Tshavhungwa v National Director of Public Prosecutions and Others

Mr Tshibvumo Phanuel Cornwell Tshavhungwa was employed as a Deputy Director in the Directorate of Special Operations (Scorpions) within the National Prosecuting Authority (NPA). Allegations of misconduct were made against him in 2004, leading to his suspension (initially with pay, later without pay), intended disciplinary proceedings, and ultimately his arrest on corruption-related charges. Because of his incarceration and alleged breakdown of trust, the NPA decided not to proceed with disciplinary arbitration and instead terminated his employment on 20 December 2004 after inviting representations, which he did not make. Tshavhungwa later brought an application in the North Gauteng High Court seeking to review and set aside several decisions, including his dismissal, alleging that they were unlawful and violated his constitutional right to lawful, reasonable and procedurally fair administrative action under section 33 of the Constitution. The High Court dismissed the application but made an adverse costs order against the NPA officials. Tshavhungwa appealed the dismissal, while the NDPP and Mr McCarthy cross‑appealed the costs order.

The appeal by Tshavhungwa against the dismissal of his application was dismissed with costs. The cross‑appeal by the NDPP and Mr McCarthy against the adverse costs order was upheld, and the High Court’s costs order was set aside and replaced with an order that Tshavhungwa pay the costs of the application.

The case confirms and applies the Constitutional Court’s decision in Gcaba, firmly establishing that the dismissal of a public employee does not amount to ‘administrative action’. It reinforces the boundary between administrative law and labour law in South African jurisprudence and clarifies that section 33 of the Constitution does not regulate the state’s relationship with its employees as employer.