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 trial magistrate's misdirection was more
glaring in relation to the order of prohibition from driving. He made no
enquiry on special circumstances, despite imposing the prohibition.
Furthermore, having decided to impose the prohibition, the period, a mere six
months, was far too short than that prescribed, namely, not less than two
years. Because of this serious misdirection, I decline to certify the
proceedings as being in accordance with real and substantial justice.
However,
after a careful consideration of all the circumstances, not least the somewhat
insubstantial difference in the sentence that the trial magistrate actually
passed and that which he ought to have passed in terms of section 52 of the Road
Traffic Act [Chapter 13:11] the proceedings shall not be set aside.
