AFMS Group v South African Airways (SOC) Ltd and Others (J 998 / 2022) [2022] ZALCJHB 256 (7 September 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

REPORTABLE

Case no: J 998 / 2022

In the matter between:

AFMS GROUP (PTY) LTD

Applicant

and

SOUTH AFRICAN AIRWAYS (SOC) LTD

First Respondent

SOUTH AFRICAN TRANSPORT ANO ALLIED

WORKERS UNION

Second Respondent

SOLIDARITY

Third Respondent

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA

Fourth Respondent

NATIONAL TRANSPORT MOVEMENT

Fifth Respondent

EMPLOYEES OF AFMS GROUP (PTY) LTD

LISTED IN ANNEXURE "X"

Sixth and Further Respondents

Heard: 23 August 2022

Delivered: 7 September 2022

Summary: Urgent application - principles considered - interest of justice requires that application be decided - matter urgent

Section 197 of Labour Relations Act (LRA) considered - principles applicable to transfer of service - whether termination of service agreement constituting transfer of business - nature of transaction and business considered

Section 197 - application to facts - service constituting discrete economic entity capable of being transferred - not just change of service provider - transfer of business exists and s 197 applicable

Section 197 - historical context important to establish discrete economic entity - consistent application of s 197 since original outsourcing and subsequent changes of service providers - same business transferred in the past - s 197 continues to apply

Section 197 - application of s 197 principally a factual enquiry - on the facts no change in service from past service - employees dedicated to service throughout - proper transfer of business in this case

Section 197 - provisions of agreements considered - agreements specifically provide for application of s 197-further factor justifying

application of s 197 - termination of service agreements constituting transfer

Section 197 - proper case of application of section made out - declaratory relief granted

JUDGMENT

SNYMAN, AJ

Introduction

[1] When is a service a business, and when is it just a service? That is the question that falls to be decided in this case, which concerns an application by the applicant for declaratory relief flowing from the application of section 197 of the Labour Relations Act (LRA)[1]. According to the applicant, the termination of service agreements it had concluded with the first respondent constitutes a transfer of as business as contemplated by section 197 of the LRA and consequently, the applicant contends that it is entitled to declaratory relief to the effect that all the employees associated with those agreements, being the sixth and further respondents, are to be considered to be transferred to the first respondent as a result. The application has been brought as one of urgency.

[2] In order to facilitate ease of reference to parties in this judgment, I will refer to the applicant as AFMS, the first respondent as SAA, and the second respondent as SATAWU. The sixth to further respondents will be referred to as the 'employees'. Only SAA and SATAWU as respondent parties have participated in the proceedings. SAA has opposed the application, whilst SATAWU has supported the application of AFMS.

[3] Where is comes to urgency, SAA pertinently challenged the issue of urgency in its answering affidavit, and heads of argument. However, this opposition was not really pressed when argument was presented in Court. It must be stated that applications under section 197 of the LRA carry with them an inherent quality of urgency, considering the significant consequences of the application of such section not only to employees, but also to the legal position of the conflicting employer parties themselves.[2] In any event, I am satisfied that overall considered, the applicant met all the requirements of urgency in this matter.[3] SAA first gave notice of termination of the service agreements with AFMS on 1 July 2022. This was followed by the parties engaging with one another concerning the issue of whether section 197 found application. This culminated in AFMS on 27 July 2022 demanding an undertaking that the employees rendering services on the service agreements either be transferred to SAA itself or to the new service provider. On 28 July 2022, SAA responded and refused to provide such undertaking. There was then an exploration by the parties of the possibility to extend the service agreement, which came to naught on 10 August 2022. The current application followed a week later. Even though criticism can be dispensed towards AFMS where it came to some delays in bringing this application, and in perhaps not bringing the application shortly after it received notice of termination from SAA, it is nonetheless in the interest of justice, and to provide clarity pertaining to the parties' legal positions going forward, that this application be decided as one of urgency. I will therefore consider this application as one of urgency in terms of Rule 8.

The Facts

[4] Fortunately, in this case, most of the pertinent facts were either undisputed or common cause. However, and insofar as there are factual disputes, these must be determined on the basis of the principles set out in the judgment of Plascon Evans Paints v Van Riebeeck Paints.[4] In short, it means that it is the admitted or undenied facts together with the facts as stated by SAA that must be utilized in deciding this matter. The only exception would be if SAA simply offers a bald denial, or the facts as stated by it are patently false, absurd or fanciful.[5] The summary of the facts set out below is arrived at on this basis.

[5] Ironically, this case is a spin-off of the well-known section 197 dispute that culminated in the judgment of the Constitutional Court in Aviation Union of SA and Another v SA Airways (Pty) Ltd and Others[6]. What had happened is that some two decades ago, SAA decided to outsource all its facilities management services in respect of all of its sites, which includes all airports across the country. SAA intended to focus on its core business functions of a commercial airline, airfreight and aircraft maintenance service

provider, rather than devote business attention and resources to peripheral business requirements. It was also envisaged that this

outsourcing would reduce SAA's maintenance costs.

[6] The services / facilities outsourced consisted of 'hard services' (mechanical, electrical maintenance, heating, and air conditioning/ ventilation maintenance), 'soft services' (cleaning, gardening, pest control and hygiene), and 'workplace services' (asset management and real estate administration). On 14 March 2000, an agreement was concluded between SAA and the trade union parties in SAA, in terms of which the full outsourced service, consisting of all three components of service referred to above, was ultimately outsourced to LGM South Africa Facilities Managers and Engineers (Pty) Ltd (LGM), as a going concern. In particular, this included unit load device maintenance, utility management, vehicle maintenance, aircraft towing, trolley maintenance, electrical maintenance, mechanical maintenance, lifts maintenance, building and civil maintenance, HVAC maintenance, garden maintenance and landscaping, waste management and cleaning services. The employment of all the employees associated with these functions were transferred from SAA to LGM, in terms of section 197.

[7] The agreement between SAA and the trade union parties was followed by a commercial agreement between SAA and LGM on 7 April 2000. The agreement was to endure until 31 March 2010. Further in terms of this agreement, all the assets and inventory of SAA associated with the outsourced facilities was sold to LGM (SAA retained the right to repurchase these assets at market value upon termination of the agreement), all the employees were transferred to LGM in terms of section 197, and SAA afforded LGM the entitlement to use its infrastructure at all designated airports. It was also provided that upon termination of the agreement, SAA was entitled to call upon LGM to provide all required assistance to transfer assets, functions and / or services back to SAA or a third party designated by SAA, which also included an entitlement to obtain transfer/ assignment of third party contracts.

