R v Jack Chingara and Others (Criminal Review Case 1 of 1933) [1933] ZMHCNR 3 (31 December 1933)

56 Vol. I] R. v. JACK CHINGARA AND OTHERS. A Criminal R eview Case of 1933. Lusaka Township Regulations, 1922, Part I I , Regulation 1 (2)—public place—native compound at Lusaka not a public place. The sub-regulation in question makes the follow ing an offence: “ Playing or betting in any street or public place at or with any table or instrument o f gaming or pretended game of chance.” The expression “ public place ” was not at the tim e o f the present case defined in the Lusaka Township Regulations and the High Court applied the test o f what constitutes a “ public place ” as laid down in the English decisions. See R. v. Gould p. 43 ante. The offence o f gambling is now'’, inter alia, contrary to Regulation 4 (10) of the Townships Regulations made pursuant to section 27 of the Townships Ordinance (Cap. 120). The definition o f " public place ” appears in Regulation 3 o f those Regulations and is identical to the definition of “ public place ” in By-law 2 o f the N dola Munici­ pal By-laws. Attention is drawn to the judgment o f the Federal Supreme Court in Regina v. Mumanga 1956 R . & N. 53 on the interpretation of the definition of “ public place ” in B y-law 2 o f the Ndola Municipal By-laws. In that case the Court held that for the purpose o f By-law 240 o f the Ndola Municipal By-law s (which by-law has now' been repealed) the Ndola location is n ot a “ public place ” within the meaning attributed to that term b y Ndola Municipal By-law 2. Hall, J .: In my opinion, the native compound at Lusaka is not a “ public place ” within sub-regulation 26 o f regulation 1 o f the Lusaka Township Regulations, 1922. It is clear from the evidence o f Kirk, and also from the regulations dealing with the native compound in question, that there is a very restricted right of user of the compound, and I am unable, in view o f the law obtaining, to differentiate between a compound constituted for a number of natives to reside in (such as I understand the Lusaka com ­ pound to be) and, e.g., a building erected for a number o f Europeans to dwell in (as, for instance, buildings now being erected in L ondon on clearance o f slum areas) which have an open-air yard allotted thereto. Clearly, the public would not have unrestricted right o f entry into the latter any more than they would have into m y garden and land sur­ rounding my house. Convictions must be quashed. Rex v. O’Connor, reported at p. 45 ante, was not quite in point. I attach a copy of the ruling of Gordon Smith, Acting Judge, therein. [Vol. I, pp. 57-58 blank]