Introduction

[1] The respondent in this interlocutory application seeks an order upholding its exception to the applicant’s statement of case. The respondent has in this regard raised several complaints against the applicant’s statement case. The application was brought subsequent to the respondent serving the notice on the applicant calling on him to remove the cause of the complaint in terms of Rule 11 of the rules of this Court1 read with Rule 23(1) of the High Court Rules2.

Background facts

[2] It is common cause that the applicant who was initially appointed on a one year probationary period was subsequently appointed on a fixed term contract as Head of the Department of Health: Free State Province (HOD). The appointment was made in terms of the provisions of the Public Service Act of 1994 (“the Act”), the Public Service Regulations of 2001(the “Regulations”), the Senior Management Service Hand Book (“SMS Hand book”) and the written employment contract.

[3] The applicant contends in the statement of case that consequent to the above legislative and regulatory frame work the following terms are applicable to his employment contract:

9.1.1. The respondent would be entitled to re-determine the term of the applicant’s office in accordance with sections 12 (1) and (2) of the Act.

9.1.2. The redetermination would be subject to an agreement being reached between the respondent and the applicant pertaining to the redetermination.

9.1.3. Should this (ie the re-determination) occur, it will constitute a breach of contract, and this will entitle the applicant to be compensated for damages.

9.1.4. The compensation thus payable would be for the unexpired portion of the applicant’s term of service.

9.1.5. The applicant would, should he have less than 10 years’ of pensionable service, be entitled to a gratuity payment calculated at 15% of the average salary over the last 24 months that the applicant had received, multiplied by his period of pensionable service, plus an additional ⅓ of this amount.

9.1.6. A leave payout was to be made to the applicant in respect of any unused leave credit of the previous and or current cycle which was applicable on the basis provided for in chapter 3.

9.1.7. The applicant would be entitled to a pro rata 13th cheque.

9.1.8. The applicant would be entitled to medical benefits, calculated as a cash benefit of 12x the applicant’s contribution as at the last day of his service.

9.1.9. Special additional benefits were to be paid to the applicant, should his contract of service be re-determined before the expiry of his term, in accordance with section 37 (2) (d) of the Public Service Act. The applicant here pleads that although the aforementioned section has been repealed his entitlement to the additional benefit remains, because of inter alia the provision of the employer agreement, and the SMS Hand book.”