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[2013] ZACC 37
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Grootboom v National Prosecuting Authority and Another (CCT 08/13) [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35 ILJ 121 (CC) (21 October 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 08/13
[2013] ZACC 37
In the matter between:
DERRICK GROOTBOOM
.............................................................................
Applicant
and
NATIONAL PROSECUTING AUTHORITY
.....................................
First
Respondent
MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
.........................................
Second
Respondent
Heard on : 23 May 2013
Decided on : 21 October 2013
JUDGMENT
BOSIELO AJ (Moseneke J, Froneman J, Jafta J,
Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J

concurring):
Introduction
This is an application for leave to appeal against a decision of the
Supreme Court of Appeal refusing the applicant, Mr Grootboom,

special leave to appeal against a judgment of the Labour Appeal
Court. Effectively, the Labour Appeal Court
1
endorsed his deemed discharge from employment by the National
Prosecuting Authority (NPA). The deemed discharge was based on

section 17(5)(a)(i) of the Public Service Act
2
(Act). This section allows for the deemed discharge, by mere
operation of law and without prior notice or hearing, of any
officer,
other than a member of the military, police or correctional
services or an educator or a member of the National Intelligence

Services, who absents himself or herself from his or her official
duties for longer than one calendar month without his or her

employer’s permission.
Essentially,
the respondents’ case is that by going to the United Kingdom
(UK) on a 12-month study programme whilst on suspension
and without
their permission, the applicant brought himself squarely within the
section’s purview and that he was correctly
discharged. On the
contrary, the applicant contends that, although most of the
requirements of the section have been satisfied,
the respondents
failed to prove that by going to the UK on a scholarship for 12
months he had absented himself from official
duties.
This
appeal therefore turns on the correct interpretation and application
of the section. In other words, the question is whether
all the
jurisdictional requirements embedded in the section have been met.
Background
This
matter chronicles the long legal route travelled by the applicant
from his initial suspension in 2005 to his appearance before
us in
2013, a total of some eight years. With the effluxion of time the
matter morphed into an arduous legal battle starting
when the
applicant, who was employed by the NPA as a public prosecutor from
April 2001, was suspended by the NPA on 22 June 2005
on allegations
of misconduct. This was followed by a disciplinary hearing starting
in September 2005, which culminated in the
presiding officer
imposing the sanction of dismissal on 21 November 2005.
Aggrieved
by this decision, the applicant referred the dispute to the General
Public Service Sectoral Bargaining Council for arbitration.
On
1 June 2006, the parties settled the dispute. The findings
of the disciplinary hearing were set aside and the matter
was
referred to a pre-dismissal arbitration. I interpose to state that
throughout this saga, the applicant was, as part of his
conditions
of suspension, prohibited from coming to his place of employment,
performing any duties for his employer or having
any contact with
the staff of the NPA unless authorised to do so.
Whilst
on precautionary suspension, the applicant was shortlisted by the
Nelson Mandela Scholarship Fund for a 12-month scholarship
to study
in the UK. On 18 January 2006, he wrote an email to the NPA
enquiring whether it would be willing to grant him
provisional study
leave for 12 months to enable him to pursue the scholarship. The NPA
replied that the applicant’s request
would be granted, subject
to the condition that such leave would be without pay. The
explanation was that, in his absence, the
NPA would have to employ a
replacement who would have to be paid. A further condition was that
the applicant had to complete
the requisite leave forms.
3
There
was some delay in commencing with the pre-dismissal arbitration.
After some frantic enquiries by the applicant, the pre-dismissal

arbitration was eventually set down for 14 and 17 August 2006 (later
amended to 16 and 17 August 2006). The applicant complained
that as
he had not been given 14 days’ notice of the hearing, he had
insufficient time to prepare. At his request the hearing
was
postponed indefinitely until he returned from his leave in the UK.
On 17
August 2006, the applicant went to the NPA’s offices in
Upington to complete and sign the requisite forms for his
study
leave. It seems that there was a disagreement between the applicant
and his senior, Mr Engelbrecht, who insisted, contrary
to the
applicant’s expectations, that the leave was to be without
pay. The two could not agree and the applicant left the
offices
without having completed and signed the leave forms.
On 18
August 2006, the applicant left for the UK to pursue his 12-month
study programme at the University of Southampton. The
NPA continued
paying his salary. It was only on 31 October 2006 that the NPA
unilaterally and without any prior notice discontinued
the
applicant’s salary. Dissatisfied with this decision, the
applicant wrote an email to the NPA requesting that his salary
be
reinstated.
Instead
of reinstating his salary, the NPA wrote an email to the applicant
on 1 February 2007, advising him that in terms
of section
17(5)(a)(i) of the Act, as he had not been granted permission to go
on study leave outside the Republic, he was by
operation of law
deemed to have been discharged from the public service with effect
from 15 September 2006. This email is the
genesis of this legal
battle. Notably, the applicant was advised in the same email, that
in terms of section 17(5)(b) of the
Act, he had the right to make
representations to the Minister of Justice and Constitutional
Development (Minister) for his reinstatement.
The applicant remained
in the UK and continued with his studies. He only returned to the
Republic on 30 July 2007.
Upon
his return, the applicant, acting in terms of section 17(5)(b),
submitted written representations to the Minister on 5 September

