South African Municipal Workers Union (Samwu) v City of Cape Town and Others (262/02) [2003] ZASCA 111; [2003] 4 All SA 348 (SCA) (30 September 2003)

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[2003] ZASCA 111
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South African Municipal Workers Union (Samwu) v City of Cape Town and Others (262/02) [2003] ZASCA 111; [2003] 4 All SA 348 (SCA); 2004 (1) SA 548 (SCA); [2004] 1 BLLR 41 (SCA); (2004) 25 ILJ 193 (SCA) (30 September 2003)

THE SUPREME
COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO: 262/02
In the matter between :
SOUTH AFRICAN
MUNICIPAL WORKERS UNION (SAMWU) Appellant
and
THE CITY OF CAPE
TOWN First Respondent
THE
PROVINCIAL GOVERNMENT OF THE
PROVINCE OF THE WESTERN
CAPE Second Respondent
THE MINISTER OF
PROVINCIAL AND LOCAL
GOVERNMENT
Third Respondent
___________________________________________________________________________
Coram: MARAIS, CAMERON, CONRADIE, CLOETE JJA
et
MLAMBO AJA
Heard: 6 MAY 2003
Delivered:
30 SEPTEMBER 2003
Establishment of municipal police
service in terms of Chapter 12 of South African Police Service Act 68
of 1995 – whether s 78
of Local Government: Municipal Systems Act
32 of 2000 obliges municipality to assess or take account of views of
organised labour.
___________________________________________________________________________
J U D G M E N T
___________________________________________________________________________
MARAIS JA/
MARAIS JA:
[1] The issue here is whether the
Municipality of Cape Town acted beyond its powers and therefore
unlawfully when it resolved to
establish a municipal police service
as contemplated in chapter 12 of the South African Police Service Act
68 of 1995 (‘the Police
Act’). The court
a
quo
(Comrie J and
Emslie AJ) held that it did not but granted leave to appeal to this
court. An unsuccessful attempt was made to obtain
leave to appeal
directly to the Constitutional Court. The judgment dismissing the
application is reported at 2002 (4) SA 451 (CC).
[2] The appellant is a trade union which represents
municipal employees. Its attack upon the lawfulness of the
Municipality’s
decision was founded upon s 78 (1) (a) (v) and (3)
(b) (v) of the Local Government: Municipal Systems Act 32 of 2000
(‘the Systems
Act’) which obliges a municipality, in the
circumstances described in those provisions, to ‘assess’ and
‘take into account’
– ‘(v) the views of organised labour’.
Its case was this. The establishment of a municipal police service
amounted to the
provision of ‘a new municipal service’ or to ‘an
existing municipal service (being) significantly upgraded, extended
or improved’
within the meaning of s 77 (b) and (c) of the Systems
Act. Those were circumstances which obliged the Municipality to
assess and
take account of the views of organised labour in terms of
s 78 (1) (a) (v) and 3 (b) (v) of that Act before deciding upon the
establishment
of the municipal police service. The views of organised
labour were not assessed and the decision to establish the municipal
police
service and the steps taken to implement it were therefore
beyond the powers of the municipality and accordingly unlawful.
[3] The court
a
quo
dismissed the
union’s application for orders:
‘
2.1 declaring that before deciding to establish
a municipal police service as contemplated in chapter 12 of the South
African Police
Service Act No 68 of 1995, the municipality is
obliged:
2.1.1 to undertake the review contemplated in section 77 of the
Local Government: Municipal Systems Act No 32 of 2000 (“the

