In both instances, the court, in sentencing such an accused as in casu, is mandatorily enjoined to prohibit him from driving a commuter omnibus and a heavy vehicle, in the absence of special circumstances, for at least two years. This is pursuant to section 52(4)(c), and the interpretation gleaned from section 64(3)(b)(i) of the Road Traffic Act...,.

While the prohibition from driving commuter omnibuses and heavy vehicles, in terms of both Counts, is mandatory, prohibition from driving any other classes of motor vehicles is discretionary.  

Overall, the sentence imposed in this case offends against my sense of judgment. It was too lenient considering these facts:

(a) The accused was a driver of a public service vehicle;

(b) He bumped and injured a pedestrian in Count One;

(c) He occasioned two deaths in Count Two;

(d) Proper judicial notice can be taken of the atrocious manner of driving by most commuter omnibus drivers in town;

(e) The space of time between the two accidents the accused occasioned;

(f) The dire consequences occasioned by the accused to the families of the deceased in terms of both emotional stress and loss of breadwinners.,.;

(g) The imperative need to send a clear signal to all public service vehicle drivers as a deterrence.

The suspicion seems strong that the level of incompetence displayed in casu smells of corruption. I am cognizant of the fact that sometimes there is a fine line between incompetence and corruption. Not only was justice not seen to be done here, but its travesty is beyond caevil.

The trial magistrate sentenced the accused to a fine of US$200= or one month imprisonment in default of the fine. The accused was further prohibited from driving motor vehicles in classes 1 and 2 for a period of two years. His driver's licence in respect of class 2 was also cancelled.

The learned Regional Magistrate who scrutinized this case is of the view that the accused should not have been prohibited from driving class 1 motor vehicles as his driver's licence does not include that class, but that he should have been prohibited from driving motor vehicles in classes 4 and 5 in addition to class 2.

In his response to the queries raised, the trial magistrate explained that he extended the prohibition to class 1 motor vehicles because, if not so prohibited, the accused could have proceeded to obtain a class 1 driver's licence which would enable him to drive vehicles in all of the other classes – including class 2- thereby defeating the object of the prohibition in respect of that class. As regards classes 4 and 5, he did not extend the prohibition to those classes because the accused was convicted of an offence involving a class 2 vehicle and there was no need to prohibit him from driving motor vehicles in classes 4 and 5.

The Law

Section 52(4) of the Road Traffic Act [Chapter 13:11] provides for prohibition from driving upon conviction for negligent driving. In the case of a first driving offence, the court may prohibit the convicted person from driving for such period as it thinks fit. For a repeat driving offence, the court shall prohibit the convicted person from driving for such period as it thinks fit and cancel his licence in respect of motor vehicles of the class to which such prohibition from driving extends. In the case of an offence involving the driving of a commuter omnibus or a heavy vehicle, the court shall prohibit the person from driving for a period of not less than two years. However, the court may decline to impose the mandatory prohibition if it considers that there are special circumstances which justify so declining, in which event it must endorse such special circumstances on the record of the case when passing sentence.     

Section 52(1) of the Road Traffic Act [Chapter 13:11] defines the term “special circumstances” to mean “special circumstances surrounding the commission of the offence concerned, but does not include special circumstances peculiar to the offender.”

The provisions of section 52(4) of the Road Traffic Act [Chapter 13:11] are subject to Part IX of the Road Traffic Act [Chapter 13:11] including section 65 of the Road Traffic Act [Chapter 13:11] which stipulates general provisions relating to prohibition. Section 65(1) of the Road Traffic Act [Chapter 13:11] provides that a prohibition from driving shall extend to all classes of motor vehicles. However, section 65(3) of the Road Traffic Act [Chapter 13:11] allows the court discretion to order that the prohibition shall not extend to such class of motor vehicle other than the class to which the motor vehicle driven by the accused, at the time of the commission of the offence, belongs as it thinks fit. In terms of section 65(5) of the Road Traffic Act [Chapter 13:11] where the accused is prohibited from driving for a period of twelve months or more or for consecutive periods which together amount to twelve months, the court shall cancel his driver's licence in respect of all classes of motor vehicle to which such prohibition extends.

Prohibition and Cancellation in casu

Turning to the instant case, the trial magistrate found (without conducting any specific inquiry into the question) that there were no special circumstances justifying the non-imposition of a prohibition from driving and then proceeded to impose such prohibition for a period of two years. In so doing, however, he limited the prohibition to class 1 and 2. In my view, this approach is erroneous and misdirected in that it is the converse of what is contemplated by section 65(1) as read with section 65(3) of the Road Traffic Act [Chapter 13:11]. What the learned magistrate should have done is to impose the prohibition in general and then indicate the classes of motor vehicle to which the prohibition would not extend in particular. Before so doing, he should have considered whether or not there were any special circumstances surrounding the commission of the offence which justified such non-extension and endorsed such special circumstances on the record as prescribed in section 52(4) of the Road Traffic Act [Chapter 13:11].