2007, in an attempt to show good cause for having gone away for 12
months on the study programme and to secure his reinstatement.
The
NPA replied by a letter dated 22 February 2008 advising him that the
Minister “has applied her mind to [his] representations
and
has upheld [his] deemed discharge by operation of law.”
Interestingly, the letter concludes by advising the applicant
that
he “may seek a remedy to the decision from the High Court”.
Litigation history
The
applicant instituted proceedings in the Labour Court in terms of
section 158(1)(h) of the Labour Relations Act
4
to have his deemed discharge reviewed and set aside under section
6(2) of the Promotion of Administrative Justice Act
5
(PAJA).
In
dismissing the application the Labour Court held, first, that in
terms of section 17(5)(a)(i) the applicant was discharged
by
operation of law and that therefore the respondents had not taken
any decision that could be reviewed and set aside in terms
of PAJA.
In other words, the respondents had not performed any administrative
action. Second, it found that by going to the UK
on a 12-month
scholarship without the NPA’s permission, the applicant had
absented himself as envisaged by section 17(5)(a)(i).
It reasoned as
follows:
“
In
this respect the applicant contended that the [NPA] was aware that he
would be leaving on a scholarship to study outside the
country. I
have earlier in this judgment indicated that a suspended employee has
a duty to inform his or her employer about his
or her whereabouts
during the period of suspension and may have to seek permission if he
or she is to be away in circumstances
that he or she would not be
able to resume duty if he or she was so directed by the employer. The
fact that the employer had knowledge
about his whereabouts is
irrelevant as what is key is whether or not the absence was
authorised. The facts of this case indicate
very clearly that the
applicant never received authority to be away for an excessive period
of one year. The criteria for [invoking]
the provisions of section
17(5)(a) of the [Act] [were] in my view satisfied and thus the [NPA]
was entitled to [invoke] the provisions
of that subsection.”
6
Aggrieved by the Labour Court’s dismissal of his application,
the applicant appealed to the Labour Appeal Court. Adopting
similar
reasoning, the Labour Appeal Court broadly endorsed the findings of
the Labour Court and dismissed the appeal with costs.
In the main,
the Labour Appeal Court agreed with the Labour Court that the
applicant’s services were terminated by operation
of law and
that the respondents had not taken any decision or action which
could be reviewed and set aside. For this finding
the Labour Appeal
Court relied on
Louw
7
and
Phenithi
.
8
Regarding the basis for his deemed discharge, it agreed that the
Labour Court was correct in finding that, by his conduct, the

applicant had brought himself within the net of section 17(5)(a)(i).
It concluded that he was discharged by mere operation
of law.
Notably
in deciding
Louw
, which dealt with section 72 of the
Education Affairs Act,
9
the Appellate Division held:
“
In the
present case, the respondent was notified in the dismissal letter
that he had been dismissed. It did not flow from a discretionary

decision, but was purely a communication of a consequence that, in
the appellants’ view, followed by operation of law.”
10
(My translation.)
Some
11 years after
Louw,
whilst dealing with a similar situation,
the Supreme Court of Appeal in
Phenithi
endorsed
Louw
:
“
In my
view, the
Louw
judgment is definitive of the first issue in the present matter, viz
whether the appellant’s discharge constitutes an administrative

act. . . . There was no suggestion that
Louw
was wrongly decided. There being no ‘decision’ or
‘administrative act’ capable of review and setting aside,

the second part of the first prayer in casu, viz that the ‘decision
be declared an unfair labour practice’, falls away.”
11
I cannot
fault the Labour Court and Labour Appeal Court for relying on the
principle established in the two cases cited above.
Undeterred
by this second setback, the applicant sought succour from the
Supreme Court of Appeal. On 7 January 2013, the Supreme
Court of
Appeal dismissed the application for special leave to appeal with
costs.
Thereafter,
the applicant sought the leave of this Court to appeal the decision
of the Labour Appeal Court. I pause to observe
that before both the
Labour Appeal Court and us the applicant represented himself without
the guiding hand of counsel. The unfortunate
consequence is that his
papers are somewhat muddled and, as a result, we had to trawl
through a confusing maze of averments to
discern the applicant’s
real cause of action.
Issues
The
following questions require determination:
Should
the respondents’ delay in filing opposing papers and written
submissions be condoned?
Should
leave to appeal be granted?
Have
the jurisdictional requirements of section 17(5)(a)(i) been met?
What
costs order is appropriate?
Condonation
The
respondents were late in filing their answering affidavits as well
as their written submissions. This delay put a serious
hurdle in the
way of their quest to be heard in this Court: they had to apply for
condonation. It is axiomatic that condoning
a party’s
non compliance with the rules of court or directions is an
indulgence. The court seized with the matter
has a discretion
whether to grant condonation.
The
failure by parties to comply with the rules of court or directions
is not of recent origin. Non-compliance has bedevilled
our courts at
various levels for a long time. Even this Court has not been spared
the irritation and inconvenience flowing from
a failure by parties
to abide by the Rules of this Court.
I have read the judgment by my colleague Zondo J. I agree with him
that, based on
Brummer
12
and
Van Wyk
,
13
the standard for considering an application for condonation is the
interests of justice. However, the concept “interests
of
justice” is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it includes: the
nature of
the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and
other litigants; the
reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended
appeal; and the prospects of
success. It is crucial to reiterate that both
Brummer
and
Van
Wyk
emphasise that the ultimate determination of what is in the
interests of justice must reflect due regard to all the relevant

