R v Tavares

JurisdictionSouth Africa
Citation1968 (3) SA 348 (RA)

R v Tavares
1968 (3) SA 348 (RA)

1968 (3) SA p348


Citation

1968 (3) SA 348 (RA)

Court

Rhodesia, Appellate Division

Judge

Macdonald AJP and Jarvis AJA

Heard

March 28, 1968

Judgment

May 24, 1968

Flynote : Sleutelwoorde

Master and servant — Industrial conciliation — Building industry — 'Painting and decorating' in clause 1 (3) (a) of Part II of agreement published in G.N. 58 of 1962 (R), as amended — Meaning of.

Headnote : Kopnota

The term 'painting and decorating' which occurs in clause 1 (3) (a) of Part II of the agreement published in Government Notice 58 of 1962 (R) H and amended by Government Notice 42 of 1967 in respect of the building industry, must be construed in the disjunctive sense and a person who is employed in the trade or class of work of either painting or decorating qualifies for the minimum wage and for the appropriate cost-of-living allowance prescribed in the agreement.

Case Information

Appeal from a conviction in a magistrate's court. The facts appear from the reasons for judgment.

H. G. Squires, for the appellant.

J. A. R. Giles, for the Crown.

1968 (3) SA p349

Cur adv vult.

Postea (May 24th).

Judgment

A Jarvis, A.J.A.:

The appellant in this case pleaded guilty and was found guilty on three counts of contravening certain sections of the Industrial Conciliation Act, Chap. 246. On the first count he was convicted of contravening sec. 110 (1), as read with sec. 132 (c), of the Act, in that as an employer in the building industry he failed to pay to a journeyman, employed by him as a painter, the minimum hourly B wage prescribed in an agreement published in Government Notice 58 of 1962. On the second count he was convicted of contravening the same sections of the Act, in that he failed to pay to the same person the cost-of-living allowance prescribed in the same agreement. On the third count he was convicted of contravening sec. 114 (1), as read with secs. C 114 (5) and 132 (c) of the Act, in that he failed to keep records of the remuneration paid and of the time worked by the employee as prescribed by the Act. For the purposes of sentence counts 1 and 2 were treated as one and the appellant was sentenced to pay a fine of £15 or, in default of payment, to undergo 15 days' imprisonment with hard labour and on the D third count he was sentenced to pay a fine of £10 or, in default of payment, to undergo ten days' imprisonment with hard labour. In addition, the magistrate made an order in terms of sec. 111 (1) of the Act in the sum of £273 2s., the amount determined to have been underpaid,.

E The appellant originally appealed against conviction and sentence and the order but at the hearing the appeal was confined to conviction only and was based on the broad submission that on the evidence the complainant did not fall within the terms of the agreement published in Government Notice 58 of 1962.

The particular provisions of the agreement alleged to have been F contravened are those contained in clause 1 (3) (a) and (d) of Part II of the agreement, as amended by Government Notice 42 of 1967, which read as follows:

'1. Wages.

(1) Contracts of employment to do work for which an hourly minimum wage is laid down in this agreement shall be entered into on an hourly basis.

.....

G (3) No employer shall pay, and no journeyman shall accept, wages at hourly rates lower than -

(a)

7s. 9d. in respect of the following trades and classes of work:

...................................

4. Painting and decorating.

..................................

(d)

In addition to the wages laid down in sub-clause (2) and in paras. (a), (b) and (c) of this sub-clause, a cost-of-living H allowance..... on the following basis:'

It is unnecessary to set out how the allowance is calculated.

The term 'journeyman' is defined in clause 3 of the agreement as meaning any employee performing one of the trades or classes of work for which wages are prescribed in terms of clause 1 (3) (a) of Part II of this agreement (quoted above).

The argument submitted on behalf of the appellant was this. In order to succeed, the Crown must prove that the complainant was employed

1968 (3) SA p350

Jarvis AJA

by the appellant in the trade or class of work designated 'painting and decorating'. The terms were to be interpreted...

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1 practice notes
  • Elstein v Feinberg, NO, and Others
    • South Africa
    • Invalid date
    ...he spent in giving evidence obviously cannot be regarded as time spent in qualifying, but Mr. Shrand is in another category. The time he 1968 (3) SA p348 Van Zijl spent in Court listening to Professor Greenwood giving evidence is time spent by him in qualifying. The Taxing Master should, th......
1 cases
  • Elstein v Feinberg, NO, and Others
    • South Africa
    • Invalid date
    ...he spent in giving evidence obviously cannot be regarded as time spent in qualifying, but Mr. Shrand is in another category. The time he 1968 (3) SA p348 Van Zijl spent in Court listening to Professor Greenwood giving evidence is time spent by him in qualifying. The Taxing Master should, th......

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