IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between:
MAKGOTSO E MBUYISA
and
HOD: FREE STATE DEPARTMENT OF
SOCIAL DEVELOPMENT
TUMELO J PHAHLO
THE PREMIER OF THE FREE STATE PROVINCE
MEC: FREE STATE DEPARTMENT OF
SOCIAL DEVELOPMENT
DG: FREE STATE PROVINCIAL GOVERNMENT
Neutral citation:
Coram:
Delivered : Mbhele DJP et Opperman J
13 March 2025 Reportable/ Not reportable
Case no: 3243/2024
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
Summary: Biowatch-rule -intent of rule confirmed -rule only applies to
genuine constitutional issues.
2
ORDER
1. Application for leave to appeal is dismissed with costs.
JUDGMENT
Mbhele DJP (Opperman J concurring)
Introduction:
[1] On 5 August 2024, we struck an application for review off the roll with costs on
the basis that the matter was not properly before the court due to non-compliance with
the Uniform Rules of Courts (the rules). This is an application for leave to appeal
against our judgment and order only in relation to costs. The leave to appeal is decided
on papers.
[2] The grounds on which leave to appeal is sought are listed extensively in the
application and to avoid prolixity I shall not repeat same herein. The grounds are mainly
a rehash of what was argued before us in relation to costs and dealt with in the
judgment.
[3] Central to the applicant's complaint is that we erred in granting a costs order
against her and that she ought to have been afforded the protection of the Biowatch
rule. In Biowatch Trust v Registrar Genetic Resources and Others1 (Biowatch), the
Constitutional Court addressed the issue of costs in constitutional litigation, particularly
in cases involving public interest and the enforcement of constitutional rights. The
principle provides that if a matter is of constitutional importance and involves public
interest litigation, the unsuccessful party should not be burdened with costs, even if they
lose the case. The Biowatch principle was articulated as follows:
'If there should be a genuine, non-frivolous challenge to the constitutionality of a law or of State
conduct, it is appropriate that the State should bear the costs if the challenge is good, but if it is
1 Biowatch Trust v Registrar Genetic Resources and Others [2009] ZACC 14; 2009 (6) SA 232 (CC).
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not, then the losing non-State litigant should be shielded from the costs consequences of failure.
In this way the responsibility for ensuring that the law and State conduct are constitutional is
placed at the correct door.'2
[4] The operation of the Biowatch principle is restricted to genuine constitutional
challenges. It is not available to a litigant who is guilty of unacceptable behaviour in
relation to how litigation is conducted. Such litigant may be ordered to pay costs.3 Over
and above the rule being limited to constitutional challenges, it also excludes vexatious
and frivolous litigation.
[5) The applicant approached this court, inter alia, seeking relief to review and set
aside a decision by the first respondent to place her on precautionary suspension. The
first respondent subsequently lifted the applicant's suspension. The applicant persisted
with her application on the basis that the decision to suspend her is an administrative
decision which stands until reviewed and set aside by a competent court. However, this
argument is misplaced.
[6] In Chirwa v Transnet Ltd and Others4 (Chirwa) and Gcaba v Minister of Safety
and Security5 (Gcaba) the Constitutional Court said that matters relating to employment,
even in public service, do not constitute administrative actions. Van der Westhuizen J.
remarked as follows in the majority judgment in Gcaba:
'[64) Generally, employment and labour relationship issues do not amount to administrative
action within the meaning of PAJA. 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.'
2 Ibid para 23.
3 Harrie/all v University of KwaZulu-Natal [2017] ZACC 38; 2018 (1) BCLR 12 (CC).
4 Chirwa v Transnet Ltd and Others (2007] ZACC 23; 2008 (4) SA 367 (CC).
5 Gcaba v Minister of Safely and Security [2009] ZACC 26; (2010) 31 /LJ 296 (CC).
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[7] Having considered the dicta of Skweyiya J and Langa CJ in Chirwa, Steenkamp,J
held as follows in National Commissioner of Police and Another v Harri NO and
Another.6
'The Constitutional Court has thus put it beyond dispute in Chirwa and Gcaba that the dismissal
of a public service employee does not constitute administrative action. Why, then, should the
state as employer be able to review a decision by its own functionary in this case? The
distinction appears to me to lie in the fact that, in this case, the state is acting qua employer; and
the functionary is fulfilling his or her duties in terms of legislation.'7
[8] The Constitutional Court in President of the Republic of South Africa and others v
South African Rugby Football Union and Otl1ers8 defined administrative action as
follows:
'In section 33 the adjective 'administrative' and not 'executive' is used to qualify 'action'. This
suggests that the test for determining whether conduct constitutes 'administrative action' is not
the question whether the action concerned is performed by a member of the executive arm of
government. What matters is not so much the functionary as the function. The question is
whether the task itself is administrative or not.'9
[9] It is clear from the above dicta that the core relationship bl;ltween the employer
and employee is distinct from a purely administrative action. The employer-employee
relationship, similar to the one that existed between the applicant and the respondents,
is a contractual arrangement based on mutual agreement, mainly focused on exchange
of labour for compensation. Administrative actions are, on the other hand, aimed at
implementing public policies, regulations or laws.
[1 O] In consideration of applicable legal principles, I hold a view that the applicant's
precautionary suspension was not an administrative action which required a competent
court to set it aside. There was nothing that precluded the employer from withdrawing
the suspension. Further, it was clear from the letter written to the applicant by the first
respondent that the precautionary suspension was imposed in the process of
investigating the alleged misconduct. The applicant persisted with her challenge
anyway, even though it was clear that the outcome she sought would have had no
6 National Commissioner of Police and Another v Harri NO and Another[2010] ZALCCT 30.
7 Ibid para 20.
6 President of the Republic of South Africa and others v South African Rugby Football Union and others
2009 ZACC 11; 2000 (1) SA (1 ).
9 Ibid para 141.
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practical effect as the suspension was already withdrawn at the time of the hearing.
[11] The other issue is that the challenge mounted by the applicant against the
respondents raises no genuine constitutional issue. As already mentioned , Biowatch
was not aimed at protecting litigants who bring frivolous and vexatious issues to court.
The protection offered by Biowatch is available to litigants who are raising genuine
constitutional issues.
[12] Having concluded that none of the grounds of appeal enjoys reasonable
prospects of success, whether taken singly or cumulatively, the application for leave to
appeal must fail.
Order:
[13] I, therefore, make the following order.
The application for leave to appeal is dismissed with costs.
I concur.
Appearances:
For the Appellant:
Instructed by:
For the Respondent:
Instructed by: Adv MJ Merabe
with K Nhlapo-Merabe
Salakruva Attorneys
Bloemfontein
Adv LR Bomela
State Attorney
Bloemfontein MBHELE DJP