This is a review judgment forwarded to me as per the usual procedure in terms of the Magistrate Court Act.

The accused was charged with contravening section 52(2)(a) of the Road Traffic Act [Chapter 13:11] as read with section 21(a) of Part LXXXIV of the Criminal Penalties Amendment Act Number 22 of 2001 'Negligent Driving'.

He pleaded guilty, was convicted, and sentenced to a fine of $400, or, in default of payment, to 3 months imprisonment.

The allegation against the accused is that on 11th January 2007 he drove a motor vehicle, Toyota Hilux, along Guinea Fowl Valley Road, off Shurugwi Road, negligently resulting in it overturning and landing on its roof. The vehicle was extensively damaged. It is common cause that he failed to engage into a suitable gear when approaching a slope. There were, however, no injuries sustained by either the accused or his passenger.

The particulars of negligence are as follows:

(a) Travelling at an excessive speed in the circumstances.

(b) Failing to keep the vehicle under proper control.

(c) Failing to stop or act reasonably when an accident seemed imminent.

These particulars were not disputed by the accused.

I raised a query why the accused's license was not endorsed and also why he was not prohibited from driving for a certain period as required by the Road Traffic Act.

In her response, the trial magistrate stated:-

“I write in response to the query raised with respect to the above reference. The reason why accused was not prohibited from driving is that accused is a first offender who was driving an ordinary motor vehicle. In terms of section 52(4)(a) of the Road Traffic Act the court has a discretion whether or not to prohibit him from driving. I came to the conclusion that the facts and circumstances of this case did not warrant prohibition. I stand guided.

(Signed) R Muchena Trial Magistrate.”

With greatest respect, the trial magistrate has seriously misled herself by considering the issue of special circumstances which only apply where one is convicted under section 52(2)(b) and (c); the accused was convicted under section 52(2)(a) which does not need an enquiry about special circumstances. It is, therefore, clear that she misdirected herself in that regard.

On the issue of negligence, she concluded that the accused's negligence was ordinary.

Again, I fail to understand how an accused who was driving a car at an excessive speed, approached a slope, and failed to engage the vehicle to a suitable gear resulting in such an accident where the car lands on its roof can be convicted of ordinary negligence.

The State Outline, which has not been contradicted, states that the vehicle was in a good working condition suffered excessive damage.

If this is ordinary negligence then God forbid.

It is my view that the learned trial magistrate did not properly read and understand the Road Traffic Act thereby coming to a wrong conclusion, which, unfortunately, even when her mistake is pointed out to her, she still failed to see it.

Magistrates are urged to accept that pointing out a mistake on their part is not intended to insult them, but is intended to guide them only for future purposes.

This was infact gross negligence on the part of the accused which should have attracted a prohibition from driving. The learned trial magistrate has therefore done injustice to this case.

I, therefore, find that these proceedings are not in accordance with real and substantial justice and I accordingly withhold my certificate.

The accused was charged with the offence of driving a commuter omnibus when he was under the age of twenty-five years, purportedly in contravention of section 7(1)(a) of the Road Traffic Act [Chapter 13:11]. He drove a commuter omnibus with twelve passengers...,. He was arrested at a police road block...,. His certificate of competency and his national identity documents showed that he was twenty-three years old at the time. He was convicted on his own plea and sentenced as follows:

"Twenty thousand dollars or in default of payment ten days of imprisonment. In addition, three months imprisonment is wholly suspended for five years on condition the accused does not, within that period, commit any offence involving the driving of a motor vehicle for which no valid driver's licence is held, for which upon conviction, is sentenced to imprisonment without the option of a fine. Invalid driver's licence "Certificate of Competency" Number...., is hereby cancelled (Clerk of Court to advise CVR accordingly)."

It is necessary that I quote in full the contents of Section 7 of the Road Traffic Act [Chapter 13:11]. It reads:

"7 Minimun Age for Drivers of Motor Vehicles

(1) Notwithstanding anything contained in this Act, no person under the age of-

(a) Sixteen years, shall drive on a road any motor vehicle; or

(b) Eighteen years, shall drive on a road a construction vehicle, heavy vehicle or passenger public service vehicle other than an omnibus or a commuter omnibus; or (paragraph amended by Section 4 of Act 3 of 2000)

(c) Twenty-five years, shall drive an omnibus or a commuter omnibus on a road. (paragraph inserted by Section 4 of Act 3 of 2000)

(2) A licence issued to a person under the age of-

(a) Sixteen years, in respect of any motor vehicle; or

(b) Eighteen years, in respect of a construction vehicle, heavy vehicle or passenger public service vehicle other than an omnibus or a commuter omnibus; or (paragraph amended by Section 4 of Act 3 of 2000)

(c) Twenty-five years, in respect of an omnibus or a commuter omnibus; (paragraph inserted by Section 4 of Act 3 of 2000)

shall be invalid.

(3) ...,.(subsection repealed by Section 4 of Act 3 of 2000)

(4) A court convicting a person of an offence in terms of subsection (3) may, subject to Part IX, prohibit the person from driving for such periods as the court thinks fit. (subsection amended by Section 4 of Act 3 of 2000)"

Section 7(1)(c), above cited, prohibits a person who is under the age of twenty-five from driving a commuter omnibus, while section 7(2)(c) invalidates any licence issued to a person under the age of twenty-five, in respect of a commuter omnibus.

