M.I Projects Ltd v Van Der Merwe (Appeal 53 of 1999) [1999] ZMSC 94 (24 November 1999)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 53/99 HOLDEN AT KABWE (CIVIL JURISDICTION) BETWEEN: M. I. PROJECTS LTD V karel van der merwe CORAM: Chirwa, Muzyamba, Lewanika, JJS at Kabwe on 2nd and 24th November, 1999 For the Appellant: Mr. F. Chishimba, Frazer Associates For the Respondent: Mr. M. Kabesha, Kabesha & Co. JUDGMENT Chirwa, J. S. delivered the judgment of the Court:- This is an appeal by the appellant, M. I. PROJECTS LTD against the judgment o^'the High Court in which the respondent, Van Der Merwe was awarded US$13050 being the salary due to him as an employee of the appellant. On the evidence before him, the learned trial judge found that there was an oral contract of employment between the respondent and the appellant and because of this contract the respondent did work for the appellant and the appellant applied for a work permit for the respondent. The respondent worked for the appellant from 14th April to August, 1998 when he realised that the appellant were not willing to pay him the salary as agreed. He further found that the respondent was given housing accommodation as incidental to this employment. The learned trial judge rejected the defence evidence that it never employed the respondent; that he only used to do some odd chores and was given the house as good will and to prevent vandalism, that there was no employment as there was no work permit although one was applied for and rejected. - J2 - On whether in the absence of a work permit, the contract was unenforceable, the learned trial judge held that since the Immigration and Deportation Act was silent on the civil rights of the parties and that the parlies never intended to ignore the requirement of obtaining a work permit, the non-availability of the work permit did not affect the contract of employment between the parties. The Contract was valid and enforceable. The learned trial judge formed the viel/ that if the legislature wished to render unenforceable contracts entered into without an employment permit it was very simple for it to have done so. The learned trial judge then entered judgment in favour of the respondent in the sum of US$13050 with interest at the average short term bank deposit rate from date of the writ to date of judgment. In arguing this appeal only one ground was argued; this was that the Contract of employment having been entered into without a work permit could not be enforced as this was contrary to the spirit of the Immigration and Deportation Act. It was argued that the general intention of the legislature ought to have been taken into account, namely to regulate the entry into and the remaining within Zambia of immigrants and visitors and to provide matters incidental thereto. It was submitted that Section 19(1) prohibited persons affected by the Act from engaging in paid employment under an employer in Zambia and that since the respondent had no employment permit at the material lime, he cannot recover the alleged renumeration. Tt^support or enforce his arguments, Mr Chishimba referred us to a number ofZambian and English authorities such as: THE PEOPLE V BROWN [1974] Z. R. 135, MUTWALE V PROFESSIONAL SERVICES LTD. [1984] Z. R. 72; MAMOND V ISPAHANl [1921]2 K. B. 716 and the HEYDON’S case 3 Co. Rep. 76 E. R. 637. In reply, in his written submissions, Mr. Kabesha supported the approach adopted by the judge and the conclusion thereto. He submitted that in interpretating a Statute it is necessary to consider the distinction bet ween a piolubiled aci and penalties attaching thereto under a Statute. In the present case, il is significant to note that there is a penalty attached to an employer employing one in Zambia (non-citizen and non-resident) without permit. The Act never declared such employment as unlawful or illegal. I - J3 - As we have stated already, there is only one ground of appeal revolving on the qjestion of legality of the Contract. We are cognizant that in deciding whether a Statute affecting a Contract contains an implied prohibition of the Contract or things done thereunder so as to render it unenforceable by one or both parties the whole contract and purpose of the Statute must be taken into account and no single consideration, however, important is conclusive. Courts will not enforce a Contract which is expressly or impliedly prohibited by Statute and it is irrelevant what the intention m me parties is; n'me Statute prohibits the Contract, it is unenforceable whether the parties meant to break this law or nut. We would refer to Halsbury Laws-of England on the general principle of the law on this as found in Volume 9 4th Edition, Paragraph 423 and 424. The Court will have to answer the question of whether the Statute intends to render the Contract unenforceable by one or both parties or does it merely impose the penalty, if any, provided by it for contravention. The case of VITA FOOD PRODUCTS INC. V UNUS SHIPPING CO. LTD. { 1939] 1 ALL E. R. 513 provides good guidance in this regard. Mr. Chishimba referred us to the case of THE PEOPLE V BROWN [1974] Z. R. 135, a decision of the High Court in which it was held on review that since the prohibition to work in Zambia by non-citizens or residents did not provide for a penalty, no criminal offence was created. It is a pity that Counsel did not refer to the judgment of this Court in the same case as reported in 1980 Zambia Law Reports at page 42 where the decision of the High Court on review was set aside. Be as it may, that case involved criminal issues. We are here in the present case dealing with a civil case and decisions in criminal matters do not necessarily help civil situations. In the present case, can we positively say that the parties intended to commit an illegal act in their contract. We should first slate that ii is not always a situation that non-citizens or residents require work permits. Section 19(1) reads as follows:- " 19 (1) Save under permit issued in accordance with the provisions of this Act authoiizing such employment, no person shall engage in paid employment under an employer resident in Zambia”. * - J4 (Underling our own) It is obvious from the underlined that the only prohibition is when the employer is resident in Zambia. Why did the legislature make such a provision? To us the answer seems obvious; a resident in Zambia is presumed to know the law and it is on this basis that Mr. Lumbwe on behalf of the appellant applied for a work permit to regularise the respondent’s working for the appellant. It is obvious that the parties never intended to break the law. We said in the case of JEAN MWAMBA MPASH1 V AVONDALE HOUSING PROJECTS LTD. [1988 - 89] Z R 144, 143 which was a case involving Section 13 of Land (Conversion of Titles) Act, that there can be a valid Contract subject to doing something under the Act. In thejiresent case the parties wanted to comply with the law and a work permit was applied for and when this was rejected, the appellant never informed the respondent of the rejection, Mr. Lumbwe hid it from him. Yet the respondent was allowed to work for the benefit of the appellant. It is obviously inequitable that the appellant can be allowed to escape the obligation under the employment contract with the respondent through their own misfeasance. Cm die luiamj W mb case, vve cannot fault the learned trial judge in his approach of the case in his judgment, There was no misdirection in looking at the intention of the parties at the time the contract was made; neither did he misdirect himself to refer to CHITTY ON CONTRACTS: on Aids to Statutory interpretation. I - J5 - We would therefore dismiss this appeal with costs. The sum adjudged is due to the respondent forthwith as adjudged by the learned trial judge. Costs to the respondent to be agreed, in default to be taxed D. K. CHIRWA SUPREME COURT JUDGE W. M. MUZYAMBA SUPREME COURT . JUDGE D. M. LEWAN1KA SUPREME COURT JUDGE I