Article 69/2021

Labour Edge

What are the requirements to be met for s200B of the LRA to be applicable?


The labour appeal court, in Association of Mineworkers and Construction Union and Others v Buffalo Coal Dundee (Pty) Ltd and Another [2018] 9 BLLR 837 (CC), considered this section of the LRA thus:

‘[28]   The party who wants to invoke s200B must not only show that the persons are carrying on or conducting an associated or related business but also that the intent or effect of doing so is or was to directly or indirectly defeat the purpose of the Act or any employment law. In this matter, the appellants succeeded in showing that the respondents carried on associated or related business. They failed to prove that there was an intention to directly or indirectly defeat the purpose of the Act or any other employment law neither did they prove that the effect of the business arrangement was to indirectly or directly undermine the purpose of the Act or any other employment law. It therefore matters not, for the purposes of this judgment, whether s200B has a retrospective effect or not. We therefore do not have to decide that point.’

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?