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[2021] ZAGPPHC 481
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BMW (South Africa) (Pty) Ltd v Molahloe and Others (29179/2020) [2021] ZAGPPHC 481 (22 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 29179/2020
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
DATE:
22 July 2021
In
the matter between:
BMW
(SOUTH AFRICA) (PTY) LIMITED
Applicant
and
DUDU
PHILY MOLAHLOE
First Respondent
JASON
MAHALATHI
Second Respondent
ESTEN
MAHLANGU
Third Respondent
RAMARUMO
SYDWELL MOSHIGA
Fourth Respondent
THABISO
LEKHULENI
Fifth Respondent
NOEL
PHIRI
Sixth Respondent
FRANS
MOLOPE
Seventh Respondent
THULANI
MAHLANGU
Eighth Respondent
LUKIE
SHABANGU
Ninth Respondent
LAWRENCE
MANGANI
Tenth Respondent
JOSEPH
MASEHLA
Eleventh Respondent
ABUBAKAR
SEDIBENG
Twelfth Respondent
ROBERT
LETSOALO
Thirteenth Respondent
FRANS
TAUATSWALA
Fourteenth Respondent
FREDDY
MOLEPO
Fifteenth Respondent
BONOLO
SONO
Sixteenth Respondent
SYBOK
MOHOME LEBITSA
Seventeenth Respondent
JACOB
KEKANA
Eighteenth Respondent
RASEKGANO
NICOLAS KGALEDI
Nineteenth Respondent
TEBOGO
MATHETE KEKENA
Twentieth Respondent
JABU
MAHLANGU
Twenty-First Respondent
TINYIKO
MANGANI
Twenty-Second Respondent
BOITUMELO
MAROPANE
Twenty-Third Respondent
BONGANI
MOSIPHA
Twenty-Fourth Respondent
JUVENAL
MUKHAWANA
Twenty-Fifth Respondent
GABRIEL
TLOU
Twenty-Sixth Respondent
PHAUWE
PHOSA
Twenty-Seventh Respondent
WILSON
OUPA MASHIGO
Twenty-Eighth Respondent
VINCENT
VUSI MONDHLANA
Twenty-Ninth Respondent
STATION
COMMANDER:
Thirtieth Respondent
SOUTH
AFRICAN POLICE SERVICE,
ROSSLYN
SOUTH
AFRICAN POLICE SERVICE
Thirty-First Respondent
PROVINCIAL
COMMISSIONER, LT GEN E
MAWELA
TSHWANE
METRO POLICE
Thirty-Second Respondent
DEPARTMENT
(This
judgment is handed down electronically by circulation to the parties’
legal representatives by email and by uploading
it to the electronic
file of this matter on CaseLines. The date for hand-down is deemed to
be 22 July 2021.)
JUDGMENT
MIA
J
[1]
The applicant, BMW (South Africa) (Pty) Limited, is a company duly
registered and
incorporated in accordance with the company laws of
the Republic of South Africa. The first to twenty-ninth respondents
were all
former employees of Careers Staffing Solutions ("CSS").
CSS was sub-contracted to Bremer Lagerhaus Gesellschaft Logistics
South Africa ("BLG"). BLG had a contract with the applicant
to provide staff to the applicant. The first to twenty-ninth
respondents are hereafter referred to as “the CSS employees”.
The thirtieth respondent is the Station Commander: South
African
Police Services, (SAPS) Rosslyn. The thirty-first respondent is the
South African Police Service Provincial Commissioner,
Lieutenant
General, E. Mawela. The thirty-second respondent is the Tshwane Metro
Police Department (TMPD) situated at 193 Napier
Rd, Lyttelton Manor,
Centurion. The thirtieth to thirty-second respondents were cited to
assist in serving and enforcing the order.
[2]
The applicant sought relief on an urgent
ex
parte
basis on 16 July 2020 against the
CSS employees whose contracts came to an end. The applicant issued a
rule nisi
without a return date. The order granted by Khumalo J provided that:
“
1.
The forms and service provided for in the Uniform Rules of Court are
dispensed with
and the matter is treated as urgent.
