Kunyuza and Another v Ace Wholesalers (Pty) Ltd and Others (JS27/12) [2015] ZALCJHB 54; [2015] 7 BLLR 683 (LC); (2015) 36 ILJ 1895 (LC) (24 February 2015)

Kunyuza and Another v Ace Wholesalers (Pty) Ltd and Others (JS27/12) [2015] ZALCJHB 54; [2015] 7 BLLR 683 (LC); (2015) 36 ILJ 1895 (LC) (24 February 2015)

Condonation for the late filing of the applicants' statement of claim is granted due to a bona fide mistake in service, swift action otherwise, and strong prospects of success in the main claim. The third respondent, Temba Big Save CC, must be joined as a party because, under section 197 of the LRA, the new employer is automatically substituted for the old employer and is jointly and severally liable for employment claims arising prior to transfer. The Constitutional Court's Intervalve judgment does not preclude joinder in the context of a section 197 transfer, as the transferee has a direct and substantial interest and must be held accountable. The facts are distinguishable from...

Citation
[2015] ZALCJHB 54
Parties
Applicant: Mlamli Kunyuza and Another; Respondent: Ace Wholesalers (Pty) Ltd; Respondent: Big Save (Pty) Ltd; Respondent: Temba Big Save CC
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
24 February 2015
Case Number
JS27/12
Procedural Posture
Joinder Application / Application for Joinder and Condonation Prior to Trial
Outcome
Condonation granted for late filing; third respondent joined as party; costs reserved for trial.
Judges
Steenkamp
Legal Topics
Section 197 Transfer, Automatic Unfair Dismissal, Joinder of Parties, Condonation for Late Filing, Conciliation Precondition
Labour Law Civil Procedure Section 197 Transfer Automatic Unfair Dismissal Joinder of Parties Condonation for Late Filing Conciliation Precondition

Case Brief

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Parties

Mlamli Kunyuza and Another

Applicant

Ace Wholesalers (Pty) Ltd

Respondent

Big Save (Pty) Ltd

Respondent

Temba Big Save CC

Respondent

Procedural Posture

Joinder Application / Application for Joinder and Condonation Prior to Trial

Legal Issues

  1. 1 Whether condonation should be granted for the late filing of the applicants' statement of claim.
  2. 2 Whether the third respondent, Temba Big Save CC, should be joined as a party to the proceedings under section 197 of the LRA.
  3. 3 Whether the Constitutional Court's decision in Intervalve precludes joinder of a new employer not cited in conciliation.

Ratio Decidendi

Condonation for the late filing of the applicants' statement of claim is granted due to a bona fide mistake in service, swift action otherwise, and strong prospects of success in the main claim. The third respondent, Temba Big Save CC, must be joined as a party because, under section 197 of the LRA, the new employer is automatically substituted for the old employer and is jointly and severally liable for employment claims arising prior to transfer. The Constitutional Court's Intervalve judgment does not preclude joinder in the context of a section 197 transfer, as the transferee has a direct and substantial interest and must be held accountable. The facts are distinguishable from...

Court Disposition

Condonation granted for late filing; third respondent joined as party; costs reserved for trial.

Orders

  • Condonation is granted for the late filing of the applicants' statement of claim.
  • The third respondent, Temba Big Save CC, is joined as a party to these proceedings.