MASTER AND SERVANT

PAULINE LIPSON

Mrs, Lipson is Director of the Legal Aid Bureau of Johannesburg.

I n dealing with the laws of master and ser- notice and contracts for a week require a
* vant we must first establish who and what week's notice. This must be given by the par-
are servants. A servant is a person w h o sub- ty who wishes to put an end to the contract.
jects himself to t h e supervision and direction There are certain circumstances where a
of his employer — who is of course "the mas- contract can be cancelled without notice.
ter" — and is engaged to obey the employer's Generally speaking, any conduct whether
orders, not only as to the things lie has to do, wilful and deliberate, or otherwise, by either
but also as to the time and manner in which party, which is incompatible with the obliga-
he has to do them. tions he has undertaken is sufficient grounds
Contracts of service fall into two classes* for ending the contract.
those which are governed by the provisions of The party who, by his conduct, makes it
t h e statutes relating to masters and servants, impossible to continue the relationship of
and those which fall under the common law. master and servant gives the other person
The most important difference between the grounds for immediate cancellation without
two is that a breach of contract by a statutory any notice being given or received. This ap-
servant can lead both to a criminal charge and es both to the master and to the servant
a civil claim for damages whereas the breach who in this case has the same right to
bv a common law servant can lead only to terminate the contract summarily if the master
a civil claim. fails to carry on due date, or if the master
T h e definition of the word servant for the insists on a servant doing work which clearly
purpose of master and servant laws is a very was not contemplated in the original contract
wide one — it includes, and I quote, "an) — the servant has the right to leave the job
person employed for hire wages or other re- without giving prior notice.
muneration to perform any handicrafts or anv A servant also has certain rights if the
other bodily labour in agriculture or manu- master summarily terminates the contract
facture or in domestic services - - or as a por- without any justification. If a master dismisses
ter, boatman or other occupation of a like a servant without giving notice — and with-
n a t u r e . " This definition was laid down in out justification —- the servant has a right
the Transvaal in law 13 of 188(1. A contracl to claim damages. These damages would be
of service can be entered into without any writ- the amount of salary or wages he would have
ten formality and it can be for an indefinite earned had the employment lasted until the
or a stipulated period. contract had expired — this would be, of
Where a servant is engaged to do one parti- course, either one week or one mouth's notice,
cular piece of work, the contract naturally so h e could claim one week or one month's
comes to an end on completion of the work wages in lieu of notice.
but the master can put an end to the contract A master has the right to summarily cancel
and can dismiss the servant before the work is the contract on certain grounds. T h e most
finished if the servant is dilatory and prolongs common ground is the negligence or dishon-
the job beyond t h e lapse of reasonable time esty of a servant, and wherever a servant's
for finishing. behaviour is such that it amounts to a repu-
Without doubt one of the most important diation of his obligations to perform his duties
aspects of a master-servant contract is the ques- faithfully and truly.
tion of what notice is necessary to end the A servant may be summarily dismissed if
contract. In t h e Master and Servant Act a he shows himself to be incompetent or unable
hard and fast rule is laid down, namely con- to render the services he has promised. In en-
tracts for a month o r m o r e require a month's tering into a contract h e implies t h a t h e has the

The Black Sash, August, 1974 S Die Swart Serp, Augustus 1974
 ability to do t h e work he agrees to undertake, domestic servant at least two weeks leave on
and if it turns out h e does not have the ability full pay but if the employer should refuse to
he can be sacked immediately. give paid leave h e cannot be forced to do
This applies even in those cases where a so.
servant has been engaged on a probationary or I said earlier that a breach of contract under
trial basis for a fixed time. If, before the time the Master and Servant Act can give rise to
has expired, it is obvious that he is unable to criminal charges being laid. A servant can be
carry* out his duties competently, he can be charged and found guilty in the criminal courts
dismissed without notice. of being drunk on duty, failing to carry out
A servant who is working out a period of orders, being absent without leave and deser-
notice and who during that time commits a tion. The servant can lay a criminal charge
breach of his contract, can also be summarily against the master for withholding wages and
dismissed before t h e expiration of the notice also for failing to provide suitable food and
period. accommodation if this should be part of the
Other grounds for instant dismissal are, contract.
drunkeness, insubordination — by refusing to A master cannot be forced to give a ser-
carry out or obey lawful orders or instruc- vant a reference.
tions — absence from work without permis- Of course many aspects of the relationship
sion, and insolence. In the last case if the between employers and employees particularly
servant is insolent only once and not habitu- in t h e commercial and industrial sphere are
ally the insolence must be of a very grave governed by statute —- such as the Shops and
nature to lead to immediate dismissal. Offices Act, Factories, Machinery and Build-
The wages to be paid on dismissal must b e ing W o r k Act and the various wage determin-
the full amount earned for the days worked ations governing specific trades and indus-
because in our law no man is allowed to en- tries which provide for the protection of both
rich himself at the expence of another —• the master and t h e servant, in that they set out
a master cannot have t h e benefits of h i s ser- unequivocably such things as basic wages, pe-
vant's work without paying for it. riod of leave, sick pay and general conditions
To go back for a moment to wages in lieu of employment.
of notice — the Legal Aid Bureau deals with There is unfortunately no wage determina-
20 to 30 complaints each month by servants tion for domestic servants nor are they cover-
who have been dismissed without notice. ed by the Workmen's Compensation Act, nor
Although t h e law is quite clear as to the do they contribute to, and therefore cannot
period of notice to be given — employers claim from, the Unemployment Insurance
have such grossly exaggerated ideas of what Fund.
constitutes a breach by the servant, which This Act provides that any African worker
entitles the employer to dismiss summarily, other than a domestic worker who earns in
payment of wages in lieu of notice is very dif- excess of R10,51 a week must contribute to
ficult to collect and although action can be the Unemployment Insurance Fund. The
brought before the courts, attorneys are loath amount is fixed by law and must be deducted
to institute an action for what is considered each week or month by t h e employer.
to be a petty amount. If a worker becomes unemployed, he applies
Let us look now at the rights of a servant for benefits from the Fund. l i e must show that
who is unable to carry out h i s duties as a h e is both willing and able to work and has
result of illness or accident. If t h e illness or worked and contributed for 13 weeks within
accident is not caused by the servant himself the year in which he applies. He must regis-
the Master and Servant Act lays down that ter as a work seeker with t h e local labour
the servant must get one month's wages and office. If the employment officer cannot place
every other benefit like board and lodging him in suitable employment that official issues
up to two months and only after t h e expira- a report to that effect and that worker can
tion of two months can t h e master cancel the then withdraw h i s contributions.
contract. H e is entitled either to draw the amount h e
Nowhere in the Act is there any provision has paid in or to receive benefits for 26
for paid leave for a servant •— paid leave is weeks, whichever is lesser. Payments are
therefore a privilege not a right, and may be graded on t h e worker's earning and range from
given at t h e discretion of the master. Over a m i n i m u m of R5,60 a week for an unskilled
the years it has become customary to give a labourer to a maximum of R20,30 a week.

