THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: 2026-027343
In the matter between:
SIYASEBENZA (PTY) LTD First Applicant
EMPLOYEES OF SIYASEBENZA
SIYABONGA (PTY) LTD Second Applicant
and
ARISTON SOUTH AFRICA (PTY) LTD First Respondent
BRIDGEWATER SOUTH AFRICA (PTY) LTD Second Respondent
Heard: 17 February 2026
Delivered: 24 February 2026
Summary: Section 197 LRA -urgent declarator -transfer-warehousing-logistic-
services-three parties
JUDGMENT
MKHATSHWA, AJ
Introduction
[1] This is an opposed urgent application for a declaratory order that a transfer of
a business as a going concern as contemplated in section 197 of the Labour
Relations Act1 (LRA) has been triggered by the cancellation of a service level
agreement (SLA) for the outsourcing of logistical and warehousing services
between the First Applicant (Siyasebenza) and the First Respondent (Ariston).
1 Act 66 of 1995, as amended.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Background facts
[2] Siyasebenza and Ariston entered into a service level agreement (the SLA), in
terms of which Ariston outsourced certain logistics services to Siyasebenza in
2016. In or around 2017 and at Ariston’s request, Siyasebenza also started
providing warehousing services to Ariston. At the time of the outsourcing
Siyasebenza and Ariston concluded an agreement in terms of section 197 of
the LRA. In terms of this agreement, a portion of Ariston’s business was
transferred to Siyasebenza as a going concern. Consequently , seven
contracts of employment were transferred to Siyasebenza in terms of section
197 of the LRA.
[3] Around May 2017 Ariston directed Siyasebenza to appoint additional
employees to render services in Ariston’s warehouse. The SLA was renewed
several times with the last renewal ending on 28 February 2026. Ariston gave
formal notice to Siyasebenza on 18 June 2025 that the SLA would not be
renewed when it expires on 28 February 2026. The notice also stated that
Ariston would not be responsible for Siyasebenza’s employees and requested
that Siyasebenza’s employees vacate Ariston’s premises at the end of
February 2026.
[4] Siyasebenza received an invitation on or about 17 October 2025 from Ariston
to tender for the provision of distribution services. Siyase benza tendered for
the services. On or about 12 December 2025, Siyasebenza requested a
Transition Assistance Services meeting. On or about 17 December 2025,
Siyasebenza was informed that its tender had been unsuccessful. Ariston
requested a meeting with Siyasebenza for 16 January 2026.
[5] On or about 13 January 2026 Siyasebenza furnished Ariston with a draft
section 197 agreement together with a list of all employees employed by
Siyasebenza in respect of the logistical and warehousing services, for
purposes of facilitating a transfer of the Second Applicants on a transfer date
that was to be discussed at the meeting of 16 January 2026. At that meeting,
that was to be discussed at the meeting of 16 January 2026. At that meeting,
Ariston reaffirmed its position that it would not take transfer of the affected
employees and reiterated that such employees were required to vacate its
premises with effect from 27 February 2026. Ariston informed Siyasebenza at
the meeting that another supplier would commence rendering logistical
services with effect from 1 March 2026.
[6] Siyasebenza’s attorneys wrote to Ariston on 23 January 2026 seeking an
undertaking that the Second Applicants would be afforded protection in terms
of section 197 of the LRA. Siyasebenza informed Ariston that absent such an
undertaking by 27 January 2026, Siyasebenza would institute urgent legal
proceedings. On the same day, Ariston’s attorneys responded and denied the
applicability of section 197 regarding the transfer of the Second Applicant to
Ariston as the new employer . The letter informed Siyaseben za that the
Second Respondent ( Bridgewater) will be the new supplier of logistics
services. The letter also indicated that to the extent that section 197 was to
apply, such a transfer would be between Siyasebenza and Bridgewater.