2.1.1
the CSS Employees are interdicted and restrained from blocking or in
any way preventing access to the Applicant's
Premises, including the
blocking of any of the gates or the roads leading to or from the
Applicant's Premises, or disrupting the
Applicant's business
operations in any way;
2.1.2. the CSS
Employees are interdicted and restrained from intimidating,
threatening, or assaulting, the employees of the
Applicant or any
service providers or visitors of the Applicant;
2.1.3. the CSS
Employees are interdicted and restrained from stopping, interfering
with, damaging any vehicles travelling
to and from the Applicant's
Premises, and/or threatening the occupants thereof
2.1.4. the CSS
Employees are interdicted and restrained from stopping, interfering
with or preventing the Applicant's employees'
access in and out of
the Applicant's Premises; and
2.1.5. the CSS
Employees are interdicted and restrained from unlawfully accessing
the Applicant's Premises without the written
permission of the
Applicant.
3
In addition, the Applicant seeks an order:
3.1.
Directing and authorising the SAPS and TMPD to:
3.1.1. give effect to
the order for the relief set out above; to prevent any of the
Respondents from breaching the terms of the
order; and
3.1.2. disperse,
remove, eject, or arrest, persons who act in any unlawful manner
and/or contrary to this order and/or who act in
a manner as to
contravene or reduce the effectiveness of this order.
4.
The aforesaid orders in paragraphs 2 and 3 shall operate as a rule
nisi returnable
on a date to be arranged with the registrar.
5.
All interested parties are called upon to show cause on the return
date as to why
the orders in paragraphs 2 and 3 should not be made
final.
6.
The costs of the ex parte application to be reserved for
determination on the return
date.”
There
was no return date provided for in the order which was served on the
respondents. In terms of the order, the date had to be
arranged with
the registrar.
[3]
The matter was set down on the opposed motion roll. The applicant
sought confirmation
of the interim interdict and requested that it be
made final.
The first to twenty-ninth
respondents and the thirtieth, thirty-first and thirty-second
respondents opposed the relief sought and
filed opposing affidavits
to the application.
[4]
The applicant employs approximately 200 hundred employees at its
Distribution Centre
and approximately 2000 people at its
Manufacturing Plant. Some services at its Distribution Centre are
provided by service providers
sourced pursuant to a tender process.
These services include drivers, wash-bay and technical services. The
driving services tender
was awarded to BLG, who in turn appointed
CSS, a labour broker. On 31 March 2020, BLG’s contract expired.
Pursuant to the
tender process, a new service provider, namely
Bidvest International Logistics(BIL), was awarded the contract. BIL
did not renew
the contracts of the CSS employees. The CSS employees
regarded the non-renewal of their contracts as dismissals. On 9 July
2020,
the CSS employees arrived at the entrance to the Vehicle
Distribution Centre and sought to gain access to the premises. The
South
Police Service (the SAPS) were summoned to intervene. BIL
engaged the CSS employees and persuaded them to leave to discuss the
non-renewal of their services on another day.
[5]
The CSS employees arrived on Monday, 13 July 2020. Once again, BIL
engaged the CSS
employees, and they left. On 16 July 2020, the CSS
employees returned to the Vehicle Distribution Centre. According to
the applicant,
they blocked the roads and intimidated the applicant's
employees and service providers. The applicant alleged they
threatened drivers
of the carrier trucks entering and leaving the
Vehicle Distribution Centre and even threatened to burn the trucks.
Each time the
CSS employees attended the applicant's premises, the
SAPS was contacted for assistance. According to the applicant, the
SAPS informed
them they would only intervene if they had a court
order. The applicant thus stated they did not seek any material
relief against
the SAPS and the Tshwane Metro Police Department (the
TMPD) and only cited the SAPS and the TMPD as respondents to
facilitate their
assistance in enforcing the order.
[6]
The first to twenty-ninth respondents disputed that version of the
applicant.
They
stated that they were contracted by CSS to work for the applicant.
They relied on s 198A of the Labour Relations Act, 66 of
1995
(LRA)
[1]
, which provides in
subsection 3:
‘
For
the purposes of this Act, an employee
(a)
performing a temporary service as contemplated in
subsection
(1)
for
the client is the employee of the temporary employment
services in terms of section 198 (2);’
The
CSS employees thus regarded themselves to be the employees of the
applicant.
[2]
The respondents’
relied on this section, stating that they were employed with the
applicant for more than three months, having
been placed with the
applicant by CSS. They also stated that they earned less than the
threshold whilst employed by the applicant
for longer than three
months. This was acknowledged by Bidvest International Logistics
("BIL"), who took over from CSS,
in a letter dated 11 March
2020.
