Temba Big Save CC v Kunyuza and Others (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC) (28 June 2016)

Temba Big Save CC v Kunyuza and Others (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC) (28 June 2016)

The Labour Appeal Court held that the Labour Court correctly refused to accept the appellant's answering affidavit, as the respondents' objection in their replying papers constituted sufficient notice under the Practice Manual. The appellant failed to apply for condonation, and the court properly exercised its discretion. On joinder, the court found that in the context of an alleged section 197 transfer, the new employer need not be separately referred to conciliation, as it steps into the shoes of the old employer for all employment-related liabilities. The appellant's interpretation of the Intervalve judgments was rejected as misconceived. The joinder was appropriate, and even if the...

Citation
[2016] ZALAC 36
Parties
Appellant: Temba Big Save CC; Respondent: Mlamli Kunyuza and Another; Respondent: Ace Wholesalers (Pty) Ltd; Respondent: Big Save (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
28 June 2016
Case Number
JA40/2015
Procedural Posture
Civil Appeal / Appeal Against Labour Court Decision on Joinder and Condonation
Outcome
Appeal dismissed with costs.
Judges
Waglay JP, Tlaletsi DJP, Davis JA
Legal Topics
Joinder of Parties, Condonation of Late Filing, Automatic Unfair Dismissal, Section 197 Transfer, Conciliation Requirement
Labour Law Civil Procedure Joinder of Parties Condonation of Late Filing Automatic Unfair Dismissal Section 197 Transfer Conciliation Requirement

Case Brief

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Parties

Temba Big Save CC

Appellant

Mlamli Kunyuza and Another

Respondent

Ace Wholesalers (Pty) Ltd

Respondent

Big Save (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Labour Court Decision on Joinder and Condonation

Legal Issues

  1. 1 Whether the Labour Court correctly refused to accept the appellant's answering affidavit filed out of time without condonation.
  2. 2 Whether the Labour Court was correct in joining the appellant as a party to the unfair dismissal dispute.
  3. 3 Whether referral to conciliation is required before joining a new employer under section 197 of the LRA.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court correctly refused to accept the appellant's answering affidavit, as the respondents' objection in their replying papers constituted sufficient notice under the Practice Manual. The appellant failed to apply for condonation, and the court properly exercised its discretion. On joinder, the court found that in the context of an alleged section 197 transfer, the new employer need not be separately referred to conciliation, as it steps into the shoes of the old employer for all employment-related liabilities. The appellant's interpretation of the Intervalve judgments was rejected as misconceived. The joinder was appropriate, and even if the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.