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[7] On or about 30 January 2026 Ariston sent an email to Siyasebenza’s
attorneys requesting that the Second Applicants submit their curricula vit ae
(cv’s) by email to Bridgewater on or before 4 February 2026. Siyasebenza’s
attorneys responded by email on the same day indicating that Ariston’s
position was now in contrast with Ariston’s letter of 26 January 2026. Ariston
was further informed that Counsel had already been engaged by Siyasebenza
to prepare an urgent application. Further that unless Ariston gave the
undertaking sought by Siyasebenza that the Second Applicants enjoyed
protection in terms of section 197 and that the letter of 26 January 2026 was
retracted, Siyasebenza would proceed with the urgent application. On or
about 2 February 2026 Ariston responded in writing and indicated that it
persisted with its position that section 197 was not applicable.
[8] On or about 3 February 2026 Siyasebenza addressed a letter to Bridgewater
requesting confirmation that Bridgewater would take transfer of the Second
Applicants on the transfer date. On the following day and in response to
Siyasebenza’s letter Bridgewater denied the applicability of section 197.
[9] Bridgewater entered into a contract with Ariston on the basis that Bridgewater
was the successful tenderer in the tender on which Siyasebenza was
unsuccessful.
[10] According to the Applicants, the transfer of the logistics services to
Bridgewater amounts to a transfer of a business (or part of a business) as a
going concern as contemplated in section 197 for the following reasons:
Business
[11] The Applicants maintain that the business transferred constitute the logistical
and warehouse services. That these services include information technology
systems in terms of the SLA. Further that according to the 18 June 2025
termination notice from Ariston, Siyasebenza is required to hand over
operational data, documentation and systems to Ariston or Bridgewater.
operational data, documentation and systems to Ariston or Bridgewater.
[12] Furthermore, that Siyasebenza has to provide Ariston with all original
documentation and records including all records and files held in computer
systems during the provision of logistical services rendered to Ariston. That
Siyasebenza was utilizing Ariston’s warehouse space in the provision of the
services. What that means is that when the SLA is terminated, Siyasebenza
would no longer be entitled to use Ariston’s warehouse.
Transfer
[13] According to the Applicants the termination notice made it clear that the
transfer of the business would be effected. That Siyasebenza is obliged to
assist with the transfer of the designated service to Ariston. Siyasebenza
maintains that logistic and warehousing service is a business operation and
that it would not be entitled to keep any inventory , related information
technology systems or applicable records after the termination of the SLA nor
would Siyasebenza be entitled to continue making use of Ariston’s warehouse
space.
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Going concern
[14] According to Siyasebenza, Bridgewater will take over the logistic services
rendered to Ariston and that the logistic service rendered by Siyasebenza will
no longer be rendered by Siyasebenza. That the warehousing service will be
rendered by Ariston in house alternatively by Bridgewater.
[15] Siyasebenza maintains that it was providing logistic and warehousing services
as a going concern based on the fees charged to Ariston. Finally , that the
cancellation clause contemplates a transfer of the business as a going
concern.
Urgency
[16] On urgency, Siyasebenza argues that an application involving section 197 of
the LRA entails a clear right and thus its applicability is urgent in nature. That
in the event that no declaratory relief is granted, the services will b e
terminated.
[17] That the Second Applicants require clarity of the identity of their employer with
effect from 1 March 2026. Similarly , that Siyasebenza requires clarity in
respect of its employees’ contracts of employment after the cancellation of the
SLA.
[18] Further that if the declaratory relief is not gr anted on an urgent basis,
Bridgewater would source its own employees and the possibility of the
Second Applicants being transferred would be reduced.
[19] The Respondents deny the applicability of section 197. According to them
neither Ariston nor Bridgewater took over any employees of Siyasebenza nor
did they acquire any assets, goodwill, infrastructure or operational capacity of
Siyasebenza.
Preliminary issues
[20] Before dealing with the merits of the application, it is important to deal with the
preliminary issues raised by Ariston and Siyasebenza.
[21] Ariston has challenged the locus standi of the Second Applicants in this
matter. This is so as Ariston argues, the Second Respondents have not filed
any confirmatory or supporting affidavits.
