MRL3701 ASSIGNMENT 2 SEMESTER 1&2 OF 2021

Insolvency Act of 1936 Section 9(4A) provides that when a petition is presented to the court, the petitioner must furnish a copy of the petition i. to every registered trade union that, as far as the petitioner can reasonably ascertain, represents any of the debtor's employees; and ii. to the employees themselves  by affixing a copy of the petition to any notice board to which the petitioner and the employees have access inside the debtor’s premises; or  if there is no access to the premises by the petitioner and the employees, by affixing a copy of the petition to the front gate of the premises, where applicable, failing which to the front door of the premises from which the debtor conducted any business at the time of the presentation of the petition. In terms of this provision, there is no distinction between domestic employees and other business employees therefore employees include domestic employees. In Stratford case Paragraph 331 , it was held that in terms of section 38(1)of the Insolvency Act, “employees”, it envisages all employees including domestic employees. In Stratford v Investec Bank Ltd 2015 (3) SA 1 (CC)2 the Constitutional Court had ruled that, in terms of in section 9(4A), domestic employees must also receive notification of the provisional or final winding up of their employer’s estate and in so doing would also further secure their rights in labour law with such circumstances would result in their dismissal due to operational requirements. Section 197B of the LRA requires an employer who is facing financial difficulties that may reasonably result in the winding up or voluntary sequestration must advise a consulting party contemplated in Section 189(1) of the Act with a copy of the application. Given that an employer who finds himself in a position unable to afford the salaries of his employees including his domestic employees who for that reason would need to be dismissed for operational requirements of the employer (this would fall under economic needs of an employer). The Court therefore found that when Section 197B prescribes that an employer must provide a copy of the sequestration application to a “consulting party” contemplated in Section 189(1) of the LRA, “consulting party” applies to employees in both a domestic and a business context. Notice prevents a situation where employees would show up at work and suddenly find out that they can no longer render their services or receive remuneration. Notice at an earlier stage, before a provisional sequestration order, will not only warn an employee of the tumultuous financial state of the employer, but also meaningfully enable employees to find alternative jobs or make alternative arrangements. These are the virtues of being informed of the possibility of a sequestration. Notice, ultimately, signifies respect for the human dignity of employees.3 It therefore follows that Mr Sting, should notify all domestic employees about the application. To interpret the statute as including domestic employees will protect their dignity in situations where their employers face sequestration. This interpretation better promotes the spirit, purport and objects of the Bill of Rights. Also, it will give them timeous notice and an opportunity to re-arrange their affairs going forward. 1 See Paragraph 33 of Stratford and Others v Investec Bank Limited and Others [2014] ZACC 48 2 Stratford and Others v Investec Bank Limited and Others [2014] ZACC 48 3 Paragraph 33 of Stratford and Others v Investec Bank Limited and Others [2014] ZACC 48 Downloaded by: vanstrijp | Distribution of this document is illegal This study source was downloaded by from CourseH on :44:26 GMT -05:00 This study resource was shared via CourseH S - The Marketplace to Buy and Sell your Study Material We are not associated with any university or college. We do not promote any activities which break academic integrity rules of any university or college For more assistance with other assessments (any module) Powered by TCPDF () Downloaded by: vanstrijp | Distribution of this document is illegal This study source was downloaded by from CourseH on :44:26 GMT -05:00