Pillay and Others v Mobile Telephone Networks (Proprietary) Limited (D377/13) [2017] ZALCD 12; (2017) 38 ILJ 2360 (LC) (5 May 2017)

Pillay and Others v Mobile Telephone Networks (Proprietary) Limited (D377/13) [2017] ZALCD 12; (2017) 38 ILJ 2360 (LC) (5 May 2017)

The court held that the Labour Appeal Court judgment established the applicants as employees of the respondent from 1 December 2010 with no loss of service, and that their employment continued uninterrupted under section 197 of the LRA. The referral of the dispute to the Labour Court constituted a sufficient tender of services, and no further oral evidence was required. The respondent's defences regarding specific performance and lack of tender were rejected. The court found that prescription did not run until the Labour Appeal Court judgment established the respondent's liability, so the applicants' claim for remuneration had not prescribed. Mora interest was only payable from the date...

Citation
[2017] ZALCD 12
Parties
Applicant: Somahkhanti Pillay & 37 Others; Respondent: Mobile Telephone Networks (Proprietary) Limited
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
5 May 2017
Case Number
D377/13
Procedural Posture
Specific Performance Application / Post Appeal, Enforcement of Labour Appeal Court Judgment
Outcome
Application granted. The respondent is ordered to pay the applicants remuneration for the period 1 December 2010 to 21 April 2015, with interest and costs.
Judges
Gush
Legal Topics
Section 197 Transfer, Specific Performance, Prescription, Mora Interest
Labour Law Civil Procedure Section 197 Transfer Specific Performance Prescription Mora Interest

Case Brief

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Parties

Somahkhanti Pillay & 37 Others

Applicant

Mobile Telephone Networks (Proprietary) Limited

Respondent

Procedural Posture

Specific Performance Application / Post Appeal, Enforcement of Labour Appeal Court Judgment

Legal Issues

  1. 1 Whether the respondent is obliged to pay the applicants remuneration from 1 December 2010 to 21 April 2015 as a consequence of the section 197 transfer.
  2. 2 Whether the applicants are required to tender their services to the respondent to claim remuneration.
  3. 3 Whether any portion of the applicants' claim for remuneration has prescribed under the Prescription Act.

Ratio Decidendi

The court held that the Labour Appeal Court judgment established the applicants as employees of the respondent from 1 December 2010 with no loss of service, and that their employment continued uninterrupted under section 197 of the LRA. The referral of the dispute to the Labour Court constituted a sufficient tender of services, and no further oral evidence was required. The respondent's defences regarding specific performance and lack of tender were rejected. The court found that prescription did not run until the Labour Appeal Court judgment established the respondent's liability, so the applicants' claim for remuneration had not prescribed. Mora interest was only payable from the date...

Court Disposition

Application granted. The respondent is ordered to pay the applicants remuneration for the period 1 December 2010 to 21 April 2015, with interest and costs.

Orders

  • The respondent is ordered to pay the applicants the remuneration due to them in accordance with their contracts of employment for the period 1 December 2010 up to and including 21 April 2015.
  • The calculation of the quantum of the remuneration is to be based on the principles applied by the respondent to the calculation of the amount of the tender, accepted by the applicants, in respect of the remuneration payable for the period from 22 April 2015 to 5 July 2016.