[22] In a Supplementary Affidavit, Siyase benza has since conceded that it was
[22] In a Supplementary Affidavit, Siyase benza has since conceded that it was
unsuccessful in securing the confirmatory affidavits from the Second
Applicants. Accordingly , the parties before this Court are First Applicant on
the one hand and the First and Second Respondents on the other hand. In
any event, so argues Siyasebenza this does not detract from the fact that the
Second Applicants have a direct interest in the outcome of this application.
[23] Siyasebenza on its part argues that the deponent to the Answering Affidavit is
not authorized to do so and that Ms Charlene Moodley (the Administration,
Finance and Control Manager of Ariston) is the one who is authorized to deal
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among others with legal matters of Ariston in terms the Ariston Board
Resolution 3 of 2024 of 1 June 2024 and thus she ought to have deposed to
the Answering Affidavit instead of Mr Craig Kalamer.
[24] In response to the above objection, Ms Moodley deposed to a confirmatory
and ratifying affidavit in terms of which she delegated her powers to depose to
the affidavit to Mr Kalamer by virtue of his operational knowledge of the
factual matters addressed in the affidavit and that he also held a senior
managerial position in Ariston.
[25] It is clear that Ariston has always indicated its desire and intention to oppose
this application. While Ms Moodley ought to have deposed to the Answering
Affidavit, there is no indication and none has been suggested by Siyasebenza
that Mr Kalamer went on a frolic of his own and sought to defend this matter
without authorization. Counsel for the Respondents was unable to show any
instrument that allows Ms Moodley to delegate the powers that she has, on
the other hand Board Resolution 3 of 2024 does not specifically prohibit
delegation of the powers of the individuals mentioned in it. A ccordingly, the
cause of complaint on this point has been cured by Ms Moodley’s
confirmatory and ratifying affidavit.
Section 197 of the LRA
[26] Section 197 of the LRA provides as follows:
“197. Transfer of contract of employment
(1) In this section and in section 197A –
(a) ‘business’ includes the whole or a part of any business, trade,
undertaking or service; and
(b) ‘transfer’ means the transfer of a business by one employer
(‘the old employer’) to another employer (‘the new employer’)
as a going concern.
(2) If a transfer of a business takes place, unless otherwise agreed in
terms of subsection (6) -
(a) the new employer is automatically substituted in the place of
the old employer in respect of all contracts of employment in
existence immediately before the date of transfer;
(b) all the rights and obligations between the old employer and an
(b) all the rights and obligations between the old employer and an
employee at the time of the transfer continue in force as if they
had been rights and obligations between the new employer
and the employee;
(c) anything done before the transfer by or in relation to the old
employer, including the dismissal of an employee or the
commission of an unfair labour practice or act of unfair
discrimination, is considered to have been done by or in
relation to the new employer; and
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(d) the transfer does not interrupt an employee’s continuity of
employment, and an employee’s contract of employment
continues with the new employer as if with the old employer.
(3) (a) The new employer complies with subsection (2) if that
employer employs transferred employees on terms and
conditions that are on the whole not less favourable to the
employees than those on which they were employed by the old
employer.
(b) Paragraph (a) does not apply to employees if any of their
conditions of employment are determined by a collective
agreement.
(4) Subsection (2) does not prevent an employee from being transferred
to a pension, provident, retirement or similar fund other than the fund
to which the employee belonged prior to the transfer, if the criteria in
section 14(1)(c) of the Pension Funds Act, 1956 (Act No. 24 of 1956),
are satisfied53a. (5)(a) (6)(a) 53a.
(5) (a) For the purposes of this subsection, the collective agreements
and arbitration awards referred to in paragraph (b) are
agreements and awards that bound the old employer in
respect of the employees to be transferred, immediately before
the date of transfer.
(b) Unless otherwise agreed in terms of subsection (6), the new
employer is bound by –
(i) any arbitration award made in terms of this Act,
(ii) the common law or any other law; any collective agreement
binding in terms of section 23; and
(iii) any collective agreement binding in terms of section 32, unless
a commissioner acting in terms of section 62 decides
otherwise.