factors but it is not necessarily limited to those mentioned above.
The particular circumstances of each case will determine which
of
these factors are relevant.
It is now trite that condonation cannot be had for the mere asking.
A party seeking condonation must make out a case entitling
it to the
court’s indulgence. It must show sufficient cause. This
requires a party to give a full explanation for the non-compliance

with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default.
14
In
determining whether condonation should be granted, I deal briefly
with the factual background against which this application
has to be
evaluated. According to the Rules the respondents had to file their
answering affidavit by 8 February 2013. They only
filed on 25 March
2013: a delay of 30 court days. There is no reasonable
explanation for this delay. In terms of the first
set of directions
issued by this Court on 21 February 2013, the respondents were
required to file their written submissions
by 22 April 2013. Once
again, they did not comply. This inaction prompted the Court to
issue further directions on 10 May 2013,
calling upon them
to file written submissions and an application for condonation by 14
May 2013. Even then the respondents failed
to comply, only filing
their written submissions on 15 May 2013, after a delay of
some 15 court days. It is clear that
the respondents’ legal
representatives had adopted a trend of flagrantly, if not
recklessly, failing to comply with directions
of the Court.
What
follows is the explanation proffered by the respondents for their
non compliance. First, Ms Bailey, an assistant State
Attorney
who is responsible for handling this case on behalf of the
respondents, admits that she received the Court’s directions

on 21 February 2013. She was thus aware of the date of
set-down and, in particular, the other dates for the further

management of this case. She even furnished counsel with a copy of
the directions. Notwithstanding this, she failed to file written

submissions in accordance with the Court’s directions. Her
primary explanation is that she forgot to diarise the file.
During
subsequent consultation with counsel, she decided not to file
written submissions and failed to file a notice of withdrawal
of
opposition. Clearly, this is contrary to the Court’s
directions. She does not state in her affidavit what the reasons

were for this decision. During the week of 6 May 2013, she
again spoke to counsel and undertook to seek permission
from the NPA
for counsel to be given a watching brief. Nothing happened until
13 May 2013 when Ms Luter, the State
Attorney who is
Ms Bailey’s senior, alerted her to the new directions
from this Court. Faced with this rather embarrassing
situation,
Ms Bailey was left with no choice but to concede that she had
been remiss in her handling of this case.
Save
for expressing some remorse for the unprofessional manner in which
her office dealt with this matter, Ms Luter offered
no
explanation for this disturbing trend. However, to her credit, when
she discovered this lapse she reacted promptly and tried
to salvage
the situation. Regrettably, she has not offered any explanation why
she did not notice this lapse earlier. This points
to some laxity in
the office. However, as the official in charge of the office she has
offered her apologies to this Court for
the inconvenience. This
evinces her appreciation for her duty and responsibility to
the Court, her clients and other parties
to the litigation.
This should be seen in the light of her responsibility to assist the
courts to maintain their “independence,
impartiality, dignity,
accessibility and effectiveness”.
15
One can only hope that she will inculcate the same sense of
conscientiousness in her subordinates to avoid a recurrence of such

an embarrassing situation.
The
applicant opposed the condonation application. The nub of his
submission is that the respondents, having failed to offer an

adequate explanation for their non-compliance, have failed to make a
case for condonation.
During
the hearing counsel for the respondents could offer no acceptable
explanation. Confronted with this quandary, he had to
concede that
the lapses are inexcusable. Ordinarily, this concession would have
sounded the death-knell of the respondents’
case.
There
is another important dimension to be considered. The respondents are
not ordinary litigants. They constitute an essential
part of
government. In fact, together with the office of the State Attorney,
the respondents sit at the heart of the administration
of justice.
As organs of state, the Constitution obliges them to “assist
and protect the courts to ensure the independence,
impartiality,
dignity, accessibility and effectiveness of the courts.”
16
In
terms of section 179(2) of the Constitution,
17
the NPA is responsible for instituting criminal proceedings on
behalf of the State. The Minister is the political head responsible

for administering the Department of Justice and Constitutional
Development. The primary duty of the office of the State Attorney
is
to serve the interests of the government by initiating proceedings
on behalf of or defending any proceedings against the state.
18
I
need to remind practitioners and litigants that the rules and
courts’ directions serve a necessary purpose. Their primary

