R v Smit

• Jurisdiction: South Africa
• Judge: Steyn J and Watermeyer AJ
• Judgment Date: 10 August 1954
• Citation: 1955 (1) SA 239 (C)
• Hearing Date: 02 August 1954
• Court: Cape Provincial Division

D Watermeyer, A.J.:

The appellant was convicted in the magistrate's court of trespass in contravention of sec. 7 (12) of Act 27 of 1882 (Cape). He was sentenced to pay a fine of £1 or to undergo 7 days' imprisonment with compulsory labour. Against this conviction he has noted the present appeal.

Appellant was one of about 800 employees of the Wolseley Fruit Canning E Company, a canning factory at Wolseley. After commencing work at the usual time on the 19th January, 1954, the appellant and about a half of the other employees refused to continue their duties after the 9 a.m. break: they then gathered on enclosed premises belonging to the Company and adjoining the factory. Their refusal to work was because of F dissatisfaction concerning the dismissal a few days earlier of one Annie McKenzie and of two other employees. They stayed on the enclosed premises till about 6 p.m. when they left but returned the next morning and remained there until about 6 p.m. At about 5 p.m. however, on the 20th January, 1954, one Delport, the managing director of the Company, and as such vested with the control of the employees and of the G Company's affairs, notified the appellant and the other employees who refused to work that they were dismissed from service and told them that they could draw their wages from the pay-master. Notwithstanding this notification the appellant and the others returned at about 6.30 a.m. the next day, but before their entry upon the premises Delport caused all the employees of the Company to be warned that only those of them H who were willing to work would be allowed on the premises and that entry for the others who were unwilling to work was forbidden. Notwithstanding this warning appellant and others again proceeded to the enclosed portion of the Company's

Watermeyer AJ

premises where they stayed and refused to work. At about 10.40 a.m. Delport instructed the appellant and the other non-workers to vacate the premises within 10 minutes which they refused to do. Later that same morning, and whilst still on the premises, the appellant and about 342 other employees were arrested.

A At appellant's trial he gave the following evidence:

'Ek het gehoor wat almal alreeds gesê het. Toe ek op die 19de, 20ste en 21ste Januarie op die perseel was, het ek myself nog beskou as 'n werker van die fabriek. Ek was bereid om terug te gaan as Annie McKenzie, Rachel Williams en Magrieta Sibastiaan terug in diens geneem word. Ek was altyd van mening dat die moeilikhede geskik kon word.

Deur P.A. Ek het op 20.1.54 gehoor dat mnr. Delport ons ontslaan het en B dat hy gesê het: 'Kom haal julle geld'. Op 21.1.54 het ek gehoor mnr. Benjamin sê dat die persone wat gekom het om te werk, kan hulle oorklere aantrek maar dié wat nie kom werk nie, mag nie op die perseel kom nie. Ek het ingegaan omdat ek myself as 'n werker beskou het. Ek het nog my overall aangehad. Ek het nie gaan werk nie en op die perseel gebly.'

The offence prescribed by sec. 7 (12) of Act 27 of 1882 is

'wilfully trespassing in any place, and neglecting or refusing to leave such place after being warned to do so by the owner or occupier, or any C person authorised by or on behalf of the owner or occupier'.

In order to secure a conviction of the appellant the Crown had to prove a wilful and unlawful entry upon the Company's premises and a refusal to leave when warned to do so. In the present case it is common cause that there was a warning and a refusal to leave, but Mr. Gordon, who appeared D for the appellant, contended that the Crown had failed to prove that the appellant was not entitled to enter upon the Company's premises at 6.30 a.m. on the morning of 21st January. Mr. Gordon based this contention upon three grounds. He submitted, firstly, that the appellant took part in a 'strike', as defined in sec. 1 of Act 36 of 1937, and E that the Crown had failed to prove that the 'strike' was illegal. Secondly, he argued that Delport's purported dismissal of the appellant on the 20th January, constituted a 'lockout' as defined in sec. 1 of Act 36 of 1937, and that as the Crown had failed to prove that the 'lock-out' was legal it was a reasonable possibility that the purported dismissal was in contravention of sec. 65 of Act 36 of 1937 and thus of F no force and effect. If the contract of employment was never lawfully terminated, so the argument continued, the appellant had the right to enter upon the Company's premises. Thirdly, Mr. Gordon submitted that in any event the appellant's contract of employment was never lawfully or effectively terminated at...