(6) (a) An agreement contemplated in subsection (2) must be in
writing and concluded between –
(i) either the old employer, the new employer, or the old and new
employers acting jointly, on the one hand; and
(ii) the appropriate person or body referred to in section 189(1), on
the other.
(b) In any negotiations to conclude an agreement contemplated by
paragraph (a), the employer or employers contemplated in
paragraph (a), the employer or employers contemplated in
subparagraph (i), all relevant information that will allow it to
engage effectively in the negotiations.
(c) Section 16(4) to (14) applies, read with the changes required
by the context, to the disclosure of information in terms of
paragraph (b).
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(7) The old employer must –
(a) agree with the new employer to a valuation as at the date of
transfer of-
(i) the leave pay accrued to the transferred employees of the old
employer;
(ii) the severance pay that would have been payable to the
transferred employees of the old employer in the event of a
dismissal by reason of the employer’s operational
requirements; and
(iii) any other payments that have accrued to the transferred
employees but have not been paid to employees of the old
employer.
(b) conclude a written agreement that specifies –
(i) which employer is liable for paying any amount referred to in
paragraph (a), and in the case of the apportionment of liability
between them, the terms of the apportionment; and
(ii) what provision has been made for any payment contemplated
in paragraph (a) if any employee becomes entitled to receive a
payment;
(c) disclose the terms of the agreement contemplated in
paragraph (b) to each employee who after the transfer
becomes employed by the new employer; and
(d) take any other measure that may be reasonable in the
circumstances to ensure that adequate provision is made for
any obligation on the new employer that may arise in terms of
paragraph (a).
(8) For a period of 12 months after the date of the transfer, the old
employer is jointly and severally liable with the new employer to any
employee who becomes entitled to receive a payment contemplated in
subsection (7)(a) as a result of the employee’s dismissal for a reason
relating to the employer’s operational requirements or the employer’s
liquidation or sequestration, unless the old employer is able to show
that it has complied with the provisions of this section
(9) The old and new employer are jointly and severally liable in respect of
any claim concerning any term or condition of employment that arose
prior to the transfer.
(10) This section does not affect the liability of any person to be prosecuted
for, convicted of and sentenced for, any offence.”
for, convicted of and sentenced for, any offence.”
[27] In the matter of Foodgro v Kriel 2, the Labour Appeal Court (the LAC) noted
the argument that free and unrestricted transfers of business promoted
2 [1999] 9 BLLR 875 (LAC)
8
economic efficiency and development but held however that “the pursuit of
economic development by means of a particular interpretation and application
of the A ct is, however qualified by the injunction that it must be done…by
fulfilling the primary objects of the Act 3.” In particular section 197 is aimed at
protecting employees when businesses are sold or otherwise transferred. The
LAC further held that the transfer of contracts of employment follows
automatically upon the transfer of a business as a going concern. This
interpretation has been confirmed by the Constitutional Court4.
[28] In Kgethe and others v LMK Manufacturing (Pty) Ltd and another 5 the LAC
found that where employees had reason to believe that an agreement to
transfer the business of their employer might have been concluded, the
Labour Court has the power to order the disclosure of information bearing on
the existence or otherwise of the employees ’ rights in terms of section 197 of
the LRA.
