Grootboom v National Prosecuting Authority and Another

JurisdictionSouth Africa
Citation2014 (2) SA 68 (CC)

Grootboom v National Prosecuting Authority and Another
2014 (2) SA 68 (CC)

2014 (2) SA p68


Citation

2014 (2) SA 68 (CC)

Case No

CCT 08/2013
[2013] ZACC 37

Court

Constitutional Court

Judge

Moseneke DCJ, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Zondo J, Bosielo AJ and Mhlantla AJ

Heard

May 23, 2013

Judgment

October 21, 2013

Counsel

Applicant in person.
V Soni SC
(with S Poswa-Lerotholi) for the respondents.

Flynote : Sleutelwoorde B

Public service — Employee — Dismissal — Discharge — Deemed discharge on ground that employee had absented himself from service, without permission, C for more than one month — Employee on suspension on allegations of misconduct — During suspension employee going to United Kingdom to study on 12-month scholarship — Employee absent from service because he was suspended — Thus absent with permission of employer — One of essential requirements of deemed discharge under Act not met — In absence of evidence that employee recalled to service, finding that he D could not return to service if recalled, unfounded and speculative — Employee not absenting himself without permission from official duties — Public Service Act 103 of 1994, s 17(5)(a)(i).

Constitutional practice — Compliance with rules of court and court's directions — Failure to comply — Court pointing out that too many cases of failure E occurring — Previous warnings against such failure not heeded — Prejudice to administration of justice, other parties and court highlighted — Court repeating stern warning that rules of court and court's directions cannot be disregarded with impunity.

Headnote : Kopnota

The applicant, who was employed by the first respondent, was placed on F precautionary suspension in 2005 on allegations of misconduct against him. As part of his conditions of suspension, the applicant was 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. A disciplinary hearing followed and the applicant was dismissed. Following G arbitration at a bargaining council, the findings of the disciplinary hearing were set aside and the matter referred to a pre-dismissal arbitration. While he was still on suspension, and without permission from the first respondent, the applicant left for the United Kingdom to study on a scholarship for 12 months. The first respondent regarded this as a deemed discharge, by mere operation of law and without prior notice or hearing, in terms of s 17(5)(a)(i) of the Public Service Act 103 of 1994, and informed him that H he had been dismissed. Section 17(5)(a)(i) provided that an officer of the public service '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 I his or her place of duty'. Thereafter, the applicant instituted proceedings in the labour court in terms of s 158(1)(h) of the Labour Relations Act 66 of 1995 to have his deemed discharge reviewed and set aside under s 6(2) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The labour court dismissed the application, holding that in terms of s 17(5)(a)(i) the applicant had been discharged by operation of law and that therefore the J respondents had not taken any decision that could be reviewed and set aside

2014 (2) SA p69

in terms of PAJA. The applicant's appeal to the Labour Appeal Court, which A dismissed the appeal on grounds which were, in the main, similar to those found in the labour court. An application for special leave to appeal to the Supreme Court of Appeal was also dismissed. In an application for leave to appeal against the decision of the Supreme Court of Appeal, the applicant contended that the respondents had failed to prove that by going to the United Kingdom on a scholarship for 12 months he had absented himself from official duties. B

Held, that it was so that the applicant was absent from his employment; but he was absent because he was suspended. That meant that he was absent with the permission of his employer. Therefore, one of the essential requirements of s 17(5)(a)(i) had not been met. (Paragraph [42] at 81D.) C

Held, further, that it would be an unfounded and speculative conclusion 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. Such conclusion was not justified in the absence of any evidence that he had been called to take up his duties and had failed to do so. (Paragraph [45] at 82B – C.)

Held, accordingly, that the findings of both the labour court and the Labour D Appeal Court were both wrong. (Paragraph [45] at 82C.) Leave to appeal granted and the appeal upheld.

The court, in dealing with the respondents' application for condonation for their late filing of their opposing papers and written submissions, found it necessary to remind practitioners and litigants that the rules of the Constitutional Court and the courts' directions served a necessary purpose. E Their primary aim was to ensure that the business of our courts was run effectively and efficiently. Invariably this would lead to the orderly management of our courts' rolls, which in turn would bring about the expeditious disposal of cases in the most cost-effective manner. This was particularly important given the everincreasing costs of litigation, which if left F unchecked would make access to justice too expensive. The court went on to point out that recently it had been inundated with many cases where the court's directions had been disregarded. The court had, in an effort to arrest this unhealthy trend, issued many stern warnings which had largely gone unheeded. The court pointed out that the prejudice caused by failures to abide by the rules and the court's directions was self-evident. It said that a message had to be sent to litigants that the rules and the court's directions G could not be disregarded with impunity. (Paragraphs [32] – [34] at 78B – 79B.) (Zondo J dissented on the issue whether condonation should be granted in the present case.)