The repealed subsection (3) made it a criminal offence for a person to act contrary to subsections (1) and (2), while the repealed Section 88 of the Road Traffic Act [Chapter 13:11] was a general penalty section.

Section (10)(1) of the Road Traffic Act [Chapter 13:11] sets out two categories for which certificates of competency may be issued. It reads-

"10 Issue of Certificates of Competency and Drivers Licences

(1) The holder of a learners' licence may apply on the prescribed form to an examiner for a certificate of competency to drive-

(a) Motor vehicles of any class, other than omnibuses; or

(b) Omnibuses, if he has held for such continuous period as may be prescribed a licence, other than a learners' licence, in respect of such class of motor vehicles as may be prescribed."

It does not appear from the wording of subsection (1) as read with subsection (2) of Section (10) of the Road Traffic Act [Chapter 13:11] that a specific licence to drive commuter omnibuses is issued to persons between the ages of twenty five and seventy years.

The trial magistrate was obliged to inquire whether or not the certificate of competency that the accused held covered commuter omnibuses or not in order to determine whether Section (7)(2) of the Road Traffic Act [Chapter 13:11] would apply in the instant matter.

In the absence of an offence-creating provision in the Road Traffic Act [Chapter 13:11], a person under the age of twenty-five who drives a commuter omnibus does not commit an offence under Section 7 of the Road Traffic Act [Chapter 13:11].

The cause of the accident was as a result of his negligence, the particulars of which are -

(1) Driving at a speed which was excessive in the circumstances;

(2) Failure to keep the vehicle under proper control; and

(3) Failure to stop, or act reasonably, when the accident seemed imminent.

In terms of the Road Traffic Act Amendment 3/2000, the learned magistrate should have enquired into the special circumstances of the offence in order to establish the question of prohibition from driving.

That failure is a misdirection on his part...,.

There has been some injustice in this matter, and, as such, I am unable to certify these proceedings as being in accordance with real and substantial justice.

The particulars of negligence are that he:-

(1) Failed to stop or act reasonably when an accident seemed imminent.

(2) Failed to keep a proper look-out in the circumstances.

The accused in this case was found guilty on his plea of guilty to a charge of negligent driving in contravention of section 52(2) of the Road Traffic Act [Chapter 13:11].

The conviction is in order and is accordingly hereby confirmed.

The Facts

The accused committed the offence whilst driving a commuter omnibus with five passengers on board. He collided into seven stationery vehicles probably because he was over-speeding combined with defective brakes. All of the vehicles involved were damaged but nobody was injured.

The appellant appeals against the sentence passed by the Magistrate Court sitting in Gokwe. 

The appellant was charged with contravening section 6(1)(9) of the Road Traffic Amendment Number 3/2000. He pleaded guilty and was convicted….,.

The night of 22 November 2006 was a dark and stormy one with poor visibility. At about 2100hours, the appellant, a driver of 37 years clean driving experience, was driving from Harare to Masvingo when, at the 198km peg, he suddenly beheld a huge dark object close ahead of him. It later turned out to be a heavy army truck loaded with maize seed. The appellant tried to avoid ramming onto the army truck by swerving to the right and did not do a good job of it, succeeding in only hitting the rear of the trailer with the left side of his Isuzu KB truck before being confronted by a Mercedes Benz E240 motor vehicle which was travelling in the opposite direction. The appellant managed to avoid a head on collision with the Mercedes Benz, which was carrying Senator T. Mohadi, but side-swiped it with the right side of his vehicle. He battled with the vehicle and its trajectory took him off the road where he managed to stop without overturning.

The appellant, who pleaded not guilty, was tried at the Gweru Magistrates' Court on a charge of reckless driving in contravention of section 53(2) of the Road Traffic Act [Chapter 13:11]. He was convicted of negligent driving, a permissible verdict on a charge of reckless driving….,.

In arriving at the conclusion of the appellant's guilt, the trial magistrate took the following path:

“In this case, can an accused person be said to have overtaken when he saw that there was oncoming traffic? In my view, evidence led did not conclusively prove that. The army driver was not called to testify on how the accused tried to overtake him, on whether or not his car had reflective material or lights. His evidence was necessary. The first witness did not see whether the army truck had light or not. The attending detail did not check the lights were functioning or not, or whether the chevron was reflective or not.  Accused's version that the army truck had no lights and that it had no reflective material was not rebutted, it follows that he not reckless. His conduct falls short of recklessness but qualifies as ordinary negligence. I say so because he was driving at around 100km/hr on a very dark night. He saw a hazard about 25m or 50m. His speed did not correspond with the distance he could see ahead. He thus failed to take evasive action when need arose. He was therefore negligent.”

In my view, such a conclusion is not supported by the evidence led. For a start, the allegations made by the State are that the appellant tried to overtake the army truck in front of oncoming traffic as a result of which the accident occurred. The State did not disclose that there was a collision first with the rear of the army truck. According to the State, the particulars of recklessness are:

“(i) Travelling at an excessive speed in the circumstances.

(ii) Failing to keep a proper look out.

(iii) Overtaking in front of oncoming traffic.

(iv) Fail to keep vehicle under proper control.

(v) Fail to stop or act reasonably when accident or collision seemed imminent.”