As regards cancellation of the accused's driver's licence, section 65(5) of the Road Traffic Act [Chapter 13:11 requires that such cancellation be imposed in respect of all classes of motor vehicle to which the prohibition from driving extends. In other words, the coverage of cancellation must be co-extensive with the classes of motor vehicle to which the prohibition extends. Again, the learned magistrate appears to have misdirected himself by departing from this requirement.

Corrective Action

In the circumstances of this case, it is necessary that corrective action be taken at the earliest opportunity. This is specifically envisaged in section 65(6) of the Road Traffic Act [Chapter 13:11] where prohibition from driving or cancellation of a licence is required to be imposed in terms of the Road Traffic Act [Chapter 13:11], and the court, for any reason, does not prohibit the convicted person from driving or does not cancel his licence in respect of all or any of the classes of motor vehicle in respect of which it is required to be cancelled. In any such case, the court shall cause notice to be served on the convicted person directing him to appear before the court at the time and place specified in the notice to show cause why the prohibition or cancellation should not be imposed or the order should not be corrected, as the case may be. However, this procedure is subject to section 65(8) of the Road Traffic Act [Chapter 13:11] which precludes the service of such notice more than six months after the date of the conviction.(The accused in casu was convicted and sentenced on 3 and 3 February 2010 respectively).

In the first count, he was sentenced to six (6) months imprisonment of which three (3) months imprisonment was suspended for five (5) years on conditions.

The applicant was sentenced to 24 months imprisonment. 

The appellant appeals against the sentence that was imposed on him by the court a quo....,.

The appellant was sentenced to 9 months imprisonment of which 3 months imprisonment was suspended on the usual and appropriate condition of future good conduct. In addition, the appellant was prohibited from driving class 2 motor vehicles for a period of 6 months.

The respondent has indicated that it does not oppose the appeal.

Section 52(2) of the Road Traffic Act [Chapter 13:11] stipulates that a person who drives a vehicle on a road negligently shall be guilty of an offence and liable, where the vehicle concerned is not a commuter omnibus or a heavy vehicle, to a fine not exceeding level 7 or to imprisonment for period not exceeding 6 months or to both such fine and such imprisonment….,.

Regarding the prohibition from driving, whilst the appellant was involved in an accident whilst driving a class 4 motor vehicle, the trial court prohibited him from driving class 2 motor vehicles. This was a misdirection as such a prohibition has no basis at law. The prohibition, if appropriate, had to relate to the class of vehicle that the appellant was driving at the time of the accident.

It did not.

Furthermore, as the appellant is a first offender, paragraph (a) of subsection (4) of section 52 of the Road Traffic Act [Chapter 13:11] is applicable. Section 52(4)(a) of the Road Traffic Act [Chapter 13:11] provides as follows:

“(4) Subject to Part IX, a court convicting a person of an offence in terms of subs (1) involving the driving of a motor vehicle -

(a) May, subject to paragraph (c), if the person has not previously been convicted of such an offence or of an offence, whether in terms of a law of Zimbabwe or any other law, of which the dangerous, negligent or reckless driving of a motor vehicle on a road is an element within a period of five years immediately preceding the date of such first-mentioned conviction, prohibit the person from driving for such period as such court thinks fit;”…,.

Whilst the section by the use of the word “may” gives discretion to the court to decide whether or not to prohibit the convicted person from driving, it appears to me that the court must exercise the discretion judiciously and the manner of exercise of that discretion can only be discernible from the reasons given therefor.

In casu, there is no recording of the specific reasons why the trial magistrate decided to exercise her discretion in the manner in which she did.

A fine is a permissible penalty in terms of the Road Traffic Act [Chapter 13:11]…,.

In S v Kadonzvo 1990 (1) ZLR 186 (SC) a fine was found to be appropriate on a conviction for reckless driving in circumstances where the appellant, who was driving an omnibus carrying passengers, failed to yield to a vehicle approaching from the opposite direction on a narrow bridge. The omnibus collided with the oncoming vehicle and ran off the bridge into the river below. Eleven persons were injured, two of them seriously.

In casu, a fine would have met the justice of the case.

I do not, however, agree with the appellant's counsel's submission that the sentence of the court a quo be substituted with a level 2 fine. A sentence of US$10= in the circumstances of this case would, in my view, make a mockery of justice. The State's submission that an appropriate sentence would be a level 5 fine appears to be nearer a more realistic assessment.

In the result…, the sentence of the court a quo is hereby set aside and is substituted with the following:

The accused pleaded guilty to the offence and was sentenced as follows:

“Count 1 - US$200= or in default payment 4 months imprisonment.

Count 2 - US$400= or in default of payment 6 months imprisonment.”

The trial magistrate did not investigate or address his mind with regards to the prohibition of driving which is a requirement for such type of offence.