[8] SAA terminated the agreement with LGM as from 30 September 2007, under the circumstanced fully ventilated in the judgment of Aviation Union supra. But before that, SAA advertised for tenders for only some of the services previously provided by LGM to it. Drake & Scull was appointed with effect from 1 September 2007 to provide planned and unplanned electrical, mechanical, lifts, building and civil, HVAC, garden maintenance and cleaning services, on an interim basis, pending the appointment of a new service provider for these services. The business associated with these services were transferred from LGM to Drake & Scull in terms of section 197.

[9] Then and from 1 December 2007, all these services transferred to Drake & Scull were in essence completely splintered out into individual components, with building and civil maintenance services going to Thatem.a Technologies, cleaning services to Morena Corporate Services, garden maintenance and landscaping to Mapitsi Investments, the electrical, mechanical and lift maintenance to SFU, and the HVAC maintenance to UTS. Again, these individual businesses were transferred to the new service providers in terms of section 197.

[10] On 2 June 2014, SAA then issued two requests for bids into the general marketplace. The first was under number GSM035/14 for the provision of preventative maintenance, the general repair and emergency repair, of all its HVAC equipment and infrastructure. The second was under number GSM034/14 and was relating to the maintenance of electrical, mechanical and ground support equipment. These requests for bids issued by SAA recorded

that SAA was of the view that section 197 would apply to these transactions and all the consequences of the application of this section had to be factored in by bidding parties when making the bids. The bidders were also required to indemnify SAA in relation to the applicability of section 197.

[11] The applicant, AFMS, was the successful bidder for both the HVAC and electro­ mechanical services in terms of both requests for bids as set out above. On 28 October 2015, SAA and AFMS concluded an Air-Conditioning and Ventilated Maintenance Services Agreement (HVAC agreement). In terms of this agreement, AFMS would provide air-conditioning and ventilation maintenance services of SAA's HVAC equipment and infrastructure. A separate agreement was also concluded between SAA and AFMS on 21 April 2016, for the provision of maintenance services on all the electrical, mechanical and ground support equipment of SAA (EM agreement). These agreements were intended to be for a three years' period expiring on 31 October 2018, but the agreements have been renewed and then, since November 2018, continued on a month to month basis.

[12] Where it comes to the service agreements concluded between SAA and AFMS, there was no transfer of assets or inventory relating to the provision of these services. At the time of the conclusion of these agreements, these services were being provided by third parties to SAA, as summarized above. However, and pursuant to what was stated in the requests for bids, the services provided by the former service providers, where it came to the services that AFMS was to provide to SAA in terms of the HVAC and EM agreements, was transferred to AFMS in terms of section 197. It appears there was a seamless transfer of services from the former service providers to AFMS.

[13] Where it came to the HVAC and EM service agreements themselves, these agreements once again contemplated the application of section 197 going forward. This was specifically set out in clause 20 thereof. Specific reference is made to clause 20.3 (the same clause appears in both service agreements), which clause provided as follows:

'20.3.1 The transfer of employees of any members of the Consortium then constituting the mutually agreed resource list (ANNEXUE D), at such time (and determining such list the parties shall act reasonably) and shall be subject to the provisions of section 197 of the Labour Relations Act (Act 66 of 1995).

20.3.2 The service provider and SAA shall fully co-operate with each other and where applicable any successor service provider to give effect to such transfer including but not limited to providing such information and employee-related details as SAA may request.'

[14] Both agreements also provided that AFMS was required to render the services in accordance with the standards prescribed by SAA, and pursuant to instructions issued by SAA. There is no provision in the agreements for the establishment and provision of a service infrastructure by AFMS.

[15] As to the services themselves in terms of firstly the HVAC agreement, AFMS conducted the repairs to and maintenance of all the heating, air conditioning and ventilation equipment and components of SAA. SAA at all times retained ownership of these assets, which assets would include air conditioning units, direct expansion package systems, close control cooling systems, chillers, cold rooms, control panels, and a variety of components and equipment relating to the same. Similarly, the EM agreement provided for preventative electrical and mechanical maintenance, as well as repairs, on a prescribed equipment list provided by SAA, restoring powers failures, maintaining lighting standards as prescribed by law, the establishing and maintaining of a mechanical workshop, and all functions relating to the aforesaid.

[16] In the course of providing the services to SAA under the HVAC and EM agreements, AFMS continued to utilize the staff complement already dedicated to SAA and which it took transfer of in terms of section 197. These employees continued to work on the SAA assets and infrastructure. Contractually, and under clause 20.2 of the service agreements, AFMS was not allowed to deploy these employees elsewhere. Further, and in order to ensure the effective deployment and management of services such as the services under these agreements, SAA utilizes its own system known as the INFOR EAM, and AFMS was obliged to use this system and not its own system it uses for all its other clients. SAA also has a call centre that processes, allocates and manages facility management requests, that is not in any manner operated by AFMS, but is nonetheless utilized in rendering the services.

[17] AFMS did take transfer of some infrastructure, equipment and tools from the previous service providers when commencing the services under the HVAC and EM service agreements. AFMS was also entitled to utilize tools, equipment and consumables kept by SAA Technical in its warehouses. AFMS however did also use its own available tools, equipment and consumables in providing the services. Upon termination of the service agreements, all the equipment, tools and consumables associated with the rendering of the services would be transferred to the new service provider. Where it comes to replacement parts and consumables on the assets/ equipment of SAA, these are requisitioned by AFMS employees from time to time as and when needed, and are then purchased from third party suppliers by AFMS specifically for the services, adding an 8% mark up. AFMS does not maintain any stock of such items.

[18] SAA makes office and storage space available to AFMS for use by its business and employees in rendering services, at all the designated sites of SAA. These premises were taken over from the previous service providers. The tools, stock and equipment of AFMS in rendering the services are stored in these premises.

[19] It is in dispute whether the AFMS engineers, technical and administrative personnel designated by AFMS to render services to SAA under the service agreements possess any unique skills or expertise essential to work on the assets / infrastructure of SAA. SAA contends that these personnel have no unique expertise or skills that is essential to be transferred to any new service provider to enable it to continue to render these services to SAA, and can readily be deployed elsewhere. AFMS disagrees, indicating that the nature of the business of SAA and the legislative requirements under which it operates is such that over the many years the employees spent providing the services to SAA, these employees have developed unique skills and expertise essential to a proper discharging of the services required by SAA. What is undisputed is that these employees are dedicated to the service agreements.

