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):

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.

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)
. . .
(b)
a new municipal service is to be provided;
(c)
an existing municipal service is to be significantly upgraded, extended or improved;
(d)
a performance evaluation in terms of chapter 6 requires a review of the delivery
mechanism;
(e)
. . .
(f)
. . .
(g)
. . ..’
[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 –
(a)
it must first asses –
(i)      . . .;
(ii)
. . .;

(iii)
. . .;
(iv)
the likely impact on development;  job creation and employment patterns in the
municipality, and
(v)
the views of organised labour;  and
(b)
. . ..’
[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
(c)
assess the different service delivery options in terms of s 76 (b), taking into account –

(i)      . . .;
(ii)      . . .;
(iii)
the views of the local community;
(iv)
the likely impact on development and employment patterns in the
municipality;  and
(v)
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
(ii)
the available options for service delivery.’
Section 5 (1) (a) also provides:  ‘Members  of  the  local  community have  the
right –
(a)
through mechanisms and in accordance with processes and procedures provided for in
this Act or other applicable legislation to –

(i) contribute to the decision-making processes of the municipality;  and
(ii)
. . ..’
[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 municipality2
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

2   Section 63 is plainly not applicable to such a situation.

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

3   s 64 B;  64 C (1):  64 D

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