This is a review judgment.

The accused was charged with culpable homicide, which charge he pleaded guilty to.

This is a review judgment.

The accused is thirty-six years of age, charged with culpable homicide.

The facts of this case, which are common cause, are that on the 31^st of August 2008, the accused negligently drove a police vehicle along Fife Street..., Bulawayo, and, as a result of this negligence, he killed a pedestrian.

This matter was placed before me for review.

The accused was charged with culpable homicide which charge he pleaded guilty to and was convicted….,.

The appellant was convicted by the resident magistrate Murewa on 21 August 2006 of culpable homicide.

He was driving a Honda Odyssey vehicle and drawing a trailer, when, on 25 February 2005, he hit and killed the nine year old deceased, Shylene Motsi, at the 46,5 km peg along the Marondera Musami Road in Murewa.

On 30 August 2006, the appellant filed the present appeal. He listed eight misdirections he averred where apparent from the face of the record of proceedings. He averred that the circumstances in which the fatal collision took place did not support the finding of negligence reached by the trial magistrate.

The facts of the matter are found in the testimonies of four witnesses and four documentary exhibits. The State called the evidence of Rutendo Mazanhi, Yolanda Takarova and the Investigating Officer, Sergeant Gift Karonga, while the appellant was the sole witness in his defence. Rutendo Mazanhi and Yolanda Takarova, who were nine and seven years old at the time of the accident, were in the company of the deceased. They were on their way home from school. Sergeant Karonga wrote in exhibit A, the Traffic Accident Book that he arrived at the scene thirty (30) minutes after the collision while the appellant stated that he did so after fifteen (15) minutes.

The appellant was driving a Honda Odyssey light motor vehicle and was towing a trailer along the 7-metre wide bituminous Marondera-Musami road. He was with his wife and two sons in the motor vehicle. He was at the tail end of a convoy of four cars led by Mrs. Lesley Swart who was the only person who knew the way to the farm where they were going for a picnic. He had never driven on that road before. Unbeknown to him, at about 2:15pm, the deceased was walking from Mabika Primary school in the company of Rutendo Mazanhi, Yolanda Takarova, and Chenai Murare. The school was on the left hand side of the appellant. Between the school and the main road is a dust road which runs parallel to the main road. The ground between the dust road and the tarred road was covered by grass which was 1, 2m tall. The dust road was connected to the tarred road by diagonally running foot paths. The school girls were walking along the dust road. The deceased, Yolanda Takarova, and Chenai Murare used one of the diagonal paths to reach the edge of the tarred road; a spot some 200m to 250m from their school. They were all hidden from the appellant's view by the long grass. The deceased emerged from the grass and ran into the road. When she was in the center of the road, she realized that there was an oncoming vehicle traveling in its correct lane. She stopped and hesitated and then ran forwards into the lane for traffic coming from the opposite direction. The oncoming vehicle left its lane of travel and went into the lane she had taken and hit her when she was a metre from the edge of the road. She was thrown into the air, fell into the road and instantly died.

The Investigating Officer compiled the Traffic Accident Book…, and drew a sketch plan, which he later enlarged into exhibit A. He recorded statements from the two school girls who testified in court. He allowed the appellant and his elder son to write down their respective versions of events in the Traffic Accident Book.

At his trial, the appellant testified that he did not notice the Mabika Primary School sign, the school itself and the Crossing Ahead sign for school children that were all on his left hand side. It was the uncontroverted testimony of the Investigating Officer that the latter sign was 600m before the scene of the accident. He confirmed the testimony of the two school girls on how the accident occurred. He stated that the deceased suddenly emerged from the long grass on the side of the road and ran into the road some 5.5m in front of his vehicle. In order to avoid hitting her, he jumped on his brakes. The little girl looked at him and appeared to be retreating. He released his brakes, swerved to his right into the lane for traffic coming from the opposite direction but the girl carried on running and he hit her with the front of his vehicle where the number plate is affixed and she bounced off the front of his car to the right. He went over her without running her with his wheels. He lost control of his vehicle and went off the road into the long grass on his right hand side. He travelled in the grass for 21.5m before coming to a stop in the tarred road in his wrong lane. He produced four photographs of the Danger Warning sign that were taken by his legal practitioner a year after the accident…,.

In his well-written judgment, the trial magistrate found the circumstances that prevailed as the appellant was driving were-

1. That Mabika Primary School and its sign post were visible to a driver travelling along the road in question. He, however, found that the danger warning sign for children crossing ahead was 1.5m high, though partially obscured by the 1.2m long grass leaving the top portion visible for 30 centimetres, would have been visible to the appellant just as it was visible to the Investigating Officer who drew it in the sketch plan in the Traffic Accident Book on the day of the accident.

2. The 1.2m long grass on both sides of the road made the deceased and her companions inconspicuous to the appellant.

3. That the deceased just ran into the road without checking whether it was safe for her to do so.

4. That the appellant was traveling at a speed of 100km/hr through a built-up residential rural area that he was not familiar with. That the maximum speed permissible for light vehicles on that portion of the road was 120km/hr. He was driving a light motor vehicle and was towing a trailer. He was traveling in a convoy and at approximately the same speed with three other vehicles that were not towing any trailers.

He proceeded to apply these circumstances to the three pronged foreseeability test propounded by W.E. COOPER's Motor Law vol 2 'Principles of Liability' (Juta, 1987)…, and found the appellant culpable for the death of the deceased.

The first question set out by W.E. COOPER is whether a reasonable man in the position of the appellant would have foreseen the possibility of harm to others.

The trial court relied on the concession made by the appellant, under cross-examination, that his speed was unsafe in a rural residential area which he was not familiar with and on a road which was bounded on both sides by 1.2m long grass. He found that his visibility was obscured by the long grass and held that a reasonable driver in his shoes would have foreseen the possibility of harm to others in those circumstances.