[20] AFMS, after the conclusion of the HVAC and EM service agreements, continued to render the services under these agreements for some five years, until the point where SAA went into business rescue in 2020, as contemplated by the Companies Act.[7] After the appointment of the business rescue practitioner for SAA, a meeting was convened between AFMS and this business rescue practitioner to discuss the status of the continued services to be provided by AFMS under the service agreements referred to above, and what would happen if these service agreements are terminated. What was also discussed was the applicability of section 197 to the employees employed by AFMS on these service agreements. This meeting took place on 20 July 2020. It appears that in this meeting, SAA acknowledged that section 197 applied in this case, and that clause 20.3 of the service agreements was to be interpreted to mean that should SAA terminate either of the agreements, AFMS staff employed on the particular agreements will be transferred to SAA or another service provider in terms of such section.

[21] On 1 July 2022, SM gave AFMS notice that the HVAC and EM agreements would be terminated on one months' notice, thus terminating on 31 July 2022. The reasons for this termination are not relevant to these proceedings. In response to receiving this notice, AFMS consulted its attorneys, and these attorneys then engaged with SAA, contending that in terms of clause 20.3 of the HVAC and EM agreements, SAA was required to take transfer of all of the employees of AFMS associated with the rendering of services under the agreements in terms of section 197, or had to ensure that these employees transfer to a new incoming service provider. SAA however adopted the position, through its attorneys, that section 197 did not apply in this instance, in a letter by its attorneys to the attorneys of AFMS sent on 22 July 2022.

[22] The parties continued to engage with one another about the possible extension of the two service agreements for a six months' period from 1 September 2022 until 28 February 2023. These engagements were not successful, and on 10 August 2022, SAA indicated that it reconsidered its position and that the two service agreements would finally terminate on 31 August 2022 without the possibility of extension. The application in casu then followed.

Section 197

[23] Section 197(1) of the LRA reads:

'... In this section and in section 197A -

(a) "business" includes the whole or part of any business, trade, undertaking or service; and

(b) "transfer" means the transfer of a business by one employer ("the old employer") to another employer ("the new employer") as a going concern.

The relevant part of section 197(2) reads:

'If a transfer of a business takes place -

(a) the new employer is automatically substituted in the place of the old employer in respect of all contracts of employment in existence immediately before the date of transfer ... '

[24] It is more or less trite that the outsourcing of services, whether by the entity conducting the outsourcing to a service provider, or by the change from one outsourced service provider to another, could possibly resort under the definition of a business in section 197 and could constitute a transfer as contemplated by such section.[8] As to when section 197 is triggered in such circumstances, the Court in City Power (Pty) Ltd v Grinpal Energy Management Services (Pty) Ltd and Others[9] said:

'... what is required to trigger the provisions of s 197 is -

(a) a transfer;

(b) of a business (or part of a business, or a service); and

(c) as a going concern.'

[25] The general test to be applied in answering these three questions was enunciated in National Education Health and Allied Workers Union v University of Cape Town and Others[10] as follows:

'In deciding whether a business has been transferred as a going concern regard must be had to the substance and not the form of the transaction. A number of factors will be relevant to the question whether a transfer of a business as a going concern has occurred,

such as the transfer or otherwise of assets both tangible and intangible, whether the workers are taken over by the new employer,

whether customers are transferred and whether or not the same business is being carried on by the new employer. What must be stressed is that this list of factors is not exhaustive and that none of them is decisive individually.'

[26] In my view, what is clear from the aforesaid dictum in University of Cape Town supra is that the determination is essentially one of objective fact, related to the substance of the transaction contended to attract the application of Section 197.[11] This would involve a complete factual analysis of the objective facts of every individual case, regardless of how the parties may describe the transaction or what they may have intended with the transaction.[12]

[27] But before the factual enquiry referred to above is conducted, it must first be examined what exactly the legal causa of a transfer

was.[13] In Road Traffic Management Corporation v Tasima (Pty) Ltd; Tasima (Pty) Ltd v Road Traffic Management Corporation[14] the Court held as follows:

'A legal causa is a prerequisite for the application of s 197. It follows that only once the source of the respective rights and obligations to effect and receive transfer has been identified, can it be determined whether the jurisdictional facts for the application of s 197 are present. Once the legal causa is identified, the factual enquiry outlined in NEHAWU can be conducted. Thus, an enquiry as to the causa must be conducted before applying the test in s 197 to the facts. Otherwise one is looking at facts without the legal parameters being in place

…

[28] Since the underlying nature of the business and the transaction in casu is that of an outsourced service, it must be emphasized that what is capable of being transferred must be the business that supplies the service, and not the service

itself.[15] Therefore, and where a service agreement between a service provider and a client / customer is terminated and a new service provider is appointed instead, it simply does not follow that this termination and appointment constitutes a transfer as contemplated by section 197 of the LRA.[16] This was emphasized by Jafta J in Aviation Union supra[17] where the learned Judge held as follows:

'Speaking generally, a termination of a service contract and a subsequent award of it to a third party does not, in itself, constitute a transfer as envisaged in the section. In those circumstances, the service provider whose contract has been terminated loses the contract but retains its business. The service provider would be free to offer the same service to other clients with its workforce still intact.

For a transfer to be established there must be components of the original business which are passed on to the third party. These may be in the form of assets or the taking over of workers who are assigned to provide the service

[29] In this context, the application of the phrase 'going concern' would be of importance. Jafta J in Aviation Union supra[18] described it as follows:

'The phrase "going concern" has been construed to include not only that the business has changed hands but that it is exactly the same business that continues to operate. We are told that to determine this fact one must look at various factors, none of which is decisive. These factors include whether or not the same business is being carried on by the party who received it. Therefore, proof of the fact that performance of the same service was to continue, albeit under different hands, does not establish a transfer as a going concern. Something more is required.'

Also in Aviation Union, Yacoob J held:[19]

'... We must ask these questions in the enquiry whether a transaction in issue contemplates a transfer of business by the old employer to the new employer. Does the transaction concerned create rights and obligations that require one entity to transfer something in favour or for the benefit of another or to another? If so, does the obligation imposed within a transaction, fairly read, contemplate a transferor who has the obligation to effect a transfer or allow a transfer to happen, and a transferee who receives the transfer? If the answer to both these questions is in the affirmative, then the transaction contemplates transfer by the transferor to the transferee ... '

[30] Froneman J in Rural Maintenance (Pty) Ltd and Another v Maluti-A-Phofung Local Municipality[20] also dealt with the concept of 'going concern' in the case of a change of service provider, and said:

'I agree that for a transfer of a business as a going concern to occur, not all the assets of the business have to be transferred and that it depends on the nature of the business and essentiality or otherwise of particular assets for a particular business. That factual application of a flexible test has long been at the heart of our going-concern business transfer jurisprudence. The onus rested on Rural to set out what work the more than a hundred additional employees it employed were involved in and what means were provided to them to do that work. It is common cause that certain equipment was not transferred to the municipality, but it appears improbable that at least some of the newly employed employees did not need and use that equipment in order to do their work. Without the transfer of the means to do the work they did as part of Rural's business, there could be no transfer of the business to the municipality as a going concern.'