Systems Act”);
2.1.2 to assess the matters specified in section 78 of the Systems
Act;
2.1.3 to assess, in particular (but without derogating from
paragraph 2.1.2 above), the views of organised labour, including
the
union;
2.2 reviewing and setting aside the first
respondent’s decision of 30 May 2001 as recorded in annexure “G”
to the founding
affidavit of Andre Adams;
2.3 reviewing and setting aside the municipality’s
decision to commence training candidates for the municipal police
service contemplated
by the decision referred to in paragraph 2.2
above;
2.4 granting the union further and/or alternative
relief;
2.5 directing that the costs of this application
be paid by the municipality jointly and severally with any other
respondents that
oppose the application;’
[4] The ground upon which the court
a
quo
did so was that
the establishment of a municipal police service did not constitute
the provision of a municipal service within
the meaning of that
expression in s 78 of the Systems Act and that there was therefore no
obligation upon the municipality to assess
or take into account the
views of organised labour. The court held that only a municipal
service for which a charge was levied
or capable of being levied
against an identifiable user was contemplated by s 78 and that law
enforcement services rendered by
a municipal police force do not
constitute such a service.
[5] For reasons which follow I consider the finding that
s 78 is applicable only to municipal services for which a charge is
levied
or notionally capable of being levied against an identifiable
user of a service to be erroneous, but that the application was
correctly
dismissed for other reasons.
[6] Chapter 8 of the Systems Act is
devoted to the subject of municipal services. The expression
‘municipal service’ was not
defined in the Act at that time.
1
The expression ‘basic municipal services’ is defined in s 1 but
it is designed to throw light upon the word ‘basic’ rather
than
upon the words ‘municipal services’. It is unnecessary for the
purposes of this case to attempt to delineate the entire
ambit of the
latter expression; the enquiry is a narrow one and is confined to
whether only municipal services which are being
charged for or which
are notionally capable of being charged for and which have
identifiable users are comprehended by the expression.
[7] A reading of the Act as a whole and Chapter 8 in
particular shows, in my opinion, that that cannot be correct. There
are numerous
provisions which relate to municipal services. For
example, the following (the list is not exhaustive):
7.1 s 4 (2) (d) – municipality has the duty to ‘strive
to ensure that municipal services are provided to the local community

in a financially and environmentally sustainable manner’;
7.2 s 4 (2) (e) (i) – municipality has the duty to
consult the local community about ‘the level, quality, range and
impact of
municipal services provided by the municipality’;
7.3 s 11 (3) (f) – municipality exercises its
legislative or executive authority by
inter alia
‘providing
municipal services to the local community’;
7.4 s 16 (1) (a) (v) – municipality must encourage,
and create conditions for, the local community to participate in the
affairs
of the municipality, including participation in ‘strategic
decisions relating to the provision of municipal services in terms
of
Chapter 8’;
7.5 s 55 (1) (o) – municipal manager responsible and
accountable for ‘developing and maintaining a system whereby
community
satisfaction with municipal services is assessed’;
7.6 s 73 (2) (d) – municipal services must be
‘environmentally sustainable’;
7.7 s 73 (2) (e) – municipal services must ‘be
regularly reviewed with a view to upgrading, extension and
improvement’;
7.8 s 94 (1) (f) – Minister may make regulations or
issue guidelines to provide for or regulate the ‘criteria to be
taken into
account by municipalities when assessing options for the
provision of a municipal service’;
7.9 s 94 (1) (k) – Minister may make regulations or
issue guidelines in regard to ‘any other matter that may facilitate
. .
. the effective and efficient provision of municipal services’.
[8] There is no language anywhere in these provisions or
elsewhere in the Act which expressly requires one to confine the
ordinary
meaning of the wide expression ‘municipal services’ in
the manner for which the municipality contends. There are many
municipal
services provided for which no charge is or can notionally
be levied because those who benefit from the services are not
specifically
identifiable individuals but members of the public
generally. To mention but a few: there are gardening services
provided for
the mowing of grass verges adjoining roads and pavements
and the maintenance of planted traffic islands; there are
tree-pruning
services provided where trees abut roads or have been
planted by the municipality to beautify the city; there is decorative
lighting
provided during the festive season; there are street
cleaning services and in coastal cities beach cleaning services are
provided.
Whatever the entire ambit of municipal services may be,
there can be no doubt that these would be generally recognised as
municipal
services. Moreover, s 104 (1) (b) and (c) of the Systems
Act, to my mind, recognises that there will be municipal services
provided
where the use of the service by a user cannot ‘reasonably
be determined, measured or estimated per quantity used or per
frequency
of such use’. It empowers the national Minister
responsible for local government to ‘make regulations or issue
guidelines in
accordance with section 120 to provide for or regulate
. . . (b) the identification of municipal services provided to users
of
services where the use of the service by the user can reasonably
be determined, measured or estimated per quantity used or per
frequency of such use’ and ‘(c) the determination, measurement or
estimate of the use of each user of each service so identified’.
It
seems to be implicit in this that there will be situations in which
it will not be possible to do so. I am unable to accept
that
throughout the whole of the Systems Act any reference to municipal
services must be taken to be confined to services which
are
chargeable to individual users.
[9] What of a narrower contention, namely, that the
obligation cast upon a municipality by s 78 (1) (a) (v) and (3) (b)
(v) of the
Systems Act to assess or take account of the views of
organised labour before deciding on a mechanism to provide a
municipal service
or to review any existing mechanism arises only
where the service is one for which a charge is, or is to be, levied
or is notionally
capable of being levied, and also one the specific
users of which are identifiable and individually chargeable?
[10] There are a number of obstacles to such a
conclusion. First, it entails assigning two different meanings (one
wide, one narrow)
to the same expression in the same Act. It is of
course so that contextual and other considerations may impel such a
conclusion
in a given case but here, in my view, there is nothing in
the context of the provision or in any extra-contextual
considerations
which would justify it in this case. Secondly, such a
reading would not promote the values set forth in the Constitution
nor the
culture of participatory governance mandated by s 16 (1) (a)
(v) of the Systems Act. Thirdly, the concerns of organised labour are

