R v Jailos Kambule (Criminal Review Case 50 of 1939) [1939] ZMHCNR 2 (31 December 1939)

46 Vol. II] R . v. JA IL O S K A M B U L E . Criminal R eview Case N o. 50 of 1939. Employment o f Natives Ordinance section 75 (1)— wilful breach o f duty— allowing third person to drive lorry. The facts appear in the judgment hereunder. The Employment o f Natives Ordinance is now Cap. 171 and the subsections o f section 74 referred to in the penultimate paragraph o f the judgm ent were repealed by Ordinance 27 o f 1940. R ob in son , A . C . J .: I think the Magistrate found the same difficulty as I do in this case. The defendant was charged in that being a servant, b y wilful breach o f duty, did do an act tending to serious risk to a motor lorry placed by his employer in his charge. The facts were that the defendant was employed as a lorry driver and he perm itted another native to drive the lorry and there was an accident. I know the defendant pleaded guilty but the form o f charge probably was: “ D id you allow Chaima to drive your m aster’s lorry o f which you were in charge and did you know you ought n ot to have done so and in the result do you adm it there was an accident ? ” All that was admitted, but do those facts show any offence contra section 75 o f Cap. 62 ? Defendant before he could be found guilty had to do an act tending to serious risk to the lorry. This section implies an overt act. I f an alternative word, e.g., “ deed ” is used instead o f “ act ” I think the It could never be said that meaning o f the section becomes clear. allowing someone else to drive the lorry was “ doing a deed ” . Another point is that even if allowing Chaima to drive was “ doing an act ” , there is nothing to suggest on the record that it must necessarily be an act "tending to serious risk ” to the lorry. Chaima m ay have been, fundamentally, a far more skilful driver than the defendant himself. Obviously the defendant com m itted a breach o f duty to his employer I f the but the facts must fit a penal provision before it is punishable. employer had given strict instructions that the defendant was to drive and no one else, then I think section 74 (4) or perhaps (7) would be applicable. As it is, I much regret, because the defendant needed a salutary lesson and the sentence was very appropriate, that the conviction must be quashed and the £1 fine be refunded.