REPORTABLE
Case No: 651/97
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between:
NATIONAL POLICE SERVICE UNION
1 Appellant
st
O Y ZAMA
2  Appellant
nd
S G MDLULI
3  Appellant
rd
and
THE MINISTER OF SAFETY AND
SECURITY
1  Respondent
st
THE NATIONAL COMMISSIONER
OF THE SOUTH AFRICAN POLICE SERVICE 2  Respondent
nd
THE PROVINCIAL COMMISSIONER OF
THE SOUTH AFRICAN POLICE SERVICE
FOR KWAZULU-NATAL
3  Respondent
rd
BONITAS MEDICAL FUND
4  Respondent
th
CORAM:
SMALBERGER, MARAIS, OLIVIER
JJA, MELUNSKY and FARLAM AJJA
DATE OF HEARING: 28 FEBRUARY 2000
DELIVERY DATE:
29 MARCH 2000
Police Service - Rationalisation scheme providing for transfer of
members to fixed establishment - promulgation not required -
whether membership of Police Medical Scheme compulsory.
_______________________________________________________
JUDGMENT
____________________________________________________

_____
. . . SMALBERGER JA

SMALBERGER JA:
[1] Immediately prior to the coming into operation of the Constitution
of the Republic of South Africa Act 200 of 1993 (“the Interim
Constitution”) the second and third appellants were members of the
KwaZulu Police Force.  Their conditions of service allowed them to be
members of the fourth respondent (“Bonitas”), a registered medical
scheme.  In terms of KwaZulu Cabinet Resolution 138/93 they were
entitled to a 100% subsidisation of their monthly medical aid
contributions to Bonitas.  This appeal primarily concerns their right (and
the rights of others similarly placed, who are members of the first
appellant) to continue to be members of Bonitas and to have their
contributions paid in full by the State.  I shall refer to those whose rights
are in issue collectively as “the appellants”, save where the context

indicates otherwise.
[2] Section 214 of the Interim Constitution provided for the
establishment of a South African Police Service (“the Service”).  In terms
of section 236(7)(a) the South African Police and “all other police forces
established by law” were deemed, at the commencement of the Interim
Constitution, to constitute the Service.  Such “other police forces”
included those of KwaZulu and the other formerly independent or self-
governing territories.  The various police forces were to continue to
function as such in accordance with the laws applicable to them until
rationalised (section 236(1)).  Such rationalisation was to take place as
soon as possible after the commencement of the Interim Constitution
(section 237(1)(a)).  Section 237(3)(a) provided that:
“The President may . . . by proclamation in the Gazette take
such steps as he or she considers necessary in order to

achieve the aim mentioned in subsection (1).”
[3] Pending rationalisation of the various police forces, the terms and
conditions of employment applicable to any person employed by them
were to “continue to apply to him or her until amended by  or under any
law, including any law enacted in order to establish uniformity of the
terms and conditions of employment in accordance with those generally
prevailing at such commencement” (section 236(4)).  “Any law” would
include a proclamation by the President in terms of section 237(3)(a).
[4] The South African Police Service Rationalisation Proclamation,
1995 published in Government Gazette 16239 of 27 January 1995 (“the
Proclamation”), was issued by the President under the powers vested in
him by section 237(3)(a).  It provided for the rationalisation of the
Service.  The provisions of section 236(4) of the Interim Constitution

were mirrored in those of section 12(2)(b) of the Proclamation which
provides, to the extent relevant, that:
“any
person
employed
immediately
before
the
commencement of this Proclamation by a force . . . shall,
. . . continue in such employment (which is referred to
hereinafter as employment in a pre-rationalised post) until he
or she is dealt with in terms of this Proclamation, and—  (i)
the terms and conditions of service and accrued
benefits;
(ii)
. . .
(iii)
. . .
applicable to him or her immediately before such
commencement shall continue to apply to him or her subject
to any alteration thereof in terms of this Proclamation;”
[5] Section 12(2)(e) goes on to prescribe what the consequences are
to be of the appointment of someone to the “fixed establishment” which
by definition (section 1) means “the posts which have been created for
the normal and regular requirements of the Service but does not include
pre-rationalised posts”.  The relevant portion reads:

“[A]ny appointment in the fixed establishment of the Service
shall be effected in terms of the provisions of the Police Act
[7 of 1958] and regulations thereunder as applicable on the
day before the commencement of this Proclamation . . .
with respect to -
(i)
. . .
(ii)
. . .
(iii)
terms and conditions of service;
(iv)
. . .
(v)
. . .
subject to any alteration, replacement or amendment of such
provisions in terms of or by virtue of the provisions of this
Proclamation.”
[6] Section 12(2)(g) of the Proclamation preserves certain rights of
persons employed in a pre-rationalised post in the Service on the day
before his or her appointment in a post in the fixed establishment.  The
list of preserved rights makes it clear that the obligatory preservation of
such rights is not all-encompassing but is limited to those specifically
mentioned.  It is common cause that they do not include or relate to

medical benefits.
[7] The Minister of Safety and Security was given the task of
implementing the rationalisation process.  In this respect section 14(1)
and (6) of the Proclamation provides:
“(1)
The Minister shall determine a scheme for the
rationalisation, reorganisation and consolidation of
the Service at national and provincial level as
contemplated in section 237 of the Constitution.
. . . .
(6)
Prior to the implementation of such a scheme the
Minister shall inform the members, who may be
affected by such rationalisation scheme, of the
contents thereof.”
[8] The South African Police Service Act 68 of 1995 came into effect
on 15 October 1995.  It repealed the Proclamation save for certain
sections.  Included amongst the latter were sections 12(2)(a) to (j) and 14
which continued to remain operative.  The provisions of that Act do not

have a bearing on the issues in the appeal.
[9] The Minister, acting in terms of section 14(1) of the Proclamation,
determined a number of schemes relating to the rationalisation process.
Of these the Fifth Rationalisation Scheme (“the Fifth Scheme”), which
came into effect on 10 February 1997, provided (in paragraph 4) for the
en masse transfer of members serving in pre-rationalised posts (including
the appellants) to the fixed establishment.  By this route the appellants
were finally assimilated into the Service.
[10] Once the appellants were appointed in the fixed establishment they
became subject to the provisions of section 12(2)(e) of the Proclamation.
This resulted in their appointments being effected in terms of the Police
Act and the regulations thereunder in respect of, inter alia, their terms
and conditions of service.  These included their medical benefits.

Whereas up to then they had retained their conditions of service,
including their medical benefits, that were applicable immediately before
the commencement of the Interim Constitution, the situation now
changed.  Their medical benefits were in future to be governed by the
relevant regulations under the Police Act.  The effect of their appointment
was that, by operation of law, there was substituted for the medical
benefits they (and others) had previously received, those to which
members of the erstwhile South African Police Force (“the Force”) were
entitled in terms of the Police Act and regulations, to the extent that the
latter excluded the former.
[11] This result harmonises with section 236(4) of the Interim
Constitution which envisages the establishment of “uniformity of the
terms and conditions of employment in accordance with those generally

prevailing” at the commencement of the Interim Constitution.  At that time
the members of the Force substantially outnumbered those of the other
Police forces, and the medical benefits “generally prevailing” were those
to which they (the members of the Force) were entitled in terms of the
applicable regulations.
[12] Under Government Notice R203 of 14 February 1964 Regulations
for the Force were promulgated in terms of the Police Act.  Regulation
30 provided for medical treatment of members at public expense.
Government Notice R685 of 31 March 1981 caused a new regulation 30
(which is still current) to be substituted for the original one.  It established
the South African Police Medical Scheme (“Polmed”) which was to
provide medical benefits for members and their dependants at public
expense.  Members were not required to contribute to Polmed but had to

pay one-tenth of the cost of medical services provided in accordance
with a prescribed tariff.  I shall deal with the effect of this regulation later.
[13] After the Fifth Scheme became operative a dispute arose between
the appellants, on the one hand, and the first, second and third
respondents on the other, with regard to the appellants’ continued
membership of Bonitas at public expense (the State having up to then
continued to subsidise their contributions in full in view of the provisions
of section 12(2)(b) of the Proclamation).  The three respondents took up
the attitude that the appellants were no longer entitled to subsidised
membership of Bonitas; to qualify for medical benefits at State expense
they would have to become members of Polmed.  This was evidenced in
letters from the State Attorney, Kwa-Zulu-Natal, to the appellants’
attorneys in August 1997, and letters from the second respondent to

Medscheme (the administrators of Polmed) and to all Deputy National
Commissioners, Provincial Commissioners and other persons in
command dated 9 and 15 September 1997 respectively.  These letters
made it clear that in order to enjoy medical benefits at State expense the
appellants would be obliged to become members of Polmed as from 1
November 1997 (certain concessions having been made to them up to
then pending resolution of the existing dispute.)
[14] On 31 October 1997 the appellants brought an urgent application
against the respondents and Polmed in the Natal Provincial Division in
which they sought the following relief:
(a)
That the Fifth Scheme “be and is declared to be null and
void and of no force and effect”;
(b)
That the decision of the first, second and third respondents

“that those members of the first applicant [now first
appellant] who are members of [Bonitas] shall with effect
from 1 November 1997 become members of Polmed, be
and is hereby set aside”;
(c), (d) and (e)
Orders interdicting and restraining the first,
second and third respondents from withholding payment to
Bonitas of amounts due in respect of subscriptions of the
appellants who belonged to Bonitas; directing them to continue to
make payment to Bonitas in respect of such membership on the
basis set forth in KwaZulu Cabinet Resolution 138/1993; and
costs.
[15] The matter came before P C Combrinck J.  In essence the
respondents contended (as they had done in their answering affidavits):