[29] The test for the meaning of “transferred as a going concern” was formulated in
the context of English and European law and it is still good law for the South
African context, in Spikers v Gebroeders Benedik Abattoir v Alfred Benedik en
Zonet
6:
“The decisive criterion for establishing whether there is a transfer for the
purposes for the directive 7 is whether the business in question retains its
identity. Consequently a transfer of an undertaking, business or part of a
business does not occur merely because its assets are disposed of. Instead
it is necessary to consider…whether the business was disposed of as a going
concern, as would be indicated inter alia by the fact that its operation was
actually continued or resumed by the new employer, with the same or similar
activities. In order to determine whether those conditions are met, it is
necessary to consider all the facts characterizing the transaction in question,
including the type of undertaking or business , whether or not the business’s
including the type of undertaking or business , whether or not the business’s
tangible assets, such as buildings and movable property, are transferred, the
value of its intangible assets at the time of the transfer, whether or not the
majority of its employees are taken over by the new employer , whether or not
its customers are transferred and the degree of similarity between the
activities carried on before and after the transfer and the period, if any, for
which those activities carried on before and after the transfer and the period,
if any, for which those activities were suspended. It should be noted,
however, that all those circumstances are merely single factors in the overall
assessment which must be made and cannot therefore be considered in
isolation”.
[30] In Schutte and others v Powerplus Performance (Pty) Ltd and another8, it was
held that:
“the existence of a relationship between the [new employer] and the [old
employer], the in-principle agreement to sell the workshops, the terms of the
3 Ibid at para 11.
4 NEHAWU v University of Cape Town (2003) 24 ILJ 95 (CC).
5 [1998] 3 BLLR 248 (LAC).
6 [1086] CMLR 296 at para 37.
7 Acquired Rights Directive of the European Community (77/187/EEC)
8 [1999] 2 BLLR 169 (LC) at para 27
9
Working Agreement, the [new employer’s] employment of the majority of the
workshop employees, the use of the same premises, the continuation of the
same activities without interruption and the intended transfer of assets and
equipment indicate[d] that there was a transfer of a business as a going
concern within the meaning of section 197.
[31] On the interpretation of the concept of “a business”, my brother Van Niekerk J
held in Imvula Quality Protection and others v University of South Africa9 that:
“the Constitutional Court’ s judgements require that this court to avoid
confusing form and substance – the relevant enquiry is into the existence or
otherwise of a discrete economic entity in the form of the variety components
that go to make up a business , including assets, goodwill, workforce,
management staff and the manner in which the business is organized and
performed, the operational resources available to the business, and the like.”
[32] As to what constitutes “a transfer”, both Counsel in this application referred to
the Constitutional Court judgement in AUSA and another v SAA (Pty) Ltd and
others10, where it was found that the starting point is not the word “by” but the
identity of the “old” and the “new” employers. Thus, it is immaterial whether a
transaction is “first generation” or otherwise, the test is whether a business or
part of a business is transferred as a going concern from one employer to
another. The cancellation of the contract by SAA with the first -generation
sub-contractor, would give rise to the transfer of a business as a going
concern by the sub- contractor (now the “old employer”) . In the matter of
Harsco Metals SA (Pty) Ltd and another v Arcelormittal SA Ltd and others
11, it
was held that the cancellation of the applicant’s service agreements and the
replacement of the applicants by engaging others to conduct business
operations at various plants would trigger section 197.
operations at various plants would trigger section 197.
[33] As to what is “ part of any business, trade and, undertaking or service”, my
brother Francis12 J, as he then was, made the point that the term business in
section 197 “ carries a far wider meaning than the ordinary dictionary
definition” and that “service” includes the provision of “ assistance or benefit
provided to someone” and “an act” of helping or benefitting another”. That this
being so, the security and gardening services at issue were clearly a
“business” and the transport and warehousing functions to be transferred,
even if they did not constitute part of first respondent’s “business” within the
meaning of section 197, “certainly fall within the realm of a service”.
[34] The term “going concern” has been interpreted in various judgements and in
Maloba v Minaco Stone Germiston (Pty) Ltd and another
13, it was found that
the term conveys the facts the object of the transfer must have been a place
where people were working before the transfer and will continue to be a place
where people are working after the transfer . In Maluti-A-Phofong Local
9 [2017] 11 BLLR 1139 (LC) at para 6
10 [2012] 3 BLLR 211 (CC)
11 [2012] 4 BLLR 385 (LC). See also: King Cetshwayo District Municipality v Water and Sanitation
Services SA (Pty) Ltd [2025] 5 BLLR 460 (LAC).