In that regard it is clear that there was a misdirection on the part of the learned trial magistrate.

The matter is, accordingly, referred back to the same magistrate for the determination of an appropriate sentence in terms of the Road Traffic Act [Chapter 13:11].

The following order is made:

Order:

(1) The conviction is confirmed; and

(2) The matter is referred back to the trial magistrate to determine a proper sentence after following the correct procedure in terms of the Road Traffic Act [Chapter 13:11].

The appellant was sentenced as follows:

Sentence

After conviction, the trial court sentenced the appellant to the minimum mandatory sentence of six (6) months imprisonment as it held that there were no special reasons why the mandatory minimum sentence should not be imposed.

The appellant appealed against the sentence on two grounds.

Firstly, the appellant complained that the court a quo had erred by not making a full inquiry with regard to his special circumstances, and, as a result of the superficial inquiry, the court was unable to find special reasons to save the appellant from the prescribed minimum mandatory sentence. Secondly, the appellant alleged that the trial court had erred by imposing the mandatory sentence when there were special reasons.

The accused was sentenced as follows:

“US$300= fine/6 months imprisonment.”…,.

Regarding the second query, that of failure to prohibit the 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 [Chapter 13:11] 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) of the Road Traffic Act [Chapter 13:11] 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….,.

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 [Chapter 13:11]…,. 

The accused was sentenced to twelve (12) months imprisonment of which four (4) months imprisonment was suspended for five (5) years on conditions. He was prohibited from driving commuter omnibuses and heavy vehicles for two (2) years and his licence cancelled….,.

On Count One, the accused was sentenced to a fine of $100= or, in default, thirty days imprisonment. But because his conviction on that Count has been quashed, this sentence is also set aside.

On Count Two, the accused was sentenced to two years imprisonment of which one year imprisonment was suspended for five years on the usual condition of good behaviour. In addition, the accused was prohibited from driving all classes of motor vehicles for life.

It is on sentencing that the court a quo seriously misdirected itself in a number of respects.

To begin with, and going back to Count One, in terms of section 6(5) of the Road Traffic Act [Chapter 13:11], a person convicted of driving a motor vehicle without a licence, in contravention of subsection (1), is liable to a fine not exceeding level six ($300=), or to imprisonment for a period not exceeding one year, or to both such fine and such imprisonment. However, if the motor vehicle the accused was driving was a commuter omnibus or a heavy vehicle, he shall be liable to imprisonment for a period not exceeding five years and not less than six months, unless he comes within one or other of the two exceptions specified.

The accused did not come within the first set of exceptions. They were irrelevant because they relate to a licensed driver, which he was not.

The second exception that enables the unlicensed driver of a commuter omnibus, or of a heavy vehicle, to escape the mandatory jail term of sub-section (5)] is if they manage to show that there were special reasons why the special penalty should not be imposed.

What determines whether or not the mandatory jail term should be imposed is whether or not the motor vehicle in question was a commuter omnibus or a heavy vehicle. What determines whether a motor vehicle is a heavy vehicle or not is its weight, and, in the case of a passenger motor vehicle – an aspect not relevant in this case – its passenger carrying capacity.

Going by the definition of “motor vehicle”, in terms of section 2 of the Road Traffic Act, a tractor is obviously a motor vehicle. But whether it is a heavy vehicle or not depends on whether its net mass exceeds 2,300 kilogrammes. The Road Traffic Act says a “heavy vehicle” means a motor vehicle exceeding 2,300 kilogrammes net mass, but does not include a passenger motor vehicle having seating accommodation for less than eight (8) passengers.

This aspect was also not considered in the court a quo. It is not clear what then informed the sentence of $100= fine or thirty days imprisonment. That was a misdirection.

Having convicted him in Count One, it was mandatory for the court to have established whether the accused was liable for the section 6(5) special penalty or not. Among other things, it was necessary to establish the weight of the tractor because if it was a heavy vehicle the penalty would have had to be relatively heavier, and, conversely, relatively lighter if it was not a heavy vehicle.

However, for Count One, this particular misdirection is of no moment because the entire conviction has been quashed. The issue has been raised for the future.

The effective sentence in Count Two was one year imprisonment and a life ban from driving all classes of motor vehicles.

In that kind of sentence, the obvious issues to look at on review are:

1. Was the substantive sentence of imprisonment correct?

2. Did the court assess the degree of negligence, and if it did, was its assessment correct?

3. Was the court correct in imposing a ban on driving, and if it was, was the period appropriate, and was the extension of that ban to life and to all classes of motor vehicles correct?

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 mitigating features in favour of the accused were these. He was a first offender. He pleaded guilty. The court noted that he was contrite during the proceedings. He was married and the wife was expecting. He virtually had no assets, except for some nine goats and a paltry $12=. However, a significant feature that he raised in mitigation was that “…, they…,” (presumably, he and/or his extended family) had paid three head of cattle as compensation to the relatives of the deceased and had also paid for the funeral expenses.

