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[2003] ZACC 16
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Phenithi v Minister of Education and Others (CCT35/03) [2003] ZACC 16; 2003 (11) BCLR 1217 (CC) (6 October 2003)
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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT
35/03
MPHO GIVEN PHENITHI
Applicant
versus
THE MINISTER OF EDUCATION
First
Respondent
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION IN THE PROVINCIAL GOVERNMENT OF THE FREE STATE
Second
Respondent
THE HEAD OF DEPARTMENT OF
EDUCATION
IN THE PROVINCIAL GOVERNMENT
OF THE FREE STATE
Third
Respondent
Decided
on : 6 October 2003
JUDGMENT
THE
COURT:
The applicant seeks direct access to this Court to have parts of
section 14(1) and section 14(2) of the Employment of Educators
Act
1
(the Act) declared unconstitutional and invalid. She had been
employed by the Free State Provincial government in a permanent
capacity as an educator until 18 May 2000. She says in her
affidavit that she had to be away from work for more than a month
because she was ill. When the applicant returned to work, however,
she was informed by the provincial Department of Education
that she
was deemed to have been discharged from service by reason of the
provision of section 14(1) of the Act. That section
is to the
effect
that
:
â
An
educator appointed in a permanent capacity who . . . is absent from
work for a period exceeding 14 consecutive days without permission
of the employer . . . shall, unless the employer directs otherwise,
be deemed to have been discharged from service on account of
misconduct . . . .â
The matter was referred to the Education Labour Relations Council
and, after conciliation failed, came before an arbitrator.
On 21
February 2002, the arbitrator concluded that he had no power to
arbitrate on the issue
2
and expressed the view that the applicant could apply to the High
Court or to this Court to challenge the constitutional validity
of
section 14.
The application for direct access to this Court was lodged about a
year and a half after the arbitratorâs award. In essence,
the
applicant urges us on two grounds to hear this case without her
first approaching the High Court. First, she says that she
is
unemployed and would be financially prejudiced by having to incur
additional costs if the matter had to serve before two courts.
Second, she claims that the delay occasioned by two court hearings
as well as the âappeals and cross appealsâ that could
arise
would further prejudice her.
Applications for direct access are granted only in exceptional
circumstances.
3
This Court expanded on the requirement of exceptional circumstances
in
Fleecytex
as follows:
â
[T
]he
mere fact that the validity of a provision of an Act of Parliament
is in issue does not in itself justify an application for
direct
access.
There
must in addition be sufficient urgency or public importance, and
proof of prejudice to the public interest or the ends of
justice and
good government, to justify such a procedure.â [footnote
omitted].
4
The applicant raises a constitutional point which warrants
consideration. However, she has delayed more than eighteen months
in pursuing relief, and discloses no good reason for this delay.
Moreover the applicant, instead of launching proceedings in
the
High Court in the ordinary way, has sought to approach this Court
directly. On the limited papers we have, it seems possible
that
factual disputes may arise between the applicant and the
respondents. This Court has stated on many occasions that it is
not
desirable for this Court to sit as a court of first and final
instance in any circumstances, but especially where disputes
of
fact may arise.
5
The fact that the applicant is indigent and the fact that the
ordinary procedure would take time before relief is finalised are
not sufficient, in the light of these other considerations to
warrant the grant of direct access.
The application for direct access is accordingly dismissed.
Chaskalson CJ,
Langa DCJ, Ackermann J, Goldstone
J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, OâRegan J, Sachs J,
Yacoob J.
For the applicant: Mapitse & Khang Attorneys
For the respondents: The State Attorney
1
Act
76 of 1998.
2
The
reasons for that conclusion or its correctness are not relevant
here.
3
Authority
in support of this proposition is usefully catalogued in
Ex parte
Omar
CCT 32/03, 11 September 2003, as yet unreported, para 4 n
1.
4
Bruce
and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA
1143
(CC);
1998 (4) BCLR 415
(CC) para 19.
5
Van
der Spuy v General Council of the Bar of South Africa and Others
[2002] ZACC 17
;
2002 (5) SA 392
(CC);
2002 (10) BCLR 1092
(CC) para 18 is an
example.