The National Director of Public Prosecutions and Another v Tshavhungwa and Others; Tshavhungwa v National Director of Public Prosecutions and Others

Tshavhungwa was employed as a Deputy Director in the Directorate of Special Operations (Scorpions) within the Office of the National Director of Public Prosecutions. In March 2004, he was suspended following serious allegations against him. Disciplinary proceedings were scheduled for June 2004 but did not proceed after Tshavhungwa was arrested on corruption charges. He was incarcerated from June 2004 to November 2005. In September 2004, it was agreed to subject the disciplinary allegations to pre-dismissal arbitration, but the National Prosecuting Authority later decided against arbitration. On 20 December 2004, Tshavhungwa's employment was terminated by the Chief Executive Officer, Ms Sparg, on the basis that his incarceration prevented him from performing his functions. In December 2006, Tshavhungwa brought an application in the High Court seeking to review the dismissal decision and various related decisions, arguing they violated his constitutional right to lawful administrative action under s 33 of the Constitution. He claimed that only the Minister had authority to dismiss a Deputy Director, not the National Director.

• Whether the termination of a public employee's employment constitutes 'administrative action' within the meaning of s 33 of the Constitution and the Promotion of Administrative Justice Act 3 of 2000
• Whether the dismissal of Tshavhungwa was unlawful on the basis that only the Minister had authority to dismiss a Deputy Director
• Whether the application was brought timeously
• Whether the High Court had jurisdiction to hear the matter
• Whether the costs order against the National Director and McCarthy was appropriate

The appeal against paragraph 1 of the High Court order dismissing the application was dismissed with costs. The cross-appeal against paragraph 2 (the costs order) was upheld with costs. The costs order in paragraph 2 was set aside and replaced with an order that the costs of the application be paid by the applicant (Tshavhungwa).

The dismissal or termination of employment of a public employee does not constitute 'administrative action' within the meaning of s 33 of the Constitution and the Promotion of Administrative Justice Act. Section 33 regulates the relationship between the state as bureaucracy and citizens and guarantees the right to lawful, reasonable and procedurally fair administrative action, but it does not regulate the relationship between the state as employer and its workers. When a grievance is raised by a public employee relating to the conduct of the state as employer and it has few or no direct implications or consequences for other citizens, it does not constitute administrative action. Employment and labour relationship issues in the public sector are governed by s 23 of the Constitution (fair labour practices) and labour legislation, not by administrative law.

The Court expressly refrained from pronouncing on whether the National Director had authority to dismiss a Deputy Director as opposed to the Minister, as this issue was not determinative given the Court's finding that the dismissal did not constitute administrative action. The Court also noted that while Tshavhungwa's claim was justiciable in the High Court (following Gcaba), this did not mean it was properly founded in law. The Court observed that Tshavhungwa might have had remedies available under the Labour Relations Act 66 of 1995, though he had disavowed reliance on contractual remedies. The Court also made observations about the appropriateness of costs orders, noting that a party cannot be criticized for failing to disclose information that another party (who was also a party to the proceedings) could be expected to provide themselves.

This case is significant for clarifying the distinction between administrative action and employment relationships in South African public law. It established that dismissals of public employees generally fall outside the scope of administrative action reviewable under s 33 of the Constitution and PAJA, and are instead governed by labour law under s 23 of the Constitution. The judgment applies and reinforces the principles established in Gcaba v Minister of Safety and Security, which overturned earlier authorities like Chirwa v Transnet Ltd. This clarification is important for determining the correct forum and legal framework for public employees seeking to challenge employment decisions, directing them to labour dispute resolution mechanisms rather than administrative law remedies.