Criminal
Review
MAWADZE
J:
This
review judgment has been occasioned by the rather incomprehensible
conduct by the learned Provincial Magistrate based at Masvingo
Magistrates Court. It is difficult to understand as to why the
learned Provincial Magistrate with all his experience would conduct
himself as a loose cannon. The baffling thing is why he decided not
to follow simple, straightforward and clear instructions outlined in
the Order granted by this court. What is unfortunate is that the
learned Provincial Magistrate would want to make this court part of
the patently injudicious antics.
The
background facts in this matter are as follows;
The
accused was arraigned before the learned Provincial Magistrate
sitting at Masvingo on 6 April 2018 facing a charge of culpable
homicide arising from a road traffic accident. The matter proceeded
by way of trial as the accused pleaded not guilty to the charge.
The
facts giving rise to the charge are that on 7 January 2018 the
49-year-old accused, at about 15.10 hrs, was driving a public service
vehicle, a Higer bus registration number ABX 6489 along the Beit
Bridge, Masvingo Road towards Masvingo and had 27 passengers on
board.
At
about the 3km peg from Masvingo the accused was driving behind a DNC
bus going in the same direction. In front of that DNC bus was also a
small motor vehicle also travelling towards Masvingo. The accused
decided to overtake both vehicles at an open curve with his vision
clearly impaired. Unknown to the accused there was another bus
belonging to Khaye Bus Company registration number HD 77 HG GP which
had broken down near the 3km peg as it was also travelling towards
Masvingo and was encroaching on to the Masvingo bound lane. There
were triangle reflective signs placed near this bus to warn other
motorists of the hazard. This prompted the small vehicle and the DNC
bus in front of the accused to stop as there was a Land Rover
Discovery registration number AEB 0047 driven by Kudakwashe Jani
travelling in the opposite direction towards Beit Bridge.
The
accused, in total disregard of basic road rules, and oblivious of
this danger, proceeded to overtake both the DNC bus and the small
vehicle which had stopped to allow safe passage of the Land Rover
Discovery vehicle. The driver of the Land Rover vehicle, upon
realising that a head on collision with accused's bus was imminent,
swerved to his far left and off the road but his valiant efforts were
in vain as the accused, also in panic, swerved to the same direction.
This resulted in a head on collision.
The
accused's bus literally climbed over the Land Rover vehicle and
dragged it for about 18 metres. The bus only stopped when its front
axle was suspended in the air and its rear axle suspended in a ditch.
Tragically all the 6 people in the Land Rover Discovery vehicle died.
These were Kudakwashe Jani, Savanna Jani, Cecilia Mpalisa, Beatrice
Mpalisa, Fungai Manyangadze and one Mahera. Three of them died on the
spot and the other three on admission at Masvingo General Hospital.
Fortunately, no one in accused's bus was injured.
It
is clear from these facts that the accused was negligent. This is so
because the accused inter
alia
decided to overtake on a bend, was following too close to the DNC
bus, was over speeding in an 80km zone without keeping a proper
lookout, hence he failed to stop or act reasonably when the accident
was imminent. The accused clearly disregarded other road users.
Despite
his rather misplaced protestations the accused who was legally
represented during the trial was properly convicted of the charge.
The evidence against him was simply overwhelming and the facts simply
did speak for themselves.
The
only issue which may arise is whether the accused should have been
charged of one (1) count of culpable homicide or six (6) counts of
culpable homicide as 6 people died, albeit arising from the same bad
driving conduct.
This
issue may be properly resolved after informed argument and is not the
gist of this review judgment.
The
accused was surprisingly sentenced to a fine of $1,000 or in default
of payment to serve 6 months imprisonment with additional 6 months
wholly suspended for 5 years on the usual condition of good
behaviour.
Again,
not surprising accused paid the fine. Further, the accused's
licence was spared and accused was only prohibited from driving any
motor vehicle for 6 months !! Needless to say this sentence induces a
sense of shock for its leniency.