In addition, I would assume, and take as an aspect of mitigation, that the unfortunate death of the deceased will weigh heavily on the accused probably for the rest of his life. Above all, this unfortunate incident happened on a private farm road, not a public highway, albeit an aspect that does not help him when it comes to considering possible prohibitions from driving because of, as aforesaid, the provisions of paragraph (e) of the definition of “road” in section 2 of the Road Traffic Act [Chapter 13:11].

The aggravating features in the case consisted of the reckless risk that the accused took by trying a hill start at night; with one hand; with a passenger perched precariously on the tractor's mudguard; and after both he and his passenger had been drinking alcohol for about six hours. Human life was needlessly lost. The sentence of the court, whilst taking the personal circumstances of the accused into account, must also reflect the importance that it attaches to the preservation of human life.

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).

In casu, I have concurred with the degree of negligence assessed by the trial court even though, in my view, the conduct bordered on recklessness. But I consider the substantive sentence of two years imprisonment, with one year conditionally suspended, to be appropriate. Therefore it is hereby confirmed.

However, it is not clear from its reasons for sentence which particular section in the Road Traffic Act informed the court a quo's decision to prohibit the accused from driving for life and for all classes of motor vehicles. From its analysis of the aggravating circumstances, it appears the court was convinced the accused had been drunk. It is also evident that the court accepted that the tractor in question was a heavy vehicle.

Undoubtedly, it must have been by virtue of section 64(3) of the Road Traffic Act [Chapter 13:11] that the court considered, and did impose, a ban on driving, because section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that defines culpable homicide, does not refer to any such things.

On this, the court was correct. Section 64(3) of the Road Traffic Act says:

“(3) If, on convicting a person of murder, attempted murder, culpable homicide, assault or any similar offence by or in connection with the driving of a motor vehicle, the court considers –

(a) That the convicted person would have been convicted of an offence in terms of this Act involving the driving or attempted driving of a motor vehicle if he had been charged with such an offence instead of the offence at common law; and

(b) That, if the convicted person had been convicted of the offence in terms of this Act referred to in paragraph (a), the court would have been required to prohibit him from driving, and, additionally, or alternatively, would have been required to cancel his licence;

the court shall, when sentencing him for the offence at common law –

(i) Prohibit him from driving for a period that is no shorter than the period of prohibition that would have been ordered had he been convicted of the offence in terms of this Act referred to in paragraph (a); and

(ii) Cancel his licence, if the court would have cancelled his licence on convicting him of the offence in terms of this Act referred to in paragraph (a).”

By virtue of the above provision, a conviction of culpable homicide, as defined by section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], that involves the driving of a motor vehicle, should, among other things, automatically compel the court to pay regard to the prescribed driving offences such as section 52 (negligent or dangerous driving); section 53 (reckless driving); and, if a breathalyser test was conducted, sections 54 and 55 (driving with prohibited concentration of alcohol in blood) (driving whilst under the influence of alcohol or drugs or both).

Sub-section (1) of section 65 of the Road Traffic Act says a prohibition from driving shall extend to all classes of motor vehicles. But it does not say for life. And, at any rate, the subsection is subject to the whole section. Sub-section (3) gives the court the discretion to confine the prohibition to the class of motor vehicle to which the one being driven by the accused at the time of the commission of the offence belonged.

In casu, the record does not show whether or not the court considered section 65 of the Road Traffic Act at all, or, if it did, whether it ever considered the issue of the discretion conferred by sub-section (3) above, and if it did, why it might have refrained from exercising it instead of opting for a life ban, and in respect of all classes of motor vehicles.

Where the vehicle concerned is a commuter omnibus or a heavy vehicle, and the accused has no previous convictions on a similar offence in the last ten years, section 54 of the Road Traffic Act (driving with prohibited concentration of alcohol in blood), and section 55 (driving while under the influence of alcohol or drugs or both) prescribe a prohibition from driving a commuter omnibus, or a heavy vehicle, for life.

The court a quo seems to have taken guidance from either or both of these two sections. That should explain the kind of prohibition that it imposed. If that is the case, then it was a misdirection;

(i) To begin with, without scientific evidence, it was wrong to infer that the level of alcohol concentration in the accused's blood, at the time of the accident, exceeded the legal limit, or that he was under the influence of alcohol, or drugs, or both, to such an extent that he was incapable of having proper control.

(ii) Secondly, and as indicated already, it was wrong to assume that the tractor in question was a heavy vehicle when there was no such evidence, or such admission by the accused.

(iii) Thirdly, the relevant prohibitions from driving prescribed by section 54 (in particular, subsection (4)(a)(ii)(B)), and section 55 (in particular, sub-section (5)(a)(ii)(B)), for first offenders, confine themselves to prohibitions in respect of commuter omnibuses or heavy vehicles, not all classes of motor vehicles. A life ban for all classes of motor vehicles is prescribed only for third time or subsequent offenders (section 54(4)(b)(ii)) and section 55(5)(b)(ii)).

