National Director of Public Prosecutions and Another v Tshavhungwa and Another, Tshavhungwa v National Director of Public Prosecutions and Another (328/08, 593/08) [2009] ZASCA 136; [2010] 1 All SA 488 (SCA) ; 2011 (1) SA 141 (SCA) ; (2010) 31 ILJ 81 (SCA) ; [2010] 2 BLLR 121 (SCA) (2 November 2009)

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[2009] ZASCA 136
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National Director of Public Prosecutions and Another v Tshavhungwa and Another, Tshavhungwa v National Director of Public Prosecutions and Another (328/08, 593/08) [2009] ZASCA 136; [2010] 1 All SA 488 (SCA) ; 2011 (1) SA 141 (SCA) ; (2010) 31 ILJ 81 (SCA) ; [2010] 2 BLLR 121 (SCA) (2 November 2009)

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 328/08
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Appellant
LEONARD FRANK McCARTHY Second Appellant
and
TSHIBVUMO PHANUEL CORNWELL TSHAVHUNGWA First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent
Case No: 593/08
TSHIBVUMO PHANUEL CORNWELL TSHAVHUNGWA First Appellant
and
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT Second Respondent
LEONARD FRANK McCARTHY Third Respondent
Neutral citation:
Tshavhungwa v NDPP
(328/09 &
593/08)
[2009] ZASCA 136
(2 November 2009)
Coram:
NUGENT, LEWIS, MLAMBO, MAYA JJA and GRIESEL AJA
Heard:
16 SEPTEMBER 2009
Delivered:
2 NOVEMBER 2009
Summary: Claim for enforcement of constitutional right to
administrative action that is lawful, reasonable and procedurally
fair
– dismissal of public employee – does not constitute
‘administrative action’.
ORDER
On appeal from: North Gauteng High Court (Mavundla J
sitting as court of first instance)
The appeal against paragraph 1 of the order of the court
below is dismissed with costs. The cross appeal against paragraph 2
of
the order is upheld with costs. The order made in that paragraph
is set aside and the following order is substituted:
‘
The costs of the application are to be paid by the
applicant.’
JUDGMENT
NUGENT JA (LEWIS, MLAMBO, MAYA JJA and GRIESEL AJA
concurring)
[1] We have before us an appeal and a cross appeal. To
avoid confusion I will refer to the parties by their names or
designations.
The appeals arise from an application that was brought
by Mr Tshavhungwa in the North Gauteng High Court against the
National Director
of Public Prosecutions, Mr McCarthy, and the
Minister of Justice and Constitutional Development. To the extent
that the allegations
in the affidavits are disputed I will relate
them in accordance with the principles laid down in
Plascon-Evans
.
1
[2] At the time that is now relevant there existed in
the Office of the National Director of Public Prosecutions –
established
under the
National Prosecuting Authority Act 32 of 1998
–
a unit known as the Directorate of Special Operations (commonly
referred to as the ‘Scorpions’). McCarthy – a Deputy
National
Director of Public Prosecutions – was the head of the unit.
Tshavhungwa was employed in the unit as a Deputy Director.
[3] On 15 March 2004 Tshavhungwa was called to a meeting
at the office of the National Director – at that time Mr Ngcuka –
which
was also attended by McCarthy. There he was informed that
certain allegations had been made against him that required
investigation
and he was placed on special leave for a fortnight. On
13 March 2004 McCarthy wrote to Tshavhungwa advising that the
allegations
were sufficiently serious to warrant further
investigation and that Tshavhungwa was meanwhile suspended with full
emoluments.
[4] On 26 May 2004 Tshavhungwa was given notice to
attend a disciplinary hearing to answer to various charges of
misconduct, which
included ‘dishonesty’, ‘abuse of his
authority’, ‘disgraceful and improper conduct’, and ‘failing
to disclose his
financial interest’ in certain transactions. The
hearing was due to take place on 28 May 2004 but was postponed to 8
June 2004.
[5] The day before the hearing was to take place
Tshavhungwa was arrested on allegations of corruption. Needless to
say, the disciplinary
hearing did not proceed. On 8 June 2004
Tshavhungwa was released on bail. On 18 June 2004 he was again
arrested, on this occasion
for failing to adhere to the conditions of
bail. Bail was revoked and Tshavhungwa remained in custody until
November 2005.
[6] Meanwhile, attempts were made to bring the
disciplinary proceedings to fruition. It is not necessary for present
purposes to
detail the various events that occurred in that regard.
It is sufficient to say that in September 2004, at the suggestion of
Tshavhungwa’s
attorney, it was agreed that in place of the
disciplinary hearing, the allegations against Tshavhungwa would be
subjected to ‘pre-dismissal
arbitration’ as contemplated by
s
188A
of the
Labour Relations Act 66 of 1995
. The arbitration was set
to take place over the period 10 – 12 November 2004.
[7] In the interim Ms Sparg – Chief Executive Officer
in the National Prosecuting Authority – wrote to Tshavhungwa’s
attorney
(on 21 July 2004) inviting Tshavhungwa to furnish reasons
why he should not be placed on suspension without pay in view of his
inability to fulfil his employment obligations and the protracted
disciplinary proceedings. Notwithstanding objection his attorney
was
advised on 4 August 2004 – on the authority of the National
Director – that he had been suspended without pay with immediate

