National Union of Metalworkers of South Africa and Others v Wilro Supplies CC and Another (J 1440/16) [2020] ZALCJHB 210 (1 September 2020)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 1440/16

In the matter between:

NATIONAL UNION OF METALWORKERS OF

SOUTH AFRICA

First Applicant

E HLONGWANE AND 15 OTHERS

Second to further applicants

and

WILRO SUPPLIES CC First Respondent DUNROSE TRADING 57 (PTY) LTD Second Respondent

Heard: 21 August 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 1 September 2020.

Summary:

Application to admit a further supplementary affidavit – applications to amend relief sought – application to refer to oral evidence - points in limine re prescription – no cause of action – retrospectivity of section 200B – objection that Court cannot lift the corporate veil where there already is an existing judgment against one employer unless the alleged true employer was party to the proceedings that led to the judgment

JUDGMENT

COETZEE AJ

The parties

[1] The first applicant is the National Union of Metalworkers of South Africa ("Numsa"), a duly registered trade union acting on behalf of its members.

[2] The 2nd to further applicants is E Hlongwane and 15 others, all members of Numsa.

[3] The first respondent is Wilro Suppliers CC ("Wilro"), a close corporation under business rescue.

[4] The second respondent is Dunrose Trading 57 (PTY) Ltd ("Dunrose").

The main issue

[5] The applicants applied for leave to amend their main notice of motion, for the admission of a supplementary affidavit and for specific issues to be referred to oral evidence. The second respondent in opposing the applicants' application raised several points in limine and objected to all the applications.

[6] Wilro is not opposing the applications.

[7] On a previous occasion on 7 September 2018 the application for a referral of the matter to oral evidence, was postponed with a directive to the Registrar to enrol the matter to determine the applications to amend, the application for leave to admit a supplementary affidavit into evidence, the application to refer the matter to oral evidence and the points in limine. For that reason, the further interlocutory applications and the points in in limine are on the roll.

The sequence of events and the issues in dispute

[8] The first respondent dismissed the second and further applicants as far back as 31 October 2011 for operational requirements.

[9] The applicants referred a dispute of an alleged unfair dismissal against the first respondent, Wilro, to the CCMA.

[10] The dispute was not resolved at conciliation and was then referred to the Labour Court for trial. Wilro and Numsa on behalf of the individual applicants, conducted a pre-arbitration conference in which they agreed that certain facts were common cause. They agreed that the individual employees were employed by Wilro and dismissed by Wilro.

[11] On 16 March 2015, after hearing oral evidence, the Labour Court gave judgement in favour of Numsa and the individual applicants. Judge Basson found that the dismissals were substantively unfair and ordered the retrospective reinstatement of the individuals into the employment of Wilro.

[12] Wilro reinstated the employees and maintained that Wilro was unable to meet the payment of their arrear wages which amounted to approximately R1.6 million. As a result, Wilro applied for voluntary winding up. Instead by a Court order Wilro was placed in business rescue on 24 June 2015.

[13] Numsa sought to hold Dunrose liable for Wilro's debts and obligations. Two days after Wilro was placed in business rescue, on 26 June 2015, Numsa launched an application in the Metal and Engineering Industries Bargaining Council ("the MEIBC") seeking to declare Dunrose the deemed employer of the employees in terms of section 198A of the Labour Relations Act. This section provides that the employees of a Temporary Employment Service ("TES") after three months become the employees of the client, which Numsa alleged was Dunrose. The application was unsuccessful as MEIBC ruled that it had no jurisdiction to declare that the employees were now employees of Dunrose.

[14] On 20 July 2016 Numsa pursued its second attempt at relief for the employees against Dunrose by launching the main application in the Labour Court. Numsa seeks an order that Dunrose is jointly and severally liable for the judgement debt of Wilro, together with findings that Wilro and Dunrose had associated with the intent to defeat the purpose of the LRA.

[15] The normal process followed with an answering affidavit and replying affidavit being filed on 25 December 2016 and 24 January 2017 where after there was no movement until 6 November 2017 when Numsa filed a notice of amendment. Dunrose on 20 November 2017 filed another objection against paragraph 3A of the amendment. The amendment has been effected save for the proposed amendment to paragraph 3A.

