CHEDA J: Appellant appeals
against the sentence passed by the Magistrate Court sitting in Gokwe.
Appellant was charged
with contravening section 6 (1) (9) of the Road Traffic Amendment number
3/2000. He pleaded guilty, was convicted
and sentenced as follows:
Sentence
''6 months in with
labour. In addition accused is prohibited from driving
for life motor vehicles of the class to which heavy vehicles belong.''
The facts as outlined
by the state are that appellant who was 17 years of age at the time, was
arrested driving a heavy vehicle, being a Volvo along Gokwe Business centre at
around 1745 hrs. On the way he was
stopped by Assistant Inspector Mpofu and Shava who then discovered that he was
not a holder of a valid driver's licence.
Appellant now appeals
against the said sentence on the basis that:
1) the special circumstances in relation to the
mandatory penalty were not explained to him, and
2) that he ought not to have been prohibited
from driving heavy vehicles for life.
The respondent agrees
with appellant on the basis that the issue of special circumstances were not
properly canvassed, Respondent referred us to the following exchanges between
appellant and the trial Magistrate.
''Q. Are there any special
reasons as to why you should not be prohibited from driving heavy vehicles for life?
A. I am asking for forgiveness.''
In her response, respondent
referred us to the case of State v Dube
and another 1988 (2) ZLR 385 (SC), in that case the court laid down the
procedure to be followed where an offence involving a minimum sentence is
before the court. It was stated in that
case that the issue of special circumstances should be raised at an early stage
of the proceedings and the judicial officer should clearly explain to the
accused, especially the unrepresented one, that the special circumstances may
be peculiar to him or to the commission of the offence.
In casu, the learned
trial Magistrate merely asked whether appellant had ''special reasons'' The
court a quo misdirected itself by
referring to ''special reasons'' instead of special circumstances. By failing to ask an appropriate question, he
was then given a wrong answer, i.e
''I am asking for
forgiveness''
I agree with the respondent that the question of special circumstances
was given a cursory attention. The appellant should have been appraised of the
looming mandatory sentence in the absence of special circumstances. It should have been further explained to him
that the mandatory sentence can be avoided if he can proffer any special
circumstances peculiar to him or the commission of the offence which can excuse
him from being sentenced to a mandatory sentence. In S v
Chaerera 1988 (2) ZLR 226 (SC) at 229 A McNally JA ably stated:
''... the
Magistrate should have gone much further than he did in advising the appellant
the case, what the minimum penalty was, and how that penalty could only be
avoided by proof of special circumstances.
He should have gone to explain what special circumstances were''.
The court a quo did not properly couch the sentence in this matter. The proper way of couching a sentence should
have been in this form ''6 months imprisonment.'' It is not necessary for the court to
prescribe that accused should undergo labour as that is the domain of the
prison authorities.
In my considered
opinion due process was not adhered to in this matter. The appeal succeeds to the following extent:
Order
1) The conviction is confirmed.
2) The sentence is set aside and
the matter is remitted back to the same court for full and proper consideration
of the question of special circumstances.
KAMOCHA J
............................................ I agree.
Makonese and Partners, Appellant's Legal
Practitioners
Criminal Division, Attorney
General's office, Respondent's Legal Practitioners
