Rex v Joffe and Another

• Jurisdiction: South Africa
• Judge: Millin J, and De Villiers J
• Judgment Date: 23 September 1946
• Court: Transvaal Provincial Division
• Hearing Date: 23 September 1946
• Citation: 1950 (3) SA 251 (T)

F Millin, J.:

The appellant, as representing a company called Transvaal Clothing Pressers (Pty.), Limited and in his individual capacity as a director, was convicted of contravening War Measure 145 of 1942 by G failing to pay employees of the company wages and cost-of-living allowances on the scale of the award of an arbitrator made and published in terms of secs. 3 and 7 of War Measure 9 of 1942. This last is the War Measure considered in Thomas Clark & Son (Pty.), Ltd v Minister of Justice and Minister of Labour (1944 TPD 309).

H Regs. 3, 4, 5, 6, 7, 9, 10 and 11 of this War Measure are incorporated into War Measure 145 of 1942 and that is why, evidently, the charge alleges that the arbitrator's award was made and published under Regulations of War Measure 9 of 1942, which has, in fact, quite a different scope. War Measure 145 of 1942 provides, in Reg. 2 of the Annexure, that:

'Whenever the Minister is of the opinion' - i.e., the Minister of Labour - 'that a labour dispute affecting employees exists or may arise in any industry,

Millin J

trade or undertaking, he may appoint one or more arbitrators (hereinafter referred to as the arbitrator) to settle all matters which form or might form the subject of such a dispute in such industry, trade or undertaking and in such area or areas as may be specified by the Minister. When making such appointment the Minister may define the limits of the industry, trade or undertaking concerned.'

A But the word 'employees' in this Reg. 2 has got a special meaning which appears from the definition in Reg. 1:

'Employee' means any person employed by or working for any employer and receiving or being entitled to receive any remuneration, and includes any other person whatsoever who in any manner assists in the carrying on or conducting of the business of an employer, but does not B include any person falling within the definition of 'employee' contained in section one of the Industrial Conciliation Act, 1937, or any person referred to in sub-sec. (2) of section two of the said Act in respect of the employment described therein, and 'employed' and 'employment' have corresponding meanings.'

C The result of this is that the only persons who are left within the definition of Reg. 1 of the War Measure are the persons in the various categories excluded from the definition of 'employee' in sec. 1 of Act 36 of 1937. Thus, broadly speaking, the only persons who are included in the definition of 'employee' in Reg. 1 of the War Measure are persons who are under contracts of service or labour which are regulated by the D various statutes enumerated in the definition of 'employee' in sec. 1 of Act 36 of 1937. These are, of course, in the main natives.

Reg. 2 must be read with Reg. 4. Reg. 4 says:

'The arbitrator may apply all or any of the provisions of his award to persons who are employees as defined in section one of the Industrial E Conciliation Act, 1937, and to the employers of such person, if in his opinion it is necessary to do so in order to ensure that the objects of the award are attained.'

This gives power to apply the provisions of an award in favour of parties to the dispute who would be employees as defined in Reg. 1 to F persons who are outside the definition, that is to say, employees in general whose contracts are not contracts of service or labour governed by the statutes mentioned in sec. 1 of Act 36 of 1937, and if one reads these two Regulations together - Regs. 2 and 4 - then I think it is correct to say that the disputes, actual or potential, which are G contemplated by Reg. 2 are disputes between employees defined in Reg. 1 and their employers and it is not possible, as the...