R v Kuntawala (Criminal Review Case 15 of 1940) [1940] ZMHCNR 1 (31 December 1940)

[Vol. II R . v. KUNTAW ALA. Criminal R eview Case No. 15 of 1940. Township Regulations—failure to keep to left of road—grammatical meaning not always to be applied. The grammatical meaning o f Regulation 13 of the Township Regulations does not apply in all cases, but only where there is an actual or potential danger to other users of the road. The wording o f the Regulation must be construed with regard to the true sense and context having regard to the circumstances of each case. Law , C. J .: The accused was charged with and convicted o f failing to keep to the left-hand side of a street, when riding a cycle, contra regulation 13 Township Regulations. This regulation purports to have been made under the authority o f section 27 Cap. 26,1 presumably under paragraph (a) (8) thereof, which is the authority for making regulations for the regulation of traffic, wheeled or otherwise. There was no evidence in the case that any vehicle or animal was on the road, other than the accused and his cycle, at the time o f the alleged offence. The question for consideration in such circumstances is whether an offence can be said to have been committed. 2 2. As remarked above, regulation 13 was made presumably under the authority o f section 27 (a) (8) Cap. 26, from which context it would seem that the relevant part o f the regulation which concerned the charge was designed for the safety o f traffic and to be applied in circumstances o f potential danger in cases where there were also other users or possible users o f a road at any given time besides the particular vehicle or animal concerned in a charge thereunder. I f the regulation he intended to mean that all vehicles and animals must at all times and in all circumstances, except when overtaking any other vehicle or animal, keep to the left-hand side o f a road, I have grave doubts whether it could be regarded as intra vires section 27 (a) (8). To be intra vires it must be good for all purposes, whether with or without reference to any special circumstances. Any other construction might, I consider, lead to unfortunate, consequences and create an injustice. I incline to the view that the regulation should only be applied when the driving o f any particular vehicle or animal has to be considered with reference to other users or possible users o f a road at the same time. I f this were not so, it would be an offence, for instance, for a vehicle or animal to be driven on the right-hand side o f a road in order to avoid a trench or any other obstacle involving danger which might be encountered by such vehicle or animal being driven to the left- hand side o f the road. To apply the regulation to the driver o f a single vehicle or animal to the right-hand side o f an otherwise empty street would, in my opinion, be contrary to the intention o f the legislature. 1 Now Cap. 120.—Editor. Vol. II] 3. I am fu lly aware o f the rule which requires that an enactment should be read according to its ordinary grammatical sense as applied to th e subject m atter, and with that rule in view it must be endeavoured to ascertain w hat is the true meaning o f the words in regulation 13 which concern the present charge. The words “ shall keep to the left-hand side o f th e street ” are expressed in wide terms and appear not to admit of any exception other than when one vehicle or animal is overtaking another vehicle or animal. L ord E sher, M . R. said in In re Brockelbank, ex parte Dunn and Raeburn, 1889, 23 Q. B. D, p. 461, at pp. 462-3: “ In this proviso the legislature have used language of the widest kind— ' in all cases ’ so wide that, i f its full grammatical meaning be given to it, the proviso w ill produce injustice so enormous that the mind o f any reasonable man must revolt from it. When the language o f the legislature construed literally involves such consequences, the Court has over and over again acted upon the view that the legislature could not have intended to produce a result which would be palpably unjust, and would revolt the mind o f any reasonable man, unless they have manifested that intention b y express words. The Court will not infer such an intention from the use o f m erely general words. Some lim it must, therefore, be pu t upon the w ords o f the proviso, and they must be lim ited with reference to the subject-matter.” 4. To accept literally the words o f regulation 13 in another con­ nection illustrates how a palpable injustice m ight result. The words to which I refer now are “ at any junction o f tw o or m ore streets the driver (of a vehicle) shall give way to any vehicle or animal approaching from his right-hand side.” It is not difficult to visualise a case of, say, a herd o f cattle approaching a junction o f tw o streets and visible therefrom to a distance o f a furlong or even more. Such a situation could arise in Livingstone, and, no doubt, in other townships. A literal observance of the regulation in such circumstances w ould cause great hardship and injustice to any driver, and m ight even apply to a cyclist (see the definition o f a driver, p. 137, V ol. 3, Laws o f N orthern Rhodesia, 1934).1 The herd in question conceivably might take several m inutes to reach the junction o f the two streets, b y which tim e another herd m ight have come into view. W ith what result ? An unreasonable delay and a possible hold-up o f other traffic behind the waiting driver; a palpable injustice to all concerned. 5. For the foregoing reasons I am n ot prepared to agree that the words in regulation 13 which relate to the present charge mean what they appear to mean on reading the words them selves, but that they must be construed, in justice, w ith regard to their true sense and context. 6 6. In this particular case, however, I d o n ot propose to make any order. The accused pleaded guilty and I w ill assume that he did so in circumstances which actually disclosed an offence. 1 In Regulation 11 o f the Townships Regulations, Cap. 120.—Editor.