IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 388 3/2024
In the matter between:
DR AB XUMA LOCAL MUNICIPALITY APPLICANT
and
LONWABO DELIHLAZO FIRST RESPONDENT
KHANYISILE NKELE SECOND RESPONDENT
BONGANI MNYANDE THIRD RESPONDENT
NOMBUYISELO STEMELA FOURTH RESPONDENT
SANDLA MDINGI FIFTH RESPONDENT
TOBEKA SOGAWULA SIXTH RESPONDENT
JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL
NOBATANA AJ:
[1] The applicant has applied for leave to appeal the whole of the Judgment of
this court delivered on the of 2025 in which the suspension of the respondents
was declared to be unlawful .
[2] The grounds on which the applicant ’s application for leave to appeal is based
are that:
“1. The court erred in finding that the failure to the respondents a
pre-suspension hearing rendered the decision to suspend them
reviewable;
2. The court ought to have found that:
2.1 employers are no longer required or obligated to give
employees an opportun ity to make representations prior
to a precautionary suspension;
2.2 the right to a hearing prior to a pre -cautionary suspension
arises therefore not from the constitution, PAJA or as an
implied term of the contract of employment, but is a right
located within the provision of the Labour Relations
Act,66 of 1995, the correlative duty on the employers not
to subject the employees to unfair labour practices. That
being the case, the court ought to have found that, the
right is a statutory right for which stat utory remedies have
been provided together with statutory mechanisms for
resolving disputes regarding those rights
3. In making the declaratory order of unlawfulness of the
suspension notice, the court erroneously over-emphasized the
failure to afford the respondents a pre -suspension hearing. The
court should have given due consideration to the question
whether the applicant was in law obligated to afford the
respondents a pre - suspension hearing .”1
1 Applicant’s Notice of applicat ion for Leave to Appeal.
[3] During argument of the application for leave to appeal Mr Nzuzo on behalf of
the applicant , made the following submissions to substantiate the grounds for
leave to appeal , set out in the notice of appeal referred to above.
[4] In respect to the test for leave to appeal , he stated that t he requirements for
the granting of leave to appeal have in a long line of cases , been held to be
the existence of a reasonable prospects of success on appeal. In this regard
he referred the court to the following deci sions R v Baloi 1949 SA 523 at 524,
R v Nxumalo 1939 AD 590 AD 580 at 582 , R v Ngubane and others 1945 AD
at 187, R v Sikosana 1980 (4) SA 559 (A) at 562 . He further submitted that in
giving consideration to th is application, this court is therefore enjoined by
judicial authority to take cognizance of the test that is applicabl e to
applications of this natur e.
[5] This, according to the applicant, necessarily entails that this court should
consider the application objectively , and to the extent that human nature
allows , not to be influenced by the fact that the same court reached the
conclusion that it did in the main proceedings. Judicial authority, so it was
further submitted on behalf of the applicant, enjoins the court to reflect
dispassionately upon its decision and decide whether there is a reasonable
prospect that the appeal court may disagree with its decision (emphasis
added).
[6] It was further submitted on behalf of the applicant, on the question , whether a
failure to afford an employee a pre -suspension hearing , renders the
suspension reviewable , a court setting aside an invalid administrative act, is
concerned with judicial review, and the court has a discretion to grant or
withhold the remedy. Th e are two review pathways for review , a review in
terms of Promotion of Adm inistrative Justice Act , 2000 (Act No. 3 of 2000)
“PAJA ” and a legality review. If the action sough to be reviewed is an
administrative action, PAJA is applicable, and if it is a review in the exercise of
a statutory power , then it is a legality review .
[7] The right to a precautionary suspension hearing , so it was further submitted,
was founded in no n-compliance with the audi alterm partem rule, and
constituted administrative action reviewable on administrative law grounds in
terms of PAJA . This principle was dealt with in Muller v Chairman Minister’s
Council House of Representative s and others 1992 (2) SA 508 (C) in which it
was said, if that were to be the case, so it is submitted, then the employees in
the private sector would not have been entitled to such a r elief based upon
administrative law principles , as the decision to suspend would not constitute
administrative action .
[8] The Constitutional Court in Chirwa v Transnet and others [2008] BLLR97
(CC), according to the applicants, held that labour practices in the public
service do not constitute administrative action , and removed administrative
action , as a basis for the right to a pre -suspension hearing for public servants.
