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

1 Plascon- Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) 623 (A) 634E-635C.

[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.

2 Section 15(1) of the National Prosecuting Authority Act.

[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

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 (4) SA 490
(CC) para 25.
4 2008 (4) SA 367 (CC).

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.’

5 [2009] ZACC 26.
6 Para 68.

[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.

7 Para 64.

[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 (1st & 3rd)

S Yacoob

I A M Semenya SC

A L Platt

Instructed by:

Ramothwala Lenyai Inc, Pretoria (1st)

Bosiu Attorneys, Bloemfontein

The State Attorney, Pretoria (2nd)

The State Attorney, Bloemfontein