The second question set out by W.E. COOPER is whether a reasonable man in these circumstances would have taken precautions to prevent the harm.

The trial magistrate reasoned that a speed of 100km/hr was not a safe speed to travel at for a vehicle that was towing a trailer. His reasoning was based on two factors. The first was that his companions, who were not towing any trailers, were also travelling at that speed. The second was the further concession by the appellant that he did not apply his emergency brakes for fear of overturning.  He also found that the failure by the appellant to observe the Mabika Primary School, its sign post and the Danger Warning sign for children crossing demonstrated that he was not keeping a proper look out. He held that his duty of care towards the deceased began long before he reached, and not at the point at which he first observed the deceased. While he accepted that the appellant would not have been able to avoid the accident at the time he first saw the deceased darting across the road, he found that the failure to keep a proper look out and the unsafe speed that the appellant was traveling at prevented him from taking the precautions that a reasonable man in his shoes would have taken to prevent the harm that befell the deceased.

The last question posed by W.E. COOPER was whether the appellant took the necessary precautions to avert the harm.

The trial magistrate held that the measures he took on seeing the child at 5.5 m ahead were compromised by his earlier failures to drive at a safe speed on approaching a school and on seeing a Danger Warning sign ahead.

In the final analysis, the trial magistrate agreed with the appellant's counsel of record that the cases of S v Duri 1999 (3) ZLR 111 (S); S v Ferreira 1992 (1) ZLR 93 (S); and S v Ball 1993 (3) ZLR 384 (S) were distinguishable from the present matter in that in those cases the drivers had seen the children at an appreciable distance before the accident. He, however, opined that while the long grass and the failure by the child to check the road before crossing contributed to the accident the appellant failed to reduce his speed to suit the exigencies posed by the school, its sign and the Danger Warning sign because he was not keeping a proper lookout. He came to the conclusion that the contributory negligence of the deceased reduced the appellant's negligence to ordinary negligence.

Counsel for the appellant submitted that the trial magistrate ought to have assessed the negligence of the appellant from the time he first saw the child dart in front of him. She submitted that the long grass and the actions of the deceased created a sudden emergency which exonerated the appellant from any wrongdoing. She further argued that confronted with the sudden emergency, the appellant, by applying his brakes and swerving to the right, acted as would a reasonable driver in his shoes. She, however, conceded that the appellant ought to have seen the school, its sign post and even the Danger Warning sign before the child suddenly ran into the road.

Counsel for the respondent adopted her written submissions and did not support the conviction. She basically agreed with the appellant's counsel by conceding that a sudden emergency was created by the long grass and the actions of the deceased. In fairness to counsel for the respondent, she abandoned her concession when we sought her comments on the admissions of negligence that appeared to have been made by the appellant under cross examination in the court a quo.

In S v Duri 1999 (3) ZLR 111 (S)…, Duri was traveling at a speed of between 90km/hr and 100km/hr when he saw the child 80m in front of him on the side of the road. The child dashed into the road after his goat when he was 40m away and Duri hit both the boy and his goat and killed them. At 12F it was found that even if he had been traveling at 20km/hr he would not have been able to avoid hitting the boy. His appeal against conviction was dismissed on the basis that he did not take preparatory steps like slowing down, removing his leg from the accelerator and placing it adjacent to the brake or carefully watch the movements of the boy and his goat for the first sign of dangerous activity on their part that would have empowered him to take evasive action when the collision seemed imminent. At page 113G McNALLY JA stated that -

“Having made it impossible for himself to deal with what was then no doubt a sudden emergency, he cannot call in aid the doctrine of sudden emergency.”

In S v Ferreira 1992 (1) ZLR 93 (S)…, the appellant's conviction of culpable homicide arising from the death of a 7 year old boy who dashed in front of his boat-towing vehicle was upheld after a consideration of the “totality of the facts.” He had been driving at 90km/hr. He had removed his foot from the accelerator but had not placed it on the brake pedal. The boy dashed in front of him and he violently applied his brakes and veered slightly to his left. He was unable to evade the child…., GUBBAY CJ stated that -

“There is a very definite duty upon a motorist who knows himself to be in the vicinity of young children, for they have a propensity for impulsive and sometimes irrational action. Children should not be credited with the same mature intelligence and presence of mind as grown-up people. A motorist must anticipate that a child on, or just next to, the road may unexpectedly decide to run across oblivious of danger. He must keep his vehicle under such control as to be able to suddenly pull-up if a child starts to cross the line of his route. He must prepare himself for such an eventuality. It has been aptly remarked that young children are "as wide as the road" and are liable to get into the way of a motorist without any overt warning. Thus, greater care is demanded towards children than is necessary for the safety of adults.”

At 96F-H, he emphasised the need to drastically reduce speed as a preparatory step to stopping to avoid a collision in these terms -

“It is clear to my mind that the scene confronting the appellant was such as to impose upon him a duty to substantially reduce his speed of 90km/h, albeit there was no indication at that stage of an intention on the part of any of the children to cross the road. Obviously, the appellant was alive to the possibility of a sudden movement into the road by one or more of the children for he took his foot off the accelerator. But that action was totally inadequate. The vehicle was traveling along a level stretch of road and the precaution the appellant took over the rapidly decreasing distance would have barely, if at all, slowed the vehicle down. He ought, additionally, to have realized that the braking power of the vehicle would be adversely affected by the weight of the boat-carrying trailer.”

