R v Mwenye and Mzingo (Criminal Review Case 143 of 1938) [1938] ZMHCNR 8 (31 December 1938)

22 Vol. II] R. v. MUTUFIKE AND MANDYATA. Two Crim inal R eview Cases op 1938. Northern Rhodesia Croton Lands and Native Reserves (Tanganyika District) Order in Council, 1929, Article 3 (6)— natives resident outside a native reserve not to be permitted to so remain after certain period— natives so remaining in contravention of Article 3 (6)— conviction fo r disobedience under Penal Code section 107— conviction quashed on review— Article 3 (6) held to be directory only. The facts appear from the judgm ent hereunder. The Order in Council in question will be found at pp. 22 et seq. o f Appendix 5 to the Laws. Francis, C . J.: The proceedings and convictions in these two oases have been sent in for review “ as the charges laid are rather unusual ” . The charges, proceedings and convictions in both cases are o f the same nature, and thus for the purpose o f this order Case N o. 47 will be discussed. The charge against the accused is “ the w ilful disobedience o f a Statute Law o f the Territory to wit the N orthern Rhodesia Crown Lands and Native Reserves (Tanganyika D istrict) Order in Council, 1929, by remaining on land outside a native reserve after having received instruc­ tions to remove therefrom ” . Evidence was led to show that some years ago the accused (a head- man) with his people had been warned to go into the native reserve. On the 24th October, the D istrict Commissioner found that the accused had built a hut on land (the ownership o f which was n ot specified) beyond the boundary o f the native reserve across the Luchundi R iver. Incident­ ally the name o f this reserve is not given. The accused neither cross-examined nor made any statem ent. Upon these facts the Magistrate convicted the accused o f an offence under Penal Code, section 107 (Disobedience o f Statutory D uty), and incorporated the following words in his judgm ent: “ Section 107 o f the Penal Code lays down the punishment. The statute concerns the public and the disobedience obviously concerns the public. The section o f the code is slightly ambiguous but whichever way it is read the offence is covered.” I agree that the proceedings are unusual, and for this reason endorse fully the action o f the Magistrate in sending the case up for review ; but at the same tim e it is for consideration whether the adm inistration, before embarking on such a prosecution, should not have obtained legal advice. [Vol. II Article 3 (6) o f the Order in Council cited in the charge provides, inter alia, that except under the conditions therein prescribed, no new native village shall bo erected on any land not within a native reserve, and no native shall be permitted to remain on any land outside a native reserve. In a criminal statute it must be quite certain that the offence charged is within the letter o f the law. The provision in question is o f a directory nature and no more than an instruction conveyed to and required to be observed by the Governor; in no sense can it be construed as a penal law. The invocation o f Penal Code, section 107, does not assist. In any event it is very doubtful whether a trespass on privately owned land is a ques­ tion o f concern to the public within the meaning o f the phrase in section 107. There are other unsatisfactory features about the proceedings into which it is not necessary for me to enter. The record has been seen by the Solicitor-General who intimates that he is unable to support the conviction in either case. The convictions in Cases 47 and 48 are hereby quashed and the accused persons are to be released by telegraphic instruction.