THE LABOUR APPEAL COURT OF SOUTH AFRICA, GQEBERHA
Case No: PA11/2024
In the matter between:
SOUTH AFRICAN POST OFFICE SOC LIMITED Appellant
and
JANINE WENDY JAMIESON Respondent
Heard: 05 March 2026
Delivered: 05 June 2026
CORAM: MAHALELO ADJP, COLLIS et MOSHOANA AJJA
JUDGMENT
________________________________________________________________
MAHALELO, ADJP
Introduction
[1] This is an appeal by the South African Post Office SOC Limited (“the
appellant”) against the whole judgment of the Labour Court delivered on
22 September 2023. The Labour C ourt declared unlawful the a ppellant’s
intended disciplinary proceedings against the respondent, ordered the
2
appellant not to release the r espondent from employment in terms of an
approved voluntary severance package (“VSP”), and directed the
appellant to process and implement the VSP payment.
[2] Although several issues were argued, this Court finds it unnecessary to traverse
them all because the appeal must succeed on a dispositive point: namely,
section 133(1) of the Companies Act 1 (the Companies Act) , which imposes a
statutory moratorium on legal proceedings against a company under business
rescue.
[3] The appellant contended that the Labour Court lacked jurisdiction to grant
such relief because the a ppellant was in business rescue at the time, and
the proceedings were instituted without the consent of the Business
Rescue Practitioners (“BRPs”) or leave of the High Court, as required by
section 133(1) of the Companies Act.
[4] The appeal was opposed by the r espondent, Ms Janine Wendy Jamieson,
who argued that section 133 does not apply to the relief sought, which she
characterised as an interdict against disciplinary proceedings and an order
to comply with a VSP agreement, not a claim against the company’s
property or enforcement of a debt.
Factual background
[5] The respondent was employed by the a ppellant as a Branch Manager for
26 years. On 31 March 2023, she applied for a voluntary severance
package.
[6] On 26 April 2023, the a ppellant informed the r espondent that her VSP
application was approved, with an exit date of 31 May 2023.
1 Act 71 of 2008.
3
[7] On 4 May 2023, the respondent submitted her termination documents. On
the same day, she was booked off sick by her psychiatrist until 31 May
2023.
[8] On 9 May 2023, the a ppellant served the r espondent with a notice of
possible suspension for gross negligence. Later that same day, the
appellant informed her that the VSP approval was subject to a pending
investigation and had been retracted pending the outcome of that
investigation.
[9] On 5 July 2023, the a ppellant notified the r espondent that she had
absconded. On 17 July 2023, she received a notice to attend a disciplinary
hearing on 19 July 2023.
[10] Critically, the a ppellant had been placed under business rescue in
July 2023, before the respondent launched her application in the Labour
Court. The BRPs were not cited as parties, and neither their consent nor
leave of the High Court was obtained.
[11] The respondent then instituted urgent proceedings in the Labour Court.
The court a quo granted interim relief on 19 July 2023, later confirmed on
22 September 2023.
Legal principles: Section 133 of the Companies Act and labour matters
[12] Before addressing the application of section 133 to the facts of this case, it
is necessary to set out the relevant legal principles and authorities,
particularly as they pertain to proceedings in the Labour Court and
disputes arising from employment relationships.
The statutory framework
[13] Section 133(1) of the Companies Act provides:
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“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 control, 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; (c) as a set- off against a claim made
by the company in any legal proceedings, irrespective whether those
proceedings commenced before or after the business rescue proceedings
began; (d) criminal proceedings against the company or any of its
directors or officers; or (e) proceedings concerning any property or right
over which the company exercises the power of trustee, ”
[14] The term “court” in section 133 is defined in section 128(1)(d) of the
Companies Act as “ a Division of the High Court of South Africa”. The
Labour Court is established under section 151 of the Labour Relations
Act
2 (the LRA) and is not a Division of the High Court. Consequently, the
Labour Court is not the “court” contemplated in section 133(1) for the
purpose of granting leave to proceed.
[15] Section 133(1) provides for certain exceptions, including:
15.1 Criminal Proceedings.
15.2 Proceedings concerning any officeholder in the company.
15.3 Proceedings by the BRP in the exercise of his or her functions.
15.4 Proceedings concerning any property not belonging to the company
but lawfully in its control, where the person claiming an interest in
that property gives notice to the BRP.
[16] None of these exceptions applies to the present case. The r espondent’s
application was not a criminal proceeding, did not concern an officeholder ,
was not brought by the BRP, and did not concern third-party property.