S v Ball 1993 (3) ZLR 384 (S)…, McNALLY JA had this to say about the defence of sudden emergency that was relied on by counsel for the appellant and conceded by counsel for the respondent-

“In a series of cases involving the unintentional killing of children this court has emphasised the high standard of care that must be exercised by motorists when passing children on the side of the road. See S v Duri 1989 (3) ZLR 111 (S); S v Ferreira 1992 (1) ZLR 93 (S); and S v Beets SC90-93. But there is no absolute liability. Each case turns on its own facts. In each of the cases to which I have referred, it could be said that, when the crisis occurred, there was no way the driver could avoid the child. In each case, therefore, the court was in effect, ruling that a properly cautious driver would have done something before the crisis arose to ensure either that he could avoid it, or that he could prevent it, or both. By slowing down considerably or moving to the centre or far side of the road, when this is possible, one may be satisfied that even if the child does suddenly dash into the road one will be able to avoid him. By hooting or flashing one's lights one may be satisfied that the child is aware of one's presence. With a small child one may need to take both avoiding and preventive action. With an older child one or other may be an adequate and reasonable precaution.”

Similar sentiments were expressed by CHIWESHE J…, in S v Nortje 2003 (1) ZLR 255 (H)…,.

The point made in these cases is that the court does not only look at the actions of the driver when the crisis occurred but also before it does.

The trial magistrate properly looked at the actions of the appellant when the crisis occurred and found that there was nothing he could do, at that stage, to avoid the accident. He, however, found him negligent on the basis of his omissions before the crisis occurred.

I am unable to fault his findings or his reasoning.

After all, under cross examination by State counsel, the appellant virtually admitted that he drove negligently. He accepted that he failed to see the school, its sign post and the Danger Warning sign when he ought to have done so. The evidence of the Investigating Officer also revealed that other school children were walking along the dust road that was parallel to the school when he arrived at the scene of the accident. The appellant's focus must have been on keeping pace with the vehicles that were in front of him. He incapacitated himself from keeping a proper look out of his surroundings. Had he done so he would have taken adequate preventive measures to avoid the collision.

In Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A) CORBETT JA…, makes the point that a motorist has an even higher duty of care towards hidden children whose presence he ought reasonably to foresee or anticipate. THRING J adopted this reasoning in Road Accident Fund v Landman 2003 (1) SA 610 (C) and found a mother who hit a school girl who suddenly ran in front of her motor vehicle from behind a bus that was dropping school children at a school pick up and drop station negligent in that she proceeded at “an unabated speed of as much as even 40km/hr.”

Before concluding, I wish to indicate that the appellant was not traveling at a safe speed.

He does not appear to have been aware of his speed at the time of the accident. In the Traffic Accident Book he gave his speed as 60km/hr. In his evidence he said it was 100km/hr. It seems to me that this contradiction demonstrates that he was not paying attention to his speedometer. He was therefore not keeping a proper look out. But, even if he were travelling at 100km/hr, it was not a safe speed to travel at in the vicinity of a school and on a road with long grass on its edges. The speed limit for a light vehicle that was not towing a trailer would have been 120km/hr on that road. In terms of the Road Traffic (Maximum Speed Limit) Regulations 1995, S.I.63 of 1995, the maximum speed for any light vehicle drawing a trailer in a bituminous road with a width in excess of 6m was 100km/hr. The appellant was traveling at the permissible maximum speed in conditions which required a lesser speed.

Maxim Matsetu…., appeared before a Senior Magistrate at Mbare Magistrate's Court charged with the contravention of section 49(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (culpable homicide).

The law on being dazzled by the lights of oncoming traffic was settled in the case of S v Mandwe 1993 (2) ZLR 233 (SC)…, where KORSAH JA, dealing with a sudden emergency as a result of the appellant's eyes having been dazzled by the lights of an oncoming motor vehicle said -

“And  when the appellant found himself dazzled by approaching headlights, he should, at once, have stopped or slowed down to a very slow pace in case there should be someone, such as the deceased, or something in his path, so that he could stop or take evasive action. As GUBBAY ACJ (as he then was) remarked in S v Ruzario 1990 (1) ZLR 359 (S) at 366E-F:

'…., if  at that stage he found that his vision was somewhat impaired, his duty was to instantly pull up and wait until he could see properly before proceeding further, or reduce his speed so as to be able to stop within the range of his vision.' 

The appellant contended that he had slowed down. The fact is he was proceeding without a clear vision of what was in front of him and was unable to stop within the range of his vision. As McNALLY JA observed in S v Duri 1989 (3) ZLR 111 (S):

'…, slowing down is merely a preparatory step - it is a step which makes it possible to take evasive action if need arises.'

The same view was expressed by GUBBAY CJ in S v Ferreira 1992 (1) ZLR 93 (S) at 97; 1992 (2) SACR 425 at 428g-h (ZS) when he said:

'…, in not significantly slowing down, the appellant incapacitated himself from taking effective evasive action.'”…,.

The above record was forwarded to me for review as per the usual procedure. The accused was charged as follows;

“Count 1 - driving without a licence as defined in section 6 of the Road Traffic Act [Chapter 13(11)].

Count 2 - contravening section 49 of the Criminal Law Codification and Reform Act [Chapter 9:23] as Read with section 64 of the Act [Chapter 13 (11) (Culpable Homicide).”

The accused, who was an officer with the Zimbabwe Prison Service in Marondera, was convicted on his own pleas of guilty at Marondera Magistrates Court of three counts which are:-

Count 1: Contravening section 6(1) of the Road Traffic Act [Chapter 13:11] in that on 5 May 2012 at around 2020 hours, the accused unlawfully drove a motor vehicle, namely Mazda 626 registration number AAV 5017, along Harare–Mutare road well knowing he is a non-holder of any driving certificate or licence.

Count 2: Contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 5 May 2012 around 2020 hours, the accused unlawfully drove a motor vehicle, namely Mazda 626 registration number AAV 5017, along Harare-Mutare road negligently causing the death of a pedestrian, ANOBI JAMES.