The evidence led by the State does not sustain any of the above cited particulars….,.

The appellant gave evidence.

He stated that he was driving at a speed of between 90-100km per hour when suddenly he saw a dark shape looming in front of him. Instinctively, he swerved to the right, skidden to the left and collided with the object. As a result of that impact, his vehicle was thrown off into the right hand side of the road where there was an oncoming vehicle. He had been unaware of both the looming object (which turned out to be an un-roadworthy army vehicle) and the oncoming vehicle because the army truck had no rear lights or reflectors and it also impeded his view preventing him from seeing the lights of the oncoming vehicle. The appellant stated that he collided with the oncoming vehicle which was now a second collision. As a result, the rear axle of his pickup truck was torn off but he did his best to keep the vehicle under control, even with one axle and he avoided rolling steering the vehicle to safety off the road. He said that he later went to examine the army truck and noticed that it had no lights, was a 30 tonne trailer pulled by a scania horse. The trailer completely had no lights, there were no electrical cables fitted to the trailer which also did not have any visible reflectors. It was an old dull trailer loaded with maize seed and wrapped in a dark coloured tarpaulin completely covering the rear of the trailer as it was secured right down to the rear bumper. According to the appellant, when he quizzed the army driver and his collegues why they had taken to the highway at night a clearly unroadworthy vehicle which was not visible, they apologized stating that they had intended to get to their destination before dark but failed. He had to untie the tarpaulin and lift it in order to take down the number plate of the trailer which was also covered. The tarpaulin and its lack of reflectors made the army truck invisible….,.

The entire evidence led on behalf of the appellant was not rebutted at all.

The issue which therefore arises is whether, in the circumstances of the case, he could be said to have been negligent. 

I think not.

It is not every wrongful act of a person which constitutes negligence. Where a person is placed in danger by the wrongful act of someone else, and, in the agony of the moment, he conducts himself with the care expected of him in the circumstances he cannot be blamed if he does not succeed. In   S v Mauwa 1990 (1) ZLR 235 (S) KORSAH JA stated…, that:-

“Where a person or third party is placed in danger by the wrongful act of another, that person is not negligent if, in the agony of the moment, he exercises such care as may be reasonably expected of him in the reasonable apprehension of the danger in which he is so placed. He is not to blame if he does not do quite the right thing in the circumstances.”

If it is accepted that the army vehicle was in the condition borne by the evidence, then, clearly, the appellant was not expected to see it until it was too late. When he saw it what he did was reasonably expected of a human being. In fact, had he not taken the evasive action which he did and manoeuvered his vehicle the way he did, as dictated by the agony of the moment, human life could have been lost. It is remarkable that no life was lost in those circumstances.

The doctrine of sudden emergency was succinctly formulated in Chikosa v Wright 1996 (2) ZLR 607 (S)….,:-

“A man who, by another's want of care, finds himself in a position of imminent danger, cannot be held guilty of negligence merely because in that emergency he does not act in the best way to avoid the danger.”

It is the army driver who created danger by putting an invisible vehicle on the road. There is a reason why a vehicle is required to have rear lights and reflectors at the back. It is to alert other drivers of the presence of that vehicle on the road. That danger required the appellant to take avoiding action which led to the collision with both the army vehicle and the Mercedes Benz vehicle. The appellant cannot be said to have been negligent. It is astonishing to note that the State tried to create an impression that not only was the army vehicle not involved but also that it did not exist. Otherwise there would be no explanation for its exclusion from the Traffic Accident Book and the signal failure to bring its driver to testify. It is an attempt to pull the wool over the court's eye which is as unsavoury as it is unacceptable. It is an injustice that should be condemned.

The 38 year old appellant was convicted of driving a class two motor vehicle without a licence in respect of such class of motor vehicle. The vehicle was a T35000 whose net mass was 260kg. It was a heavy vehicle as defined in section 2 of the Road Traffic Act [Chapter 13:11].

The appellant was carrying mining machinery and three (3) passengers.

The accused was convicted of two counts of contravening sections of the Road Traffic Act [Chapter 13:11] by the Magistrates Court sitting at Western Commonage, Bulawayo. In the first count he was convicted of driving without due care and attention in contravention of section 51(1) of the Road Traffic Act [Chapter 13:11].

The applicant was convicted by the Magistrates Court sitting at Western Commonage, Bulawayo of drunk driving in contravention of section 55(2) of the Road Traffic Act [Chapter 13:11].

The appellant was convicted on his own plea on a charge of negligent driving in contravention of section 52(2) of the Road Traffic Act [Chapter 13:11].

The appellant appeals against his conviction for negligent driving in contravention of section 52(2) of the Road Traffic Act [Chapter 13:11].

The following facts were common cause.

The appellant, on the day in question, drove due east along Natal Road, Avondale, Harare. He then turned right into Bath Road and continued down that road, but, after a short distance, he decided to go back to Natal Road and executed a “U”-turn. Upon getting to the “T”- junction into Natal Road, he turned left to go west along Natal Road. The complainant, who was driving due west along Natal Road realised the appellant's manoeuvres too late. He hit into the rear end of the appellant's motor vehicle. There is a “give-way” sign facing Bath Road controlling traffic entering into Natal Road. The accident occurred in broad daylight when visibility was good.