(a)
That the appointment of former members of the KwaZulu
Police (including the appellants) in the fixed establishment
in terms of the Fifth Scheme automatically and by operation
of law rendered them subject to the Police Act and
regulations in respect of their conditions of service.
(b)
That this resulted in compulsory Polmed membership, as
the relevant regulations under the Police Act provided for
compulsory Polmed membership to the exclusion of any
other medical scheme.
[16] At the hearing of the application it was common cause between all
concerned that compulsory Polmed membership followed upon the
appointment of the appellants in the fixed establishment.  (Whether this
correctly reflects the legal position is a matter which falls to be dealt with

later.)  The respondents’ contentions in para [15](a) above were not
specifically dealt with by the learned judge.  They were, however, clearly
correct - see para [10] above.  In the result the only point argued in the
application was whether, as stated in the judgment, “the Fifth
Rationalisation Scheme was obliged to be implemented by promulgation
in the Government Gazette”, it being common cause that no such
promulgation had taken place.  The learned judge held that promulgation
was not required for the Fifth Scheme to be of force and effect, and duly
dismissed the application with costs.  He subsequently granted leave to
appeal to this Court.  The grounds of appeal relate solely to the issue of
promulgation.
[17] Although, as will appear later, this was not the only issue raised on
appeal before us, it will be convenient to deal with it first.  It is a

requirement of both the common law and statute that subordinate
legislation, even if it has been validly enacted, is not of binding force and
effect in law until it has been promulgated.  The requirement is subject to
qualification, as will appear later.  The purpose of promulgation is to
notify those who will be, or may be, affected by the legislative enactment
in question of its import and effect.  As stated in Byers v Chinn and
Another 1928 AD 322 at 330:
“Published notices in matters affecting the public at large, a
considerable portion of it, or a large class of persons, is the
only practical way of informing the individuals concerned of
their rights and duties.”
[18] The statutory requirement for promulgation is to be found in
section 16 of the Interpretation Act 33 of 1957 which provides:
“When any by-law, regulation, rule or order is authorized by
any law to be made by the President or a Minister or by the
Premier of a province or a member of the Executive Council

of a province or by any local authority, public body or
person, with the approval of the President or a Minister, or
of the Premier of a province or a member of the Executive
Council of a province, such by-law, regulation, rule or order
shall, subject to the provisions relative to the force and
effect thereof in any law, be published in the Gazette.”  (My
emphasis.)
[19] The common law position appears from the following passage in
Byers v Chinn and Another (supra) at 327 - 8:
“The learned JUDGE-PRESIDENT laid down the general
proposition that: ‘Before a law or any regulation or by-law
having the force of law can become operative, it must be
duly promulgated.’  The rule is supported by numerous
decisions of the Courts of South Africa besides those
quoted by the Local Division and is founded on the
common law.  See remarks of INNES, C.J., in Ismail Amod
v Pietersburg Municipality (1904, T.S. at p. 323), and
KOTZE, J., in Rex v Koenig (1917, C.P.D. 235), said:  ‘It
is not enough that an individual may have knowledge in
some other way of the alleged law, regulations or order
(Voet 1.3.10); there must be promulgation’; but then he
adds: ‘But this rule may admit of exceptions.  Thus, a
statute may possibly be so framed as to indicate that,

under particular circumstances, or from the very nature of
the case, an order, or regulation issued under its
authority, need not comply with the necessity of
promulgation.’  And in addition to this there are nearly
always to be found in the enactments giving power to
subordinate bodies to make rules, regulations, or by-laws,
which are to have the force of law, directions as to
procedure, . . . .”  (My emphasis.)
[20] The rationalisation process was carried out step by step in strict
conformity with the requirements of the Interim Constitution and the
Proclamation.  It is common cause that the latter constituted original
legislation.  It was the empowering provision in terms of which the Fifth
Scheme, the final step in the process, was determined.  In terms of the
Scheme pre-rationalised posts became posts in the fixed establishment
with the attendant legal consequences foreshadowed in, and envisaged
by, the Proclamation.  It was an anticipated as well as a logical step in an
administrative process which had its origin in a legislative command.  The

determination and putting into effect of the Scheme constituted, in my
view, an administrative directive.  The character of the Scheme was not
of the kind that would normally call for promulgation.  It did not amount
to a “by-law, regulation, rule or order” within the purview of section 16
of the Interpretation Act.  Section 14(6) of the Proclamation provided for
the form of notification the administrative decision underlying the
directive was to take - the members who might be affected thereby were
to be informed.  This was done.
[21] In the result promulgation, in my view, was not called for.  The
validity of the Fifth Scheme (as opposed to whether it had force and
effect) has never been in issue, and the legislative consequences that flow
from it are not open to challenge.  Questions of non-compliance with the
rules of natural justice simply do not arise.

