Nofemele v Minister of Defence

• Jurisdiction: South Africa
• Judge: Nicholson J
• Judgment Date: 12 December 2008
• Docket Number: 12670/07
• Court: Durban and Coast Local Division
• Hearing Date: 25 November 2008
• Citation: 2008 JDR 1551 (D)

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

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Nicholson J

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

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Nicholson J

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...