Revisiting the factual test in s 197 transfers (Harsco Metals South Africa (Pty) Ltd AA v Arcelormittal South Africa Ltd AO [2011] ZALCJHB 116)

Posted: January 23, 2012 in Uncategorized
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Van Niekerk J, with the benefit of the Constitutional Court judgment in AUSA v SAA & Others, revisited the factual test applicable to the transfer of a business as a going concern.

In this regard and at para [37] Van Niekerk J held that:-

1. “The fact that Phoenix and Tube City will not take transfer of the plants is an important factor, but not in itself an overriding one”.

2. “the factual circumstances particularly to be taken into account in determining whether the conditions for a transfer of whole or part of a business as a going concern for the purposes of s 197 are met are primarily”

2.1. “the degree of similarity of the activity carried on before and after the transfer and the type of undertaking concerned”, and

2.2. “the question whether or not the majority of the employees are to be taken over by the new employers”.

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