Review
Judgement
DUBE
J:
This
record was referred to me from the Acting Regional Magistrate for
Harare who scrutinised the record. He has raised the following
concerns;
“The
trial court, as part of its sentence, prohibited the accused from
driving for two years on the basis that accused had driven a public
service vehicle. This is in spite of the fact that the charge does
not allege that the vehicle accused drove was a public service
vehicle. The court appears to have inferred that it was a public
service vehicle from the averment in the charge that the vehicle was
a Toyota Hiace, an inference I am unable to support since not all
Toyota Hiaces are public service vehicles.”
In
its response the trial court accepted that the oversight was not
justified but still contended that it had been brought to the
attention of the accused during the explanation of special
circumstances. The trial court contended that the accused had been
convicted of negligent driving of a public service namely a commuter
omnibus vehicle and that he did not dispute this fact. The court has
undertaken to guard against such errors in the future.
The
brief facts surrounding the commission of this offence may be
summarised as follows. The accused appeared before a Harare
magistrate facing charges of contravening section 52(2) of the Road
Traffic Act [Chapter
13:11],
thus Negligent Driving. He pleaded guilty to the offence and was
sentenced to 6 months imprisonment of which 3 months were suspended
for 5 years on condition that the accused performs community service.
In addition he was prohibited from driving classes of motor vehicle
to which commuter omnibus or heavy motor vehicles belong for 2 years.
His licence was cancelled.
The
allegations in the State Outline are as follows. On the 27th
of May 2012, the accused was driving Toyota Hiace along Robert Mugabe
Rd. At the intersection of Robert Mugabe Rd and Wheeler Ave, Harare,
the accused who was driving and following behind the complainant's
vehicle failed to observe that the complainant was indicating to
turn, resulting in him colliding with the rear of the complainant's
vehicle.
The
charge of negligent driving reads as follows;
“In
that on the 27th
of May 2012 and at the intersection of Robert Mugabe and Wheeler Rd,
Eastlea, Harare, Gibson Murinda drove a motor vehicle, namely, a
Toyota Hiace registration number ABQ negligently.”
There
is no allegation in the State papers that the accused drove a
commuter omnibus or a public service vehicle but simply a Toyota
Hiace vehicle. The trial court fell into the error of supposing that
the vehicle in issue was a commuter omnibus and a public service
vehicle. After convicting the accused person, the court proceeded to
enquire into special circumstances. When the court was explaining
what special circumstances are to the accused, it remarked as
follows;
“Accused
person you have been convicted of negligent driving of a public
service vehicle namely a commuter omnibus.''
The
record does not indicate that a response was elicited from the
accused. The suggestion that the accused had been involved in an
accident whilst driving a public service vehicle was both misleading
and erroneous as the State was not alleging that the accused drove a
public service vehicle or an omnibus. The record does not indicate
that the accused was appraised of what special circumstances are. It
is incumbent upon a court making an inquiry into special
circumstances to explain fully to the accused the import of special
circumstances. This requirement serves to equip the offender to
understand the nature of the enquiry being conducted and its purpose.
A suggestion to an offender that he has been convicted of negligent
driving of a public service vehicle namely a commuter omnibus is not
an explanation of what special circumstances are. The court tried to
elicit essential elements of the offence from the accused after it
had convicted him of the offence charged. There is a growing
tendency on the part of magistrates dealing with driving offences
where this type of vehicle is involved, to assume that a Toyota Hiace
is a public service vehicle and a commuter omnibus. This correlation
is misplaced. The definition section of the Road Traffic Act defines
a public service vehicle as follows;
“public
service vehicle” means a motor vehicle in respect of whose
operation an operator's licence is required in terms of the Road
Motor Transportation Act [Chapter
13:15];”
A
Toyota Hiace is not as a matter of course a commuter omnibus nor a
public service vehicle. A vehicle which is a commuter omnibus only
becomes a public service vehicle when it is used for the purposes of
ferrying passengers for profit in terms of the legal definition of a
public service vehicle. The vehicle may be an omnibus, but it can
only become a commuter omnibus when it is used for the purpose of
ferrying passengers. It is not the class of vehicle, type or
description of a vehicle that determines whether it is a public
service vehicle, but rather the use to which the vehicle is being
put. The fact that it was later suggested to the accused that he was
driving a public service vehicle does not validate a failure by the
prosecution to state and fully outline the nature of the allegations
against the accused in its papers. The trial court failed to pick the
anomaly in the State papers. Unless a charge sheet contains a
specific allegation to the effect that an offender drove a public
service vehicle or commuter omnibus, it is inappropriate to treat an
offender as if he drove such class of vehicle for purposes of
sentence in terms of section 52(2).
An
admission by an accused to essential averments not linked to the
offence charged cannot be not an admission of guilt to the offence
charged. Such an admission does not cure the defect in the charge. An
offender cannot be convicted of a crime in circumstances where he is
unaware of the full allegations that make the conduct complained
against criminal. In this case the accused did not admit that he
drove a public service vehicle or a commuter omnibus. The information
was just thrust down his throat. He was not afforded an opportunity
to respond to the suggestion. I am not satisfied that accused was
properly advised of the nature of charges he was facing and that his
admission of guilt is a genuine and unequivocal plea of guilt to the
offence of driving a public service vehicle negligently.
The
facts disclose that the accused drove a Toyota Hiace. The accused
admitted that he drove the vehicle negligently. The allegations as
they stand are supportive of no more than a case of negligent driving
involving an ordinary vehicle in terms of section 52 of the Road
Traffic Act. The conviction is proper.
It
is with the sentencing approach that I am concerned. The trial court
approached the question of sentence from a wrong angle. The court
went on to enquire into the question of special circumstances and
sentenced the accused from the premise that he drove a commuter
omnibus and a public service vehicle negligently. This procedure was
not necessary in the circumstances of this case. The sentence cannot
stand. The sentence imposed is hereby set aside and substituted with
the following.
The
accused is sentenced to pay a fine of $400-00. In addition, the
accused is prohibited from driving all classes of motor vehicles for
one year. His licence is accordingly cancelled.
MUSAKWA
J agrees ………………….
