Mpho Given Phenithi v Minister of Education and Others

The applicant, Ms Mpho Given Phenithi, was employed in a permanent capacity as an educator by the Free State Provincial Government. She was absent from work for more than a month due to illness. Upon her return on 18 May 2000, the provincial Department of Education informed her that she was deemed to have been discharged from service in terms of section 14(1) of the Employment of Educators Act 76 of 1998, which provides for deemed dismissal where an educator is absent without permission for more than 14 consecutive days. After an unsuccessful conciliation at the Education Labour Relations Council, an arbitrator ruled on 21 February 2002 that he lacked jurisdiction to arbitrate the matter and suggested that the applicant challenge the constitutionality of section 14 in the High Court or Constitutional Court. Approximately eighteen months later, the applicant applied directly to the Constitutional Court for an order declaring sections 14(1) and 14(2) of the Act unconstitutional.

The application for direct access to the Constitutional Court was dismissed.

This case reinforces the Constitutional Court’s strict approach to direct access and affirms that even constitutional challenges to legislation must ordinarily proceed through lower courts. It underscores that indigence and delay alone do not constitute exceptional circumstances and highlights the Court’s reluctance to act as a court of first instance, particularly where factual disputes may arise.