RTMC should take employees who worked for Tasima when it took over eNaTIS: ConCourt
The Constitutional Court held on Tuesday that Tasima staff who were employed to manage the electronic national administration traffic information system (eNaTIS) should be deemed to be Road Traffic Management Corporation (RTMC) employees from April 2017.
The court dismissed an appeal by the RTMC against a labour court order passed in May 2018 which declared that the contracts of employment of 80 Tasima employees transferred automatically from Tasima to the RTMC, in accordance with the provisions of section 197 of the Labour Relations Act.
The section states that if a transfer of a business takes place, the new employer is automatically substituted in the place of the old employer in respect of all contracts of employees in existence immediately before the date of transfer.
The RTMC disputed that when it took over the eNaTIS from Tasima in April 2017, there was a transfer of a business as a going concern. It did not want to take over those contracts.
The matter goes back to 2001 when Tasima was awarded a tender by the department of transport to provide services relating to a road traffic management system known as eNaTIS.
eNaTIS enables the department to regulate and administer the licensing of all vehicles, driving licences, vehicle roadworthiness tests as well as the general implementation of road traffic legislation in SA.
This contract ran until the high court in Pretoria declared it invalid with effect from June 2015.
Tasima was eventually evicted from the premises from which the eNaTIS system was operated, on April 5 2017. The RTMC then took over the running of eNaTIS.
The latest dispute is whether the Tasima employees should be transferred to the RTMC in terms of section 197 of the Labour Relations Act.
The labour court agreed with Tasima that the employees' contracts should be taken over by the RTMC in 2017. So did the labour appeal court a year later.
The RTMC approached the Constitutional Court, which on Tuesday dismissed its appeal.
Justice Leona Theron, in a majority judgment in which five other judges concurred, held that Tasima was a special purpose vehicle whose main purpose was the development, operation, maintenance and management of eNaTIS.
Theron said Tasima was structured only to perform functions in relation to eNaTIS and related services, it employed at least 80 people to perform these functions and all assets were used solely to perform these functions.
“It is that business that has transferred in its entirety to the RTMC,” said Theron.
A minority judgment by justices Chris Jafta, Sisi Khampepe and Nonkosi Mhlantla, in which chief justice Mogoeng Mogoeng concurred, disagreed with the majority judgment.
“The only thing that exchanged hands was the eNaTIS system itself, a product that was produced by Tasima for the state in terms of the tender that was awarded to Tasima,” it argued.
“Accordingly, on the present facts there can be no basis for concluding that there was a transfer of business.”
RTMC spokesperson Simon Zwane said the entity was still studying the judgment.