12 FAWU v The Cold Chain (Pty) Ltd and another [2010] 1 BLLR 49 (LC) at para 25.
13 [2000] 10 BLLR 1191 (LC)
10
Municipality v Rural Maintenance (Pty) Ltd and another14, Davis JA confirmed
that it cannot be said that a business has been transferred as a going concern
unless the “new employer” is able to continue business seamlessly after the
transfer.
Applying the law to the facts
[35] A good start ideally would have been with reference to the SLA and the
contract between Ariston and Bridgewater. The parties, in their wisdom, have
not attached these two documents in their papers. The two documents
placed side by side would easily have provided an answer as to what is being
transferred, if any. In particular the Respondents having denied the
applicability of section 197, would have demonstrated with relative eas e as to
what services Bridgewater would be providing to Ariston and on what terms.
[36] The next document to be considered is the termination notice of 18 June
2025
15. In paragraph 2 of the notice Ariston gives formal notice of the
termination of the SLA . The termination is for the entire services in Cape
Town (effective 31 August 2025) and all other Territories (effective 28
February 2026) . In paragraph 5 the notice refers to a “ transition” and a
“takeover of services ”. It is clause 7 of the notice that is at the center of the
dispute in this matter where Ariston states that Siyasebenza is responsible for
its employees and any labour related matters arising from the termination.
[37] The question begs, what is it that is to be “transitioned”, if this was a clear-cut
termination without the continuation of the services. In clause 5 Ariston
makes the point that Siyasebenza is obliged to provide “Transition Assistance
Services” which includes “ cooperation in handing over operational data,
documentation and systems to Ariston or a designated service provider ”. The
use of the phrase “take over of services” is telling. Surely someone be it
Ariston or Bridgewater will be taking o ver the services from Siyasebenza.
Ariston or Bridgewater will be taking o ver the services from Siyasebenza.
This is not a sudden end of services where the termination ends the provision
of the service without anything else happening thereafter.
[38] Siyasebenza avers that the business or portion thereof which was transferred
from Ariston to Siyaseb enza in 2016 is the very same business, or portion
thereof that is to be transferred to Bridgewater from 1 March 2026. It is rather
strange that Ariston in its answer flatly denies the 2016 trans fer of business.
This flies in the face of its admission that a section 197 agreement was
entered into back then.
[39] The next document of relevance is the tender of 17 October 2025
16. Notably
the services include “dedicated delivery services” in various areas such as the
Free State, Gauteng, Mpumalanga and North West. There is also a
requirement for on site personnel based in Centurion. While Ariston argued
that these services differ from what Siyasebenza has been providing,
Siyasebenza argued that the issue was on the billing model.
14 [2016] 1 BLLR 13 (LAC) at para 37
15 Annexure “AJ3”
16 Annexure “AJ4”
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[40] Coming now to the most important part in this matter, the employees. Should
Ariston wash its hands off the 23 employees, the immediate consequence is
that Siyasebenza is not likely to accommodate them elsewhere. They will be
“a burden” to Siyasebenza to deal with. Siyasebenza did not cause the
situation that will arise from 1 March 2026, it is Ariston that did so. N ot only
did Ariston withhold the identity of Bridgewater until the 11 th hour, but Ariston
has not played open cards, it has withheld the details of its contract with
Bridgewater, thus placing Siyasebenza in an invidious position. In all of this
the 23 employees remain in limbo with an uncertain future from 1 March 2026.
This Court cannot look the other way in the face of what will turn out to be an
injustice to the innocent employees who are caught in the middle of “ the
warring” parties in this matter.
[41] In the light of the above and with the information that has been placed before
this Court, all indications point to a probable transfer of the business or part
thereof back to Ariston, alternatively to Ariston in respect of the warehousing
services and to Bridgewater in respect of the logistics services.
Urgency
[42] Ariston has disputed the urgency of this matter on the basis that the
termination notice was issued on 18 June 2025. That cannot be entirely true
on the facts that are common cause. Had nothing else occurred between 18
June 2025 and 4 February 2026, the point made by Ariston on the lack of
urgency would have been a valid one.