aim is to ensure that the business of our courts is run effectively
and efficiently. Invariably this will lead to the orderly
management
of our courts’ rolls, which in turn will bring about the
expeditious disposal of cases in the most cost-effective
manner.
This is particularly important given the ever-increasing costs of
litigation, which if left unchecked will make access
to justice too
expensive.
Recently
this Court has been inundated with cases where there have been
disregard for its directions. In its efforts to arrest
this
unhealthy trend, the Court has issued many warnings which have gone
largely unheeded. This year, on 28 March 2013,
this Court
once again expressed its displeasure in
eThekwini
19
as follows:
“
The
conduct of litigants in failing to observe Rules of this Court is
unfortunate and should be brought to a halt. This term alone,
in
eight of the 13 matters set down for hearing, litigants failed to
comply with the time limits in the rules and directions issued
by the
Chief Justice. It is unacceptable that this is the position in spite
of the warning issued by this Court in the past. In
[
Van
Wyk
],
this Court warned litigants to stop the trend. The Court said:
‘
There
is now a growing trend for litigants in this court to disregard time
limits without seeking condonation. Last term alone,
in eight out of
ten matters, litigants did not comply with the time limits or the
directions setting out the time limits. In some
cases litigants
either did not apply for condonation at all or if they did, they put
up flimsy explanations. This non-compliance
with the time limits or
the rules of Court resulted in one matter being postponed and the
other being struck from the roll. This
is undesirable. This practice
must be stopped in its tracks.’
The statistics referred to above
illustrate that the caution was not heeded. The Court cannot continue
issuing warnings that are
disregarded by litigants. It must find a
way of bringing this unacceptable behaviour to a stop. One way that
readily presents itself
is for the Court to require proper compliance
with the rules and refuse condonation where these requirements are
not met. Compliance
must be demanded even in relation to rules
regulating applications for condonation.”
20
(Footnotes omitted.)
The
language used in both
Van Wyk
and
eThekwini
is
unequivocal. The warning is expressed in very stern terms. The
picture depicted in the two judgments is disconcerting. One
gets the
impression that we have reached a stage where litigants and lawyers
disregard the Rules and directions issued by the
Court with
monotonous regularity. In many instances very flimsy explanations
are proffered. In others there is no explanation
at all. The
prejudice caused to the Court is self-evident. A message must be
sent to litigants that the Rules and the Court’s
directions
cannot be disregarded with impunity.
It is
by now axiomatic that the granting or refusal of condonation is a
matter of judicial discretion. It involves a value judgment
by the
court seized with a matter based on the facts of that particular
case. In this case, the respondents have not made out
a case
entitling them to an indulgence. It follows that their application
must fail.
Should leave to appeal be granted?
The
applicant will succeed with his application for leave to appeal if
he shows that a constitutional matter is raised, and that
the
interests of justice require the Court to grant leave.
21
Although not decisive, the existence of prospects of success is an
important component of the interests-of-justice analysis.
22
This
matter revolves around the correct interpretation and application of
section 17(5)(a)(i) of the Act. Section 39(2) of
the
Constitution requires legislation to be interpreted to promote the
spirit, purport and objects of the Bill of Rights. This
Court has
held that a constitutional issue is raised where the interpretation
of legislation may impact on a fundamental right
of a litigant under
the Bill of Rights.
23
Section 17(5)(a)(i) effectively countenances the dismissal of a
state employee without a hearing. That implicates the right to
fair
labour practices enshrined in section 23 of the Constitution. The
constitutionality of the section is not attacked; hence
it must be
interpreted in a manner best compatible with the Constitution.
24
A constitutional issue is thus at stake here.
Section
17(5) has the potential to affect people employed in the public
service. Its reach is extensive. It has the adverse effect
of
terminating employment for misconduct without notice or hearing, and
it is therefore important for this Court to determine
the proper
scope of its application. The appeal has prospects of success. It
would thus be in the interests of justice to grant
leave to appeal.
Have the jurisdictional requirements of section 17(5) been met?
Section 17(5) provides:
“
(a)
(i) An officer, other than a member of the services or an educator or
a member of the National Intelligence Services, who absents
himself
or herself from his or her official duties without permission of his
or her head of department, office or institution for
a period
exceeding one calendar month, shall be deemed to have been discharged
from the public service on account of misconduct
with effect from the
date immediately succeeding his or her last day of attendance at his
or her place of duty.
(ii) If such an officer assumes
other employment, he or she shall be deemed to have been discharged
as aforesaid irrespective of
whether the said period has expired or
not.
(b) If an officer who is deemed
to have been so discharged, reports for duty at any time after the
expiry of the period referred
to in paragraph (a), the Commission
may, notwithstanding anything to the contrary contained in any law,
recommend that, subject
to the approval of the relevant executing
authority, he or she be reinstated in the public service in his or
her former or any
other post or position on such conditions as the
Commission may recommend, and in such a case the period of his or her
absence
from official duty shall be deemed to be absence on vacation
leave without pay or leave on such other conditions as the Commission

may recommend.”
The
applicant’s primary ground of appeal was an attack on the
application of section 17(5)(a)(i). Given my findings
in this
regard, it is unnecessary to say anything more about his other
grounds of appeal. The applicant submits that the respondents
have
failed to prove that, by going to the UK on a study programme, he
absented himself from his official duties as contemplated
by the
section. The premise of this argument is that it is fallacious for
the respondents to suggest that the applicant had absented
himself
from his employment. This is so because he had already been placed
on suspension and prohibited from performing any official
duties
with clear instructions not to come to his place of employment or
have any contact with the NPA’s staff.
25
It was therefore impossible for him to absent himself from his place
of employment within the meaning of section 17(5)(a)(i)
from
when his employer expressly required his absence from the workplace.
The
following facts appear to be common cause. The applicant was
employed by the NPA as a public prosecutor. In 2005, he was placed

