Criminal
Review
MAFUSIRE
J:
[1] The
trial court has conceded that it misdirected itself in the manner it
handled the charge that was preferred against the accused person in
Count One, and the manner it approached sentencing in both counts One
and Two. This case is almost on all fours with S
v Chitepo
HMA 3-17 in which some guidelines in matters involving driving
offences were proffered.
[2] As
in the Chitepo
case, the accused, who was not represented, pleaded guilty to two
counts that arose out of a single driving infraction involving a
tractor. The first Count was framed as contravening section 6[1] of
the Road Traffic Act [Cap
13:11]
[No
driver's licence].
The second Count was culpable
homicide
as defined in section 49 of the Criminal Law [Codification and
Reform] Act, Cap
9:23
[“the
Code”].
[3] The
facts were these. The accused drove a tractor along some road in some
gum tree plantation. Hooked to the tractor was a trailer loaded with
some gum poles. Some eight passengers sat on the front wing of the
trailer, in front of the load of gums. As he drove, one passenger
fell from the trailer. His skull was crushed by the rear left wheel
of the loaded trailer, exposing the brain matter. He died on the
spot.
[4] In
Count One the narration was as follows:
“In
that on the 2nd
day of October and at Mtao Forest Plantation, Gabriel Kamuchepa
unlawfully drove an unregistered Messy Ferguson tractor without a
driver's licence knowing that he is not the holder of a valid
driver's licence.”
[5] Apart
from the obvious typos [e.g. the year not given, and the “f”
in “forest”
and “ferguson”
being small case], there were several and more fundamental omissions
in the charge.
[6] The
first omission was that the charge of driving a motor vehicle by
someone who is not the holder of a valid licence in respect of the
motor vehicle of the class concerned is not complete by the citing
only of section 6[1] of the Road Traffic Act [“the
Act”].
This sub-section merely carries the prohibition. It simply says 'thou
shall not do this unless thou is this, and thou does that.' It is
sub-section [5] that creates the offence. It says if someone does
what is prohibited by sub-section [1], then they are guilty of an
offence. It is also sub-section [5] that spells out the penalty for
the offence created. Therefore, a charge of driving without a
driver's licence should cite section 6[1] together with section
6[5] for it to be complete. An accused person ought to appreciate
what offence he is being accused of, and what penalty, if prescribed,
he is liable for.
[7] The
second omission was the failure to specify where the accused drove
the tractor. The offence is created where the impugned driving is 'on
a road'. In
casu,
the charge simply said the accused drove an unregistered … tractor
without a driver's licence. That is not an offence. As I said in
the Chitepo
judgment, an unlicensed driver does not commit the offence prescribed
by section 6 of the Act if his driving is not on a road, as defined.
[8] The
State Outline purported to cure the second defect above. But it did
not. It said the accused drove the unregistered tractor “…
along Matende road in Mao plantation …”
That was not enough. “Road” for the purposes of the offence in
section 6 of Act, as read with section 2, is any highway, street or
other road to which the public, or any section thereof, has access.
In
casu,
the charge did not specify what type of 'road' it was.
[9] The
trial magistrate, in answer to my query on the above point, said the
road in question was a private road. That seems obvious. The charge
said the driving was along Matende Road in Mao Forest Plantation.
This appears to be private premises. If that was the case – and the
accused gets the benefit of the doubt – then there was no offence
committed. Section 2 of the Act defines a “private road” as any
road the maintenance of which neither the State nor a local authority
has assumed responsibility, and which is not commonly used by the
public or any section thereof.
[10] The
third omission was the failure to refer to the special permits
prescribed by section 8 of the Act for, among others, tractor
drivers. The driver's licence for a tractor is class 5. But in
terms of the Act, a tractor driver does not always have to have a
licence. In terms of section 8 all that an employee of a farmer or of
a miner, or a self-employed farmer or miner, as defined, needs in
order to legally drive a tractor belonging to, or possessed by them,
on any road for farming purposes, up to a belt of ten kilometres of
the farm or the mine boundary, is a tractor driver's permit issued
in accordance with that section.
[11] In
the present case, both the charge sheet and the State Outline said
nothing about the capacity in which the accused drove the tractor.
