Mpho Given Phenithi v The Minister of Education and Others

The applicant was employed as a permanent educator by the Free State Provincial government until 18 May 2000. She was absent from work for more than a month due to illness. Upon her return to work, the provincial Department of Education informed her that she was deemed to have been discharged from service by reason of section 14(1) of the Employment of Educators Act 76 of 1998, which provides that an educator absent from work for more than 14 consecutive days without permission shall be deemed discharged from service on account of misconduct unless the employer directs otherwise. The matter was referred to the Education Labour Relations Council for conciliation, which failed. On 21 February 2002, an arbitrator concluded he had no power to arbitrate and suggested the applicant could challenge the constitutional validity of section 14 in the High Court or Constitutional Court. Approximately a year and a half later, the applicant applied directly to the Constitutional Court seeking direct access to have parts of sections 14(1) and 14(2) of the Act declared unconstitutional and invalid.

• Whether the applicant should be granted direct access to the Constitutional Court without first approaching the High Court
• Whether exceptional circumstances existed to justify direct access to the Constitutional Court
• Whether the constitutional validity of sections 14(1) and 14(2) of the Employment of Educators Act 76 of 1998 should be determined

The application for direct access was dismissed.

Direct access to the Constitutional Court will only be granted in exceptional circumstances. The mere fact that the constitutional validity of a provision of an Act of Parliament is in issue does not itself justify direct access. There must in addition be sufficient urgency or public importance, and proof of prejudice to the public interest or the ends of justice and good government, to justify such a procedure. It is undesirable for the Constitutional Court to sit as a court of first and final instance in any circumstances, but especially where disputes of fact may arise. Indigence and the time required for ordinary court procedures are not sufficient grounds to warrant direct access where there has been unexplained delay, no exceptional circumstances exist, and factual disputes may arise.

The Court noted that the applicant raised a constitutional point which warranted consideration, indicating that the substantive challenge to sections 14(1) and 14(2) of the Employment of Educators Act may have merit but needed to be pursued through the proper procedural channels. The Court also observed that on the limited papers before it, factual disputes appeared possible between the applicant and respondents, though this was not a definitive finding but rather an observation supporting the refusal of direct access.

This case reinforces the Constitutional Court's strict approach to applications for direct access and serves as an important precedent on the requirements for bypassing the High Court. It emphasizes that constitutional challenges to legislation do not automatically warrant direct access, and that factors such as unexplained delay, potential factual disputes, and the absence of sufficient urgency or public importance will weigh against granting direct access. The judgment reaffirms the Constitutional Court's preference not to act as a court of first and final instance, particularly where factual issues may need to be resolved. It demonstrates that indigence and procedural convenience alone are insufficient grounds for direct access.