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.
