Mabaso and Others v Nel's Melkery (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Goldstone AJ
• Judgment Date: 15 June 1979
• Citation: 1979 (4) SA 358 (W)
• Hearing Date: 13 June 1979
• Court: Witwatersrand Local Division

Goldstone AJ:

The 24 applicants in this matter are all employees of the respondent. On 10 May 1979 a rule nisi was issued by HUMAN J in B consequence of an urgent ex parte application. In terms of that order the respondent was called upon to show cause why it should not be interdicted from dismissing all or any of the applicants in this matter by reason of their participation in the establishment or election or the activities of a works committee. Other supplementary relief was also granted.

C On the return date, which was Wednesday of this week, Mr Schutz, who appeared with Mr Burger for the respondent, argued in limine that this Court has no jurisdiction to grant the relief which has been claimed by the applicants. It is in the interest of justice to adjudicate this primary question in limine and indeed Mr Leveson, who appeared with Mr D Gautschi for the applicants, consented to such a procedure.

The basis for the relief claimed by the applicants is to be found in the provisions of s 24 (1) of the Bantu Labour Relations Regulations Act 48 of 1953, to which I shall refer, for convenience, as "the Act". That section, in so far as it is relevant in the present matter, reads as follows:

"24 (1) Any employer who, whether or not any order is binding upon him E under this Act, dismisses any employee 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 or believes that:

(c)

such employee has participated in the establishment or election or the activities... of a works committee

F 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 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 ss (1) may in addition to any sentence which it may impose in respect of that offence, G 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 the 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 H have the effect of a civil judgment in favour of that employee."

At common law an employee is not entitled to an order for specific performance against his employer, the effect of which will instate or reinstate him in his employment. This extends to relief by way of interdict or other declaratory order granted in respect of dismissal: Gründling v Beyers and Others 1967 (2) SA 131 (W) at 147D and the authorities there cited. This was indeed common cause between counsel.

On behalf of the applicants it was pointed out that a contravention by an employer of the provisions of s 24 (1) of the Act is a criminal offence,

Goldstone AJ

punishable as set out above. It was submitted that this statutory provision was enacted for the protection and benefit of employees and a...