Langemaat v Minister of Safety and Security and Others

• Jurisdiction: South Africa
• Judge: Roux J
• Judgment Date: 04 February 1998
• Counsel: PR Jammy for the applicant M Naidoo for the respondents
• Hearing Date: 28 January 1998
• Citation: 1998 (3) SA 312 (T)
• Court: Transvaal Provincial Division
• Docket Number: 19077/97

Roux J:

The applicant is an adult female member of the South African Police Services (SAPS). She holds the A rank of captain. For the past 15 years the applicant has been employed by SAPS.

Since June 1986 the applicant and Beverley Ann Myburgh have lived together. They are lesbians and cannot enter into a marriage. Despite this they own a house, operate joint finances, are financially co-dependant, make B joint decisions and have named each other as beneficiaries in their respective policies. On the undisputed facts I must conclude that theirs is an abiding and serious relationship.

The applicant has applied to register Miss Myburgh as her dependant in terms of the medical aid scheme to C which she belongs as a member of SAPS. The medical aid scheme suffers the acronym Polmed. Polmed was created in terms of the regulations to the Police Act 7 of 1958. That Act was repealed by the South African Police Service Act 68 of 1995. Section 72(4)(a) of the 1995 Act retained the regulations and they remain operative today. D

Regulation 30(2)(b) (promulgated by Government Notice 203 of 14 February 1964 and amended by Government Notice R1864 of 4 November 1994) contains two definitions relevant to this matter:

First, reg 30(2)(a) defines a 'member' as 'a serving member of the Force' and, second, reg 30(2)(b) defines a 'dependant' as: E

'(i)

The legal spouse or widow or widower or a dependant child of a member referred to in para (a)(i) and (ii), excluding those of a National Serviceman doing his national service in the Force; and unless otherwise directed by the Commissioner.

(ii)

The legal spouse or widow or widower of a dependant child or a member referred to in paras (a)(iii), (iv) and (v): Provided that in the case of a customary law marriage only the first spouse and dependants born from this union shall F qualify as dependants: Provided further that if such a widow or widower remarries, he or she shall forfeit all benefits and privileges accruing to them under the regulation.'

Polmed is governed by rules also made in terms of the regulations I have mentioned. I am not aware if the rules G are available in English. The Afrikaans text has been made available. Section 4.4 also contains a definition which is relevant:

'4.2

"Afhanklike van 'n lid" beteken 'n afhanklike soos omskryf in die regulasies en dit beteken ook -

4.2.1

die wettige eggenote van 'n lid; en H

4.2.2

'n afhanklike ongetroude kind bedoel in reël 4.11 wat -

4.2.2.1

nog nie 18-jarige leeftyd bereik het nie;

4.2.2.2

reeds 18-jarige leeftyd bereik het en wat besig is met primêre, sekondêre of tersiêre opleiding;

4.2.2.3

reeds 18-jarige leeftyd bereik het en wat liggaamlik of geestelik permanent ongeskik is vir die ope arbeidsmark; en I

4.2.2.4

sluit nie die afhanklike van 'n dienspligtige in reël 5.1.3 bedoel in nie.'

The third respondent, the chairman of Polmed, refused the applicant's formal request to register Miss Myburgh as a dependant, hence this application.

The relief sought in the notice of motion is the following: J

Roux J

'(1)

declaring reg 30(2)(b) of the South African Police Service Regulations to be in conflict with the A provisions of the Constitution of the Republic of South Africa Act 108 of 1996, and thus to be invalid;

(2)

declaring Rule 4.2 of the third respondent's rules to be in conflict with the provisions of the Constitution of the...