Was he the owner of the plantation and/or of the tractor? Was he a
mere employee? If he was the owner of that plantation, and thus was
self-employed, and if he was also the owner of that tractor, he could
legitimately have driven it, if he met the criteria laid out in
section 8 of the Act. If he was an employee and had the authority to
drive the tractor as prescribed by section 8 of the Act, then he did
not commit the offence preferred against him in Count One.
[12] In
this case, the omission relating to section 8 permits was all the
more glaring given what the accused said when the court canvassed the
essential elements:
“Q.
Why did you drive without a licence?
A.
I
have a
reference
to drive without a licence.”[my
emphasis]
[13] Immediately,
the court should have stopped to enter a plea of not guilty in terms
of section 272 of the Criminal Procedure and Evidence Act, Cap
9:07
so that the issue could be properly investigated. What was that
'reference'
the accused mentioned? Could it be the section 8 permit? It was more
likely it was. But the court just went straight ahead:
“Q.
Any right?
A.
No.
Q.
Any defence?
A.
No.”
[14] Since
the accused was not represented, the court should have doubted the
genuineness of his plea of guilt. It was not informed. Section 272 of
the Criminal Procedure and Evidence Act says:
“272 Procedure
where there is doubt in relation to plea of guilty
If
the court, at any stage of the proceedings in terms of section two
hundred and seventy-one and
before sentence is passed -
[a] is
in doubt whether the accused is in law guilty of the offence to which
he has pleaded guilty; or
[b] is
not satisfied that the accused has admitted or correctly admitted all
the essential elements of the offence or all the acts or omissions on
which the charge is based; or
[c] is
not satisfied that the accused has no valid defence to the charge;
the
court shall record a plea of not guilty and require the prosecution
to proceed with the trial:
Provided
that ...”
[15] In
Count One the accused was sentenced to a fine of two hundred dollars
[$200], or in default thereof, sixty [60] days imprisonment. However,
in the light of the above misdirection the conviction is hereby set
aside and the sentence quashed.
[16] The
charge of culpable homicide in Count Two arose because of the death
of the deceased. The particulars of negligence were framed thus:
“[i] Drive
[sic]
motor vehicle without a driver's licence;
[ii] Fail
[sic]
to observe some statutory provisions, that is to say, allowing
passers [sic]
to ride on wings.”
[17] In
S
v Chitepo
above, such carelessness in the framing of criminal charges in
criminal matters drove me to remark as follows:
“I
caution in passing that great care and precision should always be
taken and exhibited in the drafting of criminal charges and the
handling of criminal matters. Criminal proceedings affect some of the
fundamental human rights and freedoms enshrined in the Constitution,
namely, the right to liberty, and even the right to life.”
[18] Driving
a motor vehicle without a valid driver's licence, whilst criminal,
is not negligence per
se.
Some unlicensed persons are quite competent as drivers. Prosecutors
should be careful not to conflate the crime of driving a vehicle
without a valid driver's licence with the crime of culpable
homicide, the bedrock of which is negligence.
[19] The
one defect in the charge in Count Two was that the particulars of
negligence did not specify the statutory provisions the accused
allegedly failed to observe when he allegedly allowed passengers [not
'passers']
“… to
ride on wings.”
Undoubtedly it was negligence for the accused to permit, as the
driver and therefore, the person in charge of the vehicle, persons to
sit on the wings of the loaded trailer as he drove the tractor. The
danger was obvious. This was a factor of negligence that should have
been framed with precision. As it was, the numerous mistakes almost
made nonsense of the charge, thereby casting considerable doubt as to
whether the accused did appreciate what he was pleading guilty to.
[20] The
sentence of the court a
quo
in Count Two was also a fine of $200, or in default, sixty days. To
his credit, and in line with the direction in cases such as S
v Dzvatu;
S
v Mtizwa;
S
v Chaita & Ors;
S
v Mapeka & Ors;
S
v Muchairi
and S
v Wankie,
to mention just but a few, the trial magistrate did assess the degree
of negligence. He set it at ordinary negligence. I agree with that
assessment, given the known circumstances.