[31] One must however be careful not to include what is called specific works contracts into the ambit of section 197. This would lead to a situation where, as articulated in Tasima supra:[21] ' ... If s 197 was over-inclusive so as to include within its ambit specific-works contracts, this might inhibit state agencies from using developers with the expertise to provide specialised services. ...'. But nonetheless, the Court in Tasima added:[22]

'Where services are involved, this court has held that what must be transferred is the business that supplies services - not the service itself. That being so, the mere termination of a service contract would not, without more, constitute a transfer within the contemplation of s 197. There must be 'other indicators', such as whether assets and customers were transferred to the new owner and whether employees

were taken over by the new owner. In Aviation Union, this court was confronted with the question of whether a clause in an outsourcing contract contemplated the transfer of a business or simply the outsourcing of a service. This court considered the fact that both the premises from which the business was conducted and the assets with which it was conducted were transferred as being indicative that there had been a transfer of a business which supplied services as a going concern, rather than a mere outsourcing of a service. On this basis, it concluded that s 197 applied in that matter.'

[32] It therefore follows from all of the above that what must be considered is, in sum, the following. First, it must be established what the legal causa was of the transaction giving rise to the current proceedings. Second, it must be established, on the objective facts, whether what was provided by AFMS to SAA was something more than a mere service, but actually a business that constituted a discrete economic entity that fell to be transferred back to SAA or to any third party service provider once the relationship between SAA and AFMS had terminated. Third, and in the context of establishing whether a business is being transferred, it must be determined if what is being transferred would qualify as a going concern. I will now turn to answering these questions, below.

Analysis

[33] According to the AFMS, there are a number of pertinent objective facts that inform the application of section 197 in this case. Firstly, and when SAA originally outsourced its non-core business to third party service providers, and in particular LGM, section 197 applied to such outsourcing. Added to this, and when SAA terminated the service agreement with LGM, it was held in Aviation Union that section 197 applied to such termination. According to AFMS, nothing changed throughout the years where it came to subsequent changes in service providers to SAA and section 197 continued to apply, in that the same business / services was transferred to Drake & Scull, then to UFS and SFU Engineering, and then to AFMS. It further submitted in this context that the nature of the outsourced services equally never changed throughout.

[34] Secondly, AFMS relies on the dealings between itself and SAA when it submitted a bid for the services, and when it concluded the HVAC and EM service agreements with SAA. According to AFMS, the invitation to bro issued by SAA indicated that it considered that section 197 applied and the bid had to provide for it. Further, and when the two agreements were concluded, these agreements made it clear that section 197 applied, and would continue to apply should the agreements be terminated and a new service provider appointed.

[35] Thirdly, and according to AFMS, the services provided by it to SAA are 'core services' without which SAA cannot operate its business. This applies to both the HVAC services and the EM services. AFMS stated that it took over all of SAA's business operations in this regard, which included responding to faults, taking possession of tools, equipment and premises, and taking over the employees previously employed by the preceding service providers. AFMS described the business providing these services as self-standing business operations that were operating at the time of being taken over and would continue to operate in the same manner going forward. And finally in this respect, and especially where it came to· the EM services, these services

required specifically skilled employees and unique technical experience, that could not be deployed elsewhere.

[36] Fourth, AFMS specifically relies on clause 20.3 of the HVAC and EM service agreements with SAA, which clause, according to AFMS, makes section 197 specifically applicable to the transactions and to any cancellation of the agreements and appointment of a new service provider.

[37] Finally, AFMS relies on its dealings with the business rescue practitioner after SAA was placed under business rescue, in which dealings the business rescue practitioner confirmed that section 197 would apply to the termination of the HVAC and EM service agreements, and any appointment of a subsequent service provider.

[38] Whether or not the change of s service provider constitutes a transfer of undertaking is often a difficult horse to saddle. The reason for this is of course that the objective facts upon which the determination of the application of section 197 is based, is seldom the same or similar. It is very difficult to set a precedent for these kinds of determinations. This was recognized in Newrak Mining (Pty) Ltd v Westdawn Investments (Pty) Ltd t/a JIG Mining Services and Others[23] where the Court said:

'... the fact that there are two judgments of the Labour Court which adopted different approaches to the application of s 197 of the LRA does not inextricably lead to the conclusion that there is a divergence of interpretation of the section as opposed to differential weight which was given to the factual matrix confronting the two courts. The careful approach adopted by Van Niekerk J in Fraser Alexander commends itself as a correct application of s 197 of the LRA. However, neither this judgment nor that in Rosond admit of a mechanistic application of s 197 of the LRA to the question of outsourcing within the mining sector. Each case will have to be analysed in terms of its own factual matrix.'[24]

[39] An opposite example of different outcomes that can follow in the case of what can generally be regarded as the same kind of service provided by a service provider to-a client / customer, because of different factual circumstances, are the two judgments in Dimension Data (Pty) Ltd v Omega Digital Services (Pty) Ltd and Another[25] ( Omega Digital and Dimension Data (Pty) Ltd and Others v GWB Technologies CC t/a GWB Technologies and Others[26] (GWB Technologies), An exposition of these judgments succinctly illustrate the difficulties with these kinds of determinations.

[40] In Omega Digital, Dimension Data provided services to Sasol (the client) in the form of the servicing and maintenance of Sasol's audio visual and video conference facilities in terms of a service agreement, and this agreement was then lost to Omega Digital following an open tender process. In finding that section 197 did not apply,[27] the Court considered the fact that in terms of the service agreement concluded between Sasol and Dimension Data, Sasol did not provide any equipment, tools, materials or personnel to assist Dimension Data in performing its contractual obligations, and it was up to Dimension Data to determine the characteristics, quality, requirements and quantity of the service it delivered and it always remained the owner of all the work it delivered and the intellectual property provided. The Court also considered that the work to be performed by Omega Digital as the successor of Dimension Data, would be the maintenance and servicing of the existing audio-visual infrastructure of Sasol and that Omega Digital would be working on the same infrastructure and ensuring its effective functioning, which, according to the Court, did not equate to the means by which it renders the services it provided. As the Court said: '... Rather it is the maintenance of that very infrastructure itself which is the service rendered'[28]. The Court finally considered that even if a dedicated team might be used to render the service, this was insufficient to describe the service as an economic entity that can be transferred as a going concern as it involved skills that can readily be deployed elsewhere.