effect.
[8] Before the ‘pre-dismissal arbitration’ took
place the Executive Committee of the National Prosecuting Authority –
which
is its top management structure – reconsidered the decision
to subject the matter to arbitration. Upon legal advice it concluded

that it should consider terminating Tshavhungwa’s employment
forthwith, principally on the ground that his incarceration prevented

him from performing his functions. In view of this decision
Tshavhungwa was advised that the National Prosecuting Authority would

not continue with the arbitration.
[9] On 3 December Sparg wrote to Tshavhungwa advising
that
‘I am currently considering the termination of your contract on the
basis of your inability to perform your contractual obligation
to the
NPA and the operational requirements of the organisation as set out
hereinafter. As further support for this consideration
of termination
of your contract, I have also set out in sections B and C hereinafter
other circumstances, which in my view, constitutes
an irreparable
breach of trust and breakdown of the employer/employee relationship’
and she invited him to make representations as to why
his employment should not be terminated. No representations were made
and
on 20 December 2004 Tshavhungwa was advised by Sparg that his
employment was terminated with effect from that date.
[10] This concatenation of events prompted the
application that is now in issue, which was for the review of certain
of the decisions
I have mentioned and in particular the decision to
dismiss him. I do not think it is necessary to relate in full the
orders that
were sought. It is sufficient to say that Tshavhungwa
sought orders declaring that ‘the letter … dated 21 July 2004’,
‘the
cancellation of the disciplinary hearing’, ‘the letter
dated 3 December 2004’, and the ‘purported dismissal … per
letter
dated 20 December 2004’ were ‘mala fides, fraudulent,
ultra vires, unlawful and void ab initio’, together with other
related
declaratory orders, in particular an order declaring that
only the Minister was authorised to discipline and dismiss him.
[11] The court below (Mavundla J) dismissed the
application but ordered the National Director and McCarthy, jointly
and severally,
to pay the costs of the application. With the leave of
that court Tshavhungwa now appeals against the order dismissing his
application,
and the National Director and McCarthy appeal against
the order relating to costs.
[12] The application was brought only in December 2006.
Tshavhungwa explained the delay on the basis that he had been
incarcerated
until November 2005, and had thereafter spent a year
attempting to have the matter resolved by the Minister.
[13] In January 2006 he had written to the Minister
requesting her intervention to ‘reverse the decisions taken’
alleging, amongst
other things, that ‘the National Director does
not have the power to terminate the services of any Deputy Director
of Public
Prosecutions’, and that only the Minister had that power.
Tshavhungwa was advised on 10 March 2006 that the Minister was
awaiting
a report from the National Director and would reply to him
once she received the report. Persistent requests by Tshavhungwa for

