THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case no : JS 553 /2024
In the matter between:
SOLIDARITY OBO FC KEYTER & 3 OTHERS Applicant
and
JUANITO DOMANS NO First Respondent
ANOOSH ROOPLAL Second Respondent
SOUTH AFRICAN POST OFFICE Third Respondent
Heard: 27 May 2025
Delivered: 13 June 2025
Summary: Special Plea – Respondent in business rescue. Section 133 (a) of
the Companies A ct is not a jurisdictional issue. Held that the Court had the
jurisdiction to adjudicate the dispute but that it is suspended until the uplifting of the Business Rescue proceedings.
JUDGMENT
2
KRUGER, AJ
Introduction
[1] The Applicant s in this matter filed a statement of case on 1 October 2024. In
the statement of case, they allege that their dismissals were unfair in that the
Respondent did not comply with section 189 (1) d of the Labour Relations Act
1
(LRA) . They furthermore alleged that their dismissals were based on their age and
this amounted to discrimination based on age.
[2] The Respondent raised a special plea and pleaded that the Court did not
have jurisdiction to adjudicate this mat ter because the Respondent was under
business rescue.
[3] In their response the Applicants conceded that this matter could not proceed
until such time as the business rescue proceedings terminates.
[4] The Respondent asked for an order that the Court did not have jurisdiction to
adjudicate this dispute until the business rescue proceedings are uplifted and the
Applicant asked that this matter be postponed until the business rescue proceedings are uplifted.
Applicable legal principles
[5] One of the innovations introduced by the Companies Act
2 is the mechanism of
business rescue proceedings in South Africa. In particular, chapter 6 of the Companies Act was inserted to “ provide for the efficient rescue and recovery of
financially distressed companies, in a manner that balances the rights and interests
of all relevant stakeholders ”.
3 In order to achieve this balance, a legal moratorium
was provided for in section 133 of the Companies Act.
1 Act 66 of 1995.
2 Act 71 of 2008.
3 See: section 7(k) of the Companies Act.
3
[6] The relevant parts of this section read as follows:
‘133. General moratorium on legal proceedings against company
(1) During business rescue proceedings, no legal proceeding, including
enforcement action, against the company, or in relation to any property belonging to the company, or lawfully in its possession, may be commenced or proceeded with in any forum, except –
(a) with the written consent of the practitioner;
(b) with the leave of the court and in accordance with any terms the court
considers suitable; …
(3) If any right to commence proceedings or otherwise assert a claim
against a company is subject to a time limit, the measurement of that time must be suspended during the company’s business rescue proceedings. ’
[7] In 2013 the Labour Court in Fabrizio Burda v Integcomm (Pty) Ltd
4 held that
unfair dismissal proceedings may not be commenced or proceeded with, without the
written consent of the business rescue practitioner or leave of the High Court that
has jurisdiction.
[8] In Cloete Murray and Another NNO v First rand Bank L td t/a Wesbank5 the
Court explained that the moratorium on legal proceedings against a company under
business rescue is of fundamental importance because it provides a crucial
breathing space for the company to restructure its affairs.
[9] The Supreme Court of Appeal interpreted section 133 of the Companies Act
in Chetty t/a Nationwide Electrical v Hart and another
6 in that the relevant section
places a moratorium, not only on legal proceedings in court but also on arbitration proceedings. The court however further stated that the requirement in section 133
(1)(a) is not a jurisdictional condition, and the non- compliance did not render the
proceedings void.
4 Unreported decision. Case no: JS 539/12. Delivered: 29 November 2013.
5 2015 (3) SA 438 (SCA).
6 2015 (6) SA 424 (SCA).
4
Analysis
[10] The purpose of Section 133 (1)(a) is to provide the b usiness rescue
practitioner with some breathing space and to prevent the company that is financially
distressed to be dragged through litigation while it tries to recover from its financial
woes.
[11] Section 133 is however not a jurisdictional issue to prevent the institution of
legal proceedings, but its effect is to stay the legal proceedings.
[12] The Court does have jurisdiction to adjudicate this dispute however the
proceedings are suspended until the uplifting of the business rescue proceedings.
Costs
[13] Costs should be considered against the requirements of the law and fairness.
It would not be appropriate to award costs in this matter .
[14] In the premises the following order is made:
Order
1. The special plea is dismissed.
2. The claim is suspended until the upliftment of the business rescue
proceedings.
3. No order as to costs
W. Kruger
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : I Stockenstrom
Instructed by : Solidarity
5
For the Respondent: Mr. Nz iane of Nziane Inc