[41] In GWB Technologies, on the other hand, the Court dealt with a case where Dimension Data provided end-user computing services (EUC services) to the City of Johannesburg, and then lost those services to GWB. In this case however, the Court accepted that section 197 did find application. In finding this to be the case,[29] the Court considered that the EUC services are performed by an organised grouping of the same employees who have for many years provided the same service to the same client (the City) and that over the years, the contracts of employment of the affected employees have simply been transferred from one service provider to the next, which history indicated the existence of a discrete business capable of being transferred. The Court also distinguished the judgment in Omega Digital on the basis that in that case there was the absence of any right of access to and control over infrastructure, and there was a right by the service provider to provide the services in the manner that it wished, which was not the case in GWB Technologies. According to the Court, the EUC services in the case before it extended beyond the maintenance of a physical installation and it was not open to the provider of the EUC services to provide them in the manner that it deemed fit. The Court concluded that when GWB took over the provision of the EUC service from Dimension Data it would be obliged to provide almost identical services to those provided by Dimension Data, using the same physical and incorporeal assets as those used by Dimesion Data, and using the same intellectual property and institutional knowledge used and owned by Dimension Data. The Court concluded as follows:[30]

'... The provision of the EUC services comprises a discrete economic entity, and access to the city's IT infrastructure has been handed over to GWB to enable it to carry on the same activity as previously carried out by the employees, on the same premises and for the benefit of the same client. It follows that the applicants are entitled to the relief that they seek ...'

[42] Returning then to the case advanced by AFMS, it is undeniably true that the termination of the HVAC and ES service agreements by SAA constitutes the legal causa of the transfer. it is also true that it does not provide the services that it provides to SAA, only to SAA. It provides the same kind of services to other clients as well. But the question is whether the services it provides to SAA can nonetheless be considered to be a discrete economic activity. In deciding this question, the historical context cannot be ignored. It is undeniably true that the original outsourcing of the services ultimately provided by AFMS to SAA did attract the application of section 197, and this was confirmed by the Constitutional Court to be the case in Aviation Union. What followed was more than two decades of the same services being provided by different service providers, and in each case section 197 applied where service providers changed. It must follow that the same employees continued to remain dedicated to the same service contract providing the same services throughout. Accordingly, this is a situation far more akin to GWB Technologies than to Omega Digital. Again, the judgment in GWB Technologies is informative, where the Court held:[31]

'... To the extent that GWB seeks to dismiss these historical agreements by way of a submission to the effect that it constitutes similar evidence and that, in any event, GWB is not bound by the manner in which respective service providers have chosen to deal with their employees in the past, the significance of each historical transaction for present purposes is that an identifiable and organised group of employees has, for more than 20 years, consistently performed an identifiable function for the city. Indeed, the EUC services function was put out to tender as a discrete unit. As I have indicated, it is not in dispute that GWB has been awarded a tender only for the provision of the EUC services, with the service level agreement having been concluded solely to provide those services ... '

[43] It is common cause that the invitation to bid culminating in the conclusion of these two service agreements made it clear that section 197 applied. Bidders, such as AFMS, were specifically warned to provide for the application of such section when making their bids. Added to this, these agreements prescribed performance service levels, and recorded that the service provider (AMFS) render the services to SAA strictly in accordance with the prescribed performance levels and any additional instructions by SAA. Contractually therefore, AFMS was not entitled to provide the services in the manner it chose provided the outcome was just what SAA required, and SAA thus prescribed the manner in which the services were to be rendered as well. This scenario is inconsistent with a true independent service provider arrangement.

[44] In my view, the provisions of clause 20 of the HVAC and EM service agreements are critical when deciding this case. This clause makes section 197 specifically applicable to the transaction(s). A proper interpretation of clause 20.3 makes it clear that upon termination of the agreement, the employees rendering service on the service agreements shall be transferred to SAA or a new service provider, as the only sensible interpretation of this clause.[32] This was also the understanding of the business rescue practitioner following specific engagement with AFMS on this very issue. As held in Water and Sanitation Services SA (Pty) Ltd v King Cetshwayo District Municipality and Others:[33]

'... Of some significance in determining the application or otherwise of s 197 are the provisions of the SLA dealing with the putative transfer of staff where a new service provider is appointed. The parties clearly recognised under that contract that there would be a transfer as a going concern, and that there would be a need to protect the job security of employees already engaged ... '

[45] Further in this regard, where it comes to the terms of agreement establishing a transfer, the following enquiry postulated in PE Rack 4100 CC v Sanders and Others[34] is important, where Davis JA, writing for the majority, specially held as follows with reference to the termination of one agreement and the concluding of another:[35]

'... two questions must be answered in order to determine the application of the section:

(i) Does the transaction concerned create rights and obligations that require one entity to transfer something in favour of/or for the benefit of another or to another?

(ii) If the answer to (i) is in the affirmative, does the obligation imposed within the transaction contemplate a transferor who has the obligation to effect a transfer or allow a transfer to happen and a transferee who received the transfer? If the answer to this question is in the affirmative, then the transaction constitutes a transfer for the purposes of s 197.'

In casu, the service agreements in my view undoubtedly create the obligation on AFMS to effect a transfer upon termination of the agreements, and then in turn place an obligation on SAA to accept the transfer. On the service agreements, as a fact, section 197 finds application.

[46] There is another important provision in clause 20 of the service agreements that make it clear, in my view, that these agreements contemplate that the employees taken over by AFMS from the previous service provider(s) in fact constitute an 'asset' of SAA. This is evident from clause 20.2 of the agreement, which requires AFMS to produce and then keep updated a list of employees taken over from the previous service provider in terms of section 197 and which employees then continue rendering services in terms of the service agreements. The clause then specifically prohibits what is described as 'asset stripping' in the form of removing employees on this list. In short, the agreements consider the employees as assets of the service business that must be maintained (barring ordinary attrition) and are required to be transferred when the service agreements end.