on precautionary suspension with pay. As part of the conditions of
his suspension he was prevented from coming to his place of

employment, communicating with his colleagues or performing any
functions or duties for the NPA during his suspension. Whilst
still
on suspension and without permission, he left for the UK on a
scholarship. The question is whether his conduct amounts
to
absenting himself from his official duties without permission.
It is
so that the applicant was absent from his employment. He was absent
because he was suspended. This means that he was absent
with the
permission of his employer. Therefore, one of the essential
requirements of section 17(5)(a)(i) has not been met.
Does his departure to the UK detract from the fact that he was still
on suspension? Whilst grappling with the meaning of the
word
“suspension” in
Gladstone
26
the Court stated:
“
When
an employee is ‘suspended’ it appears to me that apart
from any express instructions he must hold himself available
to
perform his duties if called upon; though for the time being he is
debarred from doing his work. . . . First of all, if suspension
is to
be interpreted in the manner which I have indicated, it is an open
question whether the man who is suspended may or may not
be called
upon to render further services”.
27
The
Appellate Division grappled with the same legal question in
Masinga
,
28
which concerned a suspended employee of the KwaZulu Department of
Justice. That case applied a different albeit similarly worded

section, namely section 19(29) of the KwaZulu Public Service
Act.
29
However, on the facts
Masinga
is distinguishable.
30
Although
one might be tempted to conclude that, by virtue of having
undertaken a scholarship to the UK, the applicant would, in
all
likelihood, have found it impractical to return to resume his
employment if he were recalled, I find such a conclusion to
be
unfounded and speculative in the absence of any evidence that he was
called to take up his duties and failed to do so. Moreover,
the NPA
knew where the applicant was at all relevant times as it was
communicating with him via email. It made a conscious decision
not
to recall but to discharge him. This fact leads me inexorably to
conclude that the finding by both the Labour Court and the
Labour
Appeal Court in this regard is wrong.
In
conclusion, the appeal must succeed.
Costs
The
applicant argued for a punitive costs order against the respondents
based on their conduct which I have found to be reprehensible.

However, except for the Labour Court, the applicant appeared in
person. Justice requires that the respondents be ordered to pay
the
applicant’s legal costs in the Labour Court and his necessary
disbursements in the Labour Appeal Court, Supreme Court
of Appeal
and this Court.
Order
The
following order is made:
The
respondents’ applications for condonation are dismissed.
Leave
to appeal is granted.
The
appeal is upheld.
The
orders of the Labour Court and Labour Appeal Court are set aside.
It
is declared that the applicant did not absent himself from his
official duties without permission as contemplated in section

17(5)(a)(i) of the Public Service Act 103 of 1994 and that he
continues to be in the first respondent’s employ.
The
respondents are ordered to pay the applicant’s costs in the
Labour Court as well as his necessary disbursements in
the Labour
Appeal Court, Supreme Court of Appeal and Constitutional Court,
jointly and severally.
ZONDO J:
I
have had the opportunity of reading the judgment prepared by my
Colleague, Bosielo AJ (main judgment). For the reasons
given
by Bosielo AJ, I agree that:
(a) this matter raises a constitutional issue;
(b) leave to appeal should be granted;
(c) the appeal must be upheld; and
(d) a declaratory order should be made to the effect that the
applicant did not absent himself from his official duties as

contemplated in section 17(5)(a)(i) of the Act and he continues
to be in the first respondent’s employ.
However,
I am unable to agree that the respondents must be refused
condonation for the late delivery of their answering affidavit
and
written submissions. In my view the respondents should be granted
condonation. I set out below my reasons for this conclusion.
In
this Court the test for determining whether condonation should be
granted or refused is the interests of justice. If it is
in the
interests of justice that condonation be granted, it will be
granted. If it is not in the interests of justice to do
so, it will
not be granted. The factors that are taken into account in that
inquiry include:
(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.
31
Although
the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important
factor in
favour of granting condonation.
32
The
interests of justice must be determined with reference to all
relevant factors.
33
However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the

delay is unacceptably excessive and there is no explanation for the
delay, there may be no need to consider the prospects of
success.
If the period of delay is short and there is an unsatisfactory
explanation but there are reasonable prospects of success,

condonation should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused
where
the delay is excessive, the explanation is non-existent and
granting condonation would prejudice the other party. As
a general
proposition the various factors are not individually decisive but
should all be taken into account to arrive at a
conclusion as to
what is in the interests of justice.
Although
the main judgment includes the prospects of success among the
factors to be taken into account, it does not say whether
there are
reasonable prospects of success in favour of the respondents, nor
does it take this factor into account in its assessment
of whether
it is in the interests of justice to grant or refuse condonation.
The
main judgment does not take into account that there are at least
four factors which favour granting condonation to the respondents.