Mr Nzuzo referred the court to a Labour Appeal Court decision in Member of
the Executive Council for Education, Northwest Provinci al Government v Errol
Randal Grundwell [2012]8 BLL R 747 (LAC) in which it was held that “ The right
to a hearing prior to a suspension arises therefore not from the constitution,
PAJA [Promotion of Administrative Justice Act, No 3 of 2000] or as an implied
term of the contract of employment, but it is a ri ght located within the
provisions of the Labour Relations Act, the correlative of the duty on
employers not to subject employees to unfair labour practices. That being the
case, the right is a statutory right for which statutory remedies have been
provided together with statutory mechanisms for resolving disputes in regard
to those rights ”
[9] The decision to suspend an employee, it was further submitted on behalf of
the applicant , is not an exercise of a statutory power nor is performance of a
public function. When a gri evance is rais ed by an 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 admini strative action.
Mr Nzuzo further referred the court to the constitutional court in the matter of
Long v South African Breweries (Pty) Ltd and Others [2018]ZACC7 in which it
was held that when an employer suspends an employee, it is no t a
requirement that the employee must be given a hearing prior to the
suspension . He submit ted that the legal position has now changed, employers
are no longer required or obligated to give employees an opportunity to make
representations prior to a precautionary suspension. He further refer red to a
decision in Malo v South African Local Government and others (JR327)
(2024) ZALCJHB 270 (15 July 2024); and a decision of this division in Mbude
v Premier of the Eastern Cape [2022]9BLLR 859 (ECB) (3 May 2022) [32]
[10] He accordingly submit ted that the court erred in making a declaratory order to
the effect that the suspension was unlawful, because a declaratory order is
generally an orde r to resolve a matter where there is a dispute over the
existence of some legal right or entitlement. Ther e must be a legal basis upon
which the declaratory order in favour of the applicant can be made. It would
not be appropriate where one is dealing with events which occurred in the
past, such events, if they give rise to a cause of action, would entitle the
litigant to an appropriate remedy.
[11] He submitted that the court should have given due consideration of whether
the applicant was in law obliged , to affor d the respondents a pre suspension
hearing. He further submitted on behalf of the applican t that the respondent s
did not make out a case for a breach of contract because “…..(sic) (collective
agreements)…are not entirely exclusively contractual in nature, especially
when concluded in a bargaining coun cil between employer organisations and
trade unions “Marius Hend ricks v Overstrand Municipality (CA242013 [2014]
ZALAC 107 (25 Septemb er 2014) accordingly the respondents in their
founding papers did not make out a case for a breach of contract.
[12] Mr Madokwe on behalf of the respondents made the following submissions in
respect of the applicable test for l eave to appeal , he submitted that leave may
only be g ranted where the judge or judges concerned are of the opinion that:
1.1 the appeal would have a reasonable prospect of success; or
1.2 there is some other compelling reason why the appeal should be
heard, including conflicting judgements on the matter under
consideration
[13] These requirements are contained in section 17(1)(a) of the Superior Courts
Act,2013 (Act No 11 of 2013). Mr Mado kwe, further submitted that the use of
the word “ would ” indicates a measure of certainty , that another court will differ
to the court whose judgment is sought to be appealed against . In this regard
he relied on the decision in National Director of Public Prosecutions and
others v Democratic Alliance and others (Society for the Protection of our
Constitution as amicus curiae) [2016] JOL 3023 (GP) at para 25.
[14] He stated that with reg ard to the requirement of some compelling reason, a
discrete compelling issue of public importance which will have an effect on
future matters, will constitute a compelling reason, see Minister of Justice and
Constitutional Development v South Africa Liti gation Centre 2016 (3) SA 316
SCA at 330 C. He stated that, i t is not to say that merely because the court is
of the view that an issue is of public importance, it must grant leave to appeal.
The merits of the appeal remain vitally important and will often be decisive.
[15] He referred to the court’s decision i n Tacmec Africa v The Mi nster of Health
(495/11) [2012 ] ZACA 64 (2May 2012) the following was said:
“[17] First, the appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus whether or not a
court of appeal agrees with the lower court’s reasoning would be of no
consequence if the result would remain the same (Western
Johannesburg Rent Board (Pty) Ltd 1948 (3) SA (A) at 354”
[16] In respect of the applicants grounds of appeal he stated that he intended to
make the following submissions:
1 submissions regarding the lack of merit and reasonable
prospect of success in respect of the pleaded grounds of
appeal;
2 submissions regarding costs
3 conclusion
[17] He submitted that the application for leave to appeal must be dismissed with
costs , as it lacks merit and prospect of success, and there is no compelling
reason, why the appeal must be heard, for the following reasons:
[18] The appellant contends that the court erred in finding that the failure to afford
a pre -suspension hearing rendered the decision to suspend the respondents
reviewable. This ground according to Mr Madokwe is a no n-stater , and does
not go to the heart of the judgment of this court , that is sought to be appealed
against by the applicant. The relie f sought by the in the notice of motion was a
declaration of illegality of the notice of suspension , and not a review of a
decision not afforded to the respondents a pre -suspension hearing , whether
or not the decision to suspend the respondent s was reviewable , was
irrelevant in the proceedings, according to Mr Madokw e.
