The Supreme Court of Appeal ("SCA") has recently, in the judgment of Maarten Opperman v The Minister of Defence and Military Veterans (2015) held that a contract of employment conferring benefits to an employee to which he is not entitled, is not enforceable.

The issue to be decided by the SCA was whether the employee was still entitled to receive the Occupational Specific Dispensation ("OSD") benefit, despite being promoted to a non-OSD post.

The SCA dismissed the employee's appeal and came to the conclusion that the employee's current post was a common post which did not require him to perform any clinical work (a core function of the OSD post).  The employee argued that the withdrawal of this benefit constituted an unfair labour practice. The SCA disagreed, and held that the performance agreement concluded with Surgeon General Ramlakan was unlawful and unenforceable as he (Surgeon General Ramlakan) did not have the authority to conclude such agreement. As a result, no basis existed for the employee to demand the OSD benefit and the withdrawal thereof did not constitute an unfair labour practice.