This was not the case.

However, in spite of the above misdirection, it is still appropriate that some form of prohibition be imposed on the accused given the seriousness of his misconduct and the consequences that ensued. He is one who, when he comes out of jail, should not be allowed back on the road too quickly.

In accordance with the cardinal rule of criminal law that any doubt or lacuna should be exercised in favour of the accused, the tractor in question shall be treated as an ordinary motor vehicle, not a heavy motor vehicle. Furthermore, having assessed the accused's degree of negligence as gross, not recklessness, it must be section 52 of the Road Traffic Act [Chapter 13:11] (negligent or dangerous driving) that the court a quo ought to have sought guidance from in coming up with the appropriate prohibition from driving.

In terms of section 52(4)(a) of the Road Traffic Act, a court convicting a person of negligent or dangerous driving may ban him from driving for a period that it sees fit, if, in the last five years, he has not been convicted of an offence of which dangerous driving, or negligent driving, or reckless driving of a motor vehicle on a road was an element. The issue of special circumstances does not come in. It only comes in in terms of paragraphs (b) and (c) that respectively deal with someone with previous convictions and the driving of a commuter omnibus or a heavy vehicle.

In the circumstances of this case, the accused should be prohibited from driving class four and class five motor vehicles for a period of twelve months which shall start to run upon his release from prison….,.

1.…,.

2….,.

3. The sentence in Count Two of two years imprisonment of which one year imprisonment is suspended for five years on condition that within this period the accused does not commit any offence involving negligent driving for which upon conviction he will be sentenced to imprisonment without the option of a fine, is hereby confirmed;

4. The prohibition from driving of all classes of motor vehicles for life is hereby set aside, and in its place substituted with a prohibition from driving class four and class five motor vehicles for a period of twelve months which shall start to run from the date of the accused's release from prison.

In Count 2, the accused was duly convicted on his own plea and sentenced to 6 months imprisonment.  In addition, the accused was prohibited from driving motor vehicles in respect of the class to which commuter omnibuses relate for life.

The accused was sentenced to pay a fine of $50= or in default of payment 20 days imprisonment for driving without a driver's licence.

This record was referred to me from the Acting Regional Magistrate for Harare who scrutinized the record. He has raised the following concerns;

“The trial court, as part of its sentence, prohibited the accused from driving for two years on the basis that accused had driven a public service vehicle. This is in spite of the fact that the charge does not allege that the vehicle accused drove was a public service vehicle. The court appears to have inferred that it was a public service vehicle from the averment in the charge that the vehicle was a Toyota Hiace, an inference I am unable to support since not all Toyota Hiaces are public service vehicles.”…,.

The brief facts surrounding the commission of this offence may be summarized as follows. The accused appeared before a Harare magistrate facing charges of contravening section 52(2) of the Road Traffic Act [Chapter 13:11], thus Negligent Driving. He pleaded guilty to the offence and was sentenced to 6 months imprisonment of which 3 months were suspended for 5 years on condition that the accused performs community service. In addition, he was prohibited from driving classes of motor vehicle to which commuter omnibus or heavy motor vehicles belong for 2 years. His licence was cancelled.

The allegations in the State Outline are as follows.

On the 27^th of May 2012, the accused was driving a Toyota Hiace along Robert Mugabe Rd. At the intersection of Robert Mugabe Rd and Wheeler Ave, Harare, the accused, who was driving and following behind the complainant's vehicle, failed to observe that the complainant was indicating to turn, resulting in him colliding with the rear of the complainant's vehicle.

The charge of negligent driving reads as follows;

“In that on the 27^th of May 2012 and at the intersection of Robert Mugabe and Wheeler Rd, Eastlea, Harare, Gibson Murinda drove a motor vehicle, namely, a Toyota Hiace registration number ABQ negligently.”

There is no allegation in the State papers that the accused drove a commuter omnibus or a public service vehicle but simply a Toyota Hiace vehicle. The trial court fell into the error of supposing that the vehicle in issue was a commuter omnibus and a public service vehicle….,.

When the court was explaining what special circumstances are to the accused, it remarked as follows;

“Accused person you have been convicted of negligent driving of a public service vehicle, namely, a commuter omnibus.''

The record does not indicate that a response was elicited from the accused. The suggestion that the accused had been involved in an accident whilst driving a public service vehicle was both misleading and erroneous as the State was not alleging that the accused drove a public service vehicle or an omnibus….,.

It is with the sentencing approach that I am concerned.