not limited to services for which charges are to be or can be levied.
It has an interest in the impact which the manner of instituting
new
services or extending existing ones may have upon workers in
particular both within and outside of the municipality irrespective

of whether there is to be a charge for them. No reason suggests
itself why the legislature, once having decided to accord organised

labour the right to have its views assessed and taken into account,
would have wished to deny it that right in cases where the
service
was to be free.
[11] However, it does not follow that the views of
organised labour had to be assessed in this particular case. While
the provisions
(sections 16-21) in the Systems Act which foster
participation by the community as a whole in decision-making
processes
are cast in relatively wide and general terms, the
provisions of s 78 are not. They are applicable only ‘(w)hen a
municipality
has in terms of s 77 to decide on a mechanism to provide
a municipal service . . . or to review any existing mechanism . . .’.

They are not applicable to the anterior decision to provide a
municipal service or even to extend an existing service. While the

making of such decisions is subject to the general provisions of the
Systems Act which promote community participation, it is not
subject
to the specific provisions of s 78.
[12] Section 77 is specifically confined to the subject
‘mechanisms to provide municipal services’. It provides:
‘A municipality must review and decide on the appropriate mechanism
to provide a municipal service when –
. . .
a new municipal service is to be provided;
an existing municipal service is to be significantly upgraded,
extended or improved;
a performance evaluation in terms of chapter 6 requires a review of
the delivery mechanism;
. . .
. . .
. . ..’
[13] It is implicit in the plain language of the
provision and, more specifically, in the tenses employed that it is
not concerned
with the anterior decision to provide a new municipal
service or to significantly upgrade, extend or improve an existing
municipal
service or to review an existing delivering mechanism. It
is concerned with the question of how these things are to be done and

not with the question of whether they should be done. It is, no
doubt, conceivable that a consideration of ‘how’ may lead in
a
particular case to a revisiting of the question of ‘whether’ but
that would be fortuitous and not the purpose for which sections
77
and 78 were enacted. That purpose is to compel a municipality, in the
stated circumstances, when considering ‘how’, to consider
first
how it could be done through an appropriate internal mechanism. Only
after that has been done may the provision of the service
through an
external mechanism be considered. It is in considering these
questions that s 78 (1) (a) (v) and (3) (b) (v) oblige
the
municipality to assess or take into account ‘the views of organised
labour’.
[14] If s 77 is not plain enough, s 78 is. The opening
words of the provision also postulate that a decision has already
been made
to provide a municipal service or to review an existing
mechanism:
‘(1) When a municipality has in terms of s 77 to decide on a
mechanism to provide a municipal service . . . or to review any

existing mechanism –
it must first asses –
. . .;
. . .;
. . .;
the likely impact on development; job creation and employment
patterns in the municipality, and
the views of organised labour; and
. . ..’
[15] Having done that, in terms of ss (2), it may decide
on an appropriate internal mechanism or it may defer its decision
until
it has explored ‘the possibility of providing the service
through an external mechanism’. If the latter, ss (3) obliges it
to:
‘(a) give notice to the local community of its intention to explore
the provision of the service through an external mechanism;
and
assess the different service delivery options in terms of s 76 (b),
taking into account –
. . .;
(ii) . . .;
the views of the local community;
the likely impact on development and employment patterns in the
municipality; and
the views of organised labour.’
[16] It is worthy of note that the views of the local
community have to be taken into account when an external mechanism is
being
considered but not when an internal mechanism is being
considered. Furthermore, there is provision elsewhere in s 4 (2) (e)
of
the Systems Act for the local community (which by definition in s
1 means that body of persons comprising residents, ratepayers,
civic
organisations and non-governmental, private sector or labour
organisations or bodies which are involved in local affairs
within
the municipality, and visitors and other people residing outside the
municipality who, because of their presence in the
municipality, make
use of services or facilities provided by the municipality, and
includes, more specifically, the poor and other
disadvantaged
sections of such body of persons) to be consulted about
‘(i) the level, quality, range and impact of municipal services
provided by the municipality, either directly or through another