The appellant raised six grounds of appeal. These are that the magistrate erred in one or more of the following ways:

1. In finding the appellant guilty of negligent driving;

2. In finding that the appellant was the cause of the accident;

3. In finding that the appellant failed to give way to on-coming traffic and failed to keep a proper look-out;

4. In finding that it mattered not the distance the appellant had travelled up Natal Road;

5. In failing to find that the collision was caused by the complainant in that :-

(a) He failed to keep a proper look-out;

(b) He failed to take action and care to avoid an accident that was imminent;

(c) He ought to have adjusted his speed and adjusted his driving upon approaching the junction and particularly when he saw the appellant entering or about to enter into Natal Road and that he should not have accelerated and accordingly was travelling at a speed that was excessive in the circumstances.

(d) That in all probability the complainant was distracted or not paying sufficient attention and thus failed to reasonably to anticipate that the appellant would turn into Natal Road;

6. In failing to find that the appellant's contention that he had travelled sufficiently up Natal Road so as not to have been the cause of the accident or be negligent and that there was no evidence to the contrary.

In his judgment, the learned trial magistrate preferred the evidence given by the complainant to that given by the appellant.

His assessment of where the probabilities in the matter lay cannot reasonably be faulted if regard is had to the evidence on the record. The learned trial magistrate believed the complainant who testified that he saw the appellant drive towards him from the opposite direction on Natal Road. The appellant turned right into Bath Road. The appellant then drove down that road before he made a “U”-turn to come back towards Natal Road. On approaching the “give way” controlled “T”-junction of these two roads, the appellant did not stop but proceeded to execute a left turn and drive on. The complainant applied brakes to avoid the imminent accident whilst at the same time he swerved slightly to his right. There was an on-coming vehicle which hindered a full swing to the right. As a result he collided with the rear right side of the complainant's motor vehicle.

On these findings, the court a quo convicted the appellant.

In my view, the appellant's grounds of appeal are a serialised version of a single ground of appeal. This ground of appeal amounts to the following: the court a quo erred in finding that the appellant failed to give way to the complainant when he entered back into Natal Road in the face of a “give way” sign on Bath Road. This in summary captures the thrust of the attack on the complainant's conviction. Put differently, one may ask the hypothetical question: was the appellant negligent in executing a manoeuvre involving a right turn; a “U”-turn; and proceeding without giving way to traffic enjoying the right of precedence?

In R v Oldfield 1969 (2) RLR 233, the court stated that the inquiry was whether a reasonable man in the particular circumstances in which the appellant was placed ought to have foreseen as a reasonable possibility that “there might be persons in or adjacent to the road who might be endangered by his driving.”

In his judgment, the trial magistrate noted that the appellant noticed the complainant's presence on Natal Road but decided to get into that road as he thought that he had enough time to proceed without incident.

Herein lies the decisive aspect in the case.

In my view, by executing such a manoeuvre the appellant took a chance that was fraught with high risk. He was controlled by a “give-way” sign. The fact that he decided to proceed in spite of the fact that he had noticed the complainant on the road on his right speaks to his poor judgment. Not only did he flout the admonition in the rules of the road to give precedence to traffic approaching from the right, he drove against a clear sign which enjoined him to give precedence to traffic on Natal Road. He was expected to defer to traffic on this major road. He did not. Ordinarily, drivers expect other drivers to obey these simple rules of the road. He did not. I am unable to accept counsel for the appellant's contention regarding the complainant's duty to avoid this accident. He did all he could. He cannot be blamed for it but the appellant must be blamed. In my view, and, by any test, the appellant acted negligently in executing a manoeuvre which was eminently fraught with danger. Whatever his reasons for it, he ought to have been more careful, considering that he was re-entering a major road, as signified by the presence of a “give way” sign. He ignored the warning to his detriment. He was properly convicted. I find no merit in the several grounds raised on appeal.

The accused was charged with, pleaded guilty to, and was convicted of, contravening section 55(2) of the Road Traffic Act [Chapter 13:11]….,.

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 23^rd 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 187mg/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.

When the essential elements were being put, the accused admitted to driving a Toyota Hiace negligently. The charge sheet and State Outline do not suggest that the vehicle in issue was a public service vehicle. Nowhere during the proceedings did the accused acknowledge that he had been driving a public service vehicle. The suggestion that this vehicle was a public service vehicle came from the magistrate in her explanation of special circumstances.

The accused person was unrepresented and the assertion went unchallenged….,.

The trial magistrate surmised that the vehicle was a public service vehicle. Such a suggestion should have been put to the accused person when the essential elements were being canvassed. Such a suggestion should emerge from State papers. It does not follow that because the vehicle he drove was a Toyota Hiace or for that matter a commuter omnibus, that the said vehicle is a public service vehicle. It could well have been a private vehicle. 

The State bungled one of the charges preferred against the accused. The trial magistrate not only missed that, but it also mishandled the sentencing options. That is what has prompted this review judgment.

The accused pleaded guilty to two counts that arose out of a single driving infraction involving a tractor. The first Count was framed as driving a motor vehicle, the tractor, without a valid driver's licence. The second Count was culpable homicide.