2 Act 66 of 1995, as amended.
5
The purpose of the moratorium
[17] The moratorium in section 133 serves a critical purpose in the business
rescue regime. In Chetty t/a Nationwide Electrical v Hart and Another
NNO3 the court held:
“Section 128(1)(b) of the Act defines business rescue to mean
proceedings that facilitate the rehabilitation of a financially distressed
company by providing, amongst other things, for the temporary
supervision and moratorium on the rights of claimants, and the
development and implementation of a plan to rescue the company. The
obvious purpose of placing a company under business rescue is to give it
breathing space so that its affairs may be assessed and restructured in a
manner that allows its return to financial viability…”
[18] Once business rescue proceedings commence, there is an automatic and
general moratorium on legal proceedings or executions against the
company.
4
The reach of the moratorium: What constitutes a “ legal proceeding against the
company”?
[19] The Companies Act does not define the phrase “ legal proceedings ” as
provided for in section 133, however, academics have expressed the view
that the clear intention of the provision is to “ cast the net as wide as possible
in order to include any conceivable type of action against the company…” 5
[20] The Supreme Court of Appeal in Chetty t/a Nationwide Electrical v Hart and
Another NNO6, held as follows in respect of its analysis of the meaning of the
phrase “legal proceedings” in terms of section 133:
3 Chetty v Hart [2015] ZASCA 112; 2015 (6) SA 424 (SCA); [2015] 4 All SA 401 (SCA) at para 18.
4 Cassim et al Contemporary Company Law at p 878.
5 P Delport, ‘Henochsberg on the Companies Act 71 of 2008’, LexisNexis South Africa at p 526.
6 Chetty Supra f(n) 3 at para 35.
6
‘To conclude this analysis, the phrase 'legal proceeding' may, depending
on the context within which it is used, be interpreted restrictively, to mean
court proceedings or, more broadly, to include proceedings before other
tribunals, including arbitral tribunals. The language employed in s ection
133(1) itself suggests that a broader interpretation commends itself, an
approach with which academic commentators concur. Contextual
indications in s 142(3)(b), and the importance of reading these provisions
consistently, also support this interpretation. And finally, the purpose of
the provision, which is to give breathing space to the practitioner to get
the company's financial affairs in order, also requires it to be construed
widely because arbitrations, like court proceedings, also involve diversion
of resources, both time and money , that may hinder the effectiveness of
business rescue proceedings. To construe it narrowly, as the court a quo
did, and as the respondent contends we should, would be at odds with its
language, defeat its purpose and lead to insensible and impractical
consequences.’
[21] In Timasani (Pty) Ltd and another v Afrimat Iron Ore (Pty) Ltd 7 the court
held:
‘Section 133 must be read as a whole: the different subsections of a
provision dealing with the same subject matter must not be considered in
isolation but read together so as to ascertain the meaning of the
provision. Section 133 (1) is a general moratorium provision that applies
in relation to the assets and liabilities of the company at the stage when
business rescue comes into effect. It protects the company against legal
action in respect of claims in general, save with the written consent of the
business rescue practitioner and failing such consent, with the leave of
the court. This Court has stated the purpose of section 133 (1) as follows:
“It is generally accepted that a moratorium on legal proceedings against a
company under business rescue is of cardinal importance since it provides
company under business rescue is of cardinal importance since it provides
the crucial breathing space or a period of respite to enable the company to
7 Timasani (Pty) Ltd (in business rescue) and Another v Afrimat Iron Ore (Pty) Ltd [2021] 3 All SA
843 (SCA) at para 25.
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restructure its affairs. This allows the practitioner, in conjunction with the
creditors and other affected parties, to formulate a business rescue plan
designed to achieve the purpose of the process.’’
[22] Academics have also theorised that ‘legal proceedings’ would conceivably
include proceedings before bodies such as the Consumer Commission
and the Competition Commission.
8
[23] In Burba v Integcomm (Pty) Limited 9, the applicant employee had referred
an unfair dismissal dispute following his dismissal for operational
requirements. His referral was served and filed in June 2012. In July 2012,
the respondent employer delivered its statement of defence opposing the
applicant’s claim, and on 11 September 2012, by way of court order, the
respondent employer was placed in business rescue in terms of Chapter 6
of the Companies Act. The referral to this court was made some three
months before the High Court order was made. The High Court inter alia
ordered that “during business rescue proceedings no legal proceedings,
including enforcement action against [the respondent employer]… may be
commenced or proceeded with in any forum except… with the written
consent of the aforesaid [BRP]; with the leave of the court and in
accordance with any terms the court considers suitable…”
[24] The Labour Court in Burba, having considered the contents of the High
Court order, the wording and purpose of section 133 and the interpretation
of the phrase ‘legal proceedings’ as contained in Henochsberg held that:
‘In the circumstances, the unfair dismissal proceedings cannot be
proceeded with except with the written consent of the business rescue
practitioner or with the leave of the Court.’
