Imvula Quality Protection and Others v University of South Africa (J435/17) [2017] ZALCJHB 352 (26 September 2017)
- Citation
- [2017] ZALCJHB 352
- Status
- Ruling
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- Van Niekerk
- Case number
- J435/17
More details
- Court
- Labour Court Johannesburg
- Panel
- Van Niekerk
- Case number
- J435/17
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
02
Material facts
Parties
Imvula Quality Protection
ApplicantPersons listed in Annex A
ApplicantRed Alert TSS (Pty) Ltd
ApplicantPersons listed in Annex B
ApplicantUniversity of South Africa
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment
04
Questions and positions
Legal issues
- 01
Whether section 197 of the Labour Relations Act applies to the insourcing of services where only some employment contracts are transferred.
- 02
Whether there is a compelling reason for leave to appeal beyond reasonable prospects of success.
- 03
Whether certainty is required regarding the application of section 197 in insourcing scenarios for tertiary institutions and other employers.
Party arguments
- Applicant
- The applicants contend that the judgment incorrectly applied section 197 of the Labour Relations Act to the insourcing of services, particularly where only some employment contracts are transferred. They argue that the matter raises important questions of law that require clarification by a higher court.
- Respondent
- The respondent maintains that the judgment correctly interpreted section 197 and that there is no compelling reason for leave to appeal, as the prospects of success are not reasonable and the matter does not warrant further consideration.
05
Court’s reasoning
Legal principles
- 01
Section 17(1)(a)(ii) of the Superior Courts Act, 10 of 2013
Leave to appeal may be granted if there is a compelling reason, other than reasonable prospects of success, for the appeal to be heard.
- 02
Section 197 of the Labour Relations Act, 66 of 1995
Section 197 of the Labour Relations Act governs the transfer of contracts of employment in the context of business transfers.
06
Ratio, limits and disposition
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.
Obiter and limits
- The application of section 197 in insourcing scenarios is a matter of general importance for employers and employees beyond the parties to this case.
- Certainty in the law is necessary for institutions considering similar restructuring exercises.
Court disposition
Leave to appeal granted.
- Leave to appeal is granted.
- Costs to be costs in the appeal.
Source and reliance status
Labour Court Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Ruling
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: j 435/17
In the matter between:
IMVULA
QUALITY PROTECTION First
Applicant
PERSONS
LISTED IN ANNEX A Second
to further Applicants
RED ALERT TSS (PTY) LTD
First
Intervening Applicant
PERSONS
LISTED IN ANNEX B
Second to further Intervening Applicants
And
UNIVERSITY
OF SOUTH
AFRICA
Respondent
Delivered: 26 September 2017
RULING:
APPLICATION FOR LEAVE TO APPEAL
VAN
NIEKERK J
[1] The applicants apply for leave to appeal against the whole of the judgment delivered by this court on 7 September 2017.
[2] An application for leave to appeal falls to be considered in terms of s 17 of the Superior Courts Act, 10 of 2013. Section 17 (1) (a)(ii) provides that leave to appeal may be given is there is some compelling reason, other than that the appeal would have a reasonable prospect off success, why the appeal should be heard.
[3] I do not intend to make any findings in relation to the grounds for appeal on which the applicant relies. The present matter concerns the application of s 197 of the LRA to an insourcing of services in circumstances where the only subject of any transfer is, in effect, the contracts of employment of some but not all of the employees engaged by the outgoing service provider. The application of s 197 in these circumstances has not, as far as I am aware, been the subject of consideration by a higher court. Further, the application or otherwise of s 197 in these circumstances is a matter which requires certainty, not only for tertiary institutions such as the respondent many of whom have undertaken or will undertake similar exercises, but for employers and employees more generally.
[4] For these reasons, I have decided to grant the application for leave to appeal.
I make the following order:
1. Leave to appeal is granted, costs to be costs in the appeal.
André van Niekerk
Judge
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