Employees' Rights and the Sale of Businesses
| Published date | 01 January 1987 |
| Date | 01 January 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02562.x |
JAN. 19871
NOTES
OF
CASES
89
may do, One is the claim that the Homelands are not independent
of
South Africa and
so
South Africa had not done what it
purported to when it created the Homelands, which supports the
reasoning in However, that defect is a contingent one,
capable
of
being cured
if
the Homelands do in fact become
independent
of.
South Africa.” There is a more complex attack on
the Homelands, that being established for the furtherance
of
the
policy
of
apartheid and by violating the principle
of
self-
determination, their creation does constitute a breach
of
South
Africa’s obligations and, more difficult to establish, does require
other states not to recognise them.22 If it be thought that this is too
convoluted an approach .for the Commercial Court, at least it
ought to have considered the argument that it should have
disregarded the South African Status
of
Ciskei Act 1981 because it
is incompatible with English public policy, falling within Lord
Cross’s category in
Oppenheimer
v.
CattermoleZ3
of
a law which
“constitutes
so
grave an infringement
of
human rights that the
courts
of
this country ought to refuse to recognise it as a law at
all.” These questions ought to have been canvassed and, if the
arguments were made out, acted upon, just as the alleged limits
of
Soviet authority in East Germany should have been taken notice
of
in
Carl Zeiss.
If the courts want to depart from the rigidities on the non-
recognitionlnon-cognisance
rule, it surely would be better if they
addressed the whole matter rather than build yet further complexity
into
Curl
Zeiss.
If they do not, then the first answer given by the
F.C.O.
in
Cur
was quite adequate to dispose
of
the issue.
COLIN WARBRICK*
EMPLOYEES’
RIGHTS
AND
THE
SALE
OF
BUSINESSES
WHEN rereading the literature published and the comments made
on the introduction
of
the Transfer
of
Undertakings Regulations
1981
(No.
1794) one is struck by an ever increasing weariness on
the part
of
all concerned, by a feeling that here was much
complexity and little progress. Recent cases would seem to confirm
such a view.
The General Assembly Resolution refers
to
the “so-called ‘independence’” of
Ciskei-G.A.Res. 361172 para. 9. Crawford,
The Creafion
of
States in International Law
(1979), p.226, expresses some doubts whether the lack
of
actual independence
of
the
Transkei is substantially uifferent from that
of
other geographical
or
economically
disadvantaged territories which have been recognised as states.
”
Transkei has made attempts
to
demonstrate its independence but there remain other
indications
of
South Africa’s continuing claims
of
authority in the homelands in matters
of
nationality and in its negotiations with Swaziland about the title
to
some
territory
of
the homelands.
‘*
Crawford,
op. cif.,
note 20 above, p.120; Shaw,
Tide
lo
Territory
in
Africa
(1985),
pp.191-192; G.A.Res. 38139A, para. 11.
21
I19751 1 All E.R. 538, 567.
*
Law Department, University of Durham.
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