[47] Whilst it may be true that AFMS does not use the assets and infrastructure of SAA to provide the services to SAA as contemplated by the HVAC and EM agreements, this case has some distinguishing features to the situation that existed in Omega Digital. Importantly, the services provided to the client in that case by the previous service provider was not a discrete economic entity. The reason for this is that the client in that case never rendered the services for itself, but from the outset simply contracted with a third party service provider to maintain and service a specific facility of the client. There were no multiple changes of service providers where the service activity continued unabated, and as is, resulting in a seamless transfer of service providers and the services they provided to the client. And finally, employees were not dedicated to the service agreement in Omega Digital.

[48] Therefore, and in casu, the aforesaid situation in Omega Digital cannot be said to be the case. Historically, what happened in casu was the establishment of a discrete economic entity, in terms of which SAA decided that it was in its own interest to rather have non-core functions it used to perform for itself done for it by third party service providers. This decision, the following termination of the service agreement, and the subsequent first change of service provider, was held to be a transaction contemplated by section 197. That must surely mean that in this case the HVAC and EM services have to be a discrete economic entity. And considering that this service business at least twice transferred to following service providers before ending up with AFMS, seamlessly and as it stood, further confirms it as a discrete economic entity susceptible to easy transfer. The employees in casu working on these service agreements were dedicated to the service agreements, and this had not only been so for decades, but these employees were regarded as·’assets' of the service.[36] The following dictum in GWB Technologies supra[37] is informative and far more akin to the case in casu:

'... when a court assesses what has been transferred from the outgoing to the incoming service provider, is to have particular regard to any assumption of the right of use of the client's infrastructural assets, and to whether the incoming service provider is to provide the same services on the same premises, without interruption, to the same client. What is also significant is GWB's successful offers of employment made to at least some of the applicants' employees, and the city's clear preference for continuity. All of these factors are indicative of a transfer of the business 'as is', with all of the access to infrastructure, technology, know how, and institutional knowledge required to operate the business and continue rendering the EUC services ... '

[49] I also consider that this is not a case, especially in the undeniable historical context, where AFMS came into SAA pursuant to a service

agreement, and then established and deployed its existing service business and infrastructure so as to be able to provide the contracted services to SAA. AFMS simply took over what originally came from SAA, moved through multiple service providers, and it ended up giving effect to what was always required and prescribed by SAA in respect of such services. It is unlikely that AFMS could practicably or effectively retain the business when the service agreements terminated, and then deploy it elsewhere.[38] This is therefore not a case where AFMS loses the right to provide the service, and then is able to take that very service and deploy it elsewhere. To illustrate circumstances in this context when section 197 would not be applicable, the Court in Franmann Services (Pty) Ltd v Simba (Pty) Ltd and Another[39] said:

'... there will be no transfer of a business as a going concern for the purposes of s 197 only on account of the termination of the contract between the applicant and the first respondent on 31 August, and the appointment of the second respondent to provide the same or a similar service. This is a case where, in the words of Yacoob J, an outsourcee is contracted to provide a service, and becomes obliged to do so in circumstances where it is the outsourcee's responsibility to make appropriate business infrastructure arrangements, and in particular, the securing of staff. In relation to the applicant, cancellation of the contract between it and the first respondent entails only that the applicant's contractual right to provide the service terminates in circumstances in which the whole infrastructure for conducting the business of providing temporary labour will ordinarily remain the applicant's property ...'

[50) In all of the above circumstances, it is not necessary to distinguish between what be 'core' or 'non-core' to the business of SAA. Even if the services provided by AFMS to SAA are considered to be non-core, it does not change the fact that it nonetheless constitutes 'services' provided to SAA as a discrete economic entity which originally

emanated from SAA itself, and over some two decades moved from service provider to service provider, but always subject to the control of SAA. This is also evident from the fact that AFMS was always obliged to use the services deployment and monitoring systems operated by SAA itself, and could not use its own systems. In short, it is always about what the nature of the 'business' is that is contended to be transferred, rather that separating it into core or non-core.[40] As the Court held in Tasima supra:[41]

'Courts have established what a business is by having regard to the constituent parts of the business and determining which parts are to be divested of by the transferor. A business can consist of a variety of components, including both tangible and intangible assets, goodwill, a management staff, a general workforce, premises, a name, contracts with particular clients, the activities it performs, and its operating methods. These components were explored in Schutte, where the Labour Court concluded that they did not constitute a closed list, but must be sufficiently connected to one another so as to form an 'economic entity' that is capable of being transferred ... '

[51] Where is comes to the transfer of assets, I accept that there was no transfer of assets or infrastructure from the previous service

providers to AFMS when it was the successful bidder for the services. Even though this may be an indicating factor that there was no transfer as contemplated by section 197, it is not in itself decisive.[42] Once again-, the decision is rather whether an identifiable and discrete business existed that was capable of being transferred, and was then transferred, even if assets did not pass. As set out above, this was indeed the case in casu. As held in lmvula Quality Protection (Pty) Ltd and Others v University of South Africa[43]:

'... To constitute a transfer of a business as a going concern, not all the asset of the business need to be transferred, nor do all the relevant employees. But what must be transferred are those assets and personnel that are essential to the business as it was operated by the transferor. The transfer allows the actual business or a clearly demarcated portion thereof to operate seamlessly after the transfer ... '

[52] It must also be considered that the premises used by AFMS allocated to it to provide the services to SAA, will pass on to any new service provider to use, as well as any tools, equipment or consumables AFMS may have and / or that it took over at the start of the service agreements. There are accordingly at least some tangibles used in providing the services that will pass over.

[53] AFMS explained that on all of its other contacts with other clients, it uses its own service management systems. But in the case of the service provided by SAA, it was compelled to use the SAA systems. This state of affairs corresponds with the obligations placed on AFMS as contained in the service agreements. It shows that SAA sets the standards and controls the services provided under the service agreements. This is not consistent with what one would expect from an entirely independent service provider.

[54] What is however telling is that SAA does not describe or in any way elaborate on how the services to be provided by any new incoming service provider relating to the HVAC and EM services would materially differ from the services provided by AFMS in terms of the HVAC and EM service agreements. AFMS has specifically explained how these services are still the same. I also accept that considering the unique requirements of the aviation industry, especially where it comes to the EM services, it is more than likely that these services would be unique to servicing SAA, and cannot be readily be exchanged between other clients AFMS may service. SAA needed to but failed make out a case in line with the following description in Kruger and Others v Aciel Geomatics (Pty) Ltcf[44]:

It should also be noted that in Suzen v Zehnacker Gebäudereinigung GmbH Krankenhaus Service, the ECJ qualified its reading of Directive 77/187 as follows:

'[T]he mere fact that the service provided by the old and new awardees of the contract is similar does not therefore support that an economic entity has been transferred. An entity cannot be reduced to the activity entrusted to it. Its identity also emerges from other factors, such as its workforce, its management staff, the way in which its work is organized, its operating methods or indeed, where appropriate, the operational resources available to it'… '

[55] The only distinction that SAA sought to make where it came to the issue of the services provided, is to refer to the fact that originally, in the instance of the first to LGM, there was a broad range of services transferred as whole to LGM, and that these services at that time had not been broken up and allocated to individual service providers, as happened after the termination of the service agreement with LGM. This distinction cannot assist SAA. I am convinced that all that SAA did was to diversify the same services, rather placing it in the hands of different individual service providers rather than one service provider. But that does not change the fact that the individual components of the whole service, such as the HVAC and EM services in this case, would still be the same services originally part of the whole. In short, cutting up the cake does not change what the cake is made of.