What happened was that on the fateful day, the accused, an unemployed man of 39 years of age, had been drinking alcohol at a farm store from about 20:00 hours to about 02:00 hours the next day. He had come driving the tractor. It had a faulty battery. So he had parked it on a slope in readiness for a push start. When he decided it was time to go home he offered the deceased a lift. A tractor, not being a passenger carrying vehicle, the deceased sat on one of the mudguards.

In order to start the tractor, the accused, who only had one arm, the left arm, switched on the ignition. He disengaged the handbrake. The tractor started to roll down the slope. It soon gathered speed. The accused engaged gear and swiftly released the clutch. The engine roared to life. But, at the same time, the tractor jerked forward. The deceased was thrown off the mudguard. He fell to the ground and landed in front of the huge left rear wheel. He was run over. He died on the spot. The post-mortem report noted, among other things, a depressed skull and a fracture of the left arm. It said the deceased had died as a result of head injury.

The accused had no driver's licence.

The charge in respect of Count One was framed as;

“Contravention of section 6(1), as read with section 6(5), of the Road Traffic Act [Chapter 13:11], in that on 12 September 2016, at Yottam Farm, Masvingo, (the accused), unlawfully drove an unregistered motor vehicle, a Tafe Farm Tractor, along an un-named farm road with (sic) a valid driver's licence.”

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.

The word “…, with..,” in the charge sheet, was undoubtedly a typing error. Obviously it was meant to read “…, without…,.” Yet, that misprint was the bedrock of the charge. Strictly speaking, as the charge stood, there was no offence if the accused had driven a motor vehicle “…, with…,” [i.e. whilst in possession of] a valid driver's licence.

Be that as it may, it seems the typo did not cause prejudice. Everyone, including the accused, seemed to have understood the substance of the charge, namely, that the accused had driven the tractor whilst not in possession of a valid driver's licence. But, ironically, that was the bane of the whole case.

The offence created by section 6(1)([a) of the Road Traffic Act [Chapter 13:11] is directed at persons that drive motor vehicles “…,on a road…,” without being licenced to drive the class of the motor vehicle concerned. If one is driving a motor vehicle without a licence, but not on a road, one is not contravening this section.

In terms of the Road Traffic Act, “road” is any highway, street, or other road to which the public, or any section thereof, has access.

In casu, the road in question was none of these. It was a farm road, thus, a private road.

Section 2 of the Road Traffic Act [Chapter 13:11] defines a “private road” as any road the maintenance of which neither the State nor a local authority has assumed responsibility, and which is not commonly used by the public or any section thereof.

A “private road” only becomes a 'road' for the purposes of sections 51 to 55, 64, 70, 76 and 77 of the Road Traffic Act [Chapter 13:11], as stated in paragraph (e) of the definition of 'road' in section 2 of the Road Traffic Act. But none of these is relevant.

Thus, the court a quo was wrong to assume, or accept, without facts, that the farm road was a 'road' for the purposes of the offence in section 6(1) of the Road Traffic Act [Chapter 13:11].

That was not the only problem with the charge in Count One.

In terms of the Road Traffic Act, the driver of a tractor does not always have to have a driver's licence. In terms of section 8, all that an employee of a farmer or miner, or a self-employed farmer or miner, as defined, needs in order to legally drive a tractor belonging to, or possessed by them, on any road for farming purposes, up to a belt of ten kilometres of the farm or the mine boundary, is a tractor driver's permit issued in accordance with that section.

In casu, the State Outline said the accused resided at Plot 19 Yottam Farm. Whilst it also said the accused was not employed, it did not say he was not the owner of that plot or that farm. It did not say whose tractor it was. If he was the owner of that plot or of that farm, and thus was self-employed, and if he was also the owner of that tractor, he could legitimately have driven it, if he met the criteria laid out in section 8 of the Road Traffic Act [Chapter 13:11].

The right to drive a tractor in circumstances prescribed by section 8 of the Road Traffic Act is confined to situations where the driving is for farming or mining purposes.

It is perhaps presumptuous to argue that the accused, who had been carousing from about 20:00 hours to about 02:00 hours of the next day, could be said to have been on about farming purposes when he had eventually decided to drive the tractor home. It is more likely he had been at the drinking place for leisure or pleasure.

But had that been his dominant purpose? Might the drinking not have been merely incidental?

Not unexpectedly, all these aspects were not canvassed.

Given that the court had to be convinced of the accused's guilt beyond any reasonable doubt, it was unsafe to assume, as it evidently did, that the accused was not the owner of the plot or of the farm, or that he was not the owner of the tractor, or that he did not have a tractor driver's permit that would have entitled him to drive that tractor on the farm roads.

In the circumstances, the accused' conviction on Count One is hereby quashed, chiefly on account of the fact that there was no offence disclosed by the charge since the driving, and, therefore, the accident, occurred on a private farm road….,.

In summary, therefore:

1. The conviction and sentence in Count One are hereby set aside;

This is an appeal against the decision of the magistrate, who, after convicting the appellant on a crime of contravening section 52(2) of the Road Traffic Act [Chapter 13:11], sentenced the appellant to 8 years imprisonment, of which 5 years imprisonment were suspended for 5 years on condition that the appellant does not commit any offence involving negligent driving. The remainder of the sentence was suspended on condition the appellant performs community service at Harare Polytechnic College. Further, the appellant's driver's licence was sent for endorsement.

