The transfer of undertakings with specific reference to the transfer of insolvent undertakings - an evolution of the South African law

[摘要] The freedom to transfer an undertaking is part of the employer's freedom of contract. Thetransferee of an undertaking under the common law has the right to choose whether he wants tocontract with employees or not.By the implementation of section 197 of the Labour Relations Act (1995) and the amendedsections 197, 197A of the Labour Relations Act (2002) the legislator provides for an automatictransfer in cases where the undertaking is transferred as a going concern. The former accordancewith the regulations of the insolvency law and the fact that sequestration or the winding-up of aninsolvent undertaking had to be to the advantage of the creditors was lost after the legislative stepsof 1995.The effects of the above-mentioned sections and especially the problems regarding the transfer ofinsolvent undertakings shall be analysed in this thesis. It is the aim of this thesis to examine howsections 197, 197A of the Labour Relations Act and section 38 of the Insolvency Act should beapplied and interpreted to achieve social justice. This makes it necessary to examine the historyand 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 theintention of this thesis to compare the European law with the South African law, several SouthAfrican aspects will be examined from a European and especially German perspective.

[发布机构] Stellenbosch University