These are:
(a) the existence of reasonable prospects of success;
(b) the importance of the issue raised by the matter;
(c) the absence of prejudice to the applicant; and
(d) the fact that the periods of delay (ie 15 court days in one case
and 30 court days in the other) are not excessive.
In
my view the main judgment should have taken these factors into
account in its assessment of whether it is in the interests
of
justice to grant or refuse condonation. Furthermore, there are two
decisions of this Court, which I discuss below, that
support the
granting of condonation which are not considered in the main
judgment. In my respectful view the main judgment
unduly focuses on
the inadequacy of the explanation for the delay and ignores other
important factors that are normally taken
into account in
considering condonation applications.
Non-compliance with directions
There
are two areas of non-compliance for which the respondents applied
for condonation. The one is the respondents’ failure
to lodge
their answering affidavit timeously. The other is the respondents’
failure to lodge their written submissions
timeously. I deal with
them in turn.
Late delivery of the respondents’ written submissions
The
respondents’ written submissions were late by 15 court days
and were filed six days before the date of hearing. The
explanation
given is that the attorney handling the matter in the State
Attorney’s office forgot to diarise the file.
It appears that
at some stage that attorney and counsel whom she had brought into
the matter thought that the respondents should
not oppose the
matter. It would appear that they sought the first respondent’s
approval without success. This was despite
the fact that the
respondents had been successful in all the courts below. I accept
that this is not an adequate explanation
for the delay.
In
Geldenhuys
34
the written submissions of the Minister of Justice and
Constitutional Development were delivered more than three weeks
after
the due date and only two days before the hearing. In that
case this Court held that, although the explanation for the delay
was inadequate, no party had suggested that it had suffered any
prejudice and the proceedings were confirmatory proceedings
in
which the presence of the Minister was required.
35
In my view the present applicant failed to show that there would be
any prejudice if condonation were granted. It would be
desirable
that the respondents participate in this matter because of the
importance of the issue raised by the matter and the
many public
servants affected by the provisions which this Court is called upon
to interpret and apply.
In
NEHAWU v UCT
36
this Court noted that the Judges of the Labour Court and Labour
Appeal Court, in that and other matters, were divided on the

correct interpretation of section 197 of the Labour Relations
Act
37
(LRA). This Court regarded this as a prima facie indication that
NEHAWU had reasonable prospects of success for purposes of

determining whether it was in the interests of justice to grant it
leave to appeal.
38
In other words the fact that a certain number of Judges from those
courts had taken the same view as NEHAWU on the interpretation
of
section 197 of the LRA was regarded as prima facie indicative of
the existence of reasonable prospects of success for NEHAWU.
39
An even stronger view was expressed along these lines by Jafta J
40
in
Aviation Union
41
when he said: “
The divergent views
expressed by the Supreme Court of Appeal in the two judgments and
the views expressed in the judgments of
the Labour Appeal Court
show prospects of success.”
42
The same approach applies to condonation applications because this
Court has said that condonation applications must be decided
on the
same basis as applications for leave to appeal.
43
In
the present case all six Judges who have dealt with this matter in
the Labour Court, the Labour Appeal Court and the Supreme
Court of
Appeal found in the respondents’ favour that the provisions
of section 17(5) were triggered and resulted in
the applicant’s
discharge from service by operation of law.
44
Accordingly, in this matter we must decide the condonation
application on the basis that the respondents have reasonable

prospects of success. This counts in favour of granting
condonation. It must be remembered that this Court has rightly held
that the presence of prospects of success is an important
consideration in deciding whether to grant or refuse condonation.
45
In
Geldenhuys
this Court granted condonation.
46
In the present matter the respondents’ application for
condonation of the late delivery of their written submissions
is
very similar to that in
Geldenhuys
. If any importance is to
be attached to this Court’s precedent in that case, the
respondents’ fate should be the
same as that of the
respondents in
Geldenhuys.
Accordingly, I am of the view
that condonation should be granted in the present case as well. I
now proceed to consider the
late delivery of the respondents’
answering affidavit.
Late delivery of the respondents’ answering affidavit
The
respondents’ answering affidavit was late by about six weeks.
That period is not excessive. Accordingly, this must
be a factor in
favour of the granting of condonation.
In
Shilubana
47
the applicants lodged their application for leave to appeal more
than a month after the due date in terms of the Rules of this