Count 3: Contravening section 70(2)(1) of the Road Traffic Act [Chapter 13:11] in that on 5 May 2012 at around 2020 hours, the accused after having been involved in an accident with his motor vehicle, a Mazda 626 registration number AAV 5017, along Harare-Mutare road, the accused failed to stop after the accident.

The brief agreed facts are that the accused, who is not a holder of a valid drivers licence was, on 5 May 2012, at 2010 hours, driving the said motor vehicle along the Harare–Mutare Road towards Harare carrying two passengers on board. On approaching the 74km peg along the same road the accused hit a pedestrian, ANOBI JAMES, who was trying to cross the road at a non-functional robot site.

The pedestrian was left lying on the ground unconscious.

The accused, who was well aware that he had been involved in an accident, did not stop after the accident. JAMES ANOBI was later ferried to Marondera hospital where he was pronounced dead a few hours upon his arrival as a result of severe head injuries and multiple trauma arising from the accident as per the post mortem report produced as exhibit 4.

The particulars of negligence alleged in Count 2 are stated as follows;

“(i) Drive without a Driver's licence.

(ii) Using a defective vehicle with low candle power on headlights.

(iii) Failed to keep proper lookout under the circumstances.”…,.

In respect of Count 2, which relates to culpable homicide, the leaned trial magistrate did not make a finding of the precise degree of negligence for purposes of not only to properly assess the overall sentence but to abide by the provisions of section 64(3) of the Road Traffic Act [Chapter 13:11]. See S v Chaita & Ors 1998 (1) ZLR 213 (H)…, in which CHINHENGO J said;

“To sum up, therefore, on a charge of culpable homicide arising out of a motor vehicle accident, the court is required to make a finding of the precise degree of negligence of the accused and is enjoined to approach the matters in terms of s64(3) of the Act. A failure to do so is clearly a misdirection.”

The reason for the need to make a finding of the precise degree of negligence of the accused in such cases is twofold. Again, this was lucidly put by CHINHENGO J in S v Chaita & Ors 1998 (1) ZLR 213 (H)…, as follows;

“A magistrate who presides over a case of culpable homicide arising from a motor vehicle accident must satisfy himself that if the accused had been charged under the Act, he would have been convicted of either driving without due care and attention or reasonable consideration for others (s51); or of negligent or dangerous driving (s52); or of reckless driving (s53); or of driving with or prohibited concentration of alcohol or drug or both (s54); or of driving while under the influence of alcohol or a drug or both (s55). Such a determination will not only enable the magistrate to make a precise finding on the degree of negligence to found a verdict of culpable homicide but will also provide the magistrate with a proper basis for considering the appropriate sentence. This consideration is the foundation of the statement in S v Combrink HB91-96 where CHATIKOBO J (may his soul rest in eternal peace) said that;

'When a person is convicted of culpable homicide on the basis that he was negligent (or other similar conduct) the issue of prohibition from driving and cancellation falls to be dealt with in terms of these provisions (s64(3)(b)(ii) as read with s52(4) (b)).'” 

It would appear that this exhortation made by CHINHENGO J escapes the minds of many magistrates who deal with cases of culpable homicide arising from road traffic accidents. I hope magistrates would, and should, always familiarise themselves with these pertinent provisions.

In casu, the precise degree of negligence relates to the fact that the headlights of the accused's motor vehicle were malfunctioning and that he failed to see the pedestrian. No further inquiry was made as to the exact nature or extent of the faulty headlights as this was at night or why the accused failed to see the pedestrian crossing the road in front of him. As already said, the failure by the learned trial magistrate to make a finding of the precise degree of negligence in Count 2 is clearly a misdirection….,.

Accordingly, it is ordered that the proceedings in CRB1173/12 be and are hereby set aside and a trial de novo be held by the same or any other magistrate.

It is now trite that in a charge and conviction of culpable homicide arising out of a driving offence, it is essential that the trial court should first make a precise finding on the degree of negligence before assessing the appropriate sentence:

See S v Dzvatu 1984 (1) ZLR 136 (H); S v Mtizwa 1984 (1) ZLR 230 (H); S v Chaita & Ors 1998 (1) ZLR 213 (H); S v Mapeka & Ors 2001 (2) ZLR 90 (H); S v Muchairi HB41-06; and S v Wankie HH831-15.

In casu, the particulars of negligence preferred against the accused, to which he pleaded guilty, were these:

(i) Causing or permitting a passenger to ride on a mudguard;

(ii) Failing to keep a proper lookout in the circumstances;

(iii) Fail(ure) to act reasonably when an accident seemed imminent.

I must comment, in passing, that given the circumstances surrounding the commission of the offence, such particulars were not very informative. What loomed large as particulars of negligence was the fact that for someone who had been drinking alcohol for about six hours, to try a hill start at night, using one arm to control both the steering wheel and the gear/clutch levers, was extremely dangerous.

It appears from the record that whilst the particulars of negligence left out such crucial aspects, nevertheless, the court did take them into account in considering aggravating circumstances for the purposes of sentence. The court assessed the accused's degree of negligence as gross. I shall not interfere with that assessment even though I myself might have elevated his conduct to recklessness….,.

The approach of the courts is that persons convicted of culpable homicide arising out of a driving offence should generally be spared jail unless the degree of negligence was gross or reckless.