Instead
of simply allowing sleeping dogs to lie as it were the accused had
the temerity to approach this court on appeal in respect of both the
conviction and sentence. The accused even callously suggested that a
fine of $400.00 was appropriate in this case. The accused's sense
of justice is warped to say the least and his lack of contrition is
beyond measure.
This
matter was set before my brother MAFUSIRE J and myself on appeal on 3
October, 2018 for argument. Both my brother MAFUSIRE J and myself
felt that grave injustice had been done in this case and eagerly
wanted to hear what meaningful argument counsel for the accused would
advance. Apparently the State counsel Mr
Tembo
as per the heads of argument filed of record had also glossed over
such grave injustice and simply submitted that the appeal in respect
of both conviction and sentence lacked merit without dealing with
other anomalies evident in this matter. This is precisely why we were
both eager to hear what Mr
Muchineripi
of
Muchineripi and Associates whose correspondent legal practitioners
were Ruvengo Maboke and Company would say.
For
reasons yet to be explained accused's counsel decided not to turn
up for the appeal hearing despite being properly served for the
hearing. One may simply suspect that the accused and his legal
practitioner realised the folly of their decision to proceed with the
appeal. Mr
Tembo
for the State rightly applied to have the appeal dismissed for want
of prosecution.
Be
that as it may, we inquired from Mr
Tembo
about the other anomalies in this matter and sought his views. This
related to the manifestly lenient sentence, the failure by the trial
court to make a clear finding of accused's gross negligence, and
the failure to impose mandatory sanctions provided for in terms of
section 64 of the Road Traffic Act [Cap
13:11]
relating to cancellation of accused's driver's licence and
prohibition from driving commuter omnibus and heavy vehicles for
life.
We
pointed out to Mr
Tembo
that his approach in this matter was perfunctory as he did not
address these mundane issues. We thus inquired from Mr
Tembo
as to the proper way forward. Mr
Tembo
agreed that this matter be remitted to the trial court to remedy the
omissions of failure to comply with the provisions of the Road
Traffic Act [Cap
13:11].
Our
view in this matter was that despite the manifestly lenient sentence
which raised our judicial eyebrows we were hamstrung to increase the
sentence as the accused was in default. Fairness and justice would
demand that before such a drastic action could be taken as provided
for in section 38(4) of the High Court Act [Cap
7:06]
the accused should be heard. Indeed, if the accused or his counsel
were present we would have, without doubt, interfered with the
substantive sentence of the court a
quo
by setting aside and substituting it with a custodial sentence of not
less than two years.
This
is informed by the fact that the accused was grossly negligent while
driving a public service vehicle carrying passengers and totally
disregarded road regulations causing the loss of six innocent lives
without even being contrite. Be that as it may, we still felt that
the accused could not escape the sanctions provided for in terms of
section 64(3) of the Road Traffic Act [Cap
13:11].
The provisions of section 65(6) of the Road Traffic Act [Cap
13:11]
should therefore be invoked.
In
the result we granted the following Order in default:
“In
default
IT
IS ORDERED THAT;
1.
The appeal be and is hereby dismissed for want of prosecution. It is
however noted that the sentence passed is manifestly lenient.
2.
The matter be and is hereby remitted to the trial court for purposes
of complying with the provisions of section 64 of the Road Traffic
Act [Cap 13:11] relating to a proper order on prohibition and
cancellation of the driver's licence.
3.
That the degree of negligence is reckless and that the provisions of
section 53 of the Road Traffic Act [Cap 13:11] should be invoked in
the absence of special circumstances.
4.
That Mr Tembo be and is hereby directed to summon the appellant (the
accused) within 14 days of granting of this order for purposes of
complying with paragraphs (2) to (4) of this order.”
The
drama in this matter continued.
