Khazamula Samuel Miyambu and Others v Steve Tshwete Local Municipality and Another

In 2023, the Mpumalanga Department: Community Safety, Security and Liaison (the Province) gave notice to Steve Tshwete Local Municipality (the Municipality) that it intended to take over the licensing department. On 31 January 2024, a director from the Province held a meeting with staff to discuss salary offers. The Municipality transferred the Licensing Department to the Province on 30 June 2024. The four Applicants, who had been employed in the licensing department for between 15 and 28 years, had misgivings about their employment contracts and attempted to engage with senior management but were unsuccessful. After 30 June 2024, the Applicants continued to tender their services and attend the Municipality's premises but were not paid from July 2024 onwards. The Municipality gave new contracts of employment to commence on 1 January 2025, which the Applicants refused to sign as they believed this would disregard their past service. On 7 January 2025, the Municipality gave notice to the Applicants to vacate the premises. The Applicants then launched an urgent application seeking payment of outstanding salaries from July 2024 to December 2024, details of the Municipality's assets and liabilities prior to transfer, and the transfer agreement. The application was not opposed by the Province.

• Whether the application met the requirements for urgency
• Whether confirmatory affidavits that were initially omitted but later filed should be admitted into evidence
• Whether an application filed during the dies non period (16 December to 15 January) could be entertained as urgent
• Whether the transfer of the licensing function constituted a transfer of business under section 197 of the Labour Relations Act
• Whether the Applicants were entitled to payment of salaries where they tendered their services but were not permitted to work
• Whether financial hardship could constitute grounds for urgency

The court ordered: (1) Non-compliance with forms and service condoned and matter heard as urgent in terms of rule 38; (2) The First Respondent to immediately pay outstanding salaries from July 2024 to December 2024 and continue payment pending determination of Part B to be instituted within 30 days; (3) Costs reserved. The court varied its original order by excising prayers 2, 3 and 4 which had been granted in error.

The binding legal principles established are: (1) In a transfer of business under section 197 of the LRA, the new employer is automatically substituted for the old employer in respect of all employment contracts, with all rights and obligations continuing and no interruption to continuity of service. An employer cannot avoid these protections by offering new contracts that disregard past service. (2) The right to remuneration arises from the tendering of services, not from actual performance of work. Where an employee tenders services and the employer is aware of the employee's presence and engages with them, the employee is entitled to remuneration. (3) Failure to pay remuneration within seven days after completion of the period for which it is payable, as required by section 32(3) of the Basic Conditions of Employment Act, constitutes a breach of statutory duty. (4) While financial hardship alone does not ordinarily constitute grounds for urgency, in exceptional circumstances where combined with other factors such as an employer's statutory non-compliance and the unavailability of timely relief in ordinary course, it can justify treatment of a matter as urgent.

The court made several non-binding observations: (1) The regulations under the Justices of Peace and Commissioners of Oaths Act are directory rather than imperative, and substantial compliance is sufficient; (2) The dies non period (16 December to 15 January) in the Rules of the Labour Court does not apply to urgent applications, otherwise the need for urgency in courts would fall away; (3) In urgent matters, contraction of the periods for filing pleadings is inherently contemplated and not prejudicial where accompanied by condonation; (4) In assessing urgency, not all factors (clear right, irreparable harm, balance of convenience) need to be present, and prominence of a single factor can bolster urgency; (5) The test for urgency does not begin and end with whether the applicant can obtain substantial redress in due course - this is only one factor among others including whether reasons for urgency are set out with sufficient cogency and whether it would be in the interests of justice to entertain the application; (6) "Due course" in the context of the Labour Court's case load is a speculative concept; (7) The fact that an employee is to receive higher remuneration from a new employer does not detract from lack of compliance with section 197's statutory requirements.

This case is significant in South African labour law for several reasons: (1) It reinforces the mandatory nature of section 197 of the LRA regarding transfers of business, confirming that employers cannot bypass its protections by offering new contracts that disregard employees' past service and accumulated rights; (2) It affirms that tendering of services, rather than actual performance of work, gives rise to the right to remuneration; (3) It demonstrates that financial hardship, while not ordinarily grounds for urgency on its own, can in exceptional circumstances combined with other factors justify urgent relief, particularly in the context of non-payment of salaries; (4) It shows the court's willingness to use its discretion to grant urgent relief in salary disputes where ordinary relief would not be readily available given court backlogs; (5) It illustrates the application of the principle of substantial compliance with procedural requirements in the interests of justice.