In S v Dzvatu 1984 (1) ZLR 136 (H), the accused, whilst driving a military truck late at night, came out of a side road and ignored a “Give Way” sign. His vehicle hit a police vehicle that was travelling along the main road. Two policemen in the police vehicle died. The accused was found guilty of culpable homicide and fined $250=. On review, the sentence was criticised. McNALLY J, as he then was, said….,;

“To my mind, anyone who drives straight through a 'Give Way' sign at a T-junction and hits a lighted vehicle travelling in the main road, killing two people, is prima facie grossly negligent. When it also seems that that person is to an unspecified degree under the influence of alcohol, then that belief is confirmed. In view of the current increase in the number of tragedies on our roads, such conduct warrants a prison sentence. In principle that has always been the position – see S v Lusenge AD 138/81…,.

I referred this matter to the Attorney-General and he agrees that a prison sentence and a prohibition from driving would have been appropriate.”

In S v Mtizwa 1984 (1) ZLR 230 (H), the accused pleaded guilty to culpable homicide. He had driven onto his wrong side of the road. He struck and killed a motor cyclist. He could not explain why he had been on the incorrect side of the road, or why he had not seen the motor cyclist at any time before the accident. He was fined $200=. On review, the sentence was criticised for being disturbingly lenient. It was said an appropriate sentence would have been one of imprisonment and a prohibition from driving. It was said, among other things, that where recklessness or gross negligence is shown, a prison sentence should be appropriate.

It was the same approach in S v Chaita & Ors 1998 (1) ZLR 213 (H) and S v Mapeka & Ors 2001 (2) ZLR 90 (H).

This case was referred for review by the Regional Magistrate, upon scrutiny, in terms of section 58(3) of the Magistrate's Court Act [Chapter 7:10].

The issue was whether, in a conviction for culpable homicide, the trial magistrate had misdirected himself,not only in sentencing the accused to a mere fine instead of a custodial term, but also in passing an order of prohibition from driving without first making an enquiry into special circumstances as required by the Road Traffic Act [Chapter 13:11] (“RTA”).

The facts were these.

The accused was a commuter omnibus driver. Whilst driving along the Harare-Hwedza Road, his vehicle struck a seven year old girl at the 51 kilometre peg as she tried to cross the road. The girl sustained serious head injuries. She died in hospital four days later. The accused pleaded guilty to culpable homicide as defined by section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code” or “Code”). The section reads:

“49 Culpable homicide

Any person who causes the death of another person –

(a) Negligently failing to realise that death may result from his or her conduct; or

(b) Realising that death may result from his or her conduct and negligently failing to guard against that possibility;

shall be guilty of culpable homicide and liable to imprisonment for life or any shorter period or a fine up to or exceeding level fourteen or both.”

I have highlighted “negligently” because that, undoubtedly, is the bedrock of the charge.

The particulars of negligence were listed as follows:

(i) Travelling at a speed which was excessive under the circumstances;

(ii) Failing to stop or act reasonably when an accident seemed imminent;

(iii) Failing to keep a proper lookout under the circumstances;

(iv) Failing to sound a horn;

(v) Failing to exercise the high degree of care called for from a driver who sees children in the road in front of him.

The trial magistrate canvassed the essential elements by repeating the particulars of negligence. The accused admitted them all. The magistrate then pronounced that he had found the accused guilty of “gross” negligence. He sentenced him to a fine of $200=, or, in default, three months' imprisonment. In addition he prohibited him from driving for six months.

On scrutiny, the Regional Magistrate raised the following query:

“3. It is my view that the sentence is too lenient if the degree of negligence was gross. The trial magistrate was supposed to have acted in terms of section 53 of Road Traffic Act. The State preferred five particulars of negligence which were all admitted by accused, therefore it was a typical case of gross negligence. In the light of the review judgment by CHEDA J in S v Muchairi HB41-06, a custodial sentence would have been appropriate.

4. Furthermore, the trial magistrate prohibited accused from driving without making an inquiry into special circumstances.

In my view, he erred.”

Section 53 of the Road Traffic Act [Chapter 13:11], referred to by the Regional Magistrate, provides a penalty of, inter alia, imprisonment for between two to fifteen years for, inter alia, a commuter omnibus driver found guilty of reckless driving. In addition, his licence shall be cancelled, and he himself prohibited from driving a commuter omnibus during his lifetime unless there are special circumstances. The sanction is heavier for a repeat offender.

The central issue in this review case has been dealt with by the courts before.

A common thread running through cases such as S v Dzvatu 1984 (1) ZLR 136 (H); S v Mtizwa 1984 (1) ZLR 230 (H); S v Chaita & Ors 1998 (1) ZLR 213 (H); S v Mapeka & Anor 2001 (2) ZLR 90 (H); and S v Muchairi HB41-06 is that in a charge of culpable homicide, it is necessary for the trial court to make a precise finding on the degree of negligence.

In S v Mapeka & Anor 2001 (2) ZLR 90 (H), CHINHENGO J, quoting himself in S v Chaita & Ors 1998 (1) ZLR 213 (H), said….,:

“It will be apparent that while negligence is the basis of a conviction of the accused for culpable homicide, that does not necessarily mean that the accused's conduct amounted to one of the more serious examples of driving conduct such as reckless driving…., nor does it mean that it was not a less serious form of conduct. Negligence, for the purposes of a conviction for culpable homicide, is the minimum level of conduct that is required to establish the offence. It has, however, various gradations which not only should be established at the plea stage or by evidence during trial but should also be established for the purposes of sentence.”

In terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], if death is caused 'negligently' that by itself amounts to culpable homicide. As CHINHENGO J observed in S v Chaita & Ors 1998 (1) ZLR 213 (H) and S v Mapeka & Anor 2001 (2) ZLR 90 (H), negligence is the minimum standard required to establish the offence. But, even in a plea case, the degree of negligence must be established. It is necessary that the accused be made conscious of what he may be pleading guilty to.