a reply to his representations followed for much of the remainder of
the year, the response on each occasion being that the Minister
was
awaiting the report. Meanwhile the National Prosecuting Authority had
requested legal advice from the State Attorney, which
it received in
September 2006, and it then responded to the Minister. The Minister
received the report on 26 October 2006. After
considering the report,
and on the advice of her advisers, she concluded that she was the
only person authorised to dismiss Tshavhungwa.
According to an
affidavit deposed to by the Director General of the department, filed
on her behalf, she then informed the National
Director of her view,
and ‘indicated that it is desirable that [Tshavhungwa] be
re-instated so that proper disciplinary steps
should be taken against
him’. (The relevance of that communication will appear later in
this judgment.) The representations that
had been made to the
Minister in January of that year were never responded to and
Tshavhungwa duly launched his application.
[14] In this court counsel for Tshavhungwa did not press
for all the relief that was claimed in the notice of motion but
confined
himself to the claim for a declaration that the purported
dismissal of Tshavhungwa was unlawful. (Certain additional relief,
consequent
upon such a declaration, was also sought, for the first
time, in this court, but in view of the conclusion to which I have
come
it is not necessary to deal with it.) The principal argument
that was advanced in that regard was that, just as the Minister alone

is authorised to appoint a Deputy Director,
2
so, too, the Minister alone is authorised to dismiss a Deputy
Director, and thus the purported dismissal of Tshavhungwa by the

National Director was unlawful. The Minister was represented before
us to support that contention.
[15] While the argument found favour with the court
below it nonetheless dismissed the application, upholding the points
taken in
limine that there had been undue delay in bringing the
application, and further, that the court had no jurisdiction in the
matter.
For the reasons that follow it is not necessary for this
court to pronounce upon the authority or otherwise of the National
Director
to dismiss a Deputy Director and I expressly refrain from
doing so.
[16] The ground upon which Tshavhungwa sought the
intervention of the High Court was that the various acts that I have
referred
to – including his purported dismissal – were said to
infringe the right guaranteed to him by s 33 of the Constitution to
‘administrative
action that is lawful, reasonable and procedurally
fair’. His cause of action was emphasised in his replying affidavit
when,
in response to an allegation that his claim was barred because
it ought to have been brought within the time limit stipulated by
the
Promotion of Administrative Justice Act 3 of 2000
he said that his
claim was not founded upon the Act but was for ‘violation of [his]
constitutional right to administrative action’,
and later, that it
was ‘a classic administrative law review application’.
[17] Whether s 33 of the Constitution has a
residual field of operation outside the terms of the Promotion of
Administrative
Justice Act is not a matter that need concern us in
this case.
3
It is sufficient to say that the application can succeed, whether by
direct application of the Constitution, or by its indirect

application through the provisions of the Act, only if the conduct
complained of by Tshavhungwa constitutes ‘administrative action’