[7]
Furthermore, the twenty-nine respondents disputed that they blocked
the entrance,
intimidated drivers and prevented persons from entering
the premises. They state that approximately fifteen members of the
union,
accompanied by four officials, including the deponent to the
affidavit, attended the premises and introduced themselves. They
requested
to speak to a person from the applicant’s human
resource department to address the non-renewal of their services due
to the
CSS contract ending. Mr Phillip Rebb spoke to them and ended
the conversation by saying that he was not the ambassador for BMW and
hung up the phone. Immediately thereafter, G4S security guards closed
the applicant's gate and called the SAPS. The respondents
moved to
stand across the street on the pavement directly in front of the
applicant's gate.
[8]
They waited; after a while, the SAPS arrived in 4 police vans and a
VW Kombi. There
were approximately 20 police officers who responded.
The SAPS spoke to the respondents, who explained they were waiting
for someone
from CSS and/or BMW to have a meeting. The SAPS accepted
their explanation and warned them not to engage in violence or commit
any criminal acts. The SAPS parked near the respondents whilst they
waited. Mr. Thabang Bopabe (Mr Bopabe) from CSS finally arrived
at 2
pm and informed them that CSS was still trying to settle the matter.
He asked the respondents to return the following day
whilst he tried
to arrange a venue for a meeting. They left and returned on 10 July
2020. Upon their return, they stood in the
same spot across the road
and requested security to call Mr Bopabe. The SAPS arrived shortly
thereafter, enquiring about their
presence. They explained again that
they were requesting a meeting with CSS or BMW. Officer Makhabele
then approached the applicant,
and representatives from CSS and BIL
met with the respondents.
[9]
The representatives were amenable to a meeting, but the applicant
would not allow
them to use its facilities. It was suggested that
they meet in Isando at the applicant's manufacturing plant. Upon
their arrival
at Isando, they could not access the premises, so they
went home. On 13 July 2020, they returned to the applicant's premises
once
more to hand over a memorandum they had prepared. A large number
of police officers were already there when the respondents arrived.
The respondents requested security to call someone to receive the
memorandum. However, this request was refused. The respondents
denied
attending the premises of the applicant on the 14
th
and 15
th
July 2020. They returned on 16 July 2020 to hand over the memorandum.
The SAPS arrived a few minutes after they arrived. They explained
once more the reason for their presence. Eventually, Mr PM Dantjie,
from BMW, came out and received and signed for receipt of the
memorandum. The respondents left thereafter and did not return to the
premises.
[10]
On the same day, some union members received notice of the
application via WhatsApp in the evening.
They tried to access the
court file but were not afforded access to the court to examine the
court file to ascertain whether an
order was granted or not. Some of
the respondents did not receive the notice of the application at all.
They thus did not accept
that an interim order was granted.
[11]
The thirtieth and thirty-first respondents similarly opposed the
relief
on the basis that an order was
obtained against the SAPS without citing the relevant Minister, the
National Commissioner, or even
the Provincial Commissioner of SAPS,
in an urgent application whereby the co-operation of the SAPS was
sought. Furthermore, the
rule nisi
was not served on the relevant respondents.
The thirtieth to thirty-first respondents took
issue with the manner in which the respondents were referred to in
the heading of
the draft order, which differed significantly from the
heading of the notice of motion and in the founding affidavit.
The Station Commander Rosslyn was not identified
in the application, and the application was not served on the
thirtieth respondent
at any stage. After the order was granted on 16
July 2020, the applicant served the order on 17 July 2020 at 13h15 on
Colonel Gininda
at the Akasia South African Police Services and not
on the SAPS Rosslyn.
[12]
Colonel Gabriel Johannes Alberts deposed to the affidavit on behalf
of the thirtieth to thirty-second
respondents, raising an issue with
the request for a mandamus against the SAPS. He contended that the
applicant's conduct to move
the application on 16 July 2020 without
proper notice to the SAPS and the Minister or even proper service of
the papers was not
only irrational, ill-thought and capricious but
also irresponsible and an abuse of court process. This was so
especially given
the limited resources of the police during the Covid
pandemic. On the SAPS’ version, only twenty persons were
outside the
premises. They
posed no threat
and did not threaten or intimidate anyone.
[13]
Colonel Alberts disputed that the SAPS failed to act and that its
failure constituted a dereliction
of a statutory duty that infringed
or threatened to infringe the applicant's rights or the general
populace.