The trial court approached the question of sentence from a wrong angle. The court went on to inquire into the question of special circumstances and sentenced the accused from the premise that he drove a commuter omnibus and a public service vehicle negligently. This procedure was not necessary in the circumstances of this case. The sentence cannot stand. The sentence imposed is hereby set aside and substituted with the following;

The accused is sentenced to pay a fine of $400=. In addition, the accused is prohibited from driving all classes of motor vehicles for one year. His licence is accordingly cancelled.

In Count One, the accused was sentenced to a fine of two hundred dollars [$200=], or, in default thereof, sixty [60] days imprisonment….,.

It is on sentencing…, that the court a quo seriously misdirected itself…,.

Count One:

In terms of section 6[5] of the Road Traffic Act [Chapter 13:11], a person convicted of driving a motor vehicle without a driver's licence, in contravention of sub-section [1], is liable to a fine not exceeding level six [$300=], or to imprisonment for a period not exceeding one year, or to both such fine and such imprisonment. However, if the motor vehicle the accused was driving was a commuter omnibus or a heavy vehicle, he shall be liable to imprisonment for a period not exceeding five years and not less than six months, unless he comes within one or other of the two exceptions specified.

In the present case, the accused did not come within the first set of exceptions because they relate to a licensed driver, which he was not. The second exception that enables the unlicensed driver of a commuter omnibus, or of a heavy vehicle, to escape the mandatory jail term of sub-section [5] is if they manage to show that there were special reasons why the special penalty should not be imposed.

What determines whether or not the mandatory jail term should be imposed is whether or not the motor vehicle in question was a commuter omnibus or a heavy vehicle. What determines whether a motor vehicle is a heavy vehicle or not is its weight, and, in the case of a passenger motor vehicle, its passenger carrying capacity – an aspect not relevant in this case because a tractor is not a passenger-carrying vehicle.

But, in terms of the definition of “motor vehicle” in section 2 of the Road Traffic Act, a tractor is a motor vehicle. Whether or not it is a heavy vehicle depends on whether or not its net mass exceeds two thousand three hundred kilogrammes [2,300kg]. The Road Traffic Act says a “heavy vehicle” means a motor vehicle exceeding 2,300 kilogrammes net mass but does not include a passenger motor vehicle having seating accommodation for less than eight (8) passengers.

The above aspect was not considered at all in the court a quo. It is not clear what then informed the sentence of $200= fine or sixty days imprisonment in Count One. Having convicted him in Count One, it was mandatory for the court to have established whether the accused was liable for the section 6[5] special penalty or not. Among other things, it was necessary to establish the weight of the tractor because if it was a heavy vehicle, the penalty would have had to be the mandatory period of imprisonment of not more than five years, but not less than six months, as prescribed by the proviso to sub-section [5], unless he satisfied the court of the three circumstances specified therein or of the existence of special circumstances as contemplated by section 88A of the Road Traffic Act….,.

The issue of whether or not the tractor was a heavy vehicle was not canvassed at all. The accused is entitled to the benefit of the doubt…..,. However, with all due respect, the Magistrate's Courts are urged to treat these driving offences with some caution to avoid these frequent pitfalls….,.

(a) The conviction in Count One be and is hereby set aside and the sentence quashed….,.

Section 64 of the Road Traffic Act [Chapter 13:11] says:

“(1) Subject to this Part, a court convicting a person of an offence in terms of any law other than this Act by or in connection with the driving of a motor vehicle on a road may, in addition to any penalty which it may lawfully impose, prohibit the person from driving for such period as it thinks fit.

(2)…,. [not relevant]…,.

(3) If, on convicting a person of murder, attempted murder, culpable homicide, assault or any similar offence by or in connection with the driving of a motor vehicle, the court considers –

(a) That the convicted person would have been convicted of an offence in terms of this Act involving the driving or attempted driving of a motor vehicle if he had been charged with such an offence instead of the offence at common law; and

(b) That, if the convicted person had been convicted of the offence in terms of this Act referred to in paragraph (a), the court would have been required to prohibit him from driving, and, additionally, or alternatively, would have been required to cancel his licence;

The court shall, when sentencing him for the offence at common law –

(i) Prohibit him from driving for a period that is no shorter than the period of prohibition that would have been ordered had he been convicted of the offence in terms of this Act referred to in paragraph (a); and

(ii) Cancel his licence, if the court would have cancelled his licence on convicting him of the offence in terms of this Act referred to in paragraph (a).”

To unpack the above provisions: a conviction of culpable homicide, as defined by section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code), that involves the driving of a motor vehicle, should, among other things, automatically compel the court to pay regard to the prescribed driving offences in the Road Traffic Act, such as:

(a) Section 50 [exceeding speed limits];

(b) Section 51 [driving without due care and attention…,.];

(c) Section 52 [negligent or dangerous driving];

(d) Section 53 [reckless driving];

(e) Section 54 [driving with prohibited concentration of alcohol in blood]; and

(f) Section 55 [driving whilst under the influence of alcohol or drugs or both].