Cases Considered

Annotations

Case law H

Aviation Union of South Africa and Another v South African Airways (Pty) Ltd and Others 2012 (1) SA 321 (CC) (2012 (2) BCLR 117; [2011] ZACC 39): considered

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): dictum in para [3] applied I

eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC) ([2013] ZACC 7): dictum in paras [27] – [27] reiterated

Fraser v Naude and Others 1999 (1) SA 1 (CC) (1998 (11) BCLR 1357; [1998] ZACC 13): dictum in para [7] applied

Geldenhuys v National Director of Public Prosecutions and Others 2009 (2) SA 310 (CC) (2009 (5) BCLR 435; [2008] ZACC 21): considered J

2014 (2) SA p70

Gladstone v Thornton's Garage 1929 TPD 116: considered A

Grootboom v National Prosecuting Authority and Another (2010) 31 ILJ 1875 (LC) ([2010] 9 BLLR 949; [2009] ZALC 143): reversed

Grootboom v National Prosecuting Authority and Another (2013) 34 ILJ 282 (LAC) ([2013] 5 BLLR 452; [2012] ZALAC 28): reversed on B appeal

Gumede v Mapumulo Bantu School Board and Another 1961 (4) SA 639 (D): referred to

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 2001 (1) SA 545 (CC) (2000 (10) BCLR 1079; [2000] ZACC 12): dictum in paras [21] – [26] C applied

Law Society of South Africa and Others v Minister for Transport and Another 2011 (1) SA 400 (CC) (2011 (2) BCLR 150; [2010] ZACC 25): dictum in paras [12] and [57] – [67] applied

Mankayi v AngloGold Ashanti Ltd 2011 (3) SA 237 (CC) (2011 (5) BCLR 453; [2011] ZACC 3): dictum in paras 19 – 22 D applied

Masinga v Minister of Justice, KwaZulu Government 1995 (3) SA 214 (A) ([1995] ZASCA 21): distinguished

Minister van Onderwys en Kultuur en Andere v Louw 1995 (4) SA 383 (A) ([1994] ZASCA 160): referred to

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) ((2003) 24 ILJ 95; 2003 (2) BCLR 154; [2002] ZACC 27): considered E

Phenithi v Minister of Education and Others 2008 (1) SA 420 (SCA) ([2005] ZASCA 130): referred to

Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another F 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC 24): dictum in para [19] applied

Shilubana and Others v Nwamitwa 2009 (2) SA 66 (CC) (2008 (9) BCLR 914; [2008] ZACC 9): considered

Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA 472 (CC) (2008 (4) BCLR 442; [2007] ZACC 24): G dicta in paras [20] and [22] applied

Von Abo v President of the Republic of South Africa 2009 (5) SA 345 (CC) (2009 (10) BCLR 1052; [2009] ZACC 15): dictum in para [20] applied

Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC) (2008 (11) BCLR 1123; [2008] ZACC 12): dictum in H para [107] applied.

Statutes Considered

Statutes

The Public Service Act, Proc 103 of 1994, s 17(5)(a)(i): see Juta's Statutes of South Africa 2005/06 vol 4 at 1-327.

Case Information

I Applicant in person.

V Soni SC (with S Poswa-Lerotholi) for the respondents.

Application for leave to appeal from a decision in the Supreme Court of Appeal refusing special leave to appeal from a decision in the Labour J Appeal Court.

2014 (2) SA p71

Order A...

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31 practice notes
  • MEC, Department of Education, Eastern Cape v Komani School & Office Suppliers CC
    • South Africa
    • Invalid date
    ...applied Gibson's Ltd v Woodhead Plant Ltd 1918 AD 308: dictum at 314 applied Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): dictum in para [37] applied Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A): referred to Inv......
  • S v Ndlovu
    • South Africa
    • Invalid date
    ...2000 (2) SA837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): dictum in para [3]appliedGrootboom v National Prosecuting Authority and Another 2014 (2) SA68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): referred toHead of Department, Department of Education, Limpopo Province v SettlersAgricultural High......
  • Turnbull-Jackson v Hibiscus Coast Municipality and Others
    • South Africa
    • Invalid date
    ...and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): considered Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): considered Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributo......
  • Rodrigues v National Director of Public Prosecutions and Others
    • South Africa
    • Invalid date
    ...of the Republic of South Africa and Others 2018 (2) SACR 442 (CC): considered Grootboom v National Prosecuting Authority and Another J 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): considered 2019 (2) SACR p253 National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA......
  • Request a trial to view additional results
30 cases
  • MEC, Department of Education, Eastern Cape v Komani School & Office Suppliers CC
    • South Africa
    • Invalid date
    ...applied Gibson's Ltd v Woodhead Plant Ltd 1918 AD 308: dictum at 314 applied Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): dictum in para [37] applied Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A): referred to Inv......
  • S v Ndlovu
    • South Africa
    • Invalid date
    ...2000 (2) SA837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): dictum in para [3]appliedGrootboom v National Prosecuting Authority and Another 2014 (2) SA68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): referred toHead of Department, Department of Education, Limpopo Province v SettlersAgricultural High......
  • Turnbull-Jackson v Hibiscus Coast Municipality and Others
    • South Africa
    • Invalid date
    ...and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): considered Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): considered Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributo......
  • Rodrigues v National Director of Public Prosecutions and Others
    • South Africa
    • Invalid date
    ...of the Republic of South Africa and Others 2018 (2) SACR 442 (CC): considered Grootboom v National Prosecuting Authority and Another J 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): considered 2019 (2) SACR p253 National Director of Public Prosecutions v Zuma 2009 (1) SACR 361 (SCA......
  • Request a trial to view additional results
1 books & journal articles
  • Case Note: The complexities of conditional contracts of employment
    • South Africa
    • Juta South Africa Mercantile Law Journal No. , April 2021
    • 6 April 2021
    ...is generallyapplicable in the public sector and the same does not apply in the privatesector’ (para 13).(See also Grootboom v NPA 2014 (2) SA 68 (CC); Lincoln/SAPS [2004] 8BALR 963 (SSSBC); Phenithi v Minister of Education (2006) 27 ILJ 477(SCA); Grogan, ‘Deemed Dismissal’ (2006) 22(4) Empl......

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