In the present case, it was only when pronouncing the verdict, albeit, after repeating the particulars of negligence as the essential elements of the crime, that the trial magistrate mentioned gross negligence for the first time. Thus, there is no telling whether or not the accused, in admitting those particulars of negligence, was conscious of the fact that they amounted to, or would be construed to mean, gross negligence, and not just ordinary negligence as envisaged by section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The greater reason why the specific degree of negligence must be established in a charge of culpable homicide is for the purposes of sentence. The more severe form of negligence there is the greater the penalty must be.

In S v Dzvatu 1984 (1) ZLR 136 (H), the accused, whilst driving a military truck late at night, came out of a side road and ignored a “Give Way” sign. His vehicle hit a police vehicle which was travelling along the main road. Two policemen in the police vehicle died. The accused was found guilty of culpable homicide and fined $250=. On review, the sentence was criticised. McNALLY J…., said…,;

“To my mind, anyone who drives straight through a 'Give Way' sign at a T-junction and hits a lighted vehicle travelling in the main road, killing two people, is prima facie grossly negligent. When it also seems that that person is, to an unspecified degree, under the influence of alcohol, then that belief is confirmed. In view of the current increase in the number of tragedies on our roads, such conduct warrants a prison sentence. In principle, that has always been the position – see S v Lusenge AD 138/81…,. I referred this matter to the Attorney-General and he agrees that a prison sentence and a prohibition from driving would have been appropriate.”

In S v Mtizwa 1984 (1) ZLR 230 (H), the accused pleaded guilty to culpable homicide. He had driven onto his wrong side of the road. He struck and killed a motor cyclist. He could not explain why he had been on the incorrect side of the road, or why he had not seen the motor cyclist at any time before the accident. He faced another charge, apart from culpable homicide. But for the latter, he was fined $200=. On review, the sentence was criticised for being disturbingly lenient. It was said an appropriate sentence would have been one of imprisonment and a prohibition from driving. The review judge, REYNOLDS J, said in assessing the appropriate sentence in culpable homicide cases, it is essential to determine the degree of negligence involved. He said normally, it is where recklessness or gross negligence is shown that a prison sentence should be appropriate. The learned judge also said that a court should not believe that it cannot enter a finding of gross negligence because there may be nothing to show that the driver was guilty of some form of wilful or wanton disregard of the rights of others. The court must make a value judgment.

S v Chaita & Ors 1998 (1) ZLR 213 (H) was three cases of culpable homicide under one review judgment. In the first case, the accused had been driving a fully loaded bus. Suddenly faced with an emergency in the form of two bovines yoked together in the middle of the road, the accused's reaction led to the bus plunging into the river. Two passengers died. The accused admitted the particulars of negligence. They comprised excessive speed, failure to keep a proper look-out and failure to stop or act reasonably when an accident seemed imminent. He was found guilty of two counts of culpable homicide and sentenced to a fine of $1,600=.

In the second case, the accused had been driving an overloaded bus. A mere mechanic, he was neither employed as a bus driver nor even licensed to drive. He claimed he had been forced by his employer to drive the bus. His manner of driving was reckless right from the onset. To begin with, passengers had to endure three hours of waiting before he finally took off. He failed to negotiate a roundabout on his way out of the terminus. Along the way, he was failing to negotiate curves properly. He would sometimes engage the wrong gear, like reverse, instead of forward. He drove at an excessive speed. The bus would dangerously swerve from side to side. He ignored a plea to abandon the trip. The accident happened when he failed to negotiate a certain curve before a certain bridge. The bus plunged into the river bed. Four passengers died. The accused pleaded guilty to four counts of culpable homicide and of driving without a licence. On culpable homicide, the trial court ignored all the evidence of recklessness and accepted the accused's plea of brake failure. He was sentenced to a fine of $1,500= or six months' imprisonment. In addition, he was prohibited from driving any class of motor vehicles for six months.

In the last case, the accused had been driving an unroadworthy truck that was loaded with livestock. To his knowledge, the brakes did not work. From a distance of about 200 metres, he observed some children playing by the left side of the road. He knocked down and killed one of them as it tried to cross the road. He had not blown his horn or slowed down his vehicle. The vehicle only came to a stop some two kilometres away from the scene of the accident. He pleaded guilty to culpable homicide. He was sentenced to a fine of $1,500= or four months' imprisonment. Finding no special circumstances, the accused was prohibited from driving for 6 months.

In all three cases, the learned judge criticised the trial magistrates' incorrect approach to sentencing. Among other things, the respective degrees of negligence had not been directly established.The judge said if they had been established, the convictions for culpable homicide would no doubt have been predicated on gross negligence or recklessness. In the first two cases involving buses, the learned judge felt that custodial terms of imprisonment would have been more appropriate. Accordingly, he declined to certify the proceedings as being in accordance with real and substantial justice. The learned judge confirmed the sentence imposed in the last case.

S v Mapeka & Anor 2001 (2) ZLR 90 (H) were two cases under one judgment.

In the first case, the accused drove a commuter omnibus at an excessive speed. Just before the accident happened, he had ignored a warning by some passengers to reduce speed. The omnibus' rear tyre burst. The accused lost control. The omnibus overturned and rolled over several times. Four passengers died. The accused pleaded guilty to four counts of culpable homicide. He was sentenced to twenty months' imprisonment of which six months were conditionally suspended. In addition, he was prohibited from driving all classes of vehicles for twelve months. Furthermore, his driver's licence was cancelled.

In the second case, the accused, whilst driving a bus loaded with some passengers, encroached onto his incorrect side of the road. His speed was excessive. He collided with an oncoming vehicle. Four people died from the accident. He pleaded guilty to four counts of culpable homicide. On each count, he was sentenced to a fine of $2,000=. In addition, he was prohibited from driving all classes of motor vehicles for six months.

In neither case did the trial magistrates establish the respective degrees of negligence.