The Black Sash, August, 197h 0 Die Swart Serp, Augustus 197U
 The Act clearly lays down that for a period If a worker is unable to work as a result
of six weeks the employment officer must of ill health he is entitled to withdraw his
offer the workman positions of the type and contributions in the form of sick benefits.
within the same income bracket as the work The Workmen's Compensation Act provides
h e did previously. virtually a form of insurance for employees.
If this is not done the worker can refuse Once again domestic servants are not covered
to accept the jobs offered but if the worker by the Act but all other workers are. In this
refuses suitable employment or if he is sum- case it is the employer who makes the con-
marily dismissed or resigns for no valid reason tributions to the Workmen's Compensation
he can be penalised and the payment of bene- Commissioner and if a workman is injured
fils is withheld for six weeks. There is a right during the course and scope of his duties he
of appeal by the worker to the claims officer. is entitled to claim payment of portion of his
The dependents of a deceased contributor wages for the period during which he is un-
can apply for payment of the amount paid able to work as a result of the injuries.
by the worker. Benefits will only he paid out Provision is also made on a sliding scale for
if the worker had been a contributor for at permanent disability ranging from the loss
least 13 weeks in the five years prior to his of the joint of a finger or toe to 100 per cent
death and the claim must be made within three disablement. Provision is also made for pay-
years from the date of death. ment of hospital and medical expenses.

Who cares? ELEANOR ANDERSON

T he Black Sash woman is glad of the cordial welcome from the Indian shopkeepers
in lllovo, for the July morning Is cold as she sets up her table outside their pre-
mises. She is there to sell two Black Sash publications — the "Memorandum on the
Pass Laws and Influx Control" and the latest Sash magazine. She also proposes to
hand out pamphlets entitled "Who Cares About Women?" and "Who Cares About Mi-
grant Labour?"
Very soon a Black man hurries up to offer her 50 cents for the Memorandum saying. "I've
just got la support you. Thank you for what you are doing."
B.S.W.: (to hurrying While woman) Are you interested in our Black Sash publica-
^* ft *

WOMAN: tion:
Not now thanks. I'm vitally interested, but right now I'm in a hurry to get
B.S.W.: to the races.
MAN: (to White man) Would you like to see a copy of the Memorandum on . . .
Definitely not. (He flips an half-eaten apply at her feet.)
WHITE WOMAN (fingering pamphlet) Who Cares? Are you fighting pollution?
WHITE WOMAN (approaching table unasked) Isn't the Black Sash vjan Sinclair? She's a
BLACK MAN: good person. (She buys both publications and takes both pamphlets.)
Thank you for trying to help us. My wife has just been endorsed out to
Pietersburg.
(A lorry drives slowly past and the Black man sitting next to the White
driver thumps the driver on the shoulder.
"Stop!'' he shouts, and the driver stops. The Black man jumps out of the
lorry and buys the Memorandum.
'This I must have,'* he says. *'Thank you very much." And he goes back
AN OLD LADY to the lorry.)
B.S.W.: (woe in her voice) Not Christmas cards already?
WOMAN: (to White woman) Are you interested in seeing our Black Sash publications?
(very politely) Thank you so much, no. I'm a Christian.
INDIAN: ( T h e Indian shopkeeper appears to ask how B.S.W. woman is getting on.)
Business is good today. You're bringing us luck.
And suddenly the long, chilly morning is not as long as B.S.W. had been
thinking. After all, cold feet, warm heart.
The Black Sash, August, 19U 10 Die Swart Serp, Augustus 197U