Kubheka and Another v Imextra (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Botha J
• Judgment Date: 16 May 1975
• Citation: 1975 (4) SA 484 (W)
• Court: Witwatersrand Local Division

Botha, J.:

The applicants were formerly employed by the respondent. The respondent dismissed them from their employment on 26 November 1974. They now seek an order, in terms of their notice of motion:

"Declaring the respondent's dismissal of the applicants to be null and void as being in contravention of sec. 1 of the Bantu Labour Relations Act of 1953, as amended, read with sec. 24 of the said Act, and reinstating the said applicants in their former employment with the respondent for such period and subject to such conditions as this Honourable Court may determine;

Botha J

alternatively

reinstating the applicants in their former employment with the respondent pending the determination of the prosecution of the respondent for contravention of sec. 24 of the said Act in respect of the dismissal of the said applicants and any order A that may be made by the Court in terms of sec. 24 (2) of the said Act."

The correct citation of the Act on which the applicants rely, is the Bantu Labour Relations Regulation Act, 48 of 1953. Sec. 24 reads as follows:

"(1)

Any employer who, whether or not any order is binding upon him under this Act, dismisses any employee B employed by him or reduces the rate of his remuneration or alters the conditions of his employment to conditions less favourable to him or alters his position to his disadvantage relatively to other employees employed by such employer, by reason of the fact that he suspects that:

(a)

....

(b)

....

(c)

such employee has participated in the C establishment or election or the activities, or functioned as chairman, secretary or member, of a liaison committee, co-ordinating words committee or words committee, or has participated in the activities, or functioned as a member, of a regional committee,

shall, whether or not the suspicion or belief is justified or correct, be guilty of an offence and liable on conviction to a fine not exceeding 300 or to imprisonment for a period not exceeding two years or to such D imprisonment without the option of a fine or to both such fine and such imprisonment.

(2)

The court which convicts any person of an offence under sub-sec. (1), may in addition to any sentence which it may impose in respect of that offence, order him to reinstate, for such period and subject to such conditions as it may determine, the employee whose dismissal, or the reduction of the rate of whose remuneration, or the alteration of whose position, was E subject of the charge of which he was convicted, or may order him to pay to that employee compensation, not exceeding 200, for loss suffered by that employee, or may order both such reinstatement and the payment of such compensation, and any such order for reinstatement or compensation shall have the effect or of a civil judgment in favour of that employee."

The applicants allege that they were dismissed by the F respondent by reason of the fact that they had actively participated in attempts to procure the establishment of a works committee for the employees of the respondent. They say that they were victimised by the respondent because of their efforts to have a works committee established, and that their dismissal accordingly constituted a contravention of sec. 24 (1) of the Act by the respondent.

The applicants' allegations as to the reason for their G dismissal are strenuously disputed by the respondent. It is common cause that the factual disputes between the parties cannot be resolved on the papers before me, and that the application must be referred to trial, unless it falls to be dismissed at this stage by virtue of either of two preliminary arguments addressed to me on behalf of the respondent.

H It was argued in limine on behalf of the respondent, in the first place, that the remedy of an employee dismissed in contravention of sec. 24 (1) of the Act, to be reinstated in his employment, as provided for in sub-sec. (2), was limited exclusively to criminal proceedings resulting in a conviction of the employer; that the applicants had no right to institute civil proceedings such as the present, for the enforcement of the remedy in question; and that accordingly the application should be dismissed for that reason.

In support of this argument, counsel for the respondent used as his starting

Botha J

point the well known passage in Madrassa Anjuman Islamia v Johannesburg Municipality, 1917 AD 718 at p. 227:

"If it be clear from the language of a statute that the Legislature, in creating an obligation, has confined the party complaining of its non-performance, or suffering from its breach, to a particular remedy, such party is restricted A thereto and has no further legal remedy; otherwise the remedy provided by the statute will be cumulative."

It was contended that sec. 24 created new rights and obligations for an employee and an employer, which did not exist in the common law. In particular, sub-sec. (1) created a limitation on an employer's common law right to dismiss his B employer with due notice in terms of the contract, and sub-sec. (2) created a liability on the part of the employer to submit to an order for specific performance of the contract at the instance of the employee, which was unkown at common law. As authority for the last-mentioned submission counsel relied upon Schierhout v Minister of Justice, 1926 AD 99 at p. 107; C Ngwenya v Natalspruit Bantu School Board, 1965 (1) SA 692 (W); Gründling v Beyers and Others, 1967 (2) SA 131 (W) at p. 146A - H (see also Roberts Construction Co. Ltd. v Verhoef, 1952 (2) SA 300 (W) at p. 305 top).

Counsel for the applicants disputed the correctness of the aforementioned approach to this matter, on a number of grounds. D He contended that there was no absolute rule against ordering specific performance of a contract of emloyment against an employer who had wrongfully dismissed his employee. Relying on Schierhout's case, supra, Venter v Livini, 1950 (1) SA 524 (T) at p. 528, and Myers v Abramson, 1952 (3) SA 121 (C) at pp. 123B - 124B, he argued that an employer is not entitled to terminate the contract of employment unilaterlly; a purported E termination in breach of the employee's rights remains an unlawful act on the part of the employer, whether or not specific performance is to be allowed; although the courts would not ordinarily decree specific performance of the contract, the right to claim specific performance does exist in principle, and in certain circumstances a court may decide to F exercise its discretion in favour of ordering specific performance, more particularly where the...