Harji Govind & Others v. R. Crim. App. 91-A-70; 14/8/70; Bramble, J.

 

Harji Govind & Others v. R. Crim. App. 91-A-70; 14/8/70; Bramble, J.

The four appellants, partners in a firm, were jointly charged and convicted of two counts (a) failing to pay the Fund within the prescribed period statutory contributions contrary to section 15(2) and 38(1) (d) of the National Provident Fund Act, and (b) failing to have employers registered with the Fund as a result contra regulation 6 of the National Provident Fund (General) regulations and section 38 (1) (f) of the National Provident Fund Act. They were fined Shs. 50/- on each count section 8 of the National Provident Fund Act inter alia empowers the Minister by order in the Gazette to declare any employees or category of employees to be registrable as members of the Fund: and any employer or category of employers to be contributing employers. The appellants admitted that there were two persons in their employ for more than seven years and that a third person, an Asian was permanently employed. There was evidence that a boy had come to learn tailoring as an apprentice. The apprentice stated that he wanted to learn the job and was not being paid. On appeal to the High Court.

            Held: (1) “The main question was whether the appellants had four employees which would make a firm a contributing employer in accordance with the provisions of Government Notice No. 39 of 1968. The relevant definition of employee is: _ any person who is employed in Tangayika under any contract of service or apprenticeship with an employer whether by way of manual labour clerical work or otherwise and howsoever paid, such employment not being one of employment as a member of the crew of any ship: ‘Paid’ means paid in money or money worth. From the above it cannot be said that the apprentice was a temporary employee for the purposes of the act since he was not paid. While temporary and exempted employee are to be taken into consideration in fixing the number of employees the firm could only be said to have had three employees and as such would not be a contributory employer. The learned magistrate misdirected himself on this point”. (2) “Since the two charges were based on the fact that the appellants’ firm was a contributory employer the misdirection would lead to injustice and I allow the appeals and order that the fines be refunded, if they have already been paid”.