[43] It is common cause that:
43.1 The notice of termination was issued on 18 June 2025.
43.2 Ariston issued a tender for the provision of distribution services on 17
October 2025.
43.3 Siyasebenza requested a Transition Assistance Services meeting on
12 December 2025.
43.4 Siyasebenza was informed that its tender was unsuccessful on 17
December 2025.
43.5 Ariston requested a meeting with Siyasebenza for 16 January 2026.
December 2025.
43.5 Ariston requested a meeting with Siyasebenza for 16 January 2026.
43.6 Siyasebenza provided Ariston with a draft section 197 agreement on
13 January 2026.
43.7 Ariston confirmed that it would not take the affected employees in the
meeting of 16 January 2026.
43.8 Siyasebenza sought an undertaking for the protection of the affected
employees in terms of section 197 on 23 January 2026.
43.9 Ariston denied the applicability of section 197 on 27 January 2026.
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43.10 Ariston requested that cv’s of the employees be given to Bridgewater
on 30 January 2026.
43.11 Siyasebenza once again sought the undertaking that the employees
were protected in terms of section 197 on 30 January 2026.
43.12 Ariston persisted with its denial that section 197 was applicable on 2
February 2026.
43.13 Siyasebenza sought confirmation that Bridgewater will take over the
employees on 3 February 2026.
43.14 Bridgewater denied the applicability of section 197 on 4 February 2026.
43.15 Siyasebenza brought the application on or about 6 February 2026.
[44] There is no doubt that the above sequence of events show that Siyasebenza
sought to have the matter resolved to no avail. It became as clear as daylight
on 2 and 3 February 2026 that Ariston and Bridgewater respectively were
washing their hands of the affected employees and basically dug in their heels
on the matter.
[45] Accordingly, urgency has been established by Siyasebenza.
[46] In the premise the following order is made:
Order
1. The matter is heard as one of urgency.
2. The agreement concluded between Ariston and Bridgewater relating to
the transfer of logistic services from Siyasebenza to Bridgewater
constitutes a transfer of a business as a going concern as
contemplated by section 197 of the LRA.
3. The cancellation of the agreement relating to the provision of
warehouse services between Siyasebenza and Ariston constitutes a
transfer of a business as a going concern, as contemplated by section
197 of the LRA from Siyasebenza to Ariston.
4. The employees of Siyasebenza, as listed in Annexure A to the
Founding, Affidavit and forming part of the logistic services are
employees of Bridgewater effective from the effective date of the
transfer of the logistic services from Siyasebenza to Bridgewater with
no loss of benefits and the other consequences of a transfer
contemplated by section 197(2) of the LRA also take effect from that
date.
contemplated by section 197(2) of the LRA also take effect from that
date.
5. The employees of Siyasebenza, as listed in Annexure A to the
Founding Affidavit, forming part of the warehouse services are
employees of Ariston, alte rnatively of Bridgewater, with effect from the
date of transfer of the warehouse services from Siyasebenza to
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Ariston, alternatively to Bridgewater, with no loss of benefits, and that
the other consequences of a transfer contemplated by section 197(2)
of the LRA also take effect from that date.
6. The Respondents are to conclude, by no later than 26 February 2026,
a written agreement contemplated in section 197(7) of the LRA with
Siyasebenza along the lines set out in Annexure “AJ1” to the Founding
Affidavit.
7. Ariston is to disclose to Siyasebenza by no later than 26 February
2026, the agreement concluded between Ariston and Bridgewater
relating to the logistic and/or warehouse services transfer.
8. The Respondents are to bear the costs of the application jointly and
severally the one paying the other to be absolved.
_______________________
M. Mkhatshwa
Acting Judge of the Labour Court of South Africa
14
Appearances:
For the Applicant : Mr P Kirstein
Instructed by : Izak J Croukamp Inc.
For the First and Second Respondents : Mr A Cassiem