The appellant was not satisfied with both the conviction and sentence. He accordingly noted an appeal with this Honourable Court.

At the hearing of the appeal, and after hearing submissions from counsel for the appellant, counsel for the respondent abandoned her opposition. Counsel for the respondent conceded that the appeal had merit and submitted that it be granted.

In our view, the concession by counsel for the respondent was well made.

We were of the unanimous view that the sketch plan, which is at page 36 of the record of proceedings, shows that it was the second party (complainant) who hit the first party (appellant)'s car.

Further, it appeared clearly that as one drives due west towards Dzivarasekwa from Harare town, each party was driving on his own lane. This portion of the road is a one-way with two lanes. The second party (complainant) was on the left outer lane in front of the first party. The first party (appellant) was travelling behind, and was in the inner right lane. Both parties where going in the same direction. The second party (complainant) then turned right and rammed into the appellant's car which was travelling in a straight direction.

Point 'x2', which the appellant says was the point of impact, as evidenced by motor vehicle debris, shows that as the real point of impact. The point clearly shows that the complainant had gone past the turn off into the unmarked road when the accident occurred. It does not support the complainant's view that he was turning right into an unmarked road. Further, point 'x', which was recorded as the probable point of impact, has nothing which supports that proposition as the cars' debris are at 'x2' and not at 'x'.

To complicate matters, the other party, Tendayi Blessing Mupezweni (complainant), stated in his evidence-in–chief, at page 13 of the record, that, prior to the accident, he indicated that he was turning to the left when he was hit on the driver's door and got injured.

There is no turn-off to the left at the scene of the accident. The damages which he sustained were not consistent with the driver, or a car, which was turning left but right.

When confronted with this evidence, he changed, in the course of his evidence-in–chief, and stated that he was turning right. He further, admitted that the statement taken by the police at the scene was taken from his relative and not from him. He had already been taken to hospital.

The question to be asked is - who was then driving his vehicle? Was it the complainant or his relative, as recorded in the Traffic Accident Book?

In our view, given the above inconsistences, the appellant should not have been convicted. The trial court should have found the appellant not guilty and acquitted him. It is for these reasons that we are in agreement with the concession made by the respondent.

In the result, the appeal is allowed.

The accused was charged with two counts. The first count was contravention of section 6(1)(a) of the Road Traffic Act [Chapter 13:11], i.e. driving a motor vehicle on a road without a valid licence. To this charge he pleaded guilty. The second count was contravention of section 52(2) of the Road Traffic Act [Chapter 13:11], i.e. driving a vehicle on a road negligently. To this count the accused pleaded not guilty.

The circumstances of the offences were that the accused was driving a motor vehicle on a road without a driver's licence. At a robot controlled intersection he turned right in front of oncoming traffic. There was a collision. Police were called. The accused was arrested and eventually charged as aforesaid.

The accused's plea of guilty to Count 1 was taken in terms of section 271(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07]. He was sentenced to a fine of $50=, or, in default of payment, twenty days imprisonment.

A trial was conducted in respect of Count 2. The accused's defence was that the driver of the other vehicle entered a red robot. He said when he arrived at the intersection the robot in front of him was green. He was turning right but had to give way to oncoming traffic. The robot changed to amber. He commenced his turn. It changed to red whilst he was still in the intersection. The other vehicle was coming from the opposite direction and proceeding straight on. It was travelling at an excessive speed. It crashed into his vehicle and stopped some twenty meters away from the point of impact.

Despite his story, the accused was nonetheless convicted. He was sentenced to six months imprisonment of which three months imprisonment was suspended for five years on condition of good behaviour. The remaining three months imprisonment was suspended on condition the accused performed community service.

On scrutiny, the Regional Magistrate declined to certify the proceedings as having been in accordance with real and substantial justice. I paraphrase his reasons as follows:

(a) The reasons for sentence in Count 2 (negligent driving) did not allude to the degree of negligence;

(b) On Count 1, the accused was sentenced to a fine which was in excess of level three yet his plea had been taken in terms of section 271(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07];

(c) There was no indication in the record that the State had closed its case when the defence case opened;

(d) The endorsement that the State had closed its case appeared only at the end of the defence case.

(e) The accused was asked if he wished to call any witnesses only once at the start of the defence case, yet it would have been helpful if he had been asked again after the cross-examination of himself by the State, given the effects of the cross-examination.

The trial magistrate had responded. Again, I paraphrase his responses as follows:

(i) The issue of the degree of negligence had been adequately addressed in the main judgment during the analysis of the evidence and the particulars of negligence. The sentence had been arrived at after considering the accused's personal circumstances, the offence and the surrounding circumstances;

(ii) The accused had been charged under section 52(2) of the Road Traffic Act [Chapter 13:11]. That section clearly provides for a fine of up to level 10, or imprisonment of up to one year, or both such fine and imprisonment. However, it was a mistaken belief that the level of the sentence under section 271(2)(a) of the Criminal Procedure and Evidence Act [Chapter 9:07] was $100=.

