Provincial Commissioner, Gauteng South African Police Service v Mnguni

The respondent, Inspector Mnguni, was a member of the South African Police Service stationed at Booysens Police Station. In November 2005, he was charged with five counts of misconduct under regulation 20(z) of the SAPS Discipline Regulations. The charges arose from allegations that he received money to release prisoners unlawfully from custody. The main evidence came from Clifford Njoni, a Zimbabwean citizen, who worked with the television programme 'Special Assignment' and filmed police officers accepting bribes using a hidden camera. On three occasions between July and August 2005, Njoni filmed transactions where money changed hands for the release of detainees. In one transaction, the respondent accepted R300 from Njoni and released a female detainee named Nomhle. The disciplinary tribunal found Mnguni not guilty on three counts but guilty on two counts (counts 2 and 3) and imposed a sanction of dismissal. Mnguni appealed to the appeals authority established under regulation 17, which dismissed his appeal on 11 August 2008. On 20 March 2009, Mnguni instituted review proceedings in the North Gauteng High Court under rule 53, seeking to set aside the decision of the appeals authority. The high court granted the review and set aside the dismissal. The appellants appealed to the Supreme Court of Appeal.

• Whether a State employee's dismissal may still be challenged in the High Court on common law grounds of review following the enactment of the Labour Relations Act 66 of 1995
• Whether the decision of the appeals authority constituted administrative action reviewable under PAJA
• Whether the High Court had jurisdiction to entertain the dispute or whether it should have been referred to the CCMA or Labour Court
• Whether the review proceedings were brought within the prescribed time period under PAJA
• Whether a new point of law relating to the admissibility of evidence obtained through entrapment could be raised for the first time on appeal

The appeal succeeded with costs, including costs of two counsel. The order of the court below was set aside and replaced with an order dismissing the application with costs.

A State employee may no longer challenge a dismissal decision in the High Court by way of common law review based on principles of natural justice. Following the enactment of the Constitution and the Labour Relations Act 66 of 1995, common law principles that previously provided grounds for judicial review of public power have been subsumed under the Constitution. State employees' rights in relation to dismissal are now regulated by section 23 of the Constitution (fair labour practices) and section 185 of the LRA (right not to be unfairly dismissed). Claims of unfair dismissal must be pursued in the Labour Court, which has exclusive jurisdiction to enforce fair labour practice rights under sections 157(1) and (2) of the LRA. There is no residual common law right to challenge such dismissals in the High Court.

The Court made several obiter observations: (1) Even if the review had been properly brought, the correct course would have been to set aside the decision of the appeals authority and refer the matter back to be heard by another presiding officer, rather than setting aside the proceedings before the disciplinary tribunal which were not challenged in the notice of motion. (2) The classification of acts or decisions as 'judicial' or 'quasi-judicial' versus 'purely administrative', which was previously used to determine whether natural justice applied, has been jettisoned and characterized as a 'flawed exercise' that is of no assistance in the constitutional era. (3) The Court noted that on reading Njoni's testimony, one struggles to find any contradictions at all, contrary to the grounds of appeal. (4) Regarding the new constitutional point on admissibility of evidence, the Court observed that the factual basis was absent from the pleadings and that Njoni might have given an acceptable explanation if the issue had been properly raised, making it unfair to consider the point for the first time on appeal.

This case is significant in South African law as it clarifies the limits of common law review in employment dismissal cases involving State employees. It confirms that following the enactment of the Constitution and the LRA, State employees can no longer challenge their dismissals in the High Court on common law grounds of review. Instead, such matters must be pursued through the Labour Court under the statutory framework provided by the LRA. The judgment emphasizes that common law principles of natural justice that previously provided grounds for judicial review of public power have been subsumed under the Constitution. It reinforces the exclusive jurisdiction of the Labour Court in labour-related disputes and the proper forum for challenging unfair dismissals. The case also addresses procedural issues regarding raising new points of law on appeal and the requirements for such points to be considered without causing unfairness.