[16] Numsa seeks a further amendment to prayer 2 and 2A. The further amendments are underlined:

"2A) Declaring that the respondents carry on an associated and related activity with the intent and/or effect of defeating the purposes of the Labour Relations Act 66 of 1995 as amended and all employment law, and that the second respondent is accordingly included as an employer as contemplated in section 200B(1) of the LRA, alternatively, declaring that the 2nd to further applicants were at all material times employees of the second respondent, and the second respondent was their employer, in terms of the law preceding the enactment of section 200B of the LRA"

"2) Directing, in terms of section 200B(2) of the LRA, alternatively, in terms of the law preceding the enactment of section 200B of the LRA, that the second respondent is jointly and severally liable for the judgement debt of the National Union of Metalworkers of South Africa obo E Hlongwane & 15 Others v Wilro Supplies CC (Labour Court case number JS 207/12 delivered on 16 March 2015)

[17] The disputed prayer 3A reads as follows:

"Granting leave to the applicants for the supplementary affidavit deposed to on 3 July 2019 to stand in the determination of the application."

[18] In summary, these amendments relate to the introduction of a supplementary affidavit, the introduction of section 200B and, in the alternative reliance upon the common law relating to a lifting of the corporate veil preceding the enactment of section 200B.

[19] On 8 May 2018 Numsa filed an interlocutory application seeking to refer the main application to trial or alternatively for the hearing of oral evidence on two issues, that is the business relationship between Wilro and Dunrose and secondly what the intent of the two bodies was in structuring the relationship to establish whether it was to defeat the purposes of the LRA. This application is opposed. One of the issues upon which Dunrose objects, is that in its answering affidavit in the main application it raised several in limine objections, which if successful, would defeat the main application entirely. In its view the in limine objections should be determined before the application to refer issues to evidence or to trial.

[20] The further amendment is sought in respect of the relief relating to the referral to oral evidence for the Court to determine, as an alternative,

"Whether at all material times the applicants were employees of the second respondent as defined by the Labour Relations Act, and the second respondent was the true employer in terms of the law preceding the enactment of section 200B"

[21] On 7 September 2018 the Labour Court directed that the application to refer the matter to oral evidence or trial be postponed and that the points in limine and the application to refer the matter to oral evidence be set down for a simultaneous hearing.

[22] It is appropriate first to deal with the points in limine. There after consideration will be given to the proposed amendments and the application to refer issues to oral evidence.

The points in limine

[23] The main issue between the parties is the substance of the relationship between Wilro and Dunrose and whether there was an abuse of the juristic personalities. The amendments sought relate to the main issue.

[24] The applicants' case against Dunrose is not founded upon the unfair dismissal of the second applicant. Numsa endeavours to hold Dunrose liable for the judgement debt of Wilro based on the common law principle of piercing the corporate veil, alternatively upon section 200B which Numsa maintains codified the common law preceding the introduction of section 200B.

[25] The applicants rely squarely upon Footwear Trading CC v Mdlalose[1] for its cause of action:

"The abuse of juristic personality occurs too frequently for comfort and many epithets have been used to describe the abuse against which the courts have tried to protect third parties, namely puppets, shams, masks and alter ego. However, the general principle underlying this aspect of law of lifting the veil is that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded. The lifting of the veil is normally reserved for instances where the shareholders or individuals hiding behind the corporate veil are sought to be made responsible. I do not see why it should not also apply where companies and close corporations are juggled around like puppets to do the bidding of the puppet master …"

[26] The amendments therefore seek to invoke reliance on the principles which form part of the law preceding the enactment of section 200B, and to which section 200B gives statutory effect.

Dunrose's general objection as a point in limine

[27] Dunrose argues that ultimately what the applicants seek is an order from the Court which holds Dunrose liable, jointly and severally with Wilro, for Wilro's obligations arising out of the 2015 judgement in favour of the applicants. Dunrose argues that such relief is not competent primarily because Dunrose was not a party to the trial and had no opportunity to be heard. The submission is that if Dunrose is correct with this submission, it disposes of the main application and all the interlocutory applications.

[28] Dunrose's general objection is based upon the submission that at no stage prior to the judgement in 2015 was Dunrose cited or joined as a party in that litigation. Dunrose had no opportunity to be heard in respect of the relief granted by the Court in the dispute between the applicants and Wilro. Dunrose submits that it is a violation of the principles of natural justice and in particular the principle of audi alterem partem to attempt to hold Dunrose liable based on a trial to which it was not a party.

[29] The fundamental issue, according to Dunrose, is whether the applicants may seek to enforce obligations against a party which obligations arise from a judgement in litigation in which that party was not cited or joined as a party. Also, in the pre-trial minute it was recorded as common cause, in the trial matter, that the individual applicants were employees of Wilro and retrenched by Wilro on 31 October 2011.