(iii) The categorisation of the degrees of negligence is confined to cases of culpable homicide arising from traffic accidents and where an accused person is charged with contravention of section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Code”). Such categorization would then be necessary to ascertain the degree of negligence in relation to the categories specified in sections 51, 52 and 53 of the Road Traffic Act [Chapter 13:11]. In a case where the accused is charged under the Road Traffic Act itself, there is no need to repeat the provisions under which he is charged as the degree of negligence would be clearly spelt out. The case of State v Mapeka & Anor 2001 (2) ZLR 90 (H) clearly outlines the assessment of the degrees of negligence necessary in relation to cases of culpable homicide where the accused is charged under section 49 of the Criminal Code.

(iv) It was a mistake to have omitted to endorse that the State had closed its case. It was also a mistake to have endorsed at the end of the defence case “close of State case”.

(v) The accused had been asked, after the opening of the defence case, whether he would be calling any witnesses so that the court could know in advance the number of witnesses and their relevance. It is not understood how the stage at which the court asks an accused person whether or not he intends to call any witnesses, i.e. either at the opening of the defence case, or after cross-examination of himself, may alter his defence.

The trial magistrate concluded his responses by accepting to stand guided and corrected. But having declined to certify the proceedings, the scrutinising magistrate referred the record of proceedings to this court in terms of section 58(3)(b) of the Magistrates Court Act [Chapter 7:10].

I now deal with the matter in the manner and sequence below….,.

1. The reasons for sentence in Count 2 (negligent driving) do not allude to the degree of negligence

The trial magistrate, with all due respect, was correct in pointing out that the scrutinising magistrate was confusing the necessity of specifying the gradations of negligence as directed by CHINHENGO J in S v Mapeka & Anor 2001 (2) ZLR 90 (H) in cases of culpable homicide arising out of negligent driving. There is no need for such categorization where the charge is directly one of negligence under section 52(2) of the Road Traffic Act [Chapter 13:11]. The provision simply makes it an offence to drive a vehicle on a road negligently. The other gradations or categories of negligent driving, such as driving without due care and attention, or reckless driving, are provided for elsewhere in the Act. In casu, the particulars of negligence were spelt out. They were:

(a) Failing to keep a proper lookout.

(b) Turning across the path of oncoming traffic.

(c) Failing to stop or act reasonably when a collision was imminent.

The accused drove without a driver's licence; he did not only drive but drove negligently by driving at excessive speed thereby leading to an accident in which precious human life was lost….,.

It cannot be disputed that driving at excessive speed, without the requisite skill, safely falls under the ambit of gross negligence and/or recklessness.

This record was referred to me from the Acting Regional Magistrate for Harare who scrutinised 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.”

In its response, the trial court accepted that the oversight was not justified but still contended that it had been brought to the attention of the accused during the explanation of special circumstances. The trial court contended that the accused had been convicted of negligent driving of a public service, namely, a commuter omnibus vehicle and that he did not dispute this fact. The court has undertaken to guard against such errors in the future.

The brief facts surrounding the commission of this offence may be summarised 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. After convicting the accused person, the court proceeded to enquire into special circumstances. 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.

The record does not indicate that the accused was appraised of what special circumstances are. It is incumbent upon a court making an inquiry into special circumstances to explain fully to the accused the import of special circumstances. This requirement serves to equip the offender to understand the nature of the enquiry being conducted and its purpose. A suggestion to an offender that he has been convicted of negligent driving of a public service vehicle, namely, a commuter omnibus is not an explanation of what special circumstances are. The court tried to elicit essential elements of the offence from the accused - after it had convicted him of the offence charged. There is a growing tendency on the part of magistrates dealing with driving offences where this type of vehicle is involved, to assume that a Toyota Hiace is a public service vehicle and a commuter omnibus. This correlation is misplaced. The definition section of the Road Traffic Act defines a public service vehicle as follows;

“Public service vehicle” means a motor vehicle in respect of whose operation an operator's licence is required in terms of the Road Motor Transportation Act [Chapter 13:15];”

A Toyota Hiace is not, as a matter of course, a commuter omnibus nor a public service vehicle. A vehicle which is a commuter omnibus only becomes a public service vehicle when it is used for the purposes of ferrying passengers for profit in terms of the legal definition of a public service vehicle. The vehicle may be an omnibus, but, it can only become a commuter omnibus when it is used for the purpose of ferrying passengers. It is not the class of vehicle, type or description of a vehicle that determines whether it is a public service vehicle, but, rather, the use to which the vehicle is being put.

The fact that it was later suggested to the accused that he was driving a public service vehicle does not validate a failure by the prosecution to state and fully outline the nature of the allegations against the accused in its papers. The trial court failed to pick the anomaly in the State papers. Unless a charge sheet contains a specific allegation to the effect that an offender drove a public service vehicle or commuter omnibus, it is inappropriate to treat an offender as if he drove such class of vehicle for purposes of sentence in terms of section 52(2) of the Road Traffic Act [Chapter 13:11].

An admission by an accused to essential averments not linked to the offence charged cannot be not an admission of guilt to the offence charged. Such an admission does not cure the defect in the charge. An offender cannot be convicted of a crime in circumstances where he is unaware of the full allegations that make the conduct complained against criminal. In this case, the accused did not admit that he drove a public service vehicle or a commuter omnibus. The information was just thrust down his throat. He was not afforded an opportunity to respond to the suggestion. I am not satisfied that the accused was properly advised of the nature of charges he was facing and that his admission of guilt is a genuine and unequivocal plea of guilt to the offence of driving a public service vehicle negligently.