In terms of section 64[1] of the Road Traffic Act [Chapter 13:11], the court has discretion to prohibit from driving where it has convicted a person of a motoring offence in terms of any law other than the Road Traffic Act. In terms of section 64[3] if it has convicted of, among others, culpable homicide arising out of a motoring offence, where it would have convicted of a motoring offence in terms of the Road Traffic Act [e.g. negligent or dangerous driving, in contravention of section 52], then the court shall prohibit from driving and cancel the licence.

To compound the situation further, in addition to section 64 aforesaid, the court should also pay regard to section 65 of the Road Traffic Act if it has convicted. Section 65[1] says a prohibition from driving shall extend to all classes of motor vehicles. But, of course, this is subject to the exceptions set out in the rest of that section. For example, sub-section [3] gives the court the discretion to confine the prohibition to the class of motor vehicles to which the one being driven by the accused at the time of the commission of the offence belonged.

The sum total of all this is that where the driver of a commuter omnibus or a heavy vehicle has been convicted of culpable homicide, the court cannot just approach sentencing in the ordinary way. It has to pay regard to the relevant sections above in case a prohibition from driving is mandatory or discretionary, or in case the licence has to be cancelled. Prohibition from driving is mandatory, for example, in terms of section 52[4][c] [negligent or dangerous driving of a commuter omnibus or a heavy vehicle]; section 54 [driving with prohibited concentration of alcohol in blood], and section 55 [driving while under the influence of alcohol or drugs or both].

The appellant, a 39 year old first offender, pleaded guilty to, and was convicted of, contravening section 52(2) of the Road Traffic Act [Chapter 13:11].

The State allegations were that, on 7 May 2014, and at the corner of Prince Edward Road and Josiah Chinamano Avenue, Harare, the appellant drove a Toyota Hiace motor vehicle with registration number ACL 9067 negligently, and, in the process, was involved in a serious accident. The State levelled four particulars of negligence against the appellant. These were that he:

(a) Turned right in front of an oncoming vehicle:

(b) Failed to keep a proper look out;

(c) Failed to stop or act responsibly when a collision seemed imminent; and

(d) Travelled at an excessive speed under the circumstances of the case.

The trial court inquired into the issue of the existence or otherwise of special circumstances. It found none. It, accordingly, sentenced the appellant to 6 months imprisonment and suspended 2 of the 6 months for 5 years on condition of future good behaviour. It, in addition, prohibited the appellant from driving commuter omnibuses and heavy motor vehicles for a period of 2 years and light motor vehicles for 6 months. It cancelled his driver's licence.

The appellant's appeal was against sentence. He stated, in his grounds of appeal, that:

1. The trial court erred in not considering community service as a competent sentence;

2. The court a quo erred in holding imprisonment as the only deterrent punishment and failing to consider other forms of punishment considering that the appellant was a first offender who pleaded guilty to the offence;

3. The sentence imposed was excessive and induced a sense of shock;

4. The trial magistrate erred by ignoring the general principle of keeping first offenders out of prison especially if there are no compelling reasons for the imposition of a custodial sentence;

5. The court a quo erred by failing to accord a plea of guilty sufficient weight which it must be accorded and failing to give weight to other factors which favoured the appellant; and

6. The trial court erred by failing to recognise that an unrepresented offender would not know or appreciate special circumstances of the case.

The respondent opposed the appeal. Its position was that the court a quo exercised its discretion in a judicious manner when it assessed the sentence which it imposed upon the appellant.

The appellant admitted one of the four particulars of negligence which the State levelled against him. He candidly informed the trial court that he turned right in front of an oncoming motor vehicle. He stated, as a reason for his conduct, that he was running away from the police when the accident occurred. He said:

“There were police officers who were hiding in front and they suddenly appeared and the motor vehicle ahead of mine was too close to my vehicle.”…,.

The court is satisfied that the appellant made a conscious decision to execute a dangerous turn and run away from law enforcement agents. He should have known that his conduct would likely result in an accident from which a number of persons would either be injured or even killed. Notwithstanding his realisation in that regard, he made up his mind to conduct himself as he did reckless as to the outcome of the same. He had eighteen passengers in his vehicle when he engaged in this brazen act. Three passengers suffered injuries as a result of the accident which he recklessly caused. His moral blameworthiness is very high in the circumstance of this case.

The record is silent on whether or not the appellant tendered an apology to the injured persons or met their medical bills. The probabilities of the matter are that he did neither of those. That factor militates against his case.

Most of the case authorities which counsel for the appellant cited centred more on generally known and settled sentencing principles than they did on the case at hand. The case of S v Kadonzvo 1990 (1) ZLR 186 (SC), which he cited, was, in many respects, distinguishable from the circumstances of this case. The respondent brought out the distinction between the two cases in a clear and lucid manner. The court is satisfied that S v Kadonzvo 1990 (1) ZLR 186 (SC) was one of mis-judgement. He misjudged that he could pass through the narrow bridge when there was another motor vehicle coming from the opposite direction. That was a clear case of negligent driving as opposed to the present case where the negligence of the appellant was a conscious decision on his part to turn right in front of an oncoming motor vehicle reckless as to the consequences which flowed from his unlawful action.