10
And further that:
8 Henochsberg ibid at p 526.
9 Unreported judgment under case no JS539/13 delivered on 29 November 2013 at para 6.
10 Burba Ibid at para 14.
8
It follows then that as the unfair dismissal proceedings in this Court are
covered in the words “legal proceedings … in any forum” in section
133(1) of the Companies Act, the proceedings must be stayed and not
proceeded with except… with the written consent of the BRP; or with the
leave of the High Court that granted the High Court order.’’11
Do labour disputes enjoy a special exemption from section 133
[25] The respondent argued, in effect, that labour matters are sui generis and
that the Labour Court’s exclusive jurisdiction over unfair labour practices,
dismissals, and related disputes should exempt such matters from the
moratorium.
[26] This argument has been squarely rejected in Burba as the unfair dismissal
proceedings were stayed pending fulfilment of the exceptions as set out in
section 133(1), which included a High Court order granting leave to
proceed with the litigation.
[27] In National Union of Metal Workers of South Africa obo Members v
Motheo Steel Engineering
12 the court was again approached to determine
whether an application brought against a company in business rescue was
stayed in accordance with section 133. The Labour Court (per Lagrange J)
held that:
‘In terms of s 210 of the Labour Relations Act, 66 of 1995 a matter dealt
with in that Act prevails over the provisions of any other law save the
Constitution or any Act expressly amending it. I am satisfied that s 133(1)
of the Companies Act 71 of 2008 does not expressly amend the
provisions of the LRA, and insofar as it might otherwise prevent legal
proceedings without the leave of a court or the relevant business rescue
partner, it does not prevent the applicant bringing this application.’
11 Ibid at para 17.
12 [2014] ZALCJHB 315 (7 February 2014) at para 1.
9
[28] In effect, in Motheo, the Court accepted that the provisions of section 133
did not prevent the applicant from approaching the Labour Court on
application.
[29] Although not decided in the context of dismissal, Sondamase and Another
v Ellerine Holdings Ltd and Another
13, provided guidance in determining
labour disputes in the case of business rescue proceedings. In
Sondamase, the applicant employees had lodged a grievance alleging
discrimination, victimisation and unfair labour practices and referred their
dispute to the Commission for Conciliation, Mediation and Arbitration in
July 2014. Their dispute was unresolved at conciliation, and the
employees referred their matter to the Labour Court. On 7 August 2014,
Ellerines Furnishers commenced with business rescue proceedings and
on 21 August 2014, Ellerines Holdings did the same. The respondents
raised a special plea that section 133 of the Companies Act had placed a
general moratorium on all legal proceedings, including the proceedings
before the Labour Court and that, as no consent had been provided by the
BRP nor had the High Court granted an order allowing the employees to
proceed with their dispute, the dispute before the Labour Court had been
suspended.
[30] The Court agreed with the judgment of Burba and upheld the special plea.
[31] Insofar as there has been conflicting jurisprudence on the application of s
133 of the Companies Act to disputes arising out of the LRA, it appears to
have been settled by the decision of the
Supreme Court of Appea l in
Chetty14. In that case, the Supreme Court of Appeal interpreted section 133
to place a moratorium, not only on legal proceedings in court, but even in
arbitration proceedings. Cachalia JA took a purposive approach:
13 [2016] ZALCCT 53 (22 April 2016) at paras 15 – 16.
14 Chetty Supra f(n) 3 at para 26 – 27.
10
“[26] But the question the respondent is unable to answer is why the
lawmaker would want the company to provide details of all proceedings,
including arbitration proceedings, to a practitioner, but exclude
arbitrations from the ambit of the moratorium and the obligation to obtain
a practitioner's consent in s 133(1)(a). After all , the outcome of an
arbitration by way of award is usually that the losing party has to pay a
sum of money, which is the outcome of most court actions involving
commercial disputes. In my view the answer lies in properly
understanding the purpose of these provisions as they apply to business
rescue proceedings and the consequences that flow from the parties'
contending interpretations
[27] Section 5(1) of the Act directs that its interpretation and application
must give effect to the purpose stated. Section 7(k) is relevant here. It
says that one of these purposes is 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…”
[32]
The only potential exception, which is not applicable here, is where the
proceeding does not seek any relief against the company itself, for
example, a dispute between two employees that does not involve the
company, or a claim against a third party. The present proceeding sought
orders directly against the appellant, a company in business rescue.
