Wallejee and Another v FCSA Organisation Service (Pty) Ltd and Another (J262/2010) [2015] ZALCJHB 69; (2015) 36 ILJ 1943 (LC) (5 March 2015)

Wallejee and Another v FCSA Organisation Service (Pty) Ltd and Another (J262/2010) [2015] ZALCJHB 69; (2015) 36 ILJ 1943 (LC) (5 March 2015)

The court found that the applicant's delay in seeking joinder of Talwin, despite being aware of the alleged transfer, constituted a waiver of her right to join Talwin after judgment. The court held that joinder after judgment is not automatic and that Talwin was entitled to be heard regarding its potential liability. Upon objective assessment of the facts, the court concluded that there was no transfer of business as a going concern from FCSA to Talwin under section 197 of the LRA. Talwin's acquisition of the Franklin Covey license was independent, and the employment of former FCSA employees and servicing of former clients did not amount to a transfer of business. Consequently, Talwin did...

Citation
[2015] ZALCJHB 69
Parties
Applicant: Carol Wallejee; Applicant: Mtshweni Johanna; Respondent: FCSA Organisation Service (Pty) Ltd; Respondent: Talwin Consulting CC t/a Franklin Covey SA
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 March 2015
Case Number
J262/2010
Procedural Posture
Joinder Application / Application for Joinder and Substitution After Default Judgment
Outcome
Application dismissed with costs.
Judges
Molahlehi
Legal Topics
Joinder of Parties, Section 197 Transfer, Waiver of Right, Default Judgment, Condonation, Substantial Interest
Labour Law Civil Procedure Joinder of Parties Section 197 Transfer Waiver of Right Default Judgment Condonation Substantial Interest

Case Brief

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Parties

Carol Wallejee

Applicant

Mtshweni Johanna

Applicant

FCSA Organisation Service (Pty) Ltd

Respondent

Talwin Consulting CC t/a Franklin Covey SA

Respondent

Procedural Posture

Joinder Application / Application for Joinder and Substitution After Default Judgment

Legal Issues

  1. 1 Whether a party may be joined after judgment has been delivered.
  2. 2 Whether the applicant waived her right to join Talwin as a party.
  3. 3 Whether there was a transfer of business as a going concern under section 197 of the LRA.

Ratio Decidendi

The court found that the applicant's delay in seeking joinder of Talwin, despite being aware of the alleged transfer, constituted a waiver of her right to join Talwin after judgment. The court held that joinder after judgment is not automatic and that Talwin was entitled to be heard regarding its potential liability. Upon objective assessment of the facts, the court concluded that there was no transfer of business as a going concern from FCSA to Talwin under section 197 of the LRA. Talwin's acquisition of the Franklin Covey license was independent, and the employment of former FCSA employees and servicing of former clients did not amount to a transfer of business. Consequently, Talwin did...

Court Disposition

Application dismissed with costs.

Orders

  • The applicant's application to join or substitute Talwin Consulting CC as a party to the order is dismissed.
  • The applicant is ordered to pay the costs of the application.