and employee. Developed as it must be to promote the spirit, purpose and objects of the Bill of Rights, the common law of employment must be held to impose on all employees a duty of fair dealing at all times with their employees - even those the LRA does not cover."

10. It is important to note that the application for applicant to be appointed to the position of ACSM signed by Colonel Mbiza had as part of it a post and usage number. These were codes that would facilitate the payment of this allowance. The scale is also provided as 10 which I was given to understand referred to that of Lieutenant Colonel.

11. In addition the applicant accepted the offer by a written notification dated 10 January 2006. In that communication he accepted the position with the allowance set out in the directive of 30 November 2005.

12. Even if one accepts that Colonel Mbiza was not entitled to appoint applicant as ACSM the question arises also whether an estoppel arises. The applicant acted on the representation that Colonel Mbiza was entitled to appoint him and carried out his duties. It may well be that the Defence Force is estopped from denying that Colonel Mbiza had the requisite authority. See Trust Bank v Eksteen 1964(3) SA 402 (A) at 415 - 6.

13. Even if I am wrong as to the legality of applicant's right to be paid the allowance, the question that arises is whether the non-payment is an unfair labour practice as stipulated in section 23 of the Bill of Rights. Counsel were in agreement that what took place was clearly unfair in that applicant performed the duties without the concomitant remuneration. Colonel Dippenaar was of the view that fairness had to prevail and the principle of equal pay for equal work prevailed. He said that the money could easily be found as there were 9 similar positions around the country which were easily accommodated in the budget.

14. One document described the applicant as supernumeral but still suggested that his occupation of the post was in order to provide him with "gainful employment". That also suggests that he would be remunerated according to the directive.

15. As Cameron JA puts it in Murray's case the applicant has to be treated fairly. When he talks about "a duty of fair dealing" that must include paying him for the job he did. One has to bear in mind that the directive pointed out that the military was being unfairly treated as the rest of the Public Service was being paid for work in an acting capacity. In this matter it would be gravely unfair if the Public Service and the army were paid for work in an acting capacity but not the applicant.

16. I am therefore of the judgment that the applicant should be paid the allowance as ACSM from 1 January 2006 to 30 May 2007.

17. Applicant maintained that he was not able to compute in monetary terms what he should be paid. The form of order will therefore be an order that he be paid according to the provisions of Clauses 16 et seq of the Implementation Instruction dated 30 November 2005. Should there be any dispute about the quantification of such amount it should be set down before me by one party on 14 days written notice to the other party

18. In the premises I make the following order :

a) The first respondent is ordered to pay the applicant the acting allowance he is entitled to as Acting Client Services Manager for the period 1 January 2006 to 30 May 2007 according to the Interim Implementation Instruction of 30 November 2005.

b) Should there be any dispute about the quantum of such allowance either party may set down that issue for determination by this Court on 14 days notice to the other party.

c) The first respondent is ordered to pay the applicant's costs on the High Court scale.

Counsel for the plaintiff : A D Collingwood (instructed by Viren Singh and Company)

Counsel for the respondent : M Naidoo (instructed by the State Attorney)

Date of hearing : 25 November 2008

Date of judgment : 12 December 2008

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