R v Adolph Wiesmann (Criminal Review Case 34 of 1938) [1938] ZMHCNR 2 (31 December 1938)

10 Vol. II] R . v . A D O LPH W IE S M A N N . Criminal R eview Case N o. 34 of 1938. Employment o f Natives Ordinance (Gap. 62) section 82— conveying natives for service outside Territory— natives originally recruited outside Territory but brought into Territory in transit to destination— no offence under section 82 (b) which requires prior inducement within the Terri­ tory. The facts in this case are apparent from the judgm ent hereunder. The wording o f section 82 o f the Ordinance in question is clear and it is evident from the words “ so induced ” in (6), as the Attorney- General observed (see below), that there m ust be an inducing to proceed to service beyond the Territory before the offence o f con­ veying to service beyond the Territory can be com m itted. The Employment o f Natives Ordinance is now Cap. 171 o f the Laws. The relative consent is now that o f the M inister o f Native Affairs. F rancis, C . J .: The record in this case has been transm itted b y the Magistrate for review by the High Court. I caused it to be referred to the Attorney-General w ith a view to discovering whether he was prepared to support the conviction. The Attorney-General has replied as follow s: " The evidence in this case was to the effect that the accused recruited certain natives o f Northern Rhodesia in Tanganyika and in order to convey them to Mbeya brought them in a lorry into Northern Rhodesia. It was clearly the intention to convey these natives in a lorry back into Tanganyika T erritory. The recruiter was convicted under section 82 (b) o f the Em ploym ent o f Natives Ordinance. This section makes it an offence to convey any native who has been induced to proceed beyond the T erritory (unless there is a foreign contract o f service w ith such native) w ithout the consent o f the Chief Secretary. I t appears to m e to be quite clear that before any person can be convicted under section 82 (b) some person must have committed an offence under section 82 (a ) that is to say, someone must have induced a native to proceed beyond the Territory. In this case the recruiting was achieved in Tan­ ganyika Territory and in m y opinion no offence was committed by any person contrary to section 82 (a) o f the Ordinance. In these circumstances I do not consider that any offence was com ­ mitted contrary to section 82 (b) and I am unable to support the conviction. (Sgd.) H. W . W ilson, Attorney-General.’' [Vol. II As I concur with this opinion in full, it seems unnecessary for me to spend time in writing a judgment in amplification. For the reason incorporated in the learned Attorney-General’s reply the conviction must be quashed and the fine o f £25 returned.