He referred to the SAPS records,
which indicated that a complaint was attended to and reported on by
Captain Mmethi and other members
on 13 July 2020 from around 08h00
till 18h10 at the gate at the BMW Distribution Centre at the corner
of Helium and Aluminium Streets,
Rosslyn. Captain Mmethi received
assistance after he sent a request, and three vehicles were reposted
to assist. No violent incidents
were reported. At 13h35, the CSS
employees were still at the Distribution Centre waiting for someone
to address them. Captain Mmethi
reported that Mr Gerber of Bidvest,
the manager and Mr Bopape, addressed the respondents at 13h58.
Constable Chauke was present
at 14h40 when the meeting was still in
progress. When the CSS employees gathered at the main gate and
blocked the main gate requesting
to speak with the Director of CSS,
their Labour Broker, Captain Mmethi, requested that they clear the
area and successfully negotiated
with the CSS employees who cleared
the main gate. There were no obstructions at the gate at all.
According to the SAPS, the number
of attendees was around 20 people.
When a meeting was agreed to with the CSS employees on 15 July 2020
at Isando, the CSS employees
dispersed peacefully. The SAPS recorded
that the incident was policed successfully. It was later reported
that the CSS employees
were all sitting peacefully outside. They
intended to hand over a memorandum to Mr van der Berg of the
applicant. After the memorandum
was handed over, all the CSS
employees dispersed peacefully from the applicant’s premises.
The SAPS reported once again that
the incident was successfully
policed.
[14]
This court is required to determine whether the
rule
nisi
should be confirmed?
[15]
In
Arendsnes Sweefspoor CC v Botha
2013(5) 399 (SCA) at para [18] the Court said:
“
[18]
It is trite that the rules exist for the courts, and not the courts
for the rules. See
Republikeinse
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk
1972
(1) SA 773 (A)
at
783A – B;
Mynhardt
v Mynhardt
1986
(1) SA 456
(T)
; and
Ncoweni
v Bezuidenhout
1927
CPD 130
, where it was pertinently observed that:
'The
rules of procedure of this court are devised for the purpose of
administering justice and not of hampering it and where the
Rules are
deficient, I shall go as far as I can in granting orders which would
help to further the administration of justice.
Of
course, if one is absolutely prohibited by the Rule, one is bound
to follow this Rule, but if there is a construction which
can
assist the administration of justice I shall be disposed to adopt
that construction.
Courts
should not be bound inflexibly by rules of procedure unless the
language clearly necessitates this — see S
immons,
NO v Gilbert Hamer & Co Ltd
1963
(1) SA 897 (N)
at
906. Courts have a discretion, which must be exercised
judicially on a consideration of the facts of each case; in
essence
it is a matter of fairness to both parties (see
Federated
Employers Fire & General Insurance Co Ltd and Another v
McKenzie
1969
(3) SA 360 (A)
at
363G – H).'
[16]
In
Hotz and Others v University of Cape
Town
2017(2) SA 485 SCA at paragraph
[29] the Court related the trite requirements of an interdict as
follows:
[29]
The law in regard to the grant of a final interdict is settled. An
applicant for such an order must show a clear right; an
injury
actually committed or reasonably apprehended, and the absence of
similar protection by any other ordinary remedy.' Once
the applicant
has established the three requisite elements for the grant of an
interdict the scope, if any, for refusing relief
is limited. There is
no general discretion to refuse relief. That is a logical corollary
of the court holding that the applicant
has suffered an injury or has
a reasonable apprehension of injury and that there is no similar
protection against that injury by
way of another ordinary remedy. In
those circumstances, were the court to withhold an interdict that
would deny the injured party
a remedy for their injury, a result
inconsistent with the constitutionally protected right of access to
courts for the resolution
of disputes and potentially infringe the
rights of security of the person enjoyed by students, staff and other
persons on the campus.
[17]
The first issue raised when the matter came before this court for
confirmation of the interim
interdict was the issue of service. All
the respondents took issue with service of the application. The
manner of service on some
of the twenty-nine respondents was by
WhatsApp. Not all twenty-nine respondents received the application
via Whatsapp. There was
no service on the thirtieth to the
thirty-second respondents. Service was effected on the SAPS at Akasia
SAPS. The order did not
make provision for service by Whatsapp. The
deponent to the twenty-nine respondents’ affidavit, Mr Phauwe
Phosa, the General
Secretary of the National Enterprises Workers
Union (NEWU), did not receive the notice at all.
[18]
It is evident that there was no compliance with rule 4(1)
[3]
of the Uniform Rules of Court. The applicant was aware that it did
not comply with the rules strictly and requested that the court
exercise its discretion in favour of the applicant as the first to
twenty-ninth respondents filed a notice of intention to defend
and an
answering affidavit. The applicant also referred to s 44 (1) of
Superior Courts Act 10 of 2013
[4]
, which provides that service ‘
may
be transmitted by facsimile, or by means of any other electronic
medium, to the person who must serve or execute such process
or
communication.”
