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R. v. Kisiwani Sisal Estate Ltd. Crim. App. 280-A-69; 10/2/70; Platt, J.



R. v. Kisiwani Sisal Estate Ltd. Crim. App. 280-A-69; 10/2/70; Platt, J.

The respondent company was convicted on its on plea of five counts of failing to pay contributions to the National Provident Fund, c/ss 15(2) and 38(1) (d), National Provident Fund Act, Cap. 564, as amended by Act No. 58 of 1968. In the circumstances, the court decided that an absolute discharge was appropriate, and from this order the Republic is appealing. The Magistrate had been impressed by the overwhelming difficulties which the respondent company had experienced during a drought. That together with the company’s usual punctuality in making payments led the decision that but for the failure of the rains all would have been well.

            Held: (1) “The first ground of appeal was that the learned Magistrate was not entitled to employ section 38 of the Penal Code as a matter of law. It was said that section 38(1) (d) of the Act, Cap. 564 provided only three alternatives, a fine or imprisonment, or a combination of both. The phraseology of the section is however no different from any other offences where such punishments are prescribed, and yet the overriding provisions of section 38 of the Code are applicable. It has never been doubted that the general provisions of the Penal Code (or the Criminal Procedure Code) control all trials of a criminal nature unless there is express provision to the contrary. There is nothing in section 38 of the Act which would suggest that the general provisions of section 38 of the Penal Code would be excluded. Therefore on face value at least I see no reason why the learned Magistrate could not have applied section 38 of the Code. After a careful perusal of the Act as a whole I cannot see any reason why a different conclusion should be reached. The act, no doubt, seeks to build up the National Provident Fund and its terms are stringent and in one case almost a type of taxation. But it surely cannot be said that the Act was intended as an oppressive measure even in the event of overwhelming hardship ….. Altogether I have no doubt that an express provision excluding the general provisions of the Code was not inserted in order that the courts should be permitted to balance the aims of the Act with the individual’s circumstances and thus arrive at a reasonable result. The first ground of appeal is therefore rejected.” (2) “The second ground was that even if the learned Magistrate was empowered to use his discretion, he should

Not have exercised it in the circumstances of the case and that this court should set aside the order and enhance the sentence. It was not disputed that there had been a serious drought and the respondent company, having a difficult and enough time with the sisal part of its enterprise, had also lost entirely on the cash crops which were a diversification of its main business. It was not disputed that up to the time of the drought, the company had always paid its due to the Fund. During the drought, it had failed for four months to pay its dues to the Fund ….. It is not suggested that the officers of the company had used company’s funds extravagantly or improperly. The only fault levied against them was that they did not inform the Compliance Officer of the difficulty. ….. I cannot see that the company was deliberately defaulting, or would have defaulted if it had not been for genuine hardship ……. It may be that the Magistrate could have secured the fund by granting a conditional discharge covering the period during which the instalments were ordered to be paid. But he trusted the company because he noted hat it had already begun making regular payments. if that is so, and nothing has been suggested on appeal that the company has failed to pay any of the instalments ordered as to the arrears, it seems hardly likely that the fund will lose any revenue. Therefore I cannot see any ground on which to interfere with the order made by the learned Magistrate. I should perhaps not that this was an exceptional case and that section 38 of the Code is only to be used in cases of this nature. Generally speaking section 38 would be inappropriate.”  

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