Non-joinder of the BRP as a fatal defect
[33] Even if the Labour Court had jurisdiction, the failure to join the BRP s is a
separate, fatal defect. In Oakdene Square Properties (Pty) Ltd v Farm
Bothasfontein (Pty) Ltd15 the court held that a BRP is a necessary party to
any proceeding against a company in business rescue because the BRP
alone has authority to manage the company’s affairs.
15 Oakdene Square Properties (Pty) Ltd and Others v Farm Bothasfontein (Kyalami) (Pty) Ltd and
Others [2013] ZASCA 68; 2013 (4) SA 539 (SCA); [2013] 3 All SA 303 (SCA).
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[34] The respondent did not cite the BRPs. She did not seek their consent. She
did not apply to the High Court for leave. The proceedings were therefore
fatally flawed from their inception.
Application to the present case
[35] Applying these principles to the facts of the present case, the following
conclusions are inevitable:
[36] First, the appellant was in business rescue when the r espondent launched
her application in the Labour Court. The BRPs were in place and were
managing the company’s affairs.
[37] Second, the r espondent did not obtain the written consent of the BRPs
before commencing proceedings. She did not even cite them as parties.
[38] Third, the respondent did not apply to the High Court for leave to proceed
under section 133(1). The Labour Court is not the “court” contemplated in
that section and could not grant such leave.
[39] Fourth, the relief sought by the r espondent, an order declaring the
disciplinary hearing unlawful, an order releasing her from employment,
and an order compelling the processing and payment of the VSP ,
constitutes a “ legal proceeding against the company ”. Each of these
orders would require the appellant, under the management of the BRPs, to
take action or refrain from action affecting its affairs.
[40] Fifth, none of the statutory exceptions in section 133(2) apply. This is not a
criminal proceeding. It does not concern an officeholder . It was not
brought by the BRP. It does not concern third-party property.
[41] Sixth, the respondent’s characterisation of the relief as “interdictory” rather
than “monetary” is immaterial. An interdict compelling the company to
desist from disciplinary proceedings is a legal proceeding against the
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company. An order compelling the processing of a VSP is an enforcement
action.
[42] The court a quo, therefore, erred in holding that section 133(1) did not
apply. The Labour Court lacked jurisdiction to entertain the application.
The proceedings were a nullity.
Non-joinder and irregularity
[43] Even if the jurisdictional point were decided differently, the failure to join
the BRPs is fatal. The BRPs are the statutory representatives of the
company during business rescue. Any order against the company affects
the BRPs’ management of the rescue. The BRPs were necessary parties.
Their non- joinder renders the proceedings irregular and the order
unenforceable.
[44] The court a quo ought to have dismissed the application on this ground
alone.
The validity of the VSP agreement and other grounds
[45] In light of the conclusion on the section 133 point and non- joinder, it is
strictly unnecessary to decide the other grounds of appeal, including
whether a valid VSP contract was concluded and whether the Respondent
was entitled to severance pay under section 41(4) of the Basic Conditions
of Employment Act
16.
[46] However, for completeness, I note that the a ppellant raised a serious
argument that no valid VSP contract was concluded because the
necessary line manager’s signature was absent and because the
respondent had already secured alternative employment from 1 June 2023
as well. These are matters that would ordinarily require determination by
16 Act 75 of 1997.
13
the Labour Court. However, since the Labour Court lacked jurisdiction to
entertain the matter at all, I express no final view on them.
Conclusion
[47] The court a quo erred in holding that section 133(1) of the Companies Act
did not apply. The a ppellant was in business rescue. The r espondent
commenced legal proceedings against the appellant without the consent
of the BRPs or leave of the High Court. The Labour Court accordingly
lacked jurisdiction to grant the relief sought.
[48] The failure to join the BRPs is an additional, independent ground for
setting aside the judgment.
[49] The appeal must therefore succeed. The judgment and order of the
Labour Court are set aside. The rule nisi in the court a quo should have
been discharged
Costs
[50] The appellant seeks costs , including senior counsel on scale C.
Considerations of fairness and the L aw dictate that there should be no
order as to costs.
[51] In the result, the following order is made:
Order
1. The appeal is upheld with no order as to costs.
2. The judgment and order of the Labour Court delivered on
22 September 2023 under case number P72/2023 is set aside and
substituted by the following:
2.1. The rule nisi is discharged.
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2.2. There is no order as to costs.
_____________________
M B. Mahalelo
Acting Deputy Judge President of the Labour Appeal Court
Collis et Moshoana AJJA concurs
15
APPEARANCES:
For the Appellant : Adv P. Tshavhungwe
Instructed by: Koka Attorney
For the Respondent : Adv. Simoyi
Instructed by: Hexana Attorneys