Dr AB Xuma Local Municipality v Lonwabo Delihlazo and Others

The applicant (Dr AB Xuma Local Municipality) issued suspension notices to six employees (the respondents) on 12 August 2024. The respondents challenged the lawfulness of these suspension notices on the basis that they did not comply with clause 16 of the applicable collective agreement. The respondents sought a declaration that the suspension notices were unlawful, unconstitutional, and/or null and void. They expressly disavowed reliance on the Labour Relations Act and any remedies thereunder. The High Court granted the relief sought, declaring the suspensions unlawful. The applicant then applied for leave to appeal, arguing the court erred in finding that failure to afford a pre-suspension hearing rendered the decision reviewable, and that employers are no longer required to give employees an opportunity to make representations prior to precautionary suspension.

• Whether the application for leave to appeal met the test under section 17(1)(a) of the Superior Courts Act, namely whether the appeal would have a reasonable prospect of success or there was some other compelling reason why the appeal should be heard
• Whether the High Court erred in declaring the suspension notices unlawful on the basis of non-compliance with clause 16 of the collective agreement
• Whether the case was properly characterized as a legality review rather than a labour dispute under the Labour Relations Act
• Whether the court was bound to decide the case as pleaded by the parties in an adversarial system
• Whether non-compliance with a collective agreement having the force of law renders a suspension notice unlawful and invalid

The application for leave to appeal was dismissed with costs.

Where a public body exercises power pursuant to a collective agreement that has the force of law, non-compliance with the peremptory provisions of that agreement renders the exercise of power unlawful and subject to being set aside on grounds of illegality. In the adversarial system, courts are bound to decide cases as pleaded by the parties in their papers; it is impermissible for courts to look beyond the pleadings to recharacterize the dispute. The test for leave to appeal under section 17(1)(a) of the Superior Courts Act requires a measure of certainty that another court would differ from the judgment under appeal, not merely a reasonable possibility.

The court noted that the suspension notices were valid for only three months under clause 16 of the collective agreement, meaning they expired on or about 12 November 2024. The court observed that hearing the leave to appeal and any subsequent appeal would be an exercise in futility as the documents on which the proceedings were based were no longer legally valid, making the proceedings a mere academic exercise devoid of legal effect. The court also observed that appeals do not lie against reasons for judgment but against substantive orders, so disagreement with reasoning is irrelevant if the result would remain the same.

This case is significant for several reasons: (1) It reinforces the principle of legality as applying to all exercises of public power, including by local government as an arm of the executive; (2) It confirms that collective agreements concluded in bargaining councils have legal force derived from section 23 of the Labour Relations Act and are not merely contractual; (3) It emphasizes the boundaries of the adversarial system - courts must decide cases as pleaded and cannot look beyond the parties' papers to recharacterize disputes; (4) It demonstrates the proper approach to legality reviews where administrative action is challenged for non-compliance with empowering provisions; (5) It confirms that where litigants expressly disavow reliance on particular statutory remedies (here the LRA), courts must respect that election; (6) It applies the heightened test for leave to appeal under the Superior Courts Act, requiring certainty rather than mere possibility that another court would differ.