R v Kanyama Coffee (Criminal Appeal Case 6 of 1939) [1939] ZMHCNR 19 (31 December 1939)

[Vol. II R . v. KANYAMA COFFEE. Criminal Appeal Case No. 6 of 1939. Careless performance of work by servant—insulting behaviour by servant— termination o f contract by employer—whether court has power to deal with wages when contract of service already terminated. The Employment o f Natives Ordinance is now Cap. 171 o f the Laws. Subsections 74 (4) and 74 (6) of the Ordinance have now been repealed but no point on these subsections arose on the appeal. An employer terminated the contract o f service summarily and it was held on appeal that the Court could not invoke subsections 72 (1) (c) or 72 (4) o f the Ordinance to deal with the question o f wages in such a case as these subsections envisage a contract existing at the time the parties are before the Court. R obin son , A . C . J.: In this case, the appellant was charged on 22nd February, 1939, before the learned Magistrate at Lusaka with two offences: (1) contra section 74 (4) Cap. 62 carelessly perform work, and (2) contra section 74 (6) Cap. 62 behave in an insulting manner calculated to provoke a breach o f the peace. The accused person, the appellant, is a cook and was employed at the Lusaka Hotel at a wage o f £7 10s. per month. On the 22nd January he had been given a month’s notice and had been paid up to 31st January. On 11th February, he overboiled some beef and when told about it he became insulting. He was dismissed. I gather from the accused’s evidence that he was offered £2 15s. Od. being his wages from 1st to 11th February, but he refused this—saying he had not been given proper notice and wanted wages for a month. Then the complainant went to the police who brought the case. The learned Magistrate fined the accused 5s. on the first charge and 20s. on the second charge which fines were subsequently paid. He was also asked to deal with the question o f wages and the accused agreed to submit to the Court on the point. The order which the Magistrate made was “ Contract terminated. As accused has been paid up to 31st January, 1939, I find no wages are due to him on the ground that he was sum­ marily dismissed for good and lawful cause." In the undated notice o f appeal I gather the appellant has no quarrel with the tw o convictions as charged but is appealing against the Magis­ trate’s order saying that no wages are due to him. He wants £2 15s. Od. for the days he worked, the sum which he had previously refused. In m y opinion the learned Magistrate in these proceedings had no jurisdiction to make the order. The employers had, rightly or wrongly, terminated the contract on the 11th February when they summarily dismissed him. When the case came before the Magistrate therefore on IF Vol. II] the 22nd February there was no subsisting contract, but only a possible a ction fo r dam ages for wrongful dismissal. It is that cause o f action w hich the M agistrate has summarily dealt with and purported to make an order o f Court. Cap. 62, section 72 (1) (c) is no authority. That subsection en­ visages a subsisting contract— section 72 (4) relates to the following of civ il procedure in certain circumstances, inter alia, when the ends of ju stice m ay be defeated b y forcing the com plainant to follow the criminal procedure. B ut even i f this could be called “ procedure ” who is the I t is the appel­ com plainant (or plaintiff) in this civil cause o f action ? lant. In other words the parties have been reversed. I think probably that the learned M agistrate’s short cu t represents the final answer but I do n ot think he was entitled to take it in these proceedings and therefore the appeal is allow ed to this extent— the order as cited above m ust be struck out, w hich m eans th a t the accused is left to his civil rem edy. H e should be told to think w ell and take advice before involving him self in a civil action fo r dam ages w hich m ay incur serious costs. The notice o f appeal should alw ays b e dated. I t m ay well be that it was ou t o f tim e.