In respect of the first case, the review judge said without first establishing the degree of negligence, the term of imprisonment imposed by the trial magistrate was without a proper basis. The trial magistrate ought to have established gross negligence as a minimum requirement for imposing a sentence of imprisonment.

In the second case, the learned judge said not only did the trial magistrate fail to establish the accused's degree of negligence, but also that he imposed a wholly inappropriate sentence. Noting that the sentences imposed in both cases were unduly lenient, the learned judge declined to certify the proceedings as being in accordance with real and substantial justice.

The above cases should remind trial courts of the duty cast upon them in cases of culpable homicide arising out of motoring offences. No sentence can be passed without regard being had to those offences listed in the Road Traffic Act.

In the present case, the trial magistrate noted that the accused had been grossly negligent. He came to this conclusion obviously on the basis of the particulars of negligence that formed part of the State case. In fact, there were other salient facts.The trial magistrate may, or may not have considered them. They were in the exhibits tendered in evidence by the State with the accused's consent. They included the police Traffic Accident Book (“TAB”), which incorporated the sketch diagram of the scene of the accident; and the inspection report on the commuter omnibus by the Vehicle Inspection Department (“VID”).

Of significance in the Traffic Accident Book was the Investigating Officer's opinion on the possible cause of the accident. The opinion was based on his observations at the scene of the accident and his further investigations, including indications by the accused. He wrote:

“Having seen kids on the side of the road, the [accused] should have approached with a lot of caution. [Accused] failed to exercise caution hence should shoulder the blame.”

It is not clear from the rest of the record whether or not the deceased child had been alone before she was struck, or had been in the company of others. But from the Investigating Officer's statement, it seems she had been in the company of others. Furthermore, one of the particulars of negligence, which the accused admitted, related to the accused's failure to exercise a high degree of care “…, called for from a driver who sees children in the road in front of him.” If that was the case, and it must be accepted that it was, then not only should that have increased the accused's chances of detecting the children by the side of the road well in time, but also that he should have taken greater precaution. Young children by the side of the road call for greater caution from motorists. They are sometimes unpredictable. They can suddenly dart into the road without warning. A reasonable motorist ought to be aware of that, and ought to be sufficiently alert to be able to prevent himself from running them over.Among other things, he should be prepared to bring his vehicle to an immediate stop, or to swerve his vehicle away from the children, or to take some other avoiding action, depending on the circumstances.

Failure to do so is prima facie negligence.

Although none of the documents in the record mention the weather conditions or the state of visibility, it was common cause that the accident occurred just 45 minutes after mid-day in the month of May. From the sketch diagram, the accident happened on a straight stretch of the road. The accused should have seen the deceased child some 60,15 metres before impact. However, he only saw the child some 11,85 metres before impact. The length of the skid marks was 12,9 metres, suggesting that the accused braked at just about the same time that he saw the child. He was evidently not keeping a proper look-out or plainly being in-attentive.

On impact, the child was flung some six metres away, back to the edge of the road where she had come from. The accused only managed to stop the vehicle some 11,85 metres away from the point of impact. The Vehicle Inspection Department report noted that the vehicle sustained frontal damage which comprised, among other things, a smashed and dislodged right fender, and a damaged indicator and bumper.

That tends to confirm excessive speed.

In S v Chaita & Ors 1998 (1) ZLR 213 (H), CHINHENGO J held that in every case of culpable homicide arising out of a traffic accident, the court is required, by section 64(3) of the Road Traffic Act [Chapter 13:11], to make a finding on the degree of negligence involved. That section, in summary, and for the purpose of a conviction for culpable homicide, provides that if the court considers that the accused would have been convicted of any one of the driving offences in terms of the Road Traffic Act, instead of an offence at common law, and that if on such conviction the court would have been required to prohibit him from driving, and, additionally or alternatively, cancel his licence, then the court should, when sentencing him for the offence at common law, prohibit him from driving for a period not shorter than that prescribed by the of the Road Traffic Act and cancel his licence, if cancellation was appropriate in terms of the Act.

Following the codification of the criminal law, culpable homicide is, of course, now defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. But that is immaterial to the requirements of section 64(3) of the Road Traffic Act [Chapter 13:11].

The trial magistrate found the accused guilty of gross negligence. The scrutinising magistrate thought that the particulars of negligence, as admitted by the accused, amounted to reckless driving as contemplated by section 53 of the Road Traffic Act.

According to REYNOLDS J in S v Mtizwa 1984 (1) ZLR 230 (H), gross negligence and recklessness may be cognates but they do not mean the same thing. Gross negligence, according to the learned judge, is simply a very serious or aggravated form of ordinary negligence. It implies conduct in which there is a marked departure from the standards by which responsible and competent drivers habitually govern themselves. On the other hand, recklessness connotes, not only a wilful disregard for the safety and rights of other road users, but also cases of indifference or rashness or inadvertence in which consciousness of consequences plays no part. Recklessness may be shown by proof of gross negligence, but proof of gross negligence does not necessarily show recklessness.

The Regional Magistrate did not explain why the admitted elements of negligence should amount to recklessness, and not gross negligence, or ordinary negligence as contemplated by section 52 of the Road Traffic Act [Chapter 13:11], or even driving without due care and attention as contemplated by section 51 of the Road Traffic Act [Chapter 13:11].

In my view, neither the trial magistrate nor the Regional Magistrate may be faulted for their views on this. Recklessness, or the other forms of negligence as set out in the Road Traffic Act, are abstract concepts. As such, they necessarily defy precision in definition. In my view, a judicial officer is ultimately called upon to make a value judgment.

About negligence and value judgments, I said this in Munorwei v Muza & Ors HH804-15..,:

“There are no scales by which to weigh negligence. That then calls for a value judgment. In my view, a judicial officer called upon to give a value judgment is guided by his own notions of justice and fair play. He is guided by the general norms and sense of values generally prevailing in society. He makes an objective assessment: See, generally, S v Chidodo & Anor 1988 (1) ZLR 299 (H).”