[19] The crucial finding of the court was that, the failure of the applicant to comply
with the provisions of clause 16 of the collective agreement, and accordingly
the applicants letters of suspension were unlawful and stood to be set aside
on the basis that the contravene the principle of legality.
[20] With respect to the second and third ground, he submit ted that the judgment
cannot be faulted, as the court correctly held that the violation of the
respondents right to be heard is a right that emanated from clause 16 of the
collective agreement , which is part of the respondents employment contract
with the applicant. He relied on the decision in Biyase v Sisonke Municipality
(2012)33 ILJ para 25 , in which it was held that the contravention of the
regulations renders a suspension unlawful .
[21] Mr Madokwe , also made a submission that the notice of suspension in terms
of clause 16 of Collective agreement is only valid for a period of 3 months .
The three -month period of validity of the suspension notice , expired on or
about the 12th November 2024 (as the notice was issued by the applicant on
the 12th of August 2024). The hearing of the leave to appeal and the
subsequent appeal, if leave to appeal is granted, will be an exercise in futility
as the document on which the proceedings are based, is n o longer legally
valid. The proceedings are accordingly a mere academic exer cise, and are
devoid of any legal effect. He accordingly submitted that the application for
leave to appeal must be dismissed for the above reasons.
[22] The relief that was sought by the applicant is contained in paragraph 1.2 of
the Notice of Motion and is stated as follows “1 .2. The No tice of Suspension
served upon the applicants, issued by the respondent on the 12th August 2024
be and is hereby declared unlawful, unconstitutional and/ or null and void…” .
The rest of the relief sought is consequential relief , upon the declaration of
invalidity.
[23] The rationale for the contention by the respondents for the declaration of
invalidity of the notice of suspension , is that it does not comply with clause 16
of the collective agreement in terms of which it was issued. The collective
agreement in addition to i t being part of the contract of employment between
the applicant and the respondents, is, according to the decision of the Labour
Appeal court relied upon by the applicants in these proceedings, “… not
entirely or exclusively contractual in nature, especia lly when it is concluded in
a bargaining council between an employer’s organization and trade union”2 It
has legal force. Its legal force it derived from section 23 of the Labour
Relations Act
[24] In addition , the respondents in the main application , in relation to the remedy
they seek in those proceedings, stated quite categorically in paragraph 11.1 of
their founding affidavit that that they “…disavow any reliance on the provisions
2 Marius Hendricks v Overstrand Municipality (supra).
of the Labour Relations Act 66 of 1995 (“the LRA”) and any remedy in terms
of the LRA” .
[25] It is trite that in an adversari al system like ours the court must decide the case
as pleaded, and in application proceedings the notice motion and the
affidavits constitute both pleadings and the evidence. I have already
summarized the relief sought by the applicants in the main application, the
applicant were clear that they did not seek any relief that might be available to
them in terms of the Labour Relations Act, and accordingly in terms of the
applicable principles , the court was confined to decide the case on the basis
of the relief sought , by the respondent in their papers, what the court had to
consider was whether the relief was competent , and whether the respondents
in those proceedings had made out a case for the relief sought, if the
respondents cleared both these hurdles , the court was bound to grant them
the relief sought , which I deal with later in this judgement .
