South Africa Case Law

King Cetshwayo District Municipality v Water and Sanitation Services South Africa (Pty) Ltd and Others (JA9/21)

King Cetshwayo District Municipality v Water and Sanitation Services South Africa (Pty) Ltd and Others (JA9/21) [2025] ZALAC 3; [2025] 5 BLLR 460 (LAC); (2025) 46 ILJ 1111 (LAC) (10 January 2025)

Court

Labour Appeal Court

Case number

JA9/21

Judges

Mlambo JA, Nkutha-Nkontwana JA, Jolwana AJA

The court held that the termination of the service level agreement and the return of core municipal assets to the appellant constituted a transfer of a business as a going concern under section 197 of the Labour Relations Act. The nature of the business was asset-reliant, and the core assets necessary for the provision of bulk water services were returned to the municipality. The lack of transfer of certain assets owned by the first respondent and the non-transfer of employees did not preclude the application of section 197, as the business continued in substance under the appellant. The cour…

Source excerpt

• Section 197 Transfer
• Outsourcing
• Business As Going Concern
• Municipal Tender
• Employee Transfer
• Contractual Interpretation

Murray and Roberts Cementation (Pty) Ltd v Electro Hydro World (Pty) Ltd and Others (2024-091607)

Murray and Roberts Cementation (Pty) Ltd v Electro Hydro World (Pty) Ltd and Others (2024-091607) [2024] ZALCJHB 535 (30 September 2024)

Court

Labour Court Johannesburg

Case number

2024-091607

Judge

M T M Phehane

The Court found that the termination of the applicant's contract and the appointment of the first respondent to provide grout pack pumping services at the K4 grout plant constituted a transfer of business as a going concern under section 197 of the Labour Relations Act. The factual enquiry revealed that the economic entity, including the use of premises, infrastructure, and the nature of the business, retained its identity post-transfer. The tender document's clause 20 was not a mere template but required provision for section 197 compliance. The respondent's reliance on technological differe…

Source excerpt

• Section 197 Transfer
• Business As Going Concern
• Contract Termination
• Employee Transfer
• Tender Process
• Continuity Of Employment

AFMS Group v South African Airways (SOC) Ltd and Others (J 998 / 2022)

AFMS Group v South African Airways (SOC) Ltd and Others (J 998 / 2022) [2022] ZALCJHB 256 (7 September 2022)

Court

Labour Court Johannesburg

Case number

J 998 / 2022

Judge

S Snyman

The court found that the termination of the HVAC and EM service agreements between AFMS and SAA constitutes a transfer of a business as a going concern under section 197 of the Labour Relations Act. The historical context demonstrated that the same services and employees had been transferred between service providers over two decades, always subject to section 197. The contractual provisions, especially clause 20.3, explicitly contemplated the application of section 197 upon termination. The employees dedicated to the service agreements were considered assets of the business and were required…

Source excerpt

• Section 197 Transfer
• Outsourcing
• Declaratory Relief
• Business As Going Concern
• Employee Transfer
• Service Agreement Termination

Westdawn Investments (Pty) Ltd t/a JIC Mining Services v Newrak Mining (Pty) Ltd and Others (J2158/18)

Westdawn Investments (Pty) Ltd t/a JIC Mining Services v Newrak Mining (Pty) Ltd and Others (J2158/18) [2018] ZALCJHB 321 (9 July 2018)

Court

Labour Court Johannesburg

Case number

J2158/18

Judge

S Mabaso

The court found that the transfer of business at shaft No.1 constituted a transfer as a going concern under section 197 of the Labour Relations Act. The applicant provided undisputed evidence that the services rendered at shaft No.1 by its employees were identical to those required by the first respondent following the tender process. The first respondent had engaged with the applicant's employees with the intention of employing them, demonstrating that the workforce and expertise were essential to the continuation of the business. The court held that the substance of the transaction, not its…

Source excerpt

• Section 197 Transfer
• Urgency In Labour Court
• Practice Manual Compliance
• Outsourced Services
• Employee Transfer

Imvula Quality Protection and Others v University of South Africa (J435/17)

Imvula Quality Protection and Others v University of South Africa (J435/17) [2017] ZALCJHB 310; [2017] 11 BLLR 1139 (LC); (2017) 38 ILJ 2763 (LC) (31 August 2017)

Court

Labour Court Johannesburg

Case number

J435/17

Judge

Van Niekerk

The Labour Court held that UNISA’s insourcing of security services did not trigger section 197 because no business infrastructure or assets transferred.

• Section 197 Transfer
• Insourcing
• Termination Of Service Contract
• Employee Transfer
• Shared Services Model
• Labour-law

Barloworld Transportation (Pty) Ltd v Unitrans Supply Chain Solutions (Pty) Ltd and Others (J2967/16)

Barloworld Transportation (Pty) Ltd v Unitrans Supply Chain Solutions (Pty) Ltd and Others (J2967/16) [2017] ZALCJHB 28 (26 January 2017)

Court

Labour Court Johannesburg

Case number

J2967/16

Judge

Gush

The court found that the facts did not support the conclusion that a business or part thereof was being transferred as a going concern. No assets, vehicles, or employees were required to be transferred for the respondents to render the delivery service. The transaction involved only the responsibility for providing deliveries in accordance with instructions from TMS, and there was no evidence of a transfer of a distinct business. The discussions regarding employment of staff and acquisition of furniture were not determinative. Accordingly, the transaction did not fall within the ambit of sect…

Source excerpt

• Section 197 Transfer
• Business As Going Concern
• Outsourcing
• Employee Transfer
• Contract Tender
• Costs Order