The respondent's strong submissions were made in a logical sequence and they were supported by relevant case authorities. It was able to convince the court that the appellant's criticism of the magistrate's assessment of sentence was not warranted. It is the court's view that the sentence which the court a quo imposed upon the appellant was not only appropriate but was also in accordance with real and substantial justice.

The appellant owed a duty of care not only to his passengers but also to the driver and passengers, if any, of the other motor vehicle. He owed the same duty of care to pedestrians and other road users who were about, or at, the scene of the accident. He failed to observe the said duty in a most callous way. The court a quo did not, in the court's view, misdirect itself in any way when it sentenced him to a custodial sentence.

It is pertinent to stress that drivers of public service vehicles should not be allowed to treat those whom they carry in their vehicles as goods or chattel which can be disposed of at will. They are, at all material times, enjoined to do everything which is possible to safeguard the lives of their passengers, their own lives, as well as the lives of other road users - pedestrians included. Where they act brazenly, as the appellant in casu did, they should not expect the sympathy of the courts.

The only misdirection which the court noted in the instant case related to the cancellation of the appellant's driving licence.

The appellant was convicted of negligent driving and not reckless driving. The facts of the matter show that he was reckless when he drove as he did. That fact notwithstanding, the appellant could not be convicted of the crime of reckless driving which is more serious than the one the charge of which the State preferred against him. Reckless driving is not a competent verdict for the offence of negligent driving. The reverse is the case.

It is only when a driver is convicted of reckless driving that the court is called upon to cancel his or her licence. Cancellation of a driver's licence is not provided for under the crime of negligent driving. The appellant's licence was, accordingly, erroneously cancelled and should, therefore, be restored to its status quo ante.

The court has considered all the circumstances of this case. It is convinced that the sentence which was imposed upon the appellant was proper and should not be interfered with. The appeal, therefore, fails except for that part of the sentence which pertains to the cancellation of his licence.

It is, in the result, ordered that:

1. The appeal be and is hereby dismissed.

2. The cancellation of the appellant's driver's licence be and is hereby set aside.

The learned Regional Magistrate…, has raised concern over the prohibition from driving.

He queried whether it was appropriate for the trial magistrate to prohibit the accused who had been charged and convicted of culpable homicide from driving. The Regional Magistrate relies on a judgement of KARWI J in Cuthbert Mhishi v S HH85-11 for the proposition that prohibition from driving cannot be imposed in cases involving culpable homicide arising as a result of a road traffic accident. The court, in that case, held as follows in relation to cases of culpable homicide charged in terms of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23];

“The penalty provision of that section does not provide for the cancellation of an accused driver's licence nor does it provide for prohibition from driving. It therefore follows that the learned magistrate should neither have cancelled the appellant's drivers licence nor prohibited him from driving.”…,.

Section 64(1) of the Road Traffic Act [Chapter 13:11] empowers a court convicting a person of an offence in terms of any law other than the Road Traffic Act or in connection with the driving of a motor vehicle on a road to, in addition to the penalty which he may lawfully impose, prohibit the person from driving….,.

The import of this section is that it permits a court which has convicted a person of a driving offence, whether in terms of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code) or any other law, to order prohibition from driving a specified class of vehicles for a specified period….,.

The intention of the legislature is clear, from section 64 of the Road Traffic Act, that its intention was that prohibition from driving be considered in any case involving a driving offence.

This position was articulated in S v Chaita 1998 (1) ZLR 213 (H). In this case, the accused had been sentenced to a fine for culpable homicide. CHINHENGO J…, in reviewing the proceedings, said the following about prohibition cases;

“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 section 64(3) of the Act. A failure to do so is clearly a misdirection.”

Another case in point is S v Chassis Sithole HB21-13 where CHEDA J, in a case involving the same sort of circumstances, said the following on prohibition:

“The trial magistrate did not investigate or address his mind with regards to prohibition from driving which is a requirement for such type of offence. In that regard, it is clear that there was a misdirection on the part of the magistrate.”

I do not agree with the position adopted by KARWI J in Cuthbert Mhishi v S HH85-11 that because the penalty section of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] does not provide for prohibition from driving, it is not competent for a court assessing sentence in such cases to prohibit the offender from driving….,.

The Regional Magistrate who scrutinised the proceedings fell into the error of supposing that only offenders who are charged in terms of the Road Traffic Act are liable for prohibition….,.

Where an offender has been convicted of a driving offence or the offences category prescribed in section 64(3) of the Road Traffic Act, it is competent for the court convicting such a person to prohibit him from driving specified classes of vehicles for a specified period.