CCT97/14

[2015] ZACC 13

2015 (7) BCLR 780 (CC)

Nkabinde J Majority judgment

Zondo J separate judgment

11 November 2014

14 May 2015

http://hdl.handle.net/20.500.12144/3765

Application for leave to appeal against a decision of the SCA: LA Health Medical Scheme v Horn and Others (385/13) [2014] ZASCA 72; [2014] 3 All SA 421 (SCA) (29 May 2014). The case was first heard in the Cape Town High Court: Horn and Others v Cape Joint Retirement Fund and Another (18886/07) [2011] ZAWCHC 34 (1 March 2011).

Leave to appeal granted on misrepresentation — right to a fair hearing — no constitutional issue raised — appeal dismissed with costs The effect of section 197(2) of the Labour Relations Act 66 of 1995 on contracts of employment and rights and obligations concerning pension benefits and redundancy benefits upon transfer of business as a going concern — employees’ right to redundancy benefit, if any, before transfer is taken over by business transferee. Appeal against an order of the Supreme Court of Appeal on whether former employees were entitled to an additional redundancy benefit specified under the Pension Fund Rules of the Cape Joint Retirement Fund (Rules) and whether the Supreme Court of Appeal violated their right to a fair hearing. The Court held that the appellants’ allegations in their application for leave to appeal had been gravely misleading. Their claim that the Supreme Court of Appeal “ambushed” them was false – that Court had afforded them multiple opportunities to make submissions. On the merits, the jurisdiction of the Court was not invoked on the facts and issues. The Court dismissed the appeal with costs. In a minority judgment, Zondo J held that, since the matter required the interpretation and application of the Labour Relations Act (LRA), it did invoke the Court’s jurisdiction. The administrative division within which the employees were employed was transferred as a “going concern”. That had the effect of merely changing the identity of the employer – all the rights and obligations between the business transferor and each employee were retained. Accordingly, the transferee had taken over the obligation that the employees sought to enforce. Zondo J thus would have dismissed the appeal but, as it was a labour matter, without any costs order. Majority: Nkabinde J (Cameron J, Froneman J, Khampepe J, Madlanga J, Tshiqi AJ and Van der Westhuizen J concurring). Partial concurrence: Zondo J (Mogoeng CJ and Leeuw AJ concurring).