[22] Even if the Fifth Scheme amounted to a legal enactment which
would normally require promulgation, there are sufficient indications in
the Proclamation to infer an intention that promulgation was impliedly
dispensed with (cf section 16 of the Interpretation Act and Byers v Chinn
(supra)).  The Scheme related to a limited class of persons (pre-
rationalised members of the Service) and did not affect the public in
general, or a large percentage or class of the public, requiring that they be
given notice.  The Scheme primarily conferred a benefit - that of
incorporation in the fixed establishment - rather than imposing an
obligation.  Furthermore, the requirement in section 14(6) of the
Proclamation, in express terms, that members who may be affected by
a rationalisation scheme were to be informed of its contents, served the
very purpose for which promulgation was intended.  Being so informed

through the available command structures of the Service would also
amount to the most effective form of notification to its members.
Promulgation would therefore not serve a purpose not already specifically
catered for by the Proclamation.
[23] At the hearing of the appeal Mr Maritz, for the appellants, (who
had not appeared in the court below) distanced himself from the
concession made in that court that regulation 30 rendered membership of
Polmed compulsory for all members of the Service.  The concession
being one relating to a matter of law or legal interpretation, the appellants
were not bound by it.  Mr Maritz contended that on a proper
construction of regulation 30 membership of Polmed was not obligatory.
Consequently the appellants were not precluded from continuing to be
members of Bonitas at State expense, in other words, from continuing to

enjoy their pre-rationalisation medical benefits.
[24] Section 33(1)(b) bis of the Police Act authorised the President
(whose powers were later transferred to the Minister) to make regulations
in respect of the establishment of a scheme to provide for medical
benefits and “the class of members of the Force or other persons who
shall be or may become members of such a scheme . . .”  The Act
therefore envisaged the possibility that not all members of the Force
might be required or obliged to become members of the scheme,
although it lay within the Minister’s power to so require or oblige them.
Their position would be governed and determined by the relevant
regulations.
[25] Regulation 30 does not, in my view, either expressly or by
necessary implication, make membership of Polmed obligatory.  Polmed

was initially established, inter alia, for all serving members of the Force.
They automatically qualified for membership of Polmed.  The same holds
true for current members of the Service.  But while regulation 30 entitles
all members of the Service to be members of Polmed, it does not compel
such membership or preclude them from joining a medical scheme of
their choice.  What they cannot do is be a member of both.  Section 38
of the Medical Schemes Act 72 of 1967 (since repealed and replaced by
section 28 of the Medical Schemes Act 131 of 1998) prevents the
simultaneous membership of more than one medical scheme.
[26] While membership of Polmed is not obligatory, it remains the only
scheme providing medical benefits to members of the Service at public
expense.  Although the appellants are entitled to belong to Bonitas,
forsaking the Polmed benefits, they cannot do so at State expense.  This

is because regulation 30, by providing, at State expense, for a specific,
non-contributory medical scheme (Polmed), must in my view be
construed (in the absence of any contrary regulatory provision) as having
excluded, by necessary implication, not the option of membership of
another medical scheme, but the option of membership of such scheme
at State expense.  The choice in terms of regulation 30 therefore lies
between membership of Polmed at no cost to a member, or membership
of a medical scheme at his or her own expense.
[27] It is unnecessary to consider whether the appellants, as members
of the Service, are, by virtue of para 5.2 of Chapter D.(ix), Part 1,of the
Public Service Staff Code published in terms of the Public Service Act,
1994 (Proclamation 103 of 1994), entitled to a two-thirds subsidized
membership of a medical scheme of their choice (including Bonitas),

subject to the prescribed maximum amount.  They never sought to make
out such a case in the court below.  Nor have they sought to do so
subsequently.  In fact, reliance thereon was specifically disavowed in the
appellants’ supplementary submissions where it was stated that it is “not
the appellants’ case that they are entitled to the medical aid membership
contribution by the employer as provided for in terms of the Public
Service Staff Code”.
[28] The relief sought by the appellants referred to in para [14](b) above
was partly premised on the respondents’ attitude that they were obliged
to become members of Polmed.  But, as this judgment holds, they are
entitled but not obliged to become members.  However, the true issue
underlying such relief was whether they were entitled to a 100% State
subsidised membership of Bonitas.  In this they have failed.  Within that

context they are not entitled to the relief sought by them in the above, or
any other respects.
[29] In the result the appeal is dismissed with costs.
___________________
J W SMALBERGER
JUDGE OF APPEAL
MARAIS JA
)concur
OLIVIER JA
)
MELUNSKY AJA)
FARLAM AJA
)