service provider; and
the available options for service delivery.’
Section 5 (1) (a) also provides: ‘Members of the
local community have the right –
through mechanisms and in accordance with processes and procedures
provided for in this Act or other applicable legislation to
–
contribute to the decision-making processes of the municipality;
and
. . ..’
[17] It is these provisions which cater for the
participation of the community in what I have called the anterior
decision to provide
a municipal service or extend one. It is not
sections 77 and 78. The appellant’s case was founded upon the
municipality’s alleged
failure to comply with s 78. In my view, s
78 was not applicable.
[18] Even if it be assumed in favour of the appellant
that the establishment of a municipal police service amounted to the
provision
of a new municipal service or a significant upgrading or
extension of an existing municipal service (a question which I leave
open),
the implementation of the decision did not entail any of the
choices which s 78 envisages and in respect of which the municipality

would have been obliged to take account of the views of organised
labour. There is in law only one way in which a municipal police

service can be established or an existing traffic policing service
extended so as to constitute a municipal police service: that
is by
following the procedure set out in s 64 A of the Police Act.
[19] That procedure fetters a municipality in important
respects. It is not free to establish such a service without the
approval
of the member of the Executive Council, to whom an
application must be made. The member may approve the application only
after
consultation with the National Commissioner; after
consultation with the metropolitan council if the municipality falls
in the
area of jurisdiction of such a council, and with the approval
of the member or members of the Executive Council responsible for

local government, finance, transport and traffic matters, or where no
such member or members have been appointed, the Premier or
the member
or members of the Executive Council to whom those responsibilities
have been assigned by the Premier. In my view, a
municipality may not
consider providing a municipal police service through an external
service provider. I say this because the
provisions of Chapter 12 of
the Police Act which is devoted to municipal and metropolitan police
services are not reconcilable
with any such possibility.
[20] Section 76 (b) of the Systems
Act provides that the only manner in which a municipal service may be
provided through an external
mechanism is by the municipality
entering into a service delivery agreement with a service provider.
Although the terms ‘service
delivery agreement’ and ‘service
provider’ are widely defined in s 1 of that Act and the latter term
includes an organ of
state, there is no provision in the Police Act
which would empower the South African Police Services to enter into a
service delivery
agreement with a municipality
2
the object of which is to provide the municipality with a municipal
police force. On the contrary. the Police Act provides only
for the
establishment
of a municipal police
service
and not for the
provision
by the South African Police Service of municipal policing services.
There is a clear linguistic distinction between the use of
the word
‘service’ in the Police Act to denote a force and its use in the
Systems Act to denote that which is provided by the
service provider.
[21] The concept of a municipal
police service or a number of municipal police services being
established within the existing South
African Police Service is quite
foreign to the Police Act. Simultaneous membership of both the South
African Police Service and
a municipal police service is not
possible. Section 236 (7) (b) of the previous Constitution (Act 200
of 1993) was not repealed
when the new Constitution of 1996 was
enacted. It reads: ‘Any reference in any law to the South African
Police or any other
police force (excluding a municipal police
service) shall, unless the context indicates otherwise, be construed
as a reference
to the South African Police Service.’ That appears
to amount to a recognition of the fact that a municipal police
service is
separate and distinct from the South African Police
Service despite the many provisions in the Police Act which give the
Minister
of Safety and Security and the National Commissioner of the
South African Police Service considerable control over the powers
which
members of a municipal police service are to have and the
standards to which they must adhere.
[22] Section 64 C (2) (b) of the
Police Act provides that the executive head of the municipal police
service shall ‘be responsible
for the recruitment, appointment,
promotion and transfer of members of the municipal police service’.
It is the municipal council
which appoints the executive head who is
responsible to the municipal council for the functioning of the
municipal police service.
3
Again, a provision such as this cannot be reconciled with the concept
of the South African Police Service acting as a mere service
provider
to the municipality pursuant to a service delivery agreement. There
are other formidable obstacles to the entering into
of such an
agreement but I do not think it is necessary to spell them out. Those
that I have mentioned should suffice.
[23] The hypothesis of a municipal police service being
established by entering into a service delivery agreement with an
organisation
in the private sector, such as a company which provides
security services, is even more obviously incapable of
implementation.
Its employees cannot be both employees of the
security company and members of a municipal police service and an
employee of the
security company could hardly be the executive head
of a municipal police service.
[24] What seems abundantly clear is
that the provision made in the Police Act for the establishment of a
municipal police service
is peculiarly
sui
generis
and far
removed from such parochial municipal concerns as whether street
cleaning or refuse collection or other services which
a municipality
might provide should be provided through an internal mechanism or an
external mechanism. The Police Act had been
in operation since 15
October 1995 by the time the Systems Act was enacted on 14 November
2000. The absence of any reference in
sections 76, 77 and 78 of the
Systems Act to the establishment of a municipal police service is, in
my view, significant. The establishment
was a step of so
significantly different a character, and with consequences so
markedly different from those which attend the provision
of what
would commonly be regarded as municipal services, that I would have
expected it to be expressly included in those sections
of the Systems
Act if it was indeed intended to be included. I cannot accept that
the Legislature would have thought that the language
in which it
chose to reflect its intention would make it plain enough that the
establishment of a municipal police service would
be covered by it.
[25] I appreciate that it may be argued that, even if it
be so that no possibility of an external mechanism being employed can
arise,
the questions relevant to the use of an internal mechanism
requiring assessment in terms of s 78 (1) of the Systems Act will
remain
to be considered and that ss (1) (a) (v) entitles organised
labour to have its views taken into account. The answer, I think, is

