R v Lazalo Tembo (Criminal Review Case 235 of 1941) [1941] ZMHCNR 7 (31 December 1941)
The facts do not constitute an offence under section 209 Penal Code as 'necessaries of life' do not include medical attention; the conviction cannot be substituted under section 168(2) Criminal Procedure Code because the offences are too different.
Source-derived case information.
- Citation
- [1941] ZMHCNR 7
- Parties
- Accused: Lazalo Tembo
- Court
- High Court of Northern Rhodesia
- Jurisdiction
- Zambia
- Case Number
- Criminal Review Case 235 of 1941
- Procedural Posture
- Criminal Review / Judgment
- Outcome
- Conviction quashed
- Legal Topics
- Failure to Supply Necessaries of Life, Scope of Penal Code Section 209, Application of Section 168(2) Criminal Procedure Code, Scope of Section 214 Penal Code
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lazalo Tembo
Accused
Procedural Posture
Criminal Review / Judgment
Legal Issues
- 1 Whether failure to send wife to hospital constitutes failure to supply necessaries of life under section 209 Penal Code
- 2 Whether conviction can be altered to a minor offence under section 168(2) Criminal Procedure Code
- 3 Whether facts disclose an offence under section 214 Penal Code
Ratio Decidendi
The facts do not constitute an offence under section 209 Penal Code as 'necessaries of life' do not include medical attention; the conviction cannot be substituted under section 168(2) Criminal Procedure Code because the offences are too different.
Court Disposition
Conviction quashed
Full Case Text
Judgment text and source record
1 paragraphs
122 V o l. I I ] R. v. LAZALO TEMBO. Cr im in a l R e v ie w Case No. 235 o f 1941. P enal Code section 209—scope o f “ necessaries o f life ” —failure to send wife to hospital not within section—powers o f section 168 (2) o f the Criminal Procedure Code cannot be invoked if the minor offence is very different from the offence charged— scope o f section 214 o f the Pencil Code. The facte and the law are set ou t in the judgm ent hereunder. R ob in son , A . C . J .: Accused was charged w ith failing to supply the necessaries o f life to his wife, contra section 209 Penal Code in that he failed to send her to the native hospital to give birth to her child. She died from haemorrhage. It is clear to me that these facts do n ot fall w ithin section 209 Penal Code. “ Necessaries o f life ” are such as food, water and clothes. The question is : do the facts fit any other section, and, if it is a minor offence, can the conviction be changed b y virtue o f section 168 (2) Criminal Procedure Code. In m y opinion, in the special circum stances o f this case, the accused being a compound police boy at Lusaka, and m edical attention being free and readily available, facts which he m ust have known, it could be said that an offence contra section 214 Penal Code1 had been committed. It was his duty under the circumstances, not to om it to take precautions to avoid harm, especially as he had gone to his father-in-law for advice, and he had told him to take his w ife to th e hospital. But that charge is so different from a charge contra section 209 Penal Code that the conviction cannot be changed b y virtue o f section 168 (2) Criminal Procedure Code. The conviction, therefore, m ust be quashed. 1 Omitting to do an act it is one’s duty to do thereby causing harm to a person. Editor.