Court.
48
In the judgment it is not indicated by how much longer than a month
it was lodged. In this case the period is two weeks longer
than a
month.
Shilubana
may have been a few days later than a month
or a week or so longer than a month or more than two weeks longer
than a month.
I think that such difference as there might be in the
period of delay between the present matter and
Shilubana
is
unlikely to be material.
After
stating the period of delay in
Shilubana
, all this Court
said, through Van der Westhuizen J, in regard to the
applicants’ application for condonation
was this:
“
This
matter raises fundamental questions regarding the interplay between
customary law and the Constitution. How these questions
are resolved
might be of paramount importance not only to the immediate parties,
but to the community of which they are a part,
as well as the
nation. Accordingly the applicants’ request for condonation
must be granted.”
49
The
reason articulated by this Court in
Shilubana
for granting
condonation was the possible importance of the issues raised by the
matter not only to the parties but also to
their community and the
nation. The Court said nothing about whether any explanation was
given for the delay. It also did not
say anything about the
applicants’ prospects of success, prejudice to the
respondents or the impact of the delay on the
administration of
justice. I would say that this Court must have regarded the delay
of over a month as short for it to have
dealt with condonation in
the manner in which it did. That is without considering other
relevant factors. In my view, if it
had regarded a month as an
excessive period of delay, it would have considered other relevant
factors as well. Although in
Shilubana
this Court did not
mention the existence of the prospects of success as one of the
factors it took into account in granting
condonation, the result in
that case did show that there were reasonable prospects of success.
However, the fact that the prospects
of success were not given as
one of the factors considered gives the impression that it was not
considered.
As I
have said, if one compares
Shilubana
with the present matter
the period of delay in both matters is unlikely to have been
materially different. In the present matter
there is an explanation
given for the delay whereas in
Shilubana
no explanation
whatsoever seems to have been given; the appeal sought to be
pursued in
Shilubana
raised a matter of importance; in the
present matter the correct interpretation and application of
section 17(5) of the Act
which are raised by this matter is also a
matter of importance; in
Shilubana
the Court had regard to
the fact that the matter was important not only to the parties but
also to the community of which the
applicants were members and the
nation; in the present matter the issues of the correct
interpretation and application of the
provisions of section 17(5)
are important not only to the parties but also to hundreds of
thousands of public servants in this
country; in
Shilubana
the
existence of reasonable prospects of success was not mentioned as
one of the factors taken into account in deciding to grant

condonation; in the present matter there are reasonable prospects
of success for the respondents. In the light of what this
Court
said in
NEHAWU v UCT
as indicated above, in my view the main
judgment ought to have approached the respondents’
condonation application on
the basis that there are reasonable
prospects of success in favour of the respondents.
Prejudice and importance of the issues
The
applicant will suffer no prejudice whatsoever if the respondents
are granted condonation. This is so because the applicant
has to
pursue his appeal before this Court irrespective of whether or not
we grant the respondents condonation. I have already
discussed the
importance of the issues raised by the matter.
I accept that in condonation applications it is difficult to find
two cases that have the same facts. Nevertheless, I do not
think
that this relieves this Court of its obligation to seek to ensure
that, as far as possible, its jurisprudence on condonation
is
consistent.
Geldenhuys
and
Shilubana
provide clear
examples of cases that are sufficiently close to the present case
to require this Court to grant condonation.
[68]
In the result I conclude that the respondents’ failure to
deliver their written submissions timeously should be dealt
with
consistently with how this Court dealt with the failure to deliver
written submissions in
Geldenhuys
and
condonation should be granted. I also conclude that the respondents’
failure to deliver their answering affidavit timeously
should be
condoned.
For
the Applicant: Mr D Grootboom.
For
the First and Second Respondents: Advocate V Soni SC and Advocate
S Poswa-Lerotholi instructed by the State Attorney.
1
Grootboom
v National Prosecuting Authority and Another
[2012] ZALAC 28
;
(2013) 34 ILJ 282 (LAC);
[2013] 5 BLLR 452
(LAC).
2
103
of 1994. Section 17(5) of the Act has since been substituted by
section 25
of the
Public Service Amendment Act 30 of 2007
, and is
now subsection 17(3)(a) and (b) of the Public Service Act. There are
no material differences between the two sections.
The full text of
section 17(5) is reproduced in [39] below.
3
The
NPA stated in an email as follows:
“
Dear Mr Grootboom
It’s a pleasure to inform you that after
deliberation with management, it concluded that study leave for a
year be granted
to you upon official request, however, with certain
conditions, that is leave be granted without pay, this is to enable
the NPA
to find a temporary replacement for your post.
Other than that, normal forms should be processed
following normal procedures.”
4
66
of 1995, read with section 157(2) of the Labour Relations Act.
5
3
of 2000.
6
Grootboom
v National Prosecuting Authority and Another
[2009] ZALC 143
;
(2010) 31 ILJ 1875 (LC);
[2010] 9 BLLR 949
(LC) at para 50.
7
Minister
van Onderwys en Kultuur en Andere v Louw
[1994] ZASCA 160
;
1995
(4) SA 383
(A) at 388.
8
Phenithi
v Minister of Education and Others
[2005] ZASCA 130
;
2008 (1) SA
420
(SCA) at paras 9-11.
9
70
of 1988. Section 72 is almost identical to section 17(5)(a)(i).
10
Louw
above n 7 at 388:
“
In casu is die respondent in
die afdankingsbrief in kennis gestel dat hy ontslaan was. Dit was
nie die uitvloeisel van ’n
diskresionêre besluit nie,
maar slegs ’n mededeling van ’n gevolg wat volgens die
appellante se beskouing van
regsweë ingetree het.”
11
Phenithi
above n 8 at para 10.
12
Brummer
v Gorfil Brothers Investments (Pty) Ltd
and Others
[2000]
ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
13
Van
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4)
BCLR 442
(CC) at para 20
.
14
Von
Abo v President of the Republic of South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) at para 20 and
Van
Wyk
above n 1313 at para 22.
15
Section 165(4)
of the Constitution.
16
Id.
17
The
section reads: “The prosecuting authority has the power to
institute criminal proceedings on behalf of the state, and
to carry
out any necessary functions incidental to instituting criminal
proceedings.”
18
See
section 3(1) of the State Attorney Act 56 of 1957.
19
eThekwini
Municipality v Ingonyama Trust
[2013] ZACC 7
;
2013 (5) BCLR 497
(CC) (
eThekwini
).
20
Id
at paras 26-7.
21
Section
167(3)(b)(i) of the Constitution. See
Radio Pretoria v
Chairperson, Independent Communications Authority of South Africa
and Another
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR
231
(CC) at para 19.
22
See
Brummer
above n 12 at para 3 and
Fraser v Naude
and Others
[1998] ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11) BCLR
1357
(CC) at para 7.
23
See
Mankayi v AngloGold Ashanti Ltd
[2011] ZACC 3
;
2011 (3) SA
237
(CC);
2011 (5) BCLR 453
(CC) at paras 19-22 and
Law Society
of South Africa and Others v Minister for Transport and Another
[2010] ZACC 25
;
2011 (1) SA 400
(CC);
2011 (2) BCLR 150
(CC) at
paras 12 and 57-67.
24
See
Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008]
ZACC 12
;
2009 (1) SA 337
(CC);
2008 (11) BCLR 1123
(CC) at para 107
and
Investigating Directorate: Serious Economic Offences and
Others v Hyundai Motor Distributors (Pty) Ltd and Others In re:
Hyundai
Motor Distributors (Pty) Ltd and Others v Smit NO and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (10) BCLR 1079
(CC)
at paras 21-6.
25
The
applicant also relied on section 20(1) read with subsection (7)
of the
National Prosecuting Authority Act 32 of 1998
which prohibits
him from performing any duties as a public prosecutor whilst under
suspension:
“
(1) The power, as
contemplated in
section 179(2)
and all other relevant sections of
the Constitution, to—
(a) institute and conduct criminal proceedings on
behalf of the State;
(b) carry out any necessary functions incidental to
instituting and conducting such criminal proceedings; and
(c) discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all
purposes, be exercised on behalf of the Republic.
. . .
(7) No member of the prosecuting authority who has been
suspended from his or her office under this Act or any other law
shall
be competent to exercise any of the powers referred to in
subsection (1) for the duration of such suspension.”
26
Gladstone
v Thornton’s Garage
1929 TPD 116
as cited with approval in
Gumede v Mapumulo Bantu School Board and Another
1961 (4) SA
639
(D) at 646B-C.
27
Gladstone
above n 26 at 119.
28
Masinga
v Minister of Justice, KwaZulu Government
[1995] ZASCA 21
;
1995
(3) SA 214
(A). On a plain reading of the section, it appeared that
Mr Masinga fell foul of the section by obtaining alternative
employment
whilst under suspension. It was contended that, by doing
so, Mr Masinga had put himself in a position which was
incompatible
with his continued employment. This argument did not
find favour with the Court.
29
18
of 1985.
30
In
the present case the applicant did not find any employment during
his suspension. All he did was leave the country on a study