[26] The nature of the relief sought by the respondents was a legality review, this
much was correctly conceded by Counsel for the applicant , during argument
of the present application for leave to appeal . As stated above the
respondents approached this court seeking relief that “1 .2 The Notice of
Suspension served upon the applicants, issued by the respondent on the 12th
August 2024 , be and is hereby declared unlawful, unconstitutional and/ or
null and void …” i.e. they were challenging the lawfulness of the Notice of
Suspension, the requirement of Lawfulness was usefully discussed by
Fabricius AJ in Vorster and Another v Department of Economic Development
and Tourism, Limpopo Province , and others 2006 (5) SA 291(T) as follows:
“[18] Lawfulness is relevant to the exercise of all public power,
whether or not the public power constitutes administrative action,
Lawfulness depends on the terms of the empowering statute. If the
exercise of public power is not sanctioned by the relevant empowering
statute, it will be unlawful and invalid, see Pharmaceutical
Manufacturers Association of SA and Another: In re Ex Parte
President of the Republic of South Africa and others 2000(2) SA
674 (CC) (2000 (3) BCLR 241); Affordable Medicines Trust and
others v Minister of Health and Another 2006(3) SA 247 (CC) (2005
(6)SA311(CC). According to the provisions of s 6(2) of the Promotion of
Administrative Justice Act, the court has the power to judicially review
administrat ive action if the action itself contravenes the law or is
unauthorized by the empowering provision. Lawfulness lies at the heart
of administrative justice and underpins the whole constitution. It is the
fundamental principle of the rule of law. The exercise of public power in
whatever form can only be legitimate where it is law ful, and the rule of
law, at least to the extent it expresses this principle of legality, is
accepted to be a fundamental principle of constitutional law. This is so
understood internationall y (not necessarily only in South Africa) before
the advent of the new constitutional dispensation, and certainly
thereafter. See Dicey : Introduction to a study of the Law of the
Constitution 10 ed (M cMillan Press,London, 1959) at 193 art 20(3) of
the German Basic Law, for example. The principle i s expressly stated
in the 1996 Constitution in s 2. I n Fedsure Life Assurance and
others v Greater Johannesburg Transitional Metropolitan Council
and others 1999(1) SA374…it was held that central to our
constitutional order that the legislature and the ex ecutive, in every
sphere, are constrained by the principle that they exercise no power
and perform no function beyond that conferred upon them by law. The
common law principle of ultra vires remain under the new constitutional
order, however, in the contex t of the constitutional principle of legality.
In the context of ‘administrative action’, the principle of legality is
enshrined in s 32(1) of the Constitution of 1996”
[27] It was common cause through out the proceedings that the collective
agreement in addition to it being part of the contract of employment between
the applicant and the respondents, is, according to the decision of the Labour
Appeal in Marius Hendricks v Overstrand Municipality (supra) court relied
upon by the a pplicants in these proceedings, “… not entirely or exclusively
contractual in nature, especially when it is concluded in a bargaining council
between an employer’s organization and trade union” It has legal force. Its
legal force it derived from section 23 of the Labour Relations Act.
[28] The respondent as a local arm of the executive was bound to act within its
prescripts in issuing the Notice of Suspension to the applicants . It is not in
dispute that the suspension notice did not comply with clause 16 of the
collective agreement , and accordingly the notice , stood to be set aside as
being unlawful and in contravention of the principle of legality. It is not in
dispute that this court had the power to set aside the notice on the grounds of
being unlawful. That is the case that was pleaded by the respondents and had
to be decided by this court.
[29] In Fischer v Ramahlele, 2014(4) SA 614 (SCA) it was held at paragraph 13 of
the judgment that
"[13] Turning the to the nature of civil litigation in our adversarial
system it is for the parties, either in pleadings or in affidavits, which
serve the function of pleadings and evidence, to set out and define the
nature of their dispute and it is for the court to adjudicate upon those
issues. That is so even where the dispute involves an issue pertaining
to the basic human rights guaranteed by our constitution, for it is
impermissible for a party to rely on a constitutional ground that was not
pleaded. There are cases where the parties may expand on thos e
issues by the way in which they conduct the proceedings, there may
also be instances where the court may mero mutu raise a question of
law that emerges fully from the evidence and is necessary for the
decision of the case. That is subject to the provisi on that no prejudice
will be caused to any by it being so decided. Beyond that it is for the
parties to identify the dispute and for the court to determine that
dispute , and that dispute alone .” (emphasis added)
[30] There is accordingly no merit for the ground s of the application for leave to
appeal relied upon in its application for leave to appeal an d the submission s
made on his behalf in support of the said grounds, the sum total of which
amount to this, that the court ought to have looked beyond the papers filed by
the applicant to determine what the real dispute was between the parties, and
ought to have decided the case based on that dispute i.e. that the real dispute
was the unfairness of the suspension , and that the court ought to have found
that the respondents had remedies in the Labour Relations Act, i.e.
conciliation and arbitration as part of unfair labour practice in terms of the
Labour Relations Act , and that the respondents were no longer in law entitled
to a pre -suspension hearing.
