MUTEMA J: Accused was
charged with, pleaded guilty to and was convicted of contravening section 55(2)
of the Road traffic Act [Chapter 13:11]. He was sentenced as follows:
“US$300 fine/6 months imprisonment”
The charge was framed in the following vein: “Charged with the crime of:
Driving whilst under the influence of alcohol as defined in section 55(2) of
the Road Traffic Act Chapter 13:11. In that on the 23rd July
2013 at about 20:13 hours and at (sic) along Plumtree road, Bulawayo
Mhondiwa Albert unlawfully drove a granvia registration numbers ACQ 3053 whilst
under the influence of alcohol, that is to say accused drove such vehicle with
an alcohol concentration of 187 mg/100mls of blood.”
Four queries were raised by the learned scrutinizing regional magistrate and
responded to by the trial magistrate as follows:
1. Why
is the charge couched in a language that suggested that the accused contravened
section 54 of the Road Traffic Act?
Answer:
The accused was properly charged given that both the state and the bench felt
that accused had contravened section 55(2) of the RTA precisely as the state
preferred section 55(2) and not section 54 after going through the contents of
the docket.
2. Why
was the accused not prohibited from driving?
Answer:
Accused was not driving a public vehicle but rather it was a private vehicle.
3. And
why was the accused's driving licence not cancelled?
Answer:
Because accused is not a second or third offender see section 55(b)(i) and (ii)
(sic).
4. Why
is the trial magistrate in the habit of writing “fine” in front of the figure
of the amount of fine imposed? Where does he derive that practice from?
Answer:
The trial magistrate derives that practice from his mentor i.e. the late J.
Masimba (former Provincial Head for Matabeleland North Province) and if the
scrutinizing Regional Magistrate is not happy with it the trial magistrate is
prepared to abandon the word “fine”, but that has been the way the trial
magistrate was taught.
The learned scrutinizing regional magistrate has recommended that the
proceedings be quashed and the case remitted to a different magistrate for
trial de novo.
I will deal with the queries raised and the replies proffered in their order.
Regarding the first query it goes without quarrel that the manner in which the
charge is framed and also the manner in which the trial magistrate canvassed
the essential elements of the charge evince a dearth of failure to correctly
capture the essential elements of the charge. The essential elements of
contravening section 55(2) of the Road Traffic Act are that (a) one
drove/attempted to drive a motor vehicle; (b) while one is under the influence
of alcohol or drug or both; (c) to such an extent as to be incapable of having
proper control of the vehicle.
It is important therefore that the charge must incorporate all the above
elements and that the trial magistrate must also canvass them all with the
accused person. This must be so especially where before the trial
magistrate is an unrepresented accused person. Unfortunately this was not
done in casu.
I am aware of the provisions of paragraph (a) of subsection (3) of section 55
of the Road Traffic Act which are to the effect that once it is proven that a
concentration of alcohol in accused's blood was not less than 150mg/100ml at
the time of the offence, a rebuttable presumption arises that the accused was
at such time under the influence of alcohol or a drug or both to such an extent
as to be incapable of having proper control of the vehicle concerned. In
casu accused's alcohol-blood level was 187mg per 100mls of blood. The
presumption alluded to supra applies and was not rebutted.
However, sight must not be lost of the fact that issues to do with presumptions
are legal issues not subscribed to by the common lay person. Both the
charge and the canvassing of the essential elements did not encompass the words
“…to such an extent as to be incapable of having proper control of the vehicle
…” The charge and the canvassing of the elements merely alluded to that
the accused's alcohol-blood level was 187mg per 100mls. The presumption
was never brought to accused's attention.
However, the omission of the words alluded to above from both the charge and
the canvassing of the essential elements should not in the instant case warrant
the quashing of the proceedings. The accused admitted driving under the
influence of alcohol and that his alcohol-blood level was 187mg per
100mls. He agreed with the facts that he lost control of his vehicle and
collided with a stationary vehicle that was correctly parked facing a shopping centre.
Accused's conduct admits of no doubt that as a result of the influence of the
alcohol he was incapable of exercising proper control of his vehicle. His
guilt is beyond reproach.
Regarding the second query, that of failure to prohibit accused from driving
and the response proffered therefor, it is beyond caevil that the trial
magistrate missed the law as evinced by his reply. Section 55(5)(a)(i) of
the Road Traffic Act provides that a court which convicts a person of an
offence in terms of subsection (1) (sic) (this is a draftsman's error
for the offence-creating provision is subsection (2)) shall if the
person has not previously been convicted of a similar offence within a period
of ten years immediately preceding the date of such first mentioned conviction,
prohibit the person from driving for not less than six months where the current
conviction does not relate to driving a commuter omnibus or a heavy
vehicle. It is therefore clear as day follows night that prohibition is
mandatory where no special circumstances exist. In casu the trial
magistrate did not bother to explore the aspect of prohibition from driving let
alone special circumstances. He therefore fell into error.
The same obtains in respect of the third query. The trial magistrate
failed to exhibit an appreciation of the law as envisaged in section
55(5)(a)(i) which goes further to provide that “… and shall, if the
person is a holder of a licence, cancel the licence in respect of motor
vehicles of the class to which such prohibition from driving extends.”
Cancellation of the licence is also mandatory even for a first offender.
Trial magistrates are urged to first acquaint themselves thoroughly with the
relevant statutory provisions before sentencing convicted persons. An
astute judicial officer does not just sentence in the dark.
The fourth query was most probably an icing on the cake by the learned
scrutinizing regional magistrate. It is of no consequence or moment to
warrant adverting to it and I am sure that is why he did not pursue it in his
minute to the reviewing Judge.
In the event, while confirming the conviction, the sentence by the trial
magistrate is set aside with the resultant directive that the matter is remitted
to the same trial magistrate to recall the accused and sentence him anew after
first enquiring into the issue of special circumstances in terms of section 55
(5)(a)(i) of the Road Traffic Act as pointed out above.
The subsequent substantive sentence
must not exceed the earlier one of $300 or in default of payment 6 months
imprisonment.
Makonese J ………………………………………………………I agree