Whilst
there was non-compliance with
rule 4(1)
, the notice did come to the
attention of most of the respondents to the extent that they were
able to file a notice of intention
to oppose. They also filed an
answering affidavit. It can be accepted that the respondents received
notice via Whatsapp in compliance
with
s 44
of Act 10 of 2013 to
enable them to oppose the application despite there being
non-compliance with rule 4(1). The court stated
in paragraph [27] in
Arendsnes
‘
it
must be remembered that even where peremptory formalities are
prescribed by statute, not every deviation from the literal
prescription
results in nullity. The question always remains whether,
in spite of the defect, the object of the statutory provision has
been
achieved
’
.
It is clear from the opposition that there was a notice to the
respondents.
[19]
The issue of consequence is the discrepancy in the version of events
described by the applicant
as compared to the respondents. The
applicant referred to photographs and video evidence that showed the
twenty-nine respondents
blocking the entrance to the property. It was
also alleged that they had placed rocks and boulders in the driveway
in front of
the gate at the premises. The twenty-nine respondents
deny this version. The thirty to thirty-second respondents’
version
similarly does not support the applicant’s version that
the respondents blocked the entrance and intimidated drivers. The
applicant stated that the SAPS refused to assist until an interdict
was obtained. The SAPS version also refutes this.
[20]
Colonel Alberts stated in his affidavit that there were not more than
twenty CSS employees present.
The CSS employees wanted to hand over a
memorandum. The SAPS cautioned them not to commit criminal acts. The
police report on both
dates indicated that the CSS employees were
standing on the pavement waiting to talk to a representative. The
report further indicates
there was effective policing without any
incidents. No mention is made of rocks on the road or intimidation of
drivers, as stated
by the applicant.
[21]
The applicant attached photos in its replying affidavit rather than
in its founding affidavit.
It is trite that the applicant should make
out its case in its founding affidavit. The photographs depict
persons standing on the
road and the pavement. This accords with the
respondent’s versions that they moved from the gate over to the
pavement. It
is not evident from the photographs that the CSS
employees were blocking persons from entering the applicant's
premises or threatening
and intimidating drivers. The applicant
furthermore relies on two photographs marked with a green stripe to
show that there are
stones on the side of the road. The photograph is
taken from an obscure angle such that it is not possible to identify
the property
as the applicant's premises or the gate or entrance as
that of the applicants. It is also not possible to say with certainty
that
the rocks are placed across the driveway of the applicant’s
premises. If these were indeed rocks blocking the premises, the
SAPS
would undoubtedly have taken action on the two days they were
present. The police report does not accord with the applicant’s
version.
[22]
Colonel Alberts likewise disputed the applicant’s version that
the CSS employees threatened
harm to the applicant or committed
criminal acts. He furthermore disputed that the police failed to
respond and required an order
to respond. Colonel Alberts explained
that police were deployed to the applicant’s property despite
having limited resources
during the Covid pandemic. Once the SAPS
were despatched, they remained at the premises and filed reports
indicating how they managed
the applicant’s complaint. He
referred to the police reports and disputed that the applicant had
proved a reasonable apprehension
of harm or that their rights had
been infringed based on the SAPS’s observation of the CSS
employees conduct. His version
correlated with the CSS employees that
the applicant failed to prove that they suffered an injury or a
reasonable apprehension
of prejudice.
[23]
In order to be granted a final interdict, the applicant must prove
specific requirements that
are well established: a clear right, an
injury committed or reasonably apprehended, and no alternative
remedy. The applicant is
entitled to conduct its business without the
unlawful interference of any party. The presence of an injury or a
reasonable apprehension
of an injury is asserted by the applicant and
disputed by the CSS employees and the SAPS, who were present on
several occasions.
The CSS employees deny that they threatened injury
to the applicant or its clients. They were present to hand over a
memorandum.
The applicant refused to engage with them and regarded
the respondents as a nuisance after their contracts had ended. The
applicant
refused to permit them to meet with CSS or BIL
representatives on the premises or at the Vehicle Distribution
Centre.
[24]
The respondents refer to the rule in
Plascon
– Evans Paints Ltd v Van Riebeeck Paint
(Pty) Ltd
[1984] ZASCA 51
;
[1984] 2 All SA 366
A, which provides:
“…
.