[56] In my view, and taking a 'snapshot' of the business contemplated by providing the HVAC and EM services when AFMS walks out, and a new service provider walks in, shows that it remains one and the same business. As held in Chemical Energy Paper Printing Wood and Allied Workers Union on behalf of Members v Hydro Colour (Pty) Ltd and Another[45]:

'... what should be done in determining whether or not a transfer has taken place is to take a 'snapshot of the entity before the transfer and assessing its components' and comparing the picture with the one of the business after the transfer 'to establish whether it is substantially the same business but in different hands ... '

[57] In sum, I am satisfied that in this case, section 197 finds application. [46] The historical context shows that what developed was a separately identifiable and discrete economic entity in the form of the HVAC and EM services provided by AFMS to SAA. AFMS itself took over this separately identifiable and discrete economic entity from the previous service provider(s), applying the provisions of section 197, with it not being lost on me that this was done at the insistence of SAA itself. The employees concerned are dedicated to this business, have been so from the very outset, and are considered as part of the assets of this business so to speak. The new service provider would in fact step into the shoes of AFMS, seamlessly taking over the providing of the same services, using the systems of SAA to manage the same. Even though it is true that AFMS did not use the assets or infrastructure of SAA to provide the services, and rather provides the services on such assets or infrastructure, this factor in itself, considering all else, is insufficient to dispel the application of section 197 in this case. In my view, the following dictum in TMS Group lndustrial Services (Pty) Ltd t/a Vericon v Unitrans Supply Chain Solutions (Pty) Ltd and Others[47] is apposite in casu:

'... The activity which was carried on by first respondent flowed from the relationship entered into between appellant and third respondent. The necessary facilities were handed over to the appellant in a state in which appellant was able to carry on the very same activity which had previously been conducted by first respondent. It performed these services on the premises of third respondent. It employed third respondent's computer systems and other equipment and carried on the same activity of warehousing described in the evidence provided by virtue of third respondent's Mr van Esch. This evidence justifies the conclusion that there was a transfer of a business as a going concern from the old employer to a new employer.'

Conclusion

[58] In conclusion, I am therefore satisfied that the termination of the HVAC and EM service agreements between AFMS and SAA, by SAA in terms of its termination notice dated 1 July 2022, constitutes a transfer as contemplated by section 197. I also conclude that the services that had been provided by AFMS to SAA in terms of the HVAC and EM service agreements constitute a separately identifiable and discrete economic entity necessary for a business to be transferred as a going concern as also contemplated by section 197. The services to be provided by any new incoming service provider to SAA would be the same services that has been rendered to SAA by a variety of service providers since these services were first outsourced by SAA some two decades ago. The application by AFMS must therefore succeed.

[59] AFMS is therefore entitled to the declaratory relief sought, being an order that the termination of the HVAC and EM service agreements constitutes a transfer of a business as a going concern, and that the contracts of employment between AFMS and the employees (the sixth to further respondents) are transferred automatically with effect from 1 September 2022 as contemplated by section 197 of the LRA to either SAA or any new incoming service provider.

Costs

[60] This only leaves the question of costs. I have a wide discretion in terms of Section 162 of the LRA where it comes to costs. There is no ongoing relationship between SAA and AFMS, which may have mitigated against the granting of a costs order.[48] This is also a commercial dispute, where the ordinary principle that costs do not follow the result in employment disputes does not apply.[49] And also, this is not a case of individual employees seeking to protect their rights.[50] There is in fact no reason why, with AFMS having established a transfer on the facts, costs should not follow the result.[51] Where it comes to costs specifically in this context, the following dictum in GWB Technologies supra is- apposite:[52]

'In essence, it is a dispute between two employers, who contest the application of s 197 and where the employees are the proverbial ham in the sandwich. There is no reason to deny the applicants their costs given that they have had to resort to litigation to protect their interests and have succeeded in securing the order that they sought.'

For all the aforesaid reason, I believe that this is an appropriate case where SAA should be ordered to pay the costs of AFMS.

Order

[61] In all of the above circumstances, I accordingly make the following order:

1. The application is heard as one of urgency in terms of Rule 8.

2. It is declared that the termination by the first respondent of the HVAC and EM service agreements concluded between the applicant and the first respondent, constitutes the transfer of a business as contemplated by section 197 of the LRA.

3. It is declared that with effect from 1 September 2022, the employment contracts between the applicant and the sixth and further respondents are transferred automatically to the first respondent, or any third party service provider appointed by the first respondent, as contemplated by section 197 of the LRA.

4. The first respondent is ordered to pay the applicant's costs.

S Snyman

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate X D Matyolo

Instructed by:

Bernadt Potash & Getz Attorneys

For the First Respondent:

Advocate A Redding SC together with

Advocate P Maharaj-Pillay

Instructed by:

Cliffe Dekker Hofmeyr Attorneys

For the Second Respondent:

Mr T Pela - Union Official

No appearance for other Respondents

[1] Act 66 of 1995 (as amended).

[2] See Dimension Data (Pty) Ltd v Omega Digital Services (Pty ) Ltd and Another (2020) 41 ILJ 2453 (LC) at para 8; Dimension Data (Pty) Ltd and Others v GWB Technologies CC t/a GWB Technologies and Others (2022) 43 ILJ 1824 (LC) at para 3.

[3] For the requirements of urgency see Association of Mineworkers and Construction Union and Others v Northam Platinum Ltd and Another(2016) 37 ILJ 2840 (LC) at paras 20 - 26.

