Thesis (LLM (Mercantile Law))--University of Stellenbosch, 2007. / The freedom to transfer an undertaking is part of the employer’s freedom of contract. The
transferee of an undertaking under the common law has the right to choose whether he wants to
contract with employees or not.
By the implementation of section 197 of the Labour Relations Act (1995) and the amended
sections 197, 197A of the Labour Relations Act (2002) the legislator provides for an automatic
transfer in cases where the undertaking is transferred as a going concern. The former accordance
with the regulations of the insolvency law and the fact that sequestration or the winding-up of an
insolvent undertaking had to be to the advantage of the creditors was lost after the legislative steps
of 1995.
The effects of the above-mentioned sections and especially the problems regarding the transfer of
insolvent undertakings shall be analysed in this thesis. It is the aim of this thesis to examine how
sections 197, 197A of the Labour Relations Act and section 38 of the Insolvency Act should be
applied and interpreted to achieve social justice. This makes it necessary to examine the history
and development of the South African law of transfer of an insolvent undertaking too.
Section 197 of the Labour Relations Act is mostly based on European law. Although it is not the
intention of this thesis to compare the European law with the South African law, several South
African aspects will be examined from a European and especially German perspective.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:sun/oai:scholar.sun.ac.za:10019.1/2248 |
| Date | 03 1900 |
| Creators | Spree, Wolfgang |
| Contributors | Stevens, Richard, University of Stellenbosch. Faculty of Law. Dept. of Mercantile Law. |
| Publisher | Stellenbosch : University of Stellenbosch |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis |
| Format | 994665 bytes, application/pdf |
| Rights | University of Stellenbosch |
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