programme. It follows therefore that the mere fact of being away on
a scholarship cannot without more constitute a breach of
section
17(5)(a)(i).
31
See
Brummer v Gorfil Brothers Investments (Pty) Ltd and Others
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para
3 read with
Van Wyk v Unitas Hospital and Another (Open
Democratic Advice Centre as Amicus Curiae)
[2007] ZACC 24
;
2008
(2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 20.
32
Brummer
above n 31.
33
Id.
34
Geldenhuys
v National Director of Public Prosecutions and Others
[2008]
ZACC 21; 2009 (2) SA 310 (CC); 2009 (5) BCLR 435 (CC).
35
Id
at para 21.
36
National
Education Health and Allied Workers Union v University of Cape Town
and Others
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR
154
(CC) (
NEHAWU v UCT
).
37
66
of 1995.
38
NEHAWU
v UCT
above n 36 at para 26.
39
Id.
40
Moseneke
DCJ, Mogoeng J, Mthiyane AJ and Nkabinde J concurred.
41
Aviation
Union of South Africa and Another v South African Airways (Pty) Ltd
and Others
[2011] ZACC 39
;
2012 (1) SA
321
(CC);
2012 (2) BCLR 117
(CC) (
Aviation
Union
).
42
Id
at para 32.
43
Brummer
above n 31.
44
It
is six Judges because in the Labour Court the matter came before a
single Judge and in the Labour Appeal Court the matter came
before
three Judges and the application for leave to appeal to the Supreme
Court of Appeal was dealt with by two Judges of Appeal.
45
Brummer
above n 31 at para 3.
46
Geldenhuys
above n 34 at para 21.
47
Shilubana
and Others v Nwamitwa
[2008] ZACC 9
;
2009 (2) SA 66
(CC);
2008
(9) BCLR 914
(CC) (
Shilubana
).
48
Id
at para 8.
49
Id.