Vonnisbespreking : Quo vadis ondernemingredding? National Union of Metalworkers of South Africa obo members v South African Airways (SOC) Limited (in business rescue) saaknr. J424/20 (AH)

Abstract

Quo vadis business rescue? The South African Airways (SAA) has been in business rescue since December 2019. During the rescue process, the business rescue practitioners gave SAA employees a section 189(3) notice to dismiss on grounds of operational requirements in terms of the Labour Relations Act 66 of 1995. In South African Airways Van Niekerk J of the Labour Court held that it was procedurally unfair to issue such a notice before a business rescue plan was tabled in terms of the Companies Act 71 of 2008. This decision was confirmed by Phatshoane J of the Labour Appeal Court. The authors review the historical period during which labour law has influenced the fields of insolvency and company law before they consider whether the Labour Court was correct in its interpretation of the Companies Act. We also mention instances where the Labour Appeal Court placed the emphasis on particular aspects. The South African Airways case is yet another example of where the courts had to grapple with the alignment of the provisions of different legal disciplines and the decisions provide suggestions to business rescue practitioners and policy makers following this ruling.