that it is at best a pointer to the conclusion that the establishment
of a municipal police service was intended to be governed
by s 78.
But if the countervailing pointers are more persuasive (as I consider
them to be), the point cannot be accorded sufficient
weight to result
in a reversal of the conclusion that it was not intended to be so
governed.
[26] There is another reason why the
appellant cannot succeed. Its attack is fundamentally upon the
lawfulness of the municipality’s
decision of 30 May 2001 to
establish a municipal police service. Its contention is that
before
that decision was taken the municipality was obliged to carry out the
steps set forth in sections 77 and 78 of the Systems Act
and that it
did not. Earlier in this judgment, in paragraphs [11] to [17], I
concluded that these provisions do not have to be
complied with
before a decision to provide a new service or significantly upgrade,
extend or improve an existing service is reached.
It is not open to
the appellant to shift the focus of its attack to alleged
deficiencies in the manner in which the municipality
thereafter
dealt with the matter. Nor is it open to it to fall back upon alleged
shortcomings by the municipality in complying with other
provisions
of the Systems Act prior to deciding to establish a municipal police
service. Neither of these was the case the respondents
were called
upon to meet.
[27] These conclusions render it unnecessary to decide a
number of other questions raised by counsel for the parties. It was
common
cause that whatever the outcome of the appeal the costs of two
counsel should be allowed.
[28] To provide some sense of
perspective it should be recorded that within six days of the
resolution of 30 May 2001 the appellant’s
representatives at a
South African Local Government Bargaining Council meeting on 6 June
2001 stated that they did not deny that
a municipal police service
was needed and that its establishment was therefore not disputed.
However, the manner in which it was
to be done and the reasons for
it, should be worked out by the parties. The appellant did not seek
to interdict the establishment
of the service and it is and has been
a
fait accompli
for some years. That does not mean of course that the Court should
deny the appellant relief if its rights have been disregarded
but, as
I have said, I do not consider that it has been established that they
were. In so far as there may have been implications
for workers there
is a substantial body of labour legislation available to be invoked
in need.
[29] It is ordered:
(a) that the appeal be, and is hereby, dismissed;
(b) that the appellant pay the costs of the respondents,
such costs in each instance to include the costs of two counsel.
______________________
R M MARAIS
JUDGE OF APPEAL
CONRADIE JA)
CONCURS
CLOETE JA
et
MLAMBO AJA:
We have had the advantage of reading the judgment of
Marais JA. Whilst we respectfully agree with the reasons given in
paras [1]
to [17] and [26] to [28], we would prefer to express no
opinion on the correctness of the approach followed in paras [18] to
[25].
We concur in the order made.
________________
T
D CLOETE
JUDGE
OF APPEAL
________________
E
CAMERON
JUDGE
OF APPEAL
________________
D
MLAMBO
ACTING
JUDGE OF APPEAL
1
It is now by virtue of s 35 (a) of Act 51 of 2002. The definition
makes it clear that whether ‘fees, charges or tariffs
are levied
in respect of such a service’ is irrelevant. The interpretation
which I place upon the expression in this judgment
is based solely
upon the considerations which emerge from the Systems Act as it then
was.
2
Section 63 is plainly not applicable to such a situation.
3
s 64 B; 64 C (1): 64 D