National Police Service Union v The Minister of Safety and Security

The second and third appellants were members of the KwaZulu Police Force prior to the commencement of the Interim Constitution (Act 200 of 1993). Their conditions of service allowed them to be members of Bonitas Medical Scheme, with 100% subsidisation of their monthly contributions by the State in terms of KwaZulu Cabinet Resolution 138/93. Section 214 of the Interim Constitution established the South African Police Service, deeming all existing police forces (including the KwaZulu Police Force) to constitute the Service. Section 236(4) provided that existing terms and conditions of employment would continue until amended by law to establish uniformity. The South African Police Service Rationalisation Proclamation, 1995 was issued by the President under section 237(3)(a) to rationalize the Service. The Minister determined the Fifth Rationalisation Scheme which came into effect on 10 February 1997, providing for the en masse transfer of members serving in pre-rationalised posts (including the appellants) to the fixed establishment. Once appointed to the fixed establishment, the appellants became subject to section 12(2)(e) of the Proclamation, which applied the Police Act and regulations (including Regulation 30 establishing the Police Medical Scheme 'Polmed') to their terms and conditions of service. The State took the position that the appellants were no longer entitled to subsidised Bonitas membership and would have to join Polmed to receive medical benefits at State expense. The appellants challenged this, arguing that the Fifth Scheme was null and void for lack of promulgation and that they were entitled to continue Bonitas membership at State expense.

• Whether the Fifth Rationalisation Scheme was required to be promulgated in the Government Gazette to be of force and effect
• Whether Regulation 30 made membership of Polmed compulsory for all members of the South African Police Service
• Whether the appellants were entitled to continue their membership of Bonitas Medical Scheme at State expense after their appointment to the fixed establishment
• Whether the change in medical benefits constituted a lawful alteration of the appellants' terms and conditions of service

The appeal was dismissed with costs.

The binding legal principles established are: (1) An administrative directive implementing a legislatively-mandated process does not constitute subordinate legislation requiring promulgation under section 16 of the Interpretation Act where the empowering legislation provides for an alternative form of notification to affected persons, particularly where the directive affects a limited class of persons and primarily confers benefits. (2) Where a rationalization proclamation issued under section 237(3)(a) of the Interim Constitution provides that appointments to the fixed establishment shall be effected in terms of specified legislation and regulations regarding terms and conditions of service, such appointment automatically and by operation of law substitutes the applicable terms and conditions (including medical benefits) for those previously enjoyed, to the extent of inconsistency. (3) A regulation establishing a medical scheme for members of the police service at State expense, while entitling all members to join that scheme, does not make membership compulsory unless it expressly or by necessary implication so provides. However, such a regulation impliedly excludes State-subsidised membership of alternative medical schemes. (4) The requirement of promulgation may be impliedly dispensed with where the empowering statute provides for specific notification mechanisms, the enactment affects a limited class of persons, and promulgation would not serve a purpose not already provided for.

The Court noted obiter that: (1) The common law and statutory requirements for promulgation serve the purpose of notifying those affected by legislative enactments of their import and effect, with the rule admitting of exceptions where a statute indicates that particular circumstances or the nature of the case may not require promulgation. (2) The rationalisation process was carried out step by step in strict conformity with the requirements of the Interim Constitution and Proclamation, constituting an anticipated and logical step in an administrative process with its origin in a legislative command. (3) Questions of non-compliance with the rules of natural justice did not arise in relation to the Fifth Scheme. (4) The Court did not need to consider whether the appellants were entitled to two-thirds subsidised membership of a medical scheme of their choice under the Public Service Staff Code, as this was specifically disavowed by the appellants and had never been pleaded. (5) Section 38 of the Medical Schemes Act 72 of 1967 (later replaced by section 28 of the Medical Schemes Act 131 of 1998) prevents simultaneous membership of more than one medical scheme. (6) Concessions on matters of law or legal interpretation do not bind appellants in subsequent proceedings.

This case is significant in South African law for establishing important principles regarding: (1) The distinction between administrative directives and subordinate legislation requiring promulgation, clarifying when the promulgation requirement in section 16 of the Interpretation Act applies; (2) The interpretation of rationalization schemes in the context of post-apartheid police force integration and the transition from the Interim Constitution; (3) The limits of continuation of pre-existing employment benefits during rationalization processes; (4) The proper interpretation of medical scheme regulations and the distinction between entitlement to membership versus entitlement to State-subsidised membership; (5) The application of transitional constitutional provisions (sections 236 and 237 of the Interim Constitution) in harmonizing conditions of service across formerly separate police forces. The judgment demonstrates the courts' approach to reconciling pre-constitutional employment benefits with the constitutional imperative of creating uniform conditions of service in a rationalized public service.