[30] The proposition that the recordal in the minute prevents the applicants from pursuing a cause of action against the second respondent is untenable as it could not have been an abandonment of a claim against Dunrose of which claim the applicants at the time were unaware.

[31] The main submission, further, is that the relief that the applicants seek in these proceedings is not that Dunrose must stand in the shoes, so to speak, of Wilro, but it must bear "joint and several liability" with Wilro. The applicants' case is not that Dunrose must assume the obligations of Wilro if those obligations had been transferred to it by cession and assignment, but to assume liability together with Wilro on the basis that Dunrose must also be recorded as an employer through the use of the deeming provision of section 200B of the LRA or the law that preceded the promulgation of this section. The argument goes further that even if section 200B or the principles it reflects are applied in favour of the applicants, the outcome is still that Dunrose must assume any liability which arises from a case in which it was neither joined nor cited as a party and in which it had no opportunity to participate.

[32] In support of the argument that Dunrose cannot be held liable, Dunrose relies upon Ngema and Others v Screenex Wire Weaving Manufacturers[2] where the applicants sought to enforce a judgement against a new employer who have taken over the business of the old employer as a going concern in terms of section 197 of the LRA. Both the Labour Court and the Labour Appeal Court found that even if the provisions of section 197 were applied and the new employer was automatically substituted in place of the old employer in respect of all the rights and obligations of the old employer, this did not mean that the new employer should not be afforded an opportunity to be heard in a matter in which it had a direct and substantial interest.

[33] The applicants rely upon Rustenburg Platinum Mine v SAEWA obo Bester and others[3] for the proposition that the obligations of the old employer transfer automatically to the new employer when there is a transfer of a business as a going concern:

"[28] The automatic consequences which flow from section 197 were lucidly explained in this Court’s judgment in NEHAWU[4]:“Subsection (2) tells us the consequences that flow from a transfer of a business as a going concern as contemplated in subsection (1). It refers back to subsection (1) which envisages two categories of transfer: one from a solvent employer and the other, broadly speaking, from an insolvent employer. In both instances, the transfer of the business as a going concern results in the transfer of the workers to the new business. . . The section is premised on the continuity of employment of the workers which is not interrupted by the transfer contemplated in subsection (1). ‘That employment’, subsection 9(4) says, ‘continues with the new employer as if with the old employer’. Reading the section as a whole and, in particular, having regard to the fact that all the rights and obligations flowing from employment with the transferring employer are transferred to the new employer in the case of a solvent business; that in the case of an insolvent business the contracts of employment are transferred; that the transfer of business does not interrupt the workers' continuity of employment; the inference that the transferee employer takes over the workers and that the transferee employer is, by operation of law, substituted in the place of the transferor employer is irresistible. It follows by necessary implication. If there is any doubt on this score, the recent amendment to section 197 puts matters beyond doubt by providing that ‘the new employer is automatically substituted in the place of the old employer in respect of all contracts of employment’. Indeed, its declared purpose is ‘. . . the clarification of the transfer of contracts of employment in the case of transfers of a business, trade or undertaking as a going concern’.

[29] In Success Panel Beaters & Service Centre CC v National Union of Metal Workers of South Africa [5] the Labour Appeal Court held that the enforcement of an Industrial Court order against the new employer was permissible, as the order was made and transfer of business affected after the commencement of the Act. The granting or dismissal of the main application would therefore be enforceable against Anglo and Sibanye."

[34] Dunrose argues on the strength of Ngema that in casu there is not even a reliance upon section 197 for a transfer of the obligation to Dunrose.

[35] The principle, however, as confirmed by the Constitutional Court in Rustenburg Platinum Mine remains applicable that where one employer is substituted for another by operation of law, the new employer assumes the legal obligation to meet a judgement against the old employer. For it to be held liable for the judgement the new employer need not have been provided with an opportunity to participate in the proceedings against the old employer.

Analysis of the general objection

[36] The main submission loses sight of a fundamental aspect. The applicants make it abundantly clear that they do not rely upon the fairness of the dismissal of the individual applicants for the relief that they claim. They rely squarely on a different cause of action. They rely upon the Footwear Trading-case to hold Dunrose liable. Dunrose's liability, jointly and severally, with that of Wilro will have to be established in legal proceedings in which Dunrose will have the opportunity to participate.

