Imvula Quality Protection and Others v University of South Africa (J435/17) [2017] ZALCJHB 352 (26 September 2017)

Imvula Quality Protection and Others v University of South Africa (J435/17) [2017] ZALCJHB 352 (26 September 2017)

The court found that the application of section 197 of the Labour Relations Act to the insourcing of services, where only some employment contracts are transferred, has not been considered by a higher court. The issue requires legal certainty, particularly for tertiary institutions and other employers who may undertake similar insourcing exercises. Given the importance and novelty of the legal question, the court determined that there is a compelling reason for leave to appeal, irrespective of the prospects of success.

Citation
[2017] ZALCJHB 352
Parties
Applicant: Imvula Quality Protection; Applicant: Persons listed in Annex A; Applicant: Red Alert TSS (Pty) Ltd; Applicant: Persons listed in Annex B; Respondent: University of South Africa
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 September 2017
Case Number
J435/17
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
Outcome
Leave to appeal granted.
Judges
Van Niekerk
Legal Topics
Section 197 Transfer, Insourcing, Leave to Appeal, Employment Contracts
Labour Law Civil Procedure Section 197 Transfer Insourcing Leave to Appeal Employment Contracts

Case Brief

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Parties

Imvula Quality Protection

Applicant

Persons listed in Annex A

Applicant

Red Alert TSS (Pty) Ltd

Applicant

Persons listed in Annex B

Applicant

University of South Africa

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment

Legal Issues

  1. 1 Whether section 197 of the Labour Relations Act applies to the insourcing of services where only some employment contracts are transferred.
  2. 2 Whether there is a compelling reason for leave to appeal beyond reasonable prospects of success.
  3. 3 Whether certainty is required regarding the application of section 197 in insourcing scenarios for tertiary institutions and other employers.

Ratio Decidendi

The court found that the application of section 197 of the Labour Relations Act to the insourcing of services, where only some employment contracts are transferred, has not been considered by a higher court. The issue requires legal certainty, particularly for tertiary institutions and other employers who may undertake similar insourcing exercises. Given the importance and novelty of the legal question, the court determined that there is a compelling reason for leave to appeal, irrespective of the prospects of success.

Court Disposition

Leave to appeal granted.

Orders

  • Leave to appeal is granted.
  • Costs to be costs in the appeal.