We
were pleasantly bemused when, on 8 October 2018, we received a letter
from Mr
Tembo
dated 4 October, 2018 requesting a written judgment and full reasons
thereof in respect of the Order we had granted. We responded the same
day and politely reminded Mr
Tembo
that we granted the Order for dismissal of the matter for want of
prosecution after he had made the application for such an Order as
the counsel for the appellant (accused) was in default and that the
remittal of the matter to the trial Magistrate was for purposes of
complying with the law relating to assessment of prohibition from
driving motor vehicles and cancellation of the driver's licence in
accordance with the provisions of section 64 of the Road Traffic Act
[Cap
13:11].
Further we pointed out that we gave these brief reasons in the
presence of Mr
Tembo
himself and that we had directed him, as counsel for the State
present, to ensure compliance with the Order or to give teeth to the
Order as it were.
The
accused was subsequently summoned and the brief notes by the learned
Provincial Magistrate reflect that he protested that his legal
practitioner was the author of his problems. Surprisingly the learned
Provincial Magistrate did not probe as to what accused meant by this
or why the accused was blaming his legal practitioner presumably Mr
Muchineripi.
Thereafter the accused opted to proceed without legal representation.
The
record of proceedings reflects the following;
“What
special circumstances are explained to the accused and understood.
By
Court
Do
special circumstances exist in this case?
A.
Yes it was an accident. I did not think that such an accident was
going to happen. This problem was caused by my lawyer. I have 3 wives
and 11 children.
Findings
No
special circumstances in this case.
Sentence
altered as per Judge's request to imprisonment.
3
years imprisonment of which 6 months is suspended for 5 years on
condition accused does not contravene section 51, 52, 53 of the Road
Traffic Act or driving under influence of a drug for which upon
conviction accused is sentenced to imprisonment without the option of
a fine.
In
addition accused is prohibited from driving a motor vehicle other
than a commuter omnibus or a heavy vehicle for a period of 2 years
and is prohibited from driving a commuter omnibus or a heavy vehicle
during his life time. Accused person's licence is declared
cancelled. Further the Clerk of Court is instructed to refund accused
$1,000 within 7 days.
Accused
to surrender his licence with the Clerk of Court within 7 days.”
(sic)
It
is indeed mind boggling as to how the learned Provincial Magistrate
proceeded in this manner. A number of issues arise from this.
In
terms of procedure the learned Provincial Magistrate should have
explained to the accused why he had been summoned and to read out the
High Court Order to the accused. Probably this was done but the
record reflects otherwise.
The
learned Provincial Magistrate was enjoined to fully and properly
explain to the accused, who was now unrepresented, what special
circumstances entail and the consequences arising from an absence of
such special circumstances: See S
v
Manase
2015
(1) ZLR 160 (H) as per MUREMBA J.
The
accused's right to a fair hearing as enshrined in section 69 of the
Constitution cannot be taken lightly. As an experienced Magistrate
one would not expect the learned Provincial Magistrate to approach
proceedings in such a cursory manner.
It
is important to note that in the initial reasons for judgment soon
after the trial the learned Provincial Magistrate had not
specifically dealt with the factual finding in relation to accused's
degree of negligence other than simply mentioning in passing that
accused's degree of negligence was high (whatever that means).
Again there are a plethora of cases from this court dealing with this
aspect. See S
v Dzvatu
1984
(2) ZLR 136 (H), S
v Mtwizwa
1984
(1) ZLR 230 (H), S
v Chaita
& Ors. 2001
(2) ZLR 90 (H).
What
is even worrying is that the trial prosecutor while addressing the
court in aggravation soon after the accused's conviction
specifically referred the learned Provincial Magistrate to the
provisions of section 64 of the Road Traffic Act [Cap
13:11].
Apparently this still did not find tranction with the learned
Provincial Magistrate who simply proceeded to prohibit the accused
from driving any class of motor vehicle for 6 months after imposing a
fine of $1,000.00, which sentence was manifestly lenient.
The
major concern however is why, in purporting to comply with the Order
of this court the learned Provincial Magistrate decided to mislead
the accused that this court had directed that accused should be
sentenced to a term of imprisonment.