[37] In any event, the Labour Appeal Court in Footwear Trading rejected the submission that when lifting the corporate veil to determine the identity of the employer(s), the party to be held

liable should have had the opportunity to participate in the prior proceedings.

[38] The second leg to the main submission is that the LRA does not provide a remedy such as the remedy sought by the applicants, that is to hold another entity liable for a judgment debt in a matter to which it was not a party.

[39] The submission that the LRA does not provide in section 200B or elsewhere that a party can be held liable for the judgment debt of another misses the point that in lifting the corporate veil, the identity of the true debtor is established. It is not simply saying someone else must now pay the judgment debt of a debtor.

[40] In this matter the witness for Wilro, in the trial proceedings, is also the person who played the dominant role in the running of the business of Dunrose. Dunrose, at the time, was fully aware of the proceedings against Wilro having knowledge of what the business relationship between Dunrose and Wilro was.

[41] There is no fact or factor that distinguishes this matter from the factual matrix in Footwear Trading. This Court therefore follows the Footwear Trading-judgement of the Labour Appeal Court.

[42] Again, this Court is bound by what the Labour Appeal Court decided in Footwear Trading when it held another entity as the judgment debtor to be the employer.

[43] The main submission fails.

The amendments

[44] The approach to amendments has been formulated in Moolman v Estate Moolman[6]:

" … The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or such an amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which is sought to be amended was filed."

[45] Dunrose contends that the introduction of the alternative prayers pertains to the introduction of new causes of action and that the application to amend should fail for that reason.

[46] This case is analogous to that in Joubert v Buscor[7] where the plaintiff initially had pleaded breaches of statutory duties and then applied for leave to introduce an amendment relying

on pre-existing common law duties. The Court permitted the amendment, holding as follows:

"[38] The question is whether the verification of the duty and standard of care excludes a claim in delict based on common law. In my view, the respondent confuses the nature of the enquiry with regards to the wrong fullness to be proved in common law and that flowing from the statutory imposition of the duty in OHSA. It seems to me that a more onerous task lies ahead on the applicant who seeks to plead her case in the manner sought than on the respondent. I am of the view that the respondent's claim that it will be prejudiced is not well founded. Nothing in the reading of the provisions of OHSA indicates that the codification of the duties excludes or is intended to exclude or limit a common law claim a party may have. Both actions can live side-by-side, pleaded in the alternative as sought."

[47] There is no reason why in casu the further basis for the claim cannot be pleaded.

[48] The second answer to the objection is that given that section 200B effectively codified legal principles that have existed before it, no different cause of action is in fact introduced. The amendments would allow for the same legal principles to apply, albeit under the pre-existing law.

[49] The second objection against the amendments is that "the cause of action attempting to be introduced by the applicants has long since prescribed". This is the prescription point in limine.

[50] Dunrose submitted that what the applicants attempt to do is to rely upon an unfair dismissal during 2011 which cause of action prescribed after three years. The applicants, however, explicitly do not rely upon the unfair dismissal but on the judgement debt which only prescribes after 30 years. The prescription point is not a good point.

[51] Secondly prescription is not in and of itself a basis for precluding an amendment, particularly where there is a possibility that oral evidence may emerge which may allow the claim to be sustained.[8]

[52] This prescription objection does not have merit.

[53] Dunrose's third objection is that it will suffer prejudice that cannot be cured by a cost order.

[54] It is difficult to comprehend what prejudice Dunrose will suffer that cannot be cured by an appropriate cost order. Dunrose in opposing the main application already contests the contention that there was an abuse of juristic personality, and this defence will remain available to it. In any event, if the matter is referred to oral evidence, Dunrose will be able to call witnesses on the issue if they wish.

[55] The amendments should be allowed.

[56] The further objections that Dunrose raises, pertain to the introduction of prayer 3A which seeks an order permitting the supplementary affidavit to stand in the determination of the main application.

[57] The main objection is that the content of the affidavit is inadmissible and that the deponent thereto, the Business Rescue Practitioner, has a conflict of interest and is mala fides.

[58] The principles on the introduction of further affidavits were conveniently summarised in Hano Trading CC v J R 209 Investments[9]:

"[11] Rule 6(5)(e) establishes clearly that the filing of further affidavit is only permitted with the indulgence of the court. A court, as arbiter, has the sole discretion whether to allow the affidavits or not. A Court will only exercise its discretion in this regard where there is good reason for doing so."