In the present case, in spite of the salient facts referred to above, I consider that the accused was merely negligent. The degree of negligence exhibited by his conduct, though inexcusable, was in no way comparable to the degrees of negligence dealt with in the cases considered above. In the last of the three cases, S v Chaita & Ors 1998 (1) ZLR 213 (H), a sentence of $1,500= fine, coupled with a 6 months prohibition from driving, was confirmed on review.

Since it is my view that, in casu, the accused was merely negligent, and not grossly negligent, let alone reckless, the trial magistrate, on sentence, should have been guided by section 52 of the Road Traffic Act [Chapter 13:11]. In terms of that section, a driver of a commuter omnibus found guilty of driving negligently is liable to a fine not exceeding level ten, i.e. US$700=, or to imprisonment for a period not exceeding one year, or to both such fine or such imprisonment. In addition, he shall be prohibited from driving for a period of not less than two years unless there are special circumstances.

The appellant is a haulage truck driver. Besides holding the normal driver's licence, he has a defensive driving certificate. He was convicted of culpable homicide arising from the death of seven commuter omnibus passengers in a road traffic accident which occurred at the intersection of Dieppe Road and Joshua Nkomo Road, Braeside, Harare on 25 February 2013 around midday….,.

In conclusion, and in passing, it should always be noted that in traffic matters a finding of gross negligence or reckless driving must be properly anchored. Such findings must accord with the factual enquiry carried out by the court in any proceedings.

See S v Mutizwa 1984 (1) ZLR 230 and S v Duduzile Tracey Manhenga HH62-15.

The matter was brought before me for review. The Regional Magistrate declined to issue a certificate of confirmation of the proceeding on the basis that he held the view that the sentence imposed was inordinately lenient. I requested the Regional Magistrate to furnish me with a correct citation of a case cited in his scrutiny minute. The record somehow was mislaid as it was posted to Chipinge then Mutare and finally to the Regional Magistrate, Harare. The Regional Magistrate properly attended to the query and re-submitted the record for review….,.

The accused was convicted of two criminal offences;

(i) Firstly, he was convicted of contravening of section 6(1) of the Road Traffic Act [Chapter 13:11] in that on 4 August 2013 and at around 1800 hours at the 78 km peg along Mutare-Masvingo Road, Moses Kaseke unlawfully drove a motor vehicle, namely, Toyota Corolla, registration number ABX 1754, not being a holder of a driver's licence in respect of such motor vehicle.

(ii) Secondly, he was convicted of culpable homicide as defined in section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] in that on 4 August 2013, and at around 1800 hours, at the 78 km peg along Mutare–Masvingo Road, Moses Kaseke unlawfully drove a motor vehicle, namely, a Toyota Corolla ABX 1754 and caused the death of Tinashe Chikumbi either by negligently failing to realise that death might result from his driving conduct or despite realising that death might result from his driving conduct negligently failed to guard against that possibility….,.

On the fateful day, the accused, who was unlicenced, drove the Toyota Corolla in question having three passengers on board. The accused, who was travelling at an excessive speed, lost control of the vehicle which then veered off the road and overturned several times. The accident caused injuries on the accused and the passengers. One of the passengers died from injuries sustained during the accident.

The second Count was culpable homicide as defined in section 49 of the Criminal Law [Codification and Reform] Act [Chapter 9:23] [“the Code”].

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….,.

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.”

In S v Chitepo HMA03-17, 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.”

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.

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…, “…, 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….,.

To his credit, and in line with the direction in cases such as S v Dzvatu 1984 [1] ZLR 136 [H]; S v Mtizwa 1984 [1] ZLR 230 [H]; S v Chaita & Ors 1998 [1] ZLR 213 [H]; S v Mapeka & Ors 2001 [2] ZLR 90 [H]; S v Muchairi HB41-06 and S v Wankie HH831-15, 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….,.

(a)…,.

(b) The conviction and sentence in Count Two be and are hereby confirmed.

Where an offender is charged with contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] or any other offence involving driving of a vehicle, it is prudent that the charge sheet indicate that the section charged is read with either section section 64(1) or (3) of the Road Traffic Act [Chapter 13:11].

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 15:10hrs, 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 the 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 six (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 the 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 six (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, the accused paid the fine. Further, the accused's licence was spared and the 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 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…, 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 counsel for the accused would say.

For reasons yet to be explained, the 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. Counsel for the State rightly applied to have the appeal dismissed for want of prosecution.

Be that as it may, we inquired from counsel for the State 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 the accused's gross negligence, and the failure to impose mandatory sanctions provided for in terms of section 64 of the Road Traffic Act [Chapter 13:11] relating to cancellation of the accused's driver's licence and prohibition from driving commuter omnibus and heavy vehicles for life.

We pointed out to counsel for the State that his approach in this matter was perfunctory as he did not address these mundane issues. We thus inquired from counsel for the State as to the proper way forward. Counsel for the State 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 [Chapter 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 [Chapter 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 [Chapter 13:11]. The provisions of section 65(6) of the Road Traffic Act [Chapter 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 counsel for the State 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 counsel for the State 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 counsel for the State 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 [Chapter 13:11]. Further, we pointed out that we gave these brief reasons in the presence of counsel for the State 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 the accused meant by this or why the accused was blaming his legal practitioner…,. 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 the accused's degree of negligence other than simply mentioning, in passing, that the 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 Mtizwa 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 [Chapter 13:11]. Apparently, this still did not find traction 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 - 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 the 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. 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 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.

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 a 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 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 the accused pays the fine he should be released from prison forthwith.