Manoim v Veneered Furniture Manufacturers

• Jurisdiction: South Africa
• Judge: Wessels CJ, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 29 March 1934
• Citation: 1934 AD 237
• Hearing Date: 16 March 1934
• Court: Appellate Division

Wessels, C.J.:

This is an appeal from the Witwatersrand Local Division. In the court below the plaintiff (who is a cabinet-maker) claimed from the defendant the sum of £155 2s.. 6d. This amount is made up of 263 4s which the plaintiff claims in his own right, and £91 18s. 6d. to which he claims to be entitled by virtue of cessions from other persons who were also employed by the defendants either as cabinet-makers or cabinet-polishers. The plaintiff alleges that both he and the persons whose rights to wages have

Wessels, C.J

been ceded to him were all employed by the defendants either as cabinet-makers or as a cabinet-polishers at a wage less than the minimum wage fixed for such workers either under the Industrial Conciliation Act of 1924 as amended or the Wage Act of 1925 as amended. The sum of £155 2s.. 6d. is the difference between what the plaintiff and the others were entitled to under these Acts and the amount paid to them by the defendants. The defendants pleaded that the plaintiff and the persons who ceded their rights to wages were employed by the defendants under service agreements "whereunder it was agreed that the plaintiff and the said cessionaries were to be paid rates of wages less than the statutory minimum specified in the Industrial Conciliation Act and the agreements thereunder and in the Wage Act and the determination thereunder." The defendants paid, and the plaintiff and the cedents accepted, the wages stipulated in their agreements which were less than the minimum statutory rates.

A criminal action was instituted against the defendants on account of these agreements and underpayments, and they were found guilty, convicted and sentenced, but no order was made for payment by defendants to plaintiff or to the other persons above mentioned of any amount in respect of the said underpayments.

The defendants then allege that for the reasons set out no civil claim can be maintained by the plaintiff against the defendants. To this plea the plaintiff excepted as being bad in law and disclosing no defence. The true import of this exception is that the plaintiff contends that he can maintain a civil action against the defendants for the difference between the minimum wage fixed for the occupation of cabinet-maker and cabinet-polisher and the lesser amount agreed upon in the various agreements made with the defendants by the plaintiff and those who ceded their rights to him. In other words the Court is asked to decide whether the Industrial Conciliation Act, 11 of 1924, sec. 9, as amended by Act 24 of 1930, sec. 7 and the Wage Act, 27 of 1925, sec. 8, as amended by Act 23 of 1930, sec. 7, exclude a civil action by an employee to recover the amount of wages underpaid him in terms of these statutes where he has agreed with the employer to work for wages below the prescribed minimum.

This very question arose under the Wage Act in the Natal Provincial Division and in the Transvaal Provincial Division. In the

Wessels, C.J.

Transvaal, in the case of Donner v Yzelle (1932 T.P.D. 253) the Supreme Court decided that no civil action could be maintained for the difference, whilst in Natal, in Gebela v Banks (1931 NPD 346) the Supreme Court held that a civil action could be maintained. As these two cases were both decided on the Wage Act, I shall deal with that Act first.

In terms of the Wage Act as amended, a wage determination was published in the Government Gazette of 3rd October, 1930 (Notice No. 1812), by which a minimum wage of £6 6s per week was fixed for adult male cabinet-makers employed as such in the magisterial district of Johannesburg. The plaintiff agreed with the defendants to do the work for less. For making such an agreement the defendants were prosecuted under the Wage Act, but they were not ordered to pay plaintiff anything under sec. 8 of the Act, and the question for us to decide is whether the plaintiff can sue civilly for the difference between 16 6s per week and what he got.

Sec. 8, as amended, reads as follows: -

"8. (1) After the publication in the Gazette of any notice under sub-sec. (4) of sec. 7 or sub-sec. (3) of sec. 7 (a) determining any wage, rate or other matter, every employer in any trade or any section thereof on and after the date designated in the notice and in any area designated shall pay to each of his employees of any class designated a wage or rate not lower than that determined clear of all deductions except those specified in the determination and every such employer and employee shall comply with all other terms and conditions determined.

"(2) (a) Any employer who contravenes sub-sec. (1) of this section shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one hundred pounds. (b) If such offence consisted of the payment of a wage or rate to any employee who is or was employed by him lower than that determined as aforesaid the Court convicting such employer may also order him to pay into the Court an amount equal to the difference between the amount of the wage or rate actually paid by him to such employee and the rate or wage which he should have paid in accordance with such determination over a period not exceeding one year and the Court may further direct that the whole of such amount, or such part thereof not being less than one quarter as the Court deems

Wessels, C.J.

equitable having regard to the circumstances under which underpayment took place, shall be paid to such employee, and that any balance of such amount shall be paid into the Consolidated Revenue Fund. (c) Any order made by a Court under the provisions of paragraph (b) shall have all the effects of and may be executed as if it were a civil judgment in favour of the Crown.

"(3) No contract and no agreement express or implied shall operate to permit of the payment of any wage or remuneration in money, or in kind lower than that determined or of any term or condition in any other respect less favourable to the employee than that determined; any employer and...