[59] Where an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking, not a right, but an indulgence from the Court. The party must both advance his explanation of why the affidavit was out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received.[10]

[60] The explanation for the indulgence to introduce the affidavit is that the Business Rescue Practitioner was appointed and took over the running of the business of Wilro. Upon investigation she uncovered information that is relevant for the determination of the dispute in the main application. The need to file a supplementary founding affidavit only arose when the information became available to the Business Rescue Practitioner.

[61] The objection that the information is hearsay and should be rejected, is partly correct. Part of the information she personally observed and collected, and part may well be hearsay as she uncovered information in the records of Wilro.

[62] The applicants rely upon section 3(1)(c) of the Law of Evidence Amendment Act, 45 of 1988 that it would be in the interest of justice to admit the supplementary affidavit. Essentially it is contended that having regard to the nature of the proceedings, the contents of the supplementary affidavit are very relevant. The evidence pertains to the findings of an officer of the Court pertaining to matters directly relevant to the controversy in the main application. The evidence is tendered for the purpose to provide the Court with critical information, according to the applicants. It is further contended that the evidence has a high degree of probative value being that of a functionary appointed by statute and tasked with overseeing Wilro's affairs. Lastly it is contended that the admission of the supplementary affidavit would not be prejudicial to the respondents in the sense that the applicants have no difficulty with Dunrose filing an affidavit replying to the contents thereof. It is also open to Dunrose to contest or address these matters in oral evidence if the matter is referred to oral evidence.

[63] There is no basis to allege mala fides on the part of the deponent.

[64] Having regard to these considerations there is no valid objection against the introduction of the supplementary affidavit. It should be allowed.

The referral to oral evidence

[65] Rule 7(7)(b) of the Rules for the Conduct of Proceedings in the Labour Court provides as follows:

"The court must deal with an application in any manner it deems fit, which may include –

(a) …

(b) referring a dispute for the hearing of oral evidence."

[66] In SA Football Association v Mangope[11] the Labour Appeal Court said that in applying rule7(7)(b) of the Labour Court Rules, it was appropriate to construe the rule in a similar manner to Rule6(5)(g) of the High Court Rules.

[67] Rule 6(5)(g) of the High Court Rules provides as follows:

"Where an application cannot properly be decided on affidavit the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision. In particular, but without affecting the generality of the foregoing, it may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed and appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise."

[68] The principles applicable in the High Court are accordingly also of application in the Labour Court. In Minister of Environmental Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd[12] the Court referred with approval to the following statement in Moosa Bros & Sons (Pty) Ltd v Rajah[13] :

"(a) As a matter of interpretation, there is nothing in the language of Rule 6(5)(g) which restricts the discretionary power of the Court to order the cross-examination of a deponent to cases in which a dispute of fact is shown to exist.

(b) The illustrations of "gentlemen" disputes of fact given in the Room Hire case at 1163 do not – and did not purport to – set out the circumstances in which cross examination under the relevant Transvaal Rule could be authorised…

(c) Without attempting to lay down any precise rule, which may have the effect of limiting the wide discretion implicit in this Rule, in my view oral evidence in whatever form envisaged by the Rule should be allowed if there are reasonable grounds for doubting the correctness of the allegations concerned.

(d) In reaching a decision in this regard, facts particularly within the knowledge of an applicant, which for that reason cannot be directly contradicted or refuted by the opposite party, are to be carefully scrutinised."

[69] The Labour Appeal Court in KwaZulu-Natal Tourism Authority and Others v Wasa [14] states that an applicant in motion proceedings is obliged to make its case in the founding affidavit and to set out all the essential

evidence which, if left unchallenged would prove its case. However, "when an applicant can or should anticipate that the facts

essential for it to prove its case would be challenged, it should not proceed by way of application but by way of action."

[70] Dunrose contends that the applicants should have anticipated a dispute of fact as they were well aware in the proceedings before the MEIBC in September 2015 that Dunrose disputed the nature of the business and the relationship between Wilro and Dunrose to the extent that the corporate veil should be lifted.

[71] The applicants contend that the proceedings before MEIBC were different as the dispute was if Wilro was a Temporary Employment Service whose employees transferred to Dunrose after three months.

[72] The first objection is not valid. The issue before the MEIB was different and while the roles of Wilro and Dunrose were at issue, it was in respect of the question whether Wilro was a TES.

[73] The second objection is about the timing thereof. It is contended that the applicants belatedly sought the referral to oral evidence which they should have done once the answering affidavit in the main application had been filed.

