Greatex Knitwear (Pty) Ltd v Viljoen and Others, NNO

• Judge: Kuper J, Hiemstra J and Jansen J
• Judgment Date: 02 May 1960
• Citation: 1960 (3) SA 338 (T)
• Hearing Date: 17 March 1960
• Court: Transvaal Provincial Division

Kuper, J.:

The first respondents (to whom I shall hereinafter refer as 'the tribunal') are the members of the industrial tribunal, a body established in terms of the Industrial Conciliation Act, 28 of 1956. One of its functions is to determine any question referred to it by the fifth respondent (to whom I shall hereinafter refer as 'the Minister') in terms of sec. 76 (1) (a) of the Act

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'as to whether any employer or employee, or class of employers or employees is engaged or employed in a particular undertaking, industry, trade or occupation.'

On the 20th May. 1957, the tribunal received the following reference from the Minister:

'In terms of para. (a) of sub-sec. (1) of sec. 76 of the Industrial Conciliation Act, 28 of 1956, I, Johannes de Klerk, Minister of Labour, hereby refer to the Industrial Tribunal for determination the question A whether the employers who are associated with their employees for the purpose of

(a)

the manufacture of all classes of knitted outer and under garments and/or components thereof;

(b)

the assembling of such components into complete garments;

(c)

the making of garments mentioned in para. (a) above from knitted materials;

in the Province of the Transvaal, are engaged in the 'clothing industry' as defined in Government Notice 2360 dated 21st December 1956.'

B On the 10th March, 1958, the tribunal determined the question in the following terms:

'It is hereby determined that in the Province of the Transvaal and with effect from Monday 29th September 1958, an employer who is associated with his employers for the purpose of

(a)

the manufacture of all classes of knitted outer and under garments and components thereof;

(b)

C the assembling of such components into complete garments;

(c)

the making of garments mentioned in para. (a) above from knitted materials

is engaged in the 'clothing industry' as defined in Government Notice 2360 of the 21st December 1956 except to the extent to which he

(i)

knits complete garments as such or components of garments;

(ii)

makes garments from components knitted by himself and which D garments or components do not require marking-in or cutting for the purpose of assembling; or

(iii)

manufactures hosiery.'

The appellant is a member of an employers' organisation registered under the provisions of the Act in respect of the 'knitting industry' and is an employer in that industry. The appellant applied for an order E declaring that the determination was null and void and of no force and effect and setting the same aside, but the application was dismissed. It is against that order that the present appeal has been brought.

The first ground of attack formulated by the appellant was that the tribunal instead of determining only the question referred to it and no other, dissected the knitting industry into various processes or F activities and determined that certain processes or activities came within the clothing industry and the others outside such industry. It was therefore contended that the tribunal misconceived the nature of the question referred to them as well as their functions and duties under sec. 76 of the Act and failed to appreciate the nature of the discretion granted to them, and that through a mistaken interpretation of the G question and of sec. 76 the tribunal assumed a jurisdiction which was in excess of that conferred upon it by the section.

It is clear, of course, from the terms of the determination that any one employer may fall both within and without the clothing industry and that H this would depend on whether or not his processes included the marking-in or cutting for the purpose of the garments or the assembly of component parts. The chairman of the tribunal put the position in the following manner:

'In the present case the tribunal was convinced that it could not unqualifiedly answer 'yes' or 'no' to the question submitted to it. On the facts before it, the tribunal found that the employers associated with their employees for the purpose of . . . (as set out in the question) were engaged in the clothing industry, except in regard to certain activities which it considered to be non-clothing

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manufacturing activities as described in clauses (i), (ii) and (iii) of the determination. The tribunal could not, on the facts before it, have decided that the employers in the knitting industry were in no way engaged in the clothing industry. Such a finding would, in the view of the tribunal, have been in conflict with the facts, and inequitable. An unqualified finding that such employers were, as far as all their A activities were concerned, in fact engaged in the clothing industry, would similarly, in the view of the tribunal have been in conflict with the facts, and inequitable.'

The tribunal therefore determined the matter on the basis of the classes of work on which the employer was engaged, and the consequence was that a particular employer would in respect of one class of work fall within B the clothing industry and in respect of another class of work performed in the same premises and by the same employee fall outside that industry. The issue is whether such a finding was competent in terms of the question referred to the tribunal or of the section.

It was conceded by Mr. Oshry who appeared on behalf of the appellant C that the question should be read as though it contained three questions and not one, in other words that parts (a), (b) and (c) should be read disjunctively. He further agreed that the word 'all' where it appeared in part (a) should be read as meaning 'any'. So read, Mr. Oshry contended the question was put in the same terms as the section namely whether the particular classes of employers mentioned in the reference D were engaged in a particular industry namely the clothing industry.

Act 28 of 1956 repealed the Industrial Conciliation Act, 36 of 1937. One of the innovations introduced by the 1956 Act was the establishment of the industrial tribunal and this tribunal was entrusted with some of the functions previously performed by the Minister. Sec. 76 (1) of the 1937 Act provided that

E 'whenever in the application of the Act, there is, in the opinion of the Minister, a doubt as to whether in any area

(a)

any employer, employee, class of employers of employees is engaged or employed in; or

(b)

any class of business or work or any operation or process falls within, a particular undertaking, industry, trade or occupation in respect of which . . . the Minister may, if he deems it expedient to do so, determine the matter.'

F Para. (a) is in almost the same terms as the present para. (a), the operative words in respect of employer, class of employer, engaged in a particular undertaking, industry, trade or occupation being identical. It is clear that when the 1937 Act was introduced para. (b) was regarded G as a matter additional to para. (a) and as not falling within its scope. In my view this approach is in accordance with the ordinary meaning of the words. On the one hand the emphasis is upon a particular group of employers having regard to the general nature of their engagement and a consequent determination whether that group falls within a certain industry, and on the other hand regard is paid exclusively to the actual H work done in order to determine whether that work should be treated as falling within a particular industry. In the 1956 Act para. (b) was not re-enacted and it is clear that Parliament when dealing with two parts of a single provision cannot be supposed to have lost sight of the one when dealing with the other (see Rex v Sisilane, 1959 (2) SA 448 (AD) at p. 453). The omission to re-enact para. (b) must have been deliberate. The learned Judge in the Court a quo came to the conclusion that para. (b) was repealed because para. (a) is wide enough to 'cover

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also those cases contemplated by para. (b) of the previous Act'. The learned Judge came to this conclusion, because, he said

'I am of opinion that the word 'class' in sec. 76 (1) (a) of Act 28 of 1956 is used in the same sense as it was used in Padsha's case, 1923 AD 281 at p. 290, v...