[21] However,
it is on sentencing, in both counts, that the court a
quo
seriously misdirected itself in a number of respects. Going back to
Count One: in terms of section 6[5] of the Act, a person convicted of
driving a motor vehicle without a driver's licence, in
contravention of sub-section [1], is liable to a fine not exceeding
level six [$300], or to imprisonment for a period not exceeding one
year, or to both such fine and such imprisonment. However, if the
motor vehicle the accused was driving was a commuter omnibus or a
heavy vehicle, he shall
be liable to imprisonment for a period not exceeding five years and
not less than six months, unless he comes within one or other of the
two exceptions specified.
[22] In
the present case, the accused did not come within the first set of
exceptions, because they relate to a licensed driver, which he was
not. The second exception that enables the unlicensed driver of a
commuter omnibus, or of a heavy vehicle, to escape the mandatory jail
term of sub-section [5] is if they manage to show that there were
special reasons why the special penalty should not be imposed.
[23] What
determines whether or not the mandatory jail term should be imposed
is whether or not the motor vehicle in question was a commuter
omnibus, or a heavy vehicle. What determines whether a motor vehicle
is a heavy vehicle or not is its weight, and, in the case of a
passenger motor vehicle, its passenger carrying capacity – an
aspect not relevant in this case, because a tractor is not a
passenger-carrying vehicle.
[24] But
in terms of the definition of “motor
vehicle”
in section 2 of the Act, a tractor is a motor vehicle. Whether or not
it is a heavy vehicle depends on whether or not its net mass exceeds
two thousand three hundred kilogrammes [2,300kg]. The Act says a
“heavy
vehicle”
means a motor vehicle exceeding 2,300 kilogrammes net mass, but does
not include a passenger motor vehicle having seating accommodation
for less than 8 passengers.
[25] The
above aspect was not considered at all in the court a
quo.
It is not clear what then informed the sentence of $200 fine or sixty
days imprisonment in Count One. Having convicted him in Count One, it
was mandatory for the court to have established whether the accused
was liable for the section 6[5] special penalty or not. Among other
things, it was necessary to establish the weight of the tractor
because if it was a heavy vehicle, the penalty would have had to be
the mandatory period of imprisonment of not more than five years, but
not less than six months as prescribed by the proviso to sub-section
[5], unless he satisfied the court of the three circumstances
specified therein, or of the existence of special circumstances as
contemplated by section 88A of the Act.
[26] The
court's misdirection in regards to sentencing becomes even more
pronounced in relation to count two. Section 64 of the Act says:
“(1)
Subject to this Part, a court convicting a person of an offence in
terms of any law other than this Act by or in connection with the
driving of a motor vehicle on a road may, in addition to any penalty
which it may lawfully impose, prohibit the person from driving for
such period as it thinks fit.
(2) …………………..
[not
relevant]
………………………
(3) If,
on convicting a person of murder, attempted murder, culpable
homicide, assault or any similar offence by or in connection with the
driving of a motor vehicle, the court considers –
(a) that
the convicted person would have been convicted of an offence in terms
of this Act involving the driving or attempted driving of a motor
vehicle if he had been charged with such an offence instead of the
offence at common law; and
(b) that,
if the convicted person had been convicted of the offence in terms of
this Act referred to in paragraph (a),
the court would have been required to prohibit him from driving and
additionally, or alternatively, would have been required to cancel
his licence;
the
court shall, when sentencing him for the offence at common law –
(i) prohibit
him from driving for a period that is no shorter than the period of
prohibition that would have been ordered had he been convicted of the
offence in terms of this Act referred to in paragraph (a);
and
(ii) cancel
his licence, if the court would have cancelled his licence on
convicting him of the offence in terms of this Act referred to in
paragraph (a).”
[27] To
unpack the above provisions: a conviction of culpable homicide, as
defined by section 49 of the Code, that involves the driving of a
motor vehicle, should, among other things, automatically compel the
court to pay regard to the prescribed driving offences in the Road
Traffic Act, such as:
-
Section
50 [exceeding speed limits];
-
Section
51 [driving without due care and attention …];
-
Section
52 [negligent or dangerous driving];
-
Section
53 [reckless driving];
-
Section
54 [driving with prohibited concentration of alcohol in blood]; and
-
Section
55 [driving whilst under the influence of alcohol or drugs or both].
