Kopeledi (Pty) Ltd v Madontsela and Others (JR 429/07) [2008] ZALC 83; (2009) 30 ILJ 158 (LC) (27 June 2008)

Kopeledi (Pty) Ltd v Madontsela and Others (JR 429/07) [2008] ZALC 83; (2009) 30 ILJ 158 (LC) (27 June 2008)

The court found that the Commissioner committed a gross irregularity by misconstruing the requirements of section 197 of the Labour Relations Act and by failing to properly consider the suspensive condition in the sale agreement. There was no evidence that the suspensive condition (first payment) had been fulfilled, meaning the transfer of the business was not unconditional and final. The evidence indicated that the putative transferee employer, Nhlapo, dismissed the employees, not the applicant. The Commissioner failed to join Nhlapo as a necessary party, despite his direct and substantial interest in the dispute. The findings that the applicant was required to consult with the...

Citation
[2008] ZALC 83
Parties
Applicant: Kopeledi (Pty) Ltd; Respondent: Elias Madontsela and 20 Others; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: The Commissioner, Norman Mbelengwa
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
27 June 2008
Case Number
JR 429/07
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award made by the third respondent is set aside. The matter is remitted to the second respondent for rehearing before a different Commissioner. No order as to costs is made.
Judges
C.J. Musi
Legal Topics
Transfer of Business as Going Concern, Section 197 Lra, Dismissal, Joinder of Parties, Arbitration Review
Labour Law Civil Procedure Transfer of Business as Going Concern Section 197 Lra Dismissal Joinder of Parties Arbitration Review

Case Brief

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Parties

Kopeledi (Pty) Ltd

Applicant

Elias Madontsela and 20 Others

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

The Commissioner, Norman Mbelengwa

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the sale of the plastering division constituted a transfer of business as a going concern under section 197 of the Labour Relations Act.
  2. 2 Whether the applicant remained the employer of the first respondents after the purported transfer.
  3. 3 Whether the first respondents were dismissed by the applicant or the transferee employer.

Ratio Decidendi

The court found that the Commissioner committed a gross irregularity by misconstruing the requirements of section 197 of the Labour Relations Act and by failing to properly consider the suspensive condition in the sale agreement. There was no evidence that the suspensive condition (first payment) had been fulfilled, meaning the transfer of the business was not unconditional and final. The evidence indicated that the putative transferee employer, Nhlapo, dismissed the employees, not the applicant. The Commissioner failed to join Nhlapo as a necessary party, despite his direct and substantial interest in the dispute. The findings that the applicant was required to consult with the...

Court Disposition

The arbitration award made by the third respondent is set aside. The matter is remitted to the second respondent for rehearing before a different Commissioner. No order as to costs is made.

Orders

  • The arbitration award made by the third respondent dated 22 January 2007 is set aside.
  • This matter is remitted to the second respondent for rehearing before a Commissioner other than the third respondent.