By Michael Dafel and Duncan Wild on 23 October 2013.

This matter stems from a decision by the NPA to invoke section 17(5)(a)(i) of the Public Service Act 103 of 1994 (Act) to discharge the employment services of Mr Grootboom.  In the Constitutional Court, Mr Grootboom seeks an order for that decision to be set aside.

The Constitutional Court, in a judgment authored by Bosielo AJ, in which Moseneke DCJ, Froneman J, Jafta J, Khampepe, J, Mhlantla AJ, Nkabinde J and Skweyiya J concurred) found that the decison to to discharge the services of Mr Grootboom should be set aside, as the requirements of section 17(5)(a)(i) had not been met.  In addition, the Majority found that the NPA’s late filing of answering affidavits and written submissions could not be condoned as there was no proper explanation for the delay.

Justice Zondo wrote an opinion in which he agreed with the order granted by Bosielo AJ, but thought that the late filing of affidavits and written submissions to the court should be condoned. 

Mr Grootboom, who was a public prosecutor, was suspended with pay from the NPA when allegations of insubordination were levelled against him.  He was eventually found guilty and dismissed.  However, the Public Service Coordinating Bargaining Council set aside the outcome of the disciplinary hearing.  The parties agreed that new disciplinary proceedings would be conducted by means of arbitration and that until the process is finalized Mr Grootboom would remain suspended with pay.

Before the arbitration occurred, Mr Grootboom requested paid leave to undertake postgraduate studies in the UK.  The facts indicate that although the NPA was willing to grant Mr Grootboom sabbatical leave, it would however be unpaid. Accordingly, when Mr Grootboom approached his superior for authorization for sabbatical leave with pay, the superior refused to sign the necessary documentation. Despite not receiving authorization, Mr Grootboom left the Republic and commenced with his studies in the UK.

Two months later Mr Grootboom’s salary payments ceased and he was informed that his employment was terminated in terms of section 17(5)(a)(i) of the Act.  The provision reads that ‘[a]n officer … who absents himself or herself from his or her official duties without permission … for a period exceeding one calendar month, shall be deemed to have been discharged from the public service’.  On return to South Africa, Mr Grootboom unsuccessfully attempted to have his employment reinstated by relying on section 17(5)(b) which allows an officer who has been discharged in terms of section 17(5)(a)(i) to be reinstated if good cause is shown.  Seemingly, the NPA and Minister for Justice Constitutional Development believed that absconding without authorization negated any ‘good cause’.

On review, Mr Grootboom failed in the Labour Court (“LC“) and Labour Appeal Court (“LAC“) to have his previous employment reinstated.  On procedural grounds, both Courts held that the evocation of section 17(5)(a)(i) to dismiss Mr Grootboom was an ‘operation of law’ which is not capable of being subject to administrative review.  The Courts reasoned that when the jurisdictional facts are present (i.e. absence from work without permission for longer than one month) the public servant is automatically deemed dismissed. Consequently, since the automatic application of the provision does not entail an administrative decision, Mr Grootboom was not entitled in the protection of administrative law including the right to be heard before a decision is taken.

The LC did however state that a decision in terms of section 17(5)(b) is subject to administrative review.  Accordingly, a decision not to reinstate the person on good cause shown must be reasonable.  On the facts, the LC concluded that that the NPA and the Minister acted reasonably by not reinstating him.  The LAC agreed with this assessment by stating that it would be absurd and unreasonable to expect his employers to ignore his behaviour in the assessment of ‘good cause’.

In the Constitutional Court, Mr Grootboom argues that section 17(5)(a)(i) should not have been invoked in his case as he was suspended and not on duty, as required by the wording of the provision.  The NPA and the Minister are expected to counter this argument with the reasoning of the LC and LAC which held that despite Mr Grootboom being suspended he still fell under the authority of this employers.  Mr Grootboom also contends that the decision to suspend him in terms of section 17(5)(a)(i) was indeed administrative action as it entailed a public official making a decision on whether section 17(5)(a)(i) was applicable to him.  Consequently, Mr Grootboom argues that he should have been accorded the necessary rights in terms of administrative law before a decision was taken.  This claim is also expected to be opposed with reliance on the judgments of the LC and LAC which found that section 17(5)(a)(i) does not entail administrative action but rather find application by virtue of an operation of law when certain jurisdictional facts are objectively present.

The Majority of the Constitutional Court agreed with Mr Grootboom’s argument that as he was suspended, he was not required to be on duty. Whilst he was away in the UK the NPA knew where he was and communicated with via email.  The Constitutional Court therefore found that as he was on suspension he was absent with the permission of his employer and the requirements of section 17(5)(a)(i) were not met.

Download the judgment here