He
then proceeded to impose a sentence of 3 years imprisonment without
even asking the accused to show cause why such a sentence should not
imposed.
In
fact, it is difficult to appreciate why the learned Provincial
Magistrate deemed it fit to deal with paragraph (1) of our Order
which relates to the substantive sentence. That Order is crystal
clear that the accused was to be summoned by the trial court for
purposes of complying with paragraphs (2) to (4) of that Order and
not paragraph (1). It is therefore disingenuous for the learned
Provincial Magistrate to untruthfully suggest, let alone allege that
this court ordered him to alter the accused's substantive sentence.
As already said, the learned Provincial Magistrate simply decided to
take leave of his senses and cause further confusion in this matter
by embarking on a frolic of his own.
The
learned Provincial Magistrate should have appreciated that he was now
functus
officio
in relation to the substantive sentence he had imposed on the accused
of a fine of $1,000.00. As a result, he could only competently
revisit that sentence after being ordered to do so by this court and
after this court had interfered with such a sentence and setting it
aside. This court had clearly not done so for obvious reasons despite
noting that a clear injustice had been occasioned by imposing a
manifestly lenient sentence.
The
effect of the conduct of the learned Provincial Magistrate is not
only to taint the image of this court but to ignore all basic aspects
of procedural law.
In
essence therefore the accused now has two separate sentences on the
same matter, one of a fine of $1,000.00 and the other of a custodial
term of 3 years. Both sentences are extant.
Such conduct is clearly improper and incompetent. This court is
enjoined to correct such an anomaly by exercising its review powers
to ensure that basic tenets of justice are adhered to.
This
court is quite alive to the fact that the accused deserved a harsher
penalty other than the fine initially imposed. However, as things
stand this court is unable to correct such an injustice in relation
to the substantive sentence for reasons already stated.
What
is proper in the circumstances is to now correct all these anomalies
by setting aside the sentence of 3 years imprisonment imposed by the
learned Provincial Magistrate, the order relating to prohibition from
driving any motor vehicle for 6 months and the order in relation to
the refund of $1,000.00.
The
order in relation to prohibition from driving any motor vehicle other
than and/or commuter omnibus or a heavy vehicle for 2 years and from
driving or commuter omnibus or a heavy vehicle for life and the
cancellation of the accused's driver's licence should be upheld.
In
view of the aforementioned we are still unable to certify the
proceedings as in accordance with real and substantial justice in
relation to the substantive sentence of a fine of $1,000.00 which
sentence shall remain operational despite the misplaced endeavour by
the learned Provincial Magistrate to alter that sentence improperly.
In
the result the following order is made;
IT
IS ORDERED THAT;
1.
The conviction of the accused be and is hereby confirmed.
2.
The sentence of 3 years imprisonment of which 6 months imprisonment
is suspended for 5 years on the usual conditions be and is hereby set
aside.
3.
The initial sentence imposed by the court a
quo
of a fine of $1,000 or in default of payment 6 months imprisonment
with additional 6 months imprisonment suspended for 5 years on
condition accused does not negligently cause the death of another
person arising from a road traffic accident be and is hereby
reinstated.
4.
The accused be and is hereby prohibited from driving any motor
vehicle other than a commuter omnibus or a heavy vehicle for a period
of 2 years and is prohibited from driving a commuter omnibus or a
heavy vehicle during his lifetime.
5.
The accused's driver's licence be and is hereby cancelled.
6.
In relation to the substantive sentence of a fine of $1,000 or in
default of payment 6 months imprisonment with additional 6 months
wholly suspended, we are unable to certify that sentence as being in
accordance with real and substantive justice and therefore we
withhold our certificate.
7.
The Registrar be and is hereby directed to bring this review judgment
to the attention of the Chief Magistrate to ensure that the conduct
of the learned Provincial Magistrate is not repeated.
The
accused should again be recalled and advised of this outcome. If
accused pays the fine he should be released from prison forthwith.
Mafusire
J. agrees………………………………………………………….