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict or
some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order.”
In applying the rule to
the facts, both admitted facts of the CSS employees and the SAPS
militate against the granting of the final
order. In addition, the
applicant has relied on photographs in its replying affidavit, which
is evidence that ought to have been
included in its founding
affidavit. Considering the matter from a broad conspectus, the
applicant has not made a case that justifies
the final relief sought.
I note that it had withdrawn its application for relief against the
thirtieth to thirty-second respondents.
[25]
I turn to the question of costs. The applicant withdrew its request
for relief against the thirtieth
to thirty-second respondents. The
applicant’s statement that the SAPS refused to assist stands in
stark contrast to the police
reports that there was effective
policing. The applicant was irresponsible in this regard when
resources were required to address
a national pandemic. How it dealt
with the CSS employees is less than desirable when all they sought
was to engage on the question
of their loss of employment with the
labour broker on the premises. The applicant rushed to court with a
case not supported by
evidence, so that it had to supplement its case
in the replying affidavit. There was no indication after the
memorandum was handed
over that there was a threat from the CSS
employees. No reference is made to a threat in the memorandum either.
The costs should
follow the order the follows hereunder.
ORDER
[26]
For the reasons above:
1.
The interim order granted is dismissed.
2. The
applicant to pay the costs.
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
Appearance
for the applicant
: Adv M
Salukazana
Instructed
by
: ENS Africa
dlambert@ensafrica.com
ngilfelleon@ensafrica.com
ksiphuma@ensafrica.com
Appearance
for the respondent
: SG Seepamore
Instructed
by
: SG Seepamore
Inc
sseepamore@gmail.com
Date
of hearing
: 11 March 2021
Judgment
Reserved On
: 11 March 2021
Date
of judgment
: 22 July 2021
198A.
Application of section 198 to employees earning
below earnings threshold.
—
(1) In
this section, a “temporary service” means work for a
client by an
employee
—
(
a
)
for a period not exceeding three months;
(
b
)
as a substitute for an
employee
of the client who
is temporarily absent; or
(
c
)
in a category of work and for any period of time which is determined
to be a temporary
service by a
collective
agreement
concluded
in a
bargaining
council,
a
sectoral determination or a notice published by the Minister, in
accordance with the provisions of
subsections
(6)
to
(8)
.
(2)
This section does not apply to
employees
earning in
excess of the threshold prescribed by the
Minister
in
terms of section 6 (3) of the
Basic
Conditions of Employment Act.
(3)
For the purposes of
this Act,
an
employee
—
(
a
)
performing a temporary service as contemplated in
subsection
(1)
for
the client is the
employee
of
the temporary employment services in terms of section 198 (2);
or
(
b
)
not performing such temporary service for the client is—
(i)
deemed to be the
employee
of that client and the
client is deemed to be the employer; and
(ii)
subject to the provisions of section 198B, employed on an
indefinite basis by
the
client.
(4)
The termination by the temporary employment services of
an
employee’s
service
with a client, whether at the instance of the temporary employment
service or the client, for the purpose of avoiding
the operation
of
subsection
(3) (
b
)
or
because the employee exercised a right in terms of this Act, is
a
dismissal.
(5)
An
employee
deemed
to be an
employee
of
the client in terms of
subsection
(3) (
b
)
must
be treated on the whole not less favourably than an
employee
of
the client performing the same or similar work, unless there is a
justifiable reason for different treatment.
(6)
……
(7) …….
.
(8) ……
[2]
Assign
Services (Pty) Limited v National Union of Metalworkers of South
Africa and others
(2018)
9 BLLR 837 (CC)
[3]
Rule
4(1)(a)(i)
by
delivering a copy thereof to the said person personally: Provided
that where such person is a minor or a person under legal
disability, service shall be effected upon the guardian, tutor,
curator or the like of such minor or person under disability
44.
Electronic transmission of summonses, writs and other
process.
—
(1) (
a
)
In any civil proceedings, any summons, writ, warrant, rule, order,
notice, document or other process of a Superior Court, or
any other
communication which by any law, rule or agreement of parties is
required or directed to be served or executed upon
any person, or
left at the house or place of abode or business of any person, in
order that such person may be affected thereby,
may be transmitted
by facsimile, or by means of any other electronic medium, to the
person who must serve or execute such process
or communication.
(
b
)
The document received or printed as a result of the transmission
contemplated in
paragraph
(
a
)
is
of the same force and effect as the original thereof.