[74] The referral to oral evidence should ordinarily be done as soon as possible. There are, however, examples where a referral to oral evidence was granted at the conclusion of argument.

[75] There is no undue prejudice to the second respondent as to the timing of the application to refer the matter to oral evidence.

[76] The application (as amended) to refer certain issues to oral evidence should be granted.

[77] A further objection is that an order directing that certain persons appear as witnesses, constitutes an abuse of process.

[78] The appropriate way to deal with the oral evidence is that the parties should follow the usual process to subpoena as witnesses those individuals that they believe may make a constructive contribution in giving oral evidence and being cross-examined.

[79] It is undoubtedly true that there is a dispute of fact that should be subjected to oral evidence and cross-examination. It is also clear that there are facts particularly within the knowledge of Dunrose which, in the interests of justice, should be explored by way of oral evidence and cross-examination. There is no need to refer the matter to trial.

[80] In the exercise of this court's wide discretion and in the interest of justice the matter should be referred for oral evidence with reference to the following aspects:

[80.1] The nature of the businesses of and relationship between the first and second respondents; and

[80.2] Whether, in structuring their businesses and relationship as they did, there was an intent on the part of the respondents to directly or indirectly defeat the purposes of the Labour Relations Act 66 of 1995 or other employment law, alternatively whether at all material times the applicants were employees of the second respondent as defined by the Labour Relations Act, and the second respondent was the true employer in terms of the law preceding the enactment of section 200B.

[80.3] The parties may subpoena the deponent to any affidavit filed in the application or any other person that may have relevant information to determine the issues.

[81] The application to amend paragraph 2.2 of the notice of motion should be allowed for the reasons referred to below. The amendment introduces the principles relating to a lifting of the corporate veil.

[82] The objection against the introduction of reliance upon section 200B on the basis that it did not operate retrospectively can be dealt with in deciding the main application. There is no prejudice to the second respondent in allowing this amendment. It is not an amendment, if rejected, that would dispose of a material part of the case or unduly prolong the proceedings.

[83] The same applies to the common law principles pertaining to a lifting of the corporate veil.

Costs

[84] All parties submitted that costs should follow the result. The second respondent unsuccessfully opposed the relief sought by the applicants. The applicants requested this Court for an indulgence. It is only fair that the costs should be costs in the cause.

Order

[85] I make the following order:

[85.1] The points in limine are dismissed

[85.2] The applications to amend are granted.

[85.3] The matter is referred for oral evidence with reference to the following aspects:

1. The nature of the businesses of and relationship between the first and second respondents; and

2. Whether, in structuring their businesses and relationship as they did, there was an intent on the part of the respondents to directly or indirectly defeat the purposes of the Labour Relations Act 66 of 1995 or other employment law, alternatively whether at all material times the applicants were employees of the second respondent as defined by the Labour Relations Act, and the second respondent was the true employer in terms of the law preceding the enactment of section 200B.

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3. The parties may subpoena the deponent to any affidavit filed in the application or any other person that may have relevant information to determine the issues.

4. Cost are costs in the cause.

__________

Faan Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Adv

Riaz Itzkin

Instructed by: Lawtons

Incorporated practicing as Lawtons Africa

For the Second Respondent: Adv Andrew Redding SC

Instructed by: Eversheds

Sutherland

[1] (2005) 26 ILJ 443 (LAC), para (34)

[2] (2013) 34 ILJ 1470 (LAC)

[3] [2018] JOL 39901 (CC)

[4] National Education & Allied Workers Union v University of Cape Town [2002] ZACC 27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 (CC) (NEWAHU) at paras 63-5.

[5] Success Panel Beaters & Services Centre CC v [2000] ZALAC 2; [2000] 6 BLLR 635 (LAC) at 638.

[6] 1927 CPD 27 at 29

[7] (2013/13116) [2016] ZAGPPHC 1024 (9 December 2016)

[8] Cordier v Cordier 1984 (4) is a 524 (C)

[9] 2013 (1) is a 161 (SCA)

[10] James Brown and Hamer (Pty) Ltd v Simmons N O 1963 (4) SA 656 A at 660D-H

[11] (2013) 34 ILJ 311 (LAC) at para 10

[12] 2005 (6) is a 182 (SCA) at para 29

[13] 1975 (4) SA 87 (D) at 93E to H

[14] (JA 113/14) dated 28 June 2016 at paragraph 25