[4] [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C; See also Jooste v Staatspresident en Andere 1988 (4) SA 224 (A) at 259C - 263D; National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) at paras 26 - 27; Molapo Technology (Pty ) Ltd v Schreuder and Others (2002) 23 ILJ 2031 (LAC) at para 38; Uthukela District Municipality (supra) at para 5; Geyser v MEG for Transport, Kwazulu-Natal (2001) 22 ILJ 440 (LC) at para 32; Denet Informatics Staff Association and Another v Denet Informatics (Pty ) Ltd (1999) 20 ILJ 137 (LC) at para 26.

[5] See Minister of Justice and Correctional Services and others v Tshifhango and Another [2019] 7 BLLR 627 (LAC) at para 26; TIBMS (Pty ) Ltd t/a Halo Underground Lighting Systems v Knight and Another (2017) 38 ILJ 2721 (LAC) at para 29; SA Football Association v Mangope (2013) 34 ILJ 311 (LAC) at para 12.

[6] (2011) 32 ILJ 2861 (CC).

[7] Act 71 of 2008 (as amended), and in particular Chapter 6 thereof.

[8] See SA Municipal Workers Union and Others v Rand Airport Management Co (Pty ) Ltd and Others (2005) 26 ILJ 67 (LAC) at paras 17 and 19 - 20; Aviation Union (supra) at para 40; Water and Sanitation Services SA (Pty ) Ltd v King Cetshwayo District Municipality and Others (2020) 41 ILJ 2493 (LC) at para 22; TMS Group Industrial Services (Pty ) Ltd t/a Vericon v Unitrans Supply Chain Solutions (Pty ) Ltd and Others (2015) 36 ILJ 197 (LAC) at paras 29 - 30; Franmann Services (Pty ) Ltd v Simba (Pty ) Ltd and Another (2013) 34 ILJ 897 (LC) at para 8.

[9] (2015) 36 ILJ 1423 (CC) at para 35. See also GWB Technologies (supra) at para 15.

[10] (2003) 24 ILJ 95 (CC) at para 56. This same test was again applied by the Constitutional Court in City Power (supra) at para 36.

[11] See Aviation Union (supra) at para 47; Unitrans (supra) at para 27; Hydro Colour Inks (Pty) Ltd v Chemical Energy Paper Printing Wood and Allied Workers Union (2011) 32 ILJ 1625 (LAC) at para 12.

[12] See Road Traffic Management Corporation v Tasima (Pty ) Ltd; Tasima (Pty) Ltd v Road Traffic Management Corporation (2020) 41 ILJ 2349 (CC) at para 85; Transport and Allied Workers Union of SA v Transnet (Pty) Ltd and Others (2014) 35 ILJ 526 (LC) at para 16; Swanepoel and Others v Leica Geosystems AG and Others (2014) 35 ILJ 2877 (LC) at para 25.

[13] GWB Technologies (supra) at para 25.

[14] (2020) 41 ILJ 2349 (CC) at para 39.

[15] Aviation Union (supra) at para 52; GWB Technologies (supra) at para 20; Water and Sanitation Services SA (Pty ) Ltd v King Cetshwayo District Municipality and Others (2020) 41 ILJ 2493 (LC) at para 19.

[16] Tasima (supra) at para 65.

[17] Id at paras 47

[18] Id at para 74.

[19] Id at para 113.

[20] (2017) 38 ILJ 295 (CC) at para 37. See also Newrak Mining (Pty) Ltd v Westdawn Investments (Pty) Ltd t/a JIG Mining Services and Others (2020) 41 ILJ 2793 (LAC) at paras 20 - 21.

[21] Id at para 65.

[22] Id at para 96.

[23] (2020) 41 ILJ 2793 (LAC) at para 23.

[24] The Court was referring to the judgments in Rosond (Pty ) Ltd v Western Platinum Ltd and Others (2017) 38 ILJ 454 (LC) and Fraser Alexander (Pty) Ltd v lntasol Tailing (Pty) Ltd and Others (unreported decision of the Labour Court J2718/2016).

[25] (2020) 41 ILJ 2453 (LC).

[26] (2022) 43 ILJ 1824 (LC).

[27] See paras 30 - 31 of the judgment.

[28] Id at paras 31

[29] See paras 31, 34 - 39.

[30] Id at para 42.

[31] Id at para 31.

[32] In Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para 18, it was held: 'Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence. Whatever the nature of the document, consideration must be given to the language used in the light of the ordinary rules of grammar and syntax; the context in which the provision appears; the apparent purpose to which it is directed and the material known to those responsible for its production. Where more than one meaning is possible each possibility must be weighed in the light of all these factors. The process is objective, not subjective. A sensible meaning is to be preferred to one that leads to insensible or unbusinesslike results or undermines the apparent purpose of the document '. See also Bothma-Batho Transport (Edms) Bpk v S Bothma en Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) at para 12.

[33] (2020) 41 ILJ 2493 (LC) at para 38.

[34] (2013) 34 ILJ 1477 (LAC).

[35] Id at para 14. See also Leica Geosystems (supra) at para 28.

[36] See TMS Group (supra) at para 22.

[37] Id at para 36.

[38] Compare to the contrary Logwood Village NPC v Lecso Manufacturing Proprietary Limited and Others (J1586/19) [2019] ZALCJHB 261 (3 October 2019) at para 21.

[39] (2013) 34 ILJ 897 (LC) at para 18.

[40] Tasima (supra) at para 95.

[41] Id at para 60.

[42] See Harsco Metals SA (Pty) Ltd and Another v Arcelormittal SA Ltd and Others (2012) 33 ILJ 901 (LC) at para 27; Water and Sanitation Services (supra) at para 34.

[43] (2019) 40 ILJ 104 (LAC) at para 21.

[44] (2016) 37 ILJ 2567 (LAC) at para 37.

[45] (2011) 32 ILJ 1677 (LC) at para 13. See also Sanders v Cell C Provider Co (Pty) Ltd and Others (2010) 31 ILJ 2722 (LC) at 2728A-B; Food and Allied Workers Union v Cold Chain (Pty) Ltd and Another (2009) 30 ILJ 2919 (LC) at para 18.

[46] Compare Water and Sanitation Services (supra) at para 39.

[47] (2015) 36 ILJ 197 (LAC) at para 32.

[48] See for example Cold Chain (supra) at para 31.

[49] Omega Digital (supra) at para 33.

[50] See Leica Geosystems (supra) at para 32.

[51] See Palierakis v Atlas Carton and Litho (in liquidation) and Others (2014) 35 ILJ 2839 (LC) at paras 38 - 39; Simba (supra) at para 20; Harsco Metals SA (Pty) Ltd and Another v Arcelormittal SA Ltd and Others (2012) 33 ILJ 901 (LC) at para 40.

[52] Id at para 44.