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Latest Cases Blog

Latest Cases

ANDRE LUDIK BARTLETT v ANASTASIA BUKASHE (LC). Summary: Urgent interdict – setting aside an attachment of goods of a party not liable in terms of the order. Assets of Trustees cannot be attached to satisfy the debts of the Trust. Held: (1) The application for interdict is granted (2) The first respondent is to pay the costs (3) The Registrar and the Secretary of the Law Society are directed to launch an investigation.

UNITRANS PASSENGER (PTY) LTD t/aMEGABUS & COACH vAMCU (LC). Urgent interdict- strike alleged to be in contravention of the provisions of the LRA – employees made an election to resort to collective bargaining as opposed to claiming unfair labour practice. Strike is a constitutional right of employees exercisable at the choice of the employees. Held: (1) The application for interdict is dismissed. Held: (2) The applicant to pay the respondents' costs.

BUSINESS UNITY SOUTH AFRICA v THE MINISTER OF HIGHER EDUCATION (LC). Summary: A review in terms of the provisions of the Promotion of Administrative Justice Act (PAJA) ought to be determined in terms of the provisions of PAJA. Promulgation of Regulations is an administrative action within the contemplation of PAJA. The administrative action by the Minister is not reviewable in terms of PAJA. Exercise of public function contemplated in section 36 of the SDA does not offend the principle of legality and it is not a decision that a decision maker may not arrive at. A court of review under PAJA can only substitute, vary or correct in exceptional circumstances. Held (1). The application for review is dismissed with costs.

NYLIN COLIN VAN STADEN v TELKOM SA (SOC) LIMITED (LC). A referral in terms of section 191 of the LRA1. It remains the duty of an employer to avoid a no-fault dismissal. Where the selection criterion is not agreed upon by the consulting parties, the employer is obliged to employ a fair and objective criteria. Placement of employees to vacant position is not a selection method contemplated in section 189 (7) of the LRA. It becomes the duty of a court to scrutinize the criteria employed in order to determine two aspects: fairness and objectivity. A court cannot defer to an employer with regard to fairness and objectivity of a selection criteria employed. A court engages in a two-stage enquiry. Firstly, to examine whether the criterion selected is fair and objective? Secondly, to determine whether the criterion is applied fairly and objectively. Dismissal for operational requirements is a no-fault dismissal and should be used as a last resort. Where an employer has vacant positions at the time of dismissal, it cannot be said that dismissal is the measure of last resort.

M E NYAMANE v THE MEC: FREE STATE DEPARTMENT (LC). Summary: An application to review and set aside a decision not to approve re-instatement of the applicant who was deemed discharged by the operation of law. The requirements of good cause shown considered. The Labour Appeal Court's decision in MEC for the Department of Health Western Cape v Weder2 considered in line with what was said in De Villiers v Head of Department: Education Western Cape Province3 and applied. Held: (1) The review application is granted and the matter remitted to the first respondent. Held: (2) There is no order as to costs.

SUN INTERNATIONAL LTD AND 15 OTHERS v SACCAWU (LC). Summary: Return day – Final order sought to interdict a strike action. Where the demand is an issue regulated by a collective agreement and or the provisions of the LRA – employees prohibited to strike. Duty of the court to determine what the true dispute is – if the dispute as determined falls within those upon which employees may not strike terms of a collective agreement – strike is unprotected. Held: (1) The Rule nisi is discharged Held: (2) Each party to pay its own costs.