[31] The case before court was also not about , the unfairness or otherwise of the
suspension and whether the responde nts were entitled to a hearing before,
the suspension as contended by the applicant . It was about whether the
Notice of suspension issued , by the applicant complied with peremptory
provisions of section 16 of the collective agreement which had the force of
law, and accordingly the decisions of Chirwa v Transnet and others
[2008]BLLR97 (CC ); Northwest Provincial Government v Errol Randal
Grundwell [2012]8 BLLR 747 (LAC); Muller v Chairman Minister’s Council
House of Representatives and others 1992 (2) SA 508 (C); Malo v South
African Local Government and others (JR327)(2024) ZALCJHB 270 (15 July
2024); and a decision of this division in Mbude v Premier of the Eastern Cape
[2022]9BLLR 859 (ECB) (3 May 2022) [32] do not find applicat ion, on the
facts of the case as pleaded by the respondents.
[32] With respect to the test of the application for leave to appeal , I am in
agreement with Mr Madokwe that the test in order for the applicant to succeed
in an application for leave to appeal , is that, leave to appeal may only be
granted where the judge or judges concerned are of the opinion that:
1.2 the appeal would have a reasonable prospect of success; or
1.2 there is some other compelling reason why the appeal should be
heard, including conflicting judgements on the matter under
consideration
[33] These requirements are contained in section 17(1)(a) of the Superior Courts
Act,2013 (Act No 11 of 2013) “ the Superior Courts Act” , the use of the word
“would ” indicates a measure of certainty that another court will differ to the
court whose judgment is sought to be appealed against at para 25 in this
regard he relied on the decision in National Director of Public Prosecutions
and others v Democratic Alliance and others (Society for the Protection of our
Constitution as amicus curiae) [2016]JOL 3023(GP ) at para 25 in which it
was stated in respect of the new section 17 (1)(a) of the Superior Courts Act:
“[2] The Superior Courts Act has raised the bar for the granting of
leave to appeal. In Mont Chevaux Trust (IT2012/28 v Goosen
&16 others Bertelsman J held as follows:
It is clear that the threshold for the granting of leave to
appeal against a judgment of a High Court has been
raised by the new Act. The former test whether leave
should be granted was a reasonable prospect of success
that another cour t might come to a different
conclusion…the use of the word ‘would’ on the new
statute indicates a measure of certainty that another court
will differ from the court whose judgment is sought to be
appealed against ”.
[34] With regard to the second ground of some compelling reason for the appeal
to be heard , it has been held that the compelling reason must relate to
discrete issue of compelling and public importance , which will have an effect
on future matters, that will constitute a compelling reason, see Minister of
Justice and Constitutional Development v South Africa Litigation Centre 2016
(3) SA 316 SCA at 330 C. It is not to say that merely because the court is of
the view that an issue is of public importance, it must grant leave to appeal.
The merits of the appeal remain vitally important and will ofte n be decisive. In
Tecmed Africa (Pty) Ltd v Minister of Health and Another (495/11) [2012]
ZASCA 64 (21 May 2012) the following was said:
“[17] First, the appeals do not lie against the reasons for judgment but
against the substantive order of a lower court. Thus whether or
not a court of appeal agrees with the lower court’s reasoning
would be of no consequence if the result would remain the same
(Western Johannesburg Rent Board (Pty) Ltd 1948 (3) SA (A) at
354”
[35] The test for leave to appeal , as alluded by the applicant has been superseded
by the provisions of section 17(1) (a) of the Superior Courts Act, which has
raised the bar from a mere possibility , to a certainty that another court will find
differently from the court whose judgment is being appealed against.
[36] Having regard to wh at is stated above both in relation to the merits of the
application for leave to appeal, and the test for leave to appeal, I am of the
view that the application for leave to appeal must fail. The applicant has not
made out a case that the appeal would ha ve a reasonable prospect of
success, and tha t there is any comp elling reasons why the appeal must be
heard , and accordingly the following order will issue:
1. The application fo r leave to appeal is dismissed with costs .
__________________________
M. NOBATANA
ACTING JUDGE OF THE HIGH COURT
APPEARANCES:
For the APPLICANT : ADV NZUZO
Instructed by : Tshikukuv he M. Inc .
248 Thohoyandou P -East
Office No. 7 & 8
Muremela Medical Centre
Murangi Street
REF: TMA/CIV.12/2025
Tel: 015 023 0832 / 076 291 4034
Email:
tshikukuvhemattorneys@gmail.com
c/o Brauns Nyembezi Inc.
Office No. 2 Phyllis Inc
49 Cumberland Street
Mthatha
Tel: 047 531 1454
Email: admin@bninc.co.za
For the RESPONDENTS : ADV MADOKWE
Instructed by : TA Nkele Attorneys
56 Wesley Street
Mthatha
Ref: LM/101975/ zg/HC
Email: nkele.convey@mweb.co.za
Matter heard on : 28 MAY 2025
Judgment delivered on : 19 June 2025