Case: Tasima (Pty) Ltd v Road Traffic Management Corporation and others
Generally, an appeal suspends the operations of a court order however there are instances where an order will not be suspended pending an appeal.
Once such instance is where it can be shown, on a balance of probabilities, that the one party will suffer irreparable harm should the order be suspended and the other will not. The full lists of requirements are contained in sections 18(1) to 18(3) of the Superior Courts Act.
by Adriaan Jean Vermaas (B.Com Law, L.L.B, L.L.M); source: https://www.lexisnexis.co.za/
Industrial Relations and Human Resources :: transfer
Tasima (Pty) Ltd v Road Traffic Management Corporation and others
 JOL 41194 (LC)
|Case Number:||J 890 / 2017|
|Judgment Date:||19 / 02 / 2019|
|Bench:||C Prinsloo J|
Labour and Employment – Transfer of employees – Labour Relations Act 66 of 1995, section 197 Civil Procedure – Appeal – Suspension of order appealed against – Enforcement of order pending appeal – Requirements
For about 15 years, the applicant (“Tasima”) was responsible for the development, operation, management, control and maintenance of the electronic national traffic information system (eNaTIS). That was the sole business of Tasima, and all the employees employed by it were dedicated solely to eNaTIS and the rendering of the eNaTIS services. The Tasima employees were paid with the funds the State received from the eNaTIS transaction fees. The first respondent (“RTMC”) received the transaction fees as part of its annual income.
In November 2016, the Constitutional Court ordered Tasima to hand over and transfer the eNaTIS and services to the RTMC within 30 days of that order. In the course of negotiating the transfer, as per the Constitutional Court order, the RTMC’s attorneys sent correspondence to Tasima’s attorneys during February 2017, confirming that section 197 of the Labour Relations Act 66 of 1995 applied, that it would honour the provisions of the section and that the RTMC was ready to receive the transferred employees on the same terms and conditions of their current employment. However, he RTMC subsequently reneged on those representations and refused to give effect to section 197. That led to Tasima’s obtaining a declaratory order confirming that the employees had been transferred to the RTMC by virtue of section 197. An appeal by RTMC to the Labour Appeal Court (LAC) failed except on a minor point, and RTMC indicated that it would approach the Constitutional Court to appeal that judgment. Tasima approached the present court on an urgent basis for an order to enforce the LAC judgment and the previous order pending any application for leave to appeal and subsequent appeal to the Constitutional Court.
In a point in limine, RMTC contended that there was nothing that indicates that Tasima, its attorneys and the deponent to the founding affidavit had been properly authorised to litigate against the RTMC, as the actual litigants were the affected employees.
Held that it was inconceivable that such an application could have been launched without the knowledge of Tasima and without its attorneys being properly authorised. There was also no proper challenge to the authority to litigate, as provided for in Rule 7 of the Uniform Rules and absent such a challenge, it had to be accepted that the institution of the proceedings was duly authorised.
The main question was whether or not a proper case exists to grant leave to put the LAC order into operation pending the appeal process. The general rule is that the operation and execution of a decision is suspended pending the outcome of an application for leave to appeal or appeal. The court may however order otherwise if it is established on a balance of probabilities that the applicant will otherwise suffer irreparable harm, and that the other party will not suffer irreparable harm if the court so orders. Section 18 introduced a two-fold test. It must first be determined whether exceptional circumstances exist and secondly, whether the applicant established the requirement of irreparable harm on a balance of probabilities.
Finding that all the requirements under sections 18(1) and (3) of the Superior Courts Act had been satisfied, the court granted the relief sought by Tasima.