as envisaged by the Constitution and the legislation.
[18] In the course of its reasoning the court below gave
some attention to that question with reference to the decision of the
Constitutional
Court in
Chirwa v Transnet
Ltd.
4
That decision, and others that followed upon it, has since been
overtaken by the decision of that court in
Gcaba
v Minister of Safety and Security,
5
which has helpfully clarified some of the issues that arose in
Chirwa
, and which is
decisive of this case
.
[19] In that case
Mr Gcaba was appointed as station commissioner, Grahamstown, in
September 2003, and he occupied that position
until the end of
February 2006. When the position was upgraded, Gcaba applied, was
shortlisted, and went through the interview
process. However, he was
not appointed, and someone else was appointed instead. Gcaba lodged
a grievance with the South African
Police Service but later
abandoned the process and elected to refer the dispute to the Safety
and Security Sectoral Bargaining
Council. When the representative of
the South African Police Service failed to attend the
pre-arbitration meeting, the applicant
withdrew the dispute from the
Bargaining Council and approached the High Court with an application
to review the decision not
to appoint him as station commissioner.
The High Court, considering that it lacked jurisdiction to consider
the claim, issued
an order dismissing the application.
[20] The
Constitutional Court dismissed an appeal against the order of the
high court dismissing the claim, on the ground that
the failure to
promote and appoint the applicant was not administrative action, and
thus that his claim was bad in law. As stated
by Van der Westhuizen
J:
6
‘
[T]he the
failure to promote and appoint the applicant was not administrative
action. If his case proceeded in the High Court,
he would have been
destined to fail for not making out the case with which he
approached this Court, namely an application to
review what he
regarded as administrative action.’
[21] Much of the
basis for that finding was drawn, it seems, from the earlier
analysis by Ngcobo J in
Chirwa.
Van der Westhuizen J summarised the principle that was applied as
follows (referring to employment in the public sector):
7
‘
Generally,
employment and labour relationship issues do not amount to
administrative action within the meaning of [the
Promotion of
Administrative Justice Act]. This
is recognised by the Constitution.
Section 23 regulates the employment relationship between employer
and employee and guarantees
the right to fair labour practices. The
ordinary thrust of section 33 is to deal with the relationship
between the state as bureaucracy
and citizens and guarantees the
right to lawful, reasonable and procedurally fair administrative
action. Section 33 does not
regulate the relationship between the
state as employer and its workers. When a grievance is raised by an
employee relating to
the conduct of the state as employer and it has
few or no direct implications or consequences for other citizens, it
does not
constitute administrative action.’
[22] In supplementary heads of argument filed on behalf
of Tshavhungwa it was submitted, on the basis of
Gcaba,
that the claim in the present case is
justiciable in the high court, and that is clearly correct, but it
begs the question whether
the claim is properly founded in law.
Tshavhungwa might well have had remedies available to him under the
Labour Relations Act
66 of 1995 (which were not justiciable in the
high court), and he pertinently disavowed reliance upon contractual
remedies. But
his claim in the present case, as I have already
pointed, was that the purported termination of his employment
breached his constitutional
right to lawful administrative action.
Gcaba
makes it clear
that the dismissal of an employee in the public sphere does not
constitute ‘administrative action’ and on that
ground alone the
claim was correctly dismissed.
[23] There remains the question of the costs in the
court below. Generally the costs associated with a failed application
will follow
the result. In this case the court below ordered the
National Director and McCarthy to pay the costs as a mark of its
disapproval.
What the court below disapproved of was their failure to
disclose in their answering affidavit that the Minister had indicated
that she considered it desirable that Tshavhungwa be reinstated and
that a disciplinary enquiry be held. I do not think there was

anything untoward in the failure to make that disclosure. The
Minister was a party to the proceedings and could be expected to

express her own views on the matter and I do not think the National
Director and McCarthy can be criticised for failing to preempt
what
she might have to say. Moreover, the view that was taken by the
Minister was immaterial to the relief that was sought against
the
National Director and McCarthy. In my view the court below
misdirected itself by founding its order for costs on that
consideration
and this court is entitled to approach the matter
afresh. I see no proper reason why the costs should not follow the
result in
the ordinary course. The National Director and McCarthy,
and the Minister, were represented by two counsel, before us and in
the
court below. No doubt they considered it prudent to be
represented by two counsel but I do not think that the case is one
that
warrants an order for the recovery of those costs.
[24] Accordingly the appeal against paragraph 1 of the
order of the court below is dismissed with costs. The cross appeal
against
paragraph 2 of the order is upheld with costs. The order made
in that paragraph is set aside and the following order is
substituted:
‘
The costs of the application are to be paid by the
applicant.’
__________________
R NUGENT
JUDGE OF APPEAL
APPEARANCES:
For
appellant: J G Rautenbach
Instructed
by:
Bowman
Gilfillan, Pretoria
Lovius
Block, Bloemfontein
For
respondent: A J Freund SC (1
st
& 3
rd
)
S
Yacoob
I
A M Semenya SC
A
L Platt
Instructed
by:
Ramothwala
Lenyai Inc, Pretoria (1
st
)
Bosiu
Attorneys, Bloemfontein
The
State Attorney, Pretoria (2
nd
)
The
State Attorney, Bloemfontein
1
Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984
(3) 623 (A) 634E-635C.
2
Section 15(1)
of the
National Prosecuting Authority Act.
3
See
: Iain Currie & Jonathan Klaaren
The Promotion of
Administrative Justice Benchbook
paras 1.27 and 1.28;
The New
Constitutional and Administrative Law
Vol 2 by Cora Hoexter with
Rosemary Lyster (ed. Iain Currie) pages 87-89.
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 25.
4
[2007] ZACC 23
;
2008 (4) SA 367
(CC).
5
[2009] ZACC 26.
6
Para 68.
7
Para 64.