[28] In
terms of section 64[1] of the Act, the court has discretion to
prohibit from driving where it has convicted a person of a motoring
offence in terms of any law other than the Act. In terms of section
64[3] if it has convicted of, among others, culpable homicide arising
out of a motoring offence, where it would have convicted of a
motoring offence in terms of the Act [e.g. negligent or dangerous
driving, in contravention of section 52], then the court shall
prohibit from driving and cancel the licence.
[29] To
compound the situation further, in addition to section 64 aforesaid,
the court should also pay regard to section 65 if it has convicted.
Section 65[1] says a prohibition from driving shall
extend to all classes of motor vehicles. But of course, this is
subject to the exceptions set out in the rest of that section. For
example, sub-section [3] gives the court the discretion to confine
the prohibition to the class of motor vehicles to which the one being
driven by the accused at the time of the commission of the offence
belonged.
[30] The
sum total of all this is that where the driver of a commuter omnibus
or a heavy vehicle has been convicted of culpable homicide, the court
cannot just approach sentencing in the ordinary way. It has to pay
regard to the relevant sections above in case a prohibition from
driving is mandatory or discretionary, or in case the licence has to
be cancelled. Prohibition from driving is mandatory, for example, in
terms of section 52[4][c]
[negligent or dangerous driving of a commuter omnibus or a heavy
vehicle]; section 54 [driving with prohibited concentration of
alcohol in blood], and section 55 [driving while under the influence
of alcohol or drugs or both].
[31] In
the present case, if the tractor in question was a heavy vehicle,
then given that the trial court assessed the accused's degree of
negligence as ordinary, it would have been to section 52 of the Act
[negligent or dangerous driving] that the court would have sought
guidance from in deciding the question of prohibition from driving.
In terms of section 52[4][c],
a court convicting a person of negligent or dangerous driving, in the
case of a commuter omnibus or a heavy vehicle, shall
prohibit him from driving for a period of not less than two years,
unless there are special circumstances justifying the court to
decline to impose the prohibition.
[32] However,
in this particular case, as in the Chitepo
judgment, this is a moot point, raised only for guidance. The issue
of whether or not the tractor was a heavy vehicle was not canvassed
at all. The accused is entitled to the benefit of the doubt. At any
rate, by the type of sentence that it meted out, the court seems to
have treated the tractor as a light motor vehicle. Therefore, the
sentence of the court a
quo
in Count Two shall not be interfered with. However, with all due
respect, the Magistrate's Courts are urged to treat these driving
offences with some caution to avoid these frequent pitfalls.
[33] There
is yet another word of caution relating to yet another glaring
omission by the trial court in this case. In terms of section 163A of
the Criminal Procedure and Evidence, Cap
9:07,
the magistrate is obliged to inform an accused person of his right to
legal representation, and to endorse on the record the fact that he
or she did so inform the accused. The record in this matter has no
such endorsement. There is no telling whether or not the accused was
so informed. Chances are that he was not. Yet section 163A is couched
in peremptory terms. It says:
“[1] At
the commencement of any trial in a magistrates court, before the
accused is called upon to plead to the summons or charge, the accused
shall
be informed by the magistrate of his or her right in terms of section
191 to legal or other representation in terms of that section.
[2] The
magistrate shall
record the fact that the accused has been given the information
referred to in subsection [1], and the accused's response to it.”
[34]
However, notwithstanding the above omission, and without having
researched the full import of section 163A of the Criminal Procedure
and Evidence Act, I shall not, in this judgment, go so far as to say
the omission was fatal to the entire proceedings. I do not consider
that the accused was prejudiced merely by that omission, but only in
the respects identified already, and to which remedial action has
been taken, or prescribed.
[35] In
the final analysis therefore, the order of this court reads as
follows:
-
The
conviction in count one be and is hereby set aside, and the sentence
quashed.
-
The
conviction and sentence in count two be and are hereby confirmed.
-
The
court a
quo
is hereby directed to recall the accused and pronounce to him the
above altered verdicts and sentence.
15
March 2018
MAWADZE
J agrees: ____________________________
1.
1984
[1] ZLR 136 [H]
2.
1984 [1] ZLR 230 [H]
3.
1998 [1] ZLR 213 [H]
4.
2001 [2] ZLR 90 [H]
5.
HB41-06
6.
HH831-15
