Grootboom v National Prosecuting Authority and Another

• Jurisdiction: South Africa
• Court: Constitutional Court
• Judge: Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Zondo J, Bosielo AJ and Mhlantla AJ
• Judgment Date: 21 October 2013
• Citation: 2014 (2) SA 68 (CC)
• Hearing Date: 23 May 2013
• Docket Number: CCT 08/2013 [2013] ZACC 37
• Counsel: Applicant in person. V Soni SC (with S Poswa-Lerotholi) for the respondents.

Bosielo AJ (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J concurring): D

Introduction

[1] 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 E from employment by the National Prosecuting Authority (NPA). The deemed discharge was based on s 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 F herself from his or her official duties for longer than one calendar month without his or her employer's permission.

[2] Essentially, the respondents' case is that, by going to the United Kingdom (UK) on a 12-month study programme whilst on suspension G 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. H

[3] 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.

Bosielo AJ (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J concurring)

Background A

[4] 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 B 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.

C [5] 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 D 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.

[6] Whilst on precautionary suspension the applicant was shortlisted by the Nelson Mandela Scholarship Fund for a 12-month scholarship to E 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 F would have to be paid. A further condition was that the applicant had to complete the requisite leave forms. [3]

[7] 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 G 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.

H [8] 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

Bosielo AJ (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J concurring)

seems that there was a disagreement between the applicant and his A 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.

[9] On 18 August 2006 the applicant left for the UK to pursue his B 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.

[10] Instead of reinstating his salary, the NPA wrote an email to the C applicant on 1 February 2007, advising him that in terms of s 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 D applicant was advised in the same email that, in terms of s 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. E

[11] Upon his return, the applicant, acting in terms of s 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 F 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 G

[12] The applicant instituted proceedings in the labour court in terms of s 158(1)(h) of the Labour Relations Act [4] to have his deemed discharge reviewed and set aside under s 6(2) of the Promotion of Administrative Justice Act [5] (PAJA).

[13] In dismissing the application the labour court held, first, that in H terms of s 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 I s 17(5)(a)(i). It reasoned as follows:

Bosielo AJ (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J concurring)

A '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 B 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 s 17(5)(a) of the [Act] [were] in my view satisfied and C thus the [NPA] was entitled to [invoke] the provisions of that subsection.' [6]

[14] Aggrieved by the labour court's dismissal of his application, the applicant appealed to the Labour Appeal Court. Adopting similar D 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 E 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 s 17(5)(a)(i). It concluded that he was discharged by mere operation of law.

[15] Notably, in deciding Louw, which dealt with s 72 of the Education F 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]

G [My translation.]

[16] Some 11 years after Louw, whilst dealing with a similar situation, the Supreme Court of Appeal in Phenithi endorsed Louw:

Bosielo AJ (Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Mhlantla AJ, Nkabinde J and Skweyiya J concurring)

'In my view, the Louw judgment is definitive of the first issue in the A present matter, viz whether the appellant's discharge...