Maphongwana and Others v KSD Municipality and Others (P412/12) [2012] ZALCPE 10 (12 November 2012)

Maphongwana and Others v KSD Municipality and Others (P412/12) [2012] ZALCPE 10 (12 November 2012)

The court held that section 197(2) of the LRA provides for automatic substitution of the employer upon transfer of a business, and that employee consent is not required unless a written agreement under section 197(6) is concluded. In this case, no such agreement was reached, and the applicants' contracts of employment were lawfully transferred to the Department of Health on 1 July 2012. Consequently, the municipality was no longer obliged to pay the applicants' salaries after the transfer date. The applicants therefore had no prima facie right to the interim relief sought, and their application was dismissed. The court found that the applicants were justified in bringing the application...

Citation
[2012] ZALCPE 10
Parties
Applicant: Vusumzi Maphongwana; Applicant: Bongiwe Boya; Applicant: Nogolide Maqholo; Applicant: Neliswa Constance Mahlathi-Mankayi; Applicant: Thembeka Louisa Mlilwana; Applicant: Kholelwa Signoria Mbhiyozo; Applicant: Zandisile Nteleza; Applicant: Thandeka Sibongile Soga; Applicant: Xolelwa Patricia Magogo; Applicant: Nosimko Nkanjini-Ngqinjana; Applicant: Sinovuyo Pamela Somhlahlo; Applicant: Mlungisi Ishmael Dlomo; Applicant: Lulama Xozwa; Applicant: Nokhona Beatrice Mpaka; Applicant: Princess Nomkhitha Ntuli; Applicant: Ntombizimbini Mavis Qhina; Applicant: Thembeka Mqamelo; Applicant: Noluthando Patience Booi; Applicant: Kholiswa Nkala; Applicant: Thandiswa Ndamase; Applicant: Ncumisa Diphu; Applicant: Nomagama Dlomo; Applicant: Nosipho Sigwili; Applicant: Nosichumiso Mgxumeki; Applicant: Bulelwa Ghu; Applicant: Phumeaza Nxitywa; Applicant: Yolisa Blaai; Applicant: Dorah Gabuza; Applicant: Nontlhla January; Applicant: Novangeli Susan Majeke; Applicant: Lizeka Magcakini; Applicant: Nokubonga Sinto-Gunuza; Applicant: Dumisile Magwaza; Applicant: Nombhedesho Makaula; Applicant: Nokulina Mntumni; Applicant: Nolwandle Mavis Mdemka; Applicant: Zukiswa Nakumba; Applicant: Fezeka Mbaleki; Applicant: Nomthetho Sihewula; Applicant: Viwe Hlabahlaba-Melamane; Applicant: Vuyokazi Mnyamana; Applicant: Phumza Phyllis Mthongana; Respondent: KSD Municipality & Others; Respondent: Eastern Cape Department of Health
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
12 November 2012
Case Number
P412/12
Procedural Posture
Urgent Application / Application for Interim Interdict and Declaratory Relief
Outcome
Application dismissed; no order as to costs.
Judges
Lallie
Legal Topics
Transfer of Business, Section 197 Lra, Employment Contracts, Interim Interdict, Provincialisation, Remuneration Rights
Labour Law Transfer of Business Section 197 Lra Employment Contracts Interim Interdict Provincialisation Remuneration Rights

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Parties

Vusumzi Maphongwana

Applicant

Bongiwe Boya

Applicant

Nogolide Maqholo

Applicant

Neliswa Constance Mahlathi-Mankayi

Applicant

Thembeka Louisa Mlilwana

Applicant

Kholelwa Signoria Mbhiyozo

Applicant

Zandisile Nteleza

Applicant

Thandeka Sibongile Soga

Applicant

Xolelwa Patricia Magogo

Applicant

Nosimko Nkanjini-Ngqinjana

Applicant

Sinovuyo Pamela Somhlahlo

Applicant

Mlungisi Ishmael Dlomo

Applicant

Lulama Xozwa

Applicant

Nokhona Beatrice Mpaka

Applicant

Princess Nomkhitha Ntuli

Applicant

Ntombizimbini Mavis Qhina

Applicant

Thembeka Mqamelo

Applicant

Noluthando Patience Booi

Applicant

Kholiswa Nkala

Applicant

Thandiswa Ndamase

Applicant

Ncumisa Diphu

Applicant

Nomagama Dlomo

Applicant

Nosipho Sigwili

Applicant

Nosichumiso Mgxumeki

Applicant

Bulelwa Ghu

Applicant

Phumeaza Nxitywa

Applicant

Yolisa Blaai

Applicant

Dorah Gabuza

Applicant

Nontlhla January

Applicant

Novangeli Susan Majeke

Applicant

Lizeka Magcakini

Applicant

Nokubonga Sinto-Gunuza

Applicant

Dumisile Magwaza

Applicant

Nombhedesho Makaula

Applicant

Nokulina Mntumni

Applicant

Nolwandle Mavis Mdemka

Applicant

Zukiswa Nakumba

Applicant

Fezeka Mbaleki

Applicant

Nomthetho Sihewula

Applicant

Viwe Hlabahlaba-Melamane

Applicant

Vuyokazi Mnyamana

Applicant

Phumza Phyllis Mthongana

Applicant

KSD Municipality & Others

Respondent

Eastern Cape Department of Health

Respondent

Procedural Posture

Urgent Application / Application for Interim Interdict and Declaratory Relief

Legal Issues

  1. 1 Whether the applicants' contracts of employment could be transferred without their consent under section 197(2) of the LRA.
  2. 2 Whether the municipality was obliged to pay the applicants' salaries after the transfer date.
  3. 3 Whether the transfer of employment was lawful absent a written agreement signed by the trade unions.

Ratio Decidendi

The court held that section 197(2) of the LRA provides for automatic substitution of the employer upon transfer of a business, and that employee consent is not required unless a written agreement under section 197(6) is concluded. In this case, no such agreement was reached, and the applicants' contracts of employment were lawfully transferred to the Department of Health on 1 July 2012. Consequently, the municipality was no longer obliged to pay the applicants' salaries after the transfer date. The applicants therefore had no prima facie right to the interim relief sought, and their application was dismissed. The court found that the applicants were justified in bringing the application...

Court Disposition

Application dismissed; no order as to costs.

Orders

  • The application is dismissed.
  • No order is made as to costs.