Rex v Beerman

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Greenberg JA and Schreiner JA
• Judgment Date: 11 December 1947
• Citation: 1948 (1) SA 954 (A)
• Hearing Date: 19 November 1947
• Court: Appellate Division

Schreiner, J.A.:

The appellant was charged, in his capacity of secretary and representative of E. K. Green and Company Limited, a corporate body, before a magistrate with five contraventions of the Shops and Offices Act, 41 of 1939, which I shall call 'the Act'. The contraventions were of sec. 4 (1) (d), sec. 4 (1) (i) (three counts) and sec. 6 (1), in each case read with the penalty sec. (20). The five counts related to the hours of work, and payment therefor, during the years 1943 to 1945, of an employee named Kiley, who was at all material times employed as salesman and manager in a bottle store belonging to the company, at a salary of £30 per month, plus cost-of-living allowance. The appellant was convicted on all counts and fined 10s., with the alternative of four days' imprisonment, on each count. The Cape Provincial Division dismissed an appeal to it but granted leave to the appellant to appeal to this Court.

At no stage have the facts been in dispute, the sole issue being whether the provisions of secs. 4 and 6 of the Act applied to the employment of Kiley. He was an employee within the definition of that term in the Act, but there has existed at all times since December, 1939, a Wage Determination (No. 70) applicable to the commercial distributive trade,. including bottle stores, in the area in which he was employed; and sec. 2 (4) (a) of the Act provides:

'2. (4) (a) The provisions of sections four, five, six and eight of this Act shall not apply to or in respect of any employee whose hours of work are regulated by an agreement, notice or award, published or made, or deemed to have been published or made, under the Industrial Conciliation Act, 1937, or by a determination, made, or deemed to have been made under the Wage Act, 1937, whether or not such agreement, notice, award or determination has been published or made before or after the commencement of this Act.'

If, therefore, Kiley's hours of work were regulated by Wage Determination No. 70 he did not fall under secs. 4 or 6 of the Act and the appellant was wrongly convicted in respect of his hours of work or the payment therefor.

The Determination, which in terms applies to all employees in the commercial distributive trade in certain areas, does in clause 5 regulate the hours of work of employees, inter alia in bottle stores, in the area where Kiley's place of employment was situated; but sub-clause (9) of the clause provides:

Schreiner JA

'(9) Savings - (a)...