The facts disclose that the accused drove a Toyota Hiace. The accused admitted that he drove the vehicle negligently. The allegations, as they stand, are supportive of no more than a case of negligent driving involving an ordinary vehicle in terms of section 52 of the Road Traffic Act [Chapter 13:11].

The conviction is proper.

The trial court has conceded that it misdirected itself in the manner it handled the charge that was preferred against the accused person in Count One and the manner it approached sentencing in both counts One and Two. This case is almost on all fours with S v Chitepo HMA03-17 in which some guidelines in matters involving driving offences were proffered.

As in S v Chitepo HMA03-17, the accused, who was not represented, pleaded guilty to two counts that arose out of a single driving infraction involving a tractor. The first Count was framed as contravening section 6[1] of the Road Traffic Act [Chapter 13:11] [No driver's licence]. 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.

In Count One the narration was as follows:

“In that on the 2^nd day of October and at Mtao forest Plantation, Gabriel Kamuchepa unlawfully drove an unregistered Messy ferguson tractor without a driver's licence knowing that he is not the holder of a valid driver's licence.”

Apart from the obvious typos [e.g. the year not given, and the “f” in “forest” and “ferguson” being small case], there were several and more fundamental omissions in the charge.

The first omission was that the charge of driving a motor vehicle by someone who is not the holder of a valid licence in respect of the motor vehicle of the class concerned is not complete by the citing only of section 6[1] of the Road Traffic Act [“the Act”]. This sub-section merely carries the prohibition. It simply says 'thou shall not do this unless thou is this, and thou does that.' It is sub-section [5] that creates the offence. It says if someone does what is prohibited by sub-section [1] then they are guilty of an offence. It is also sub-section [5] that spells out the penalty for the offence created. Therefore, a charge of driving without a driver's licence should cite section 6[1] together with section 6[5] for it to be complete. An accused person ought to appreciate what offence he is being accused of, and what penalty, if prescribed, he is liable for.

The second omission was the failure to specify where the accused drove the tractor. The offence is created where the impugned driving is 'on a road'. In casu, the charge simply said the accused drove an unregistered…, tractor without a driver's licence. That is not an offence. As I said in S v Chitepo HMA03-17, an unlicensed driver does not commit the offence prescribed by section 6 of the Road Traffic Act if his driving is not on a road as defined.

The State Outline purported to cure the second defect above. But it did not. It said the accused drove the unregistered tractor “…, along Matende road in Mao plantation…,.” That was not enough. “Road”, for the purposes of the offence in section 6 of the Road Traffic Act, as read with section 2, is any highway, street or other road to which the public, or any section thereof, has access. In casu, the charge did not specify what type of 'road' it was.

The trial magistrate, in answer to my query on the above point, said the road in question was a private road. That seems obvious. The charge said the driving was along Matende Road in Mao Forest Plantation. This appears to be private premises. If that was the case, and the accused gets the benefit of the doubt, then there was no offence committed. Section 2 of the Road Traffic Act defines a “private road” as any road the maintenance of which neither the State nor a local authority has assumed responsibility and which is not commonly used by the public or any section thereof.

The third omission was the failure to refer to the special permits prescribed by section 8 of the Road Traffic Act, for, among others, tractor drivers. The driver's licence for a tractor is class 5. But, in terms of the Road Traffic Act, a tractor driver does not always have to have a licence. In terms of section 8 all that an employee of a farmer or of a miner, or a self-employed farmer or miner, as defined, needs in order to legally drive a tractor belonging to, or possessed by them, on any road for farming purposes, up to a belt of ten kilometres of the farm or the mine boundary, is a tractor driver's permit issued in accordance with that section.

In the present case, both the charge sheet and the State Outline said nothing about the capacity in which the accused drove the tractor. Was he the owner of the plantation and/or of the tractor? Was he a mere employee? If he was the owner of that plantation, and thus was self-employed, and if he was also the owner of that tractor, he could legitimately have driven it, if he met the criteria laid out in section 8 of the Road Traffic Act. If he was an employee and had the authority to drive the tractor as prescribed by section 8 of the Road Traffic Act, then he did not commit the offence preferred against him in Count One.

In this case, the omission relating to section 8 permits was all the more glaring given what the accused said when the court canvassed the essential elements:

“Q. Why did you drive without a licence?

A. I have a reference to drive without a licence.”…,.

Immediately, the court should have stopped to enter a plea of not guilty in terms of section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] so that the issue could be properly investigated. What was that 'reference' the accused mentioned? Could it be the section 8 permit? It was more likely it was. But the court just went straight ahead:

“Q. Any right?

A. No.

Q. Any defence?

A. No.”

Since the accused was not represented, the court should have doubted the genuineness of his plea of guilt. It was not informed. Section 272 of the Criminal Procedure and Evidence Act [Chapter 9:07] says:

“272 Procedure where there is doubt in relation to plea of guilty

If the court, at any stage of the proceedings, in terms of section two hundred and seventy-one and before sentence is passed -

[a] Is in doubt whether the accused is, in law, guilty of the offence to which he has pleaded guilty; or

[b] Is not satisfied that the accused has admitted or correctly admitted all the essential elements of the offence or all the acts or omissions on which the charge is based; or

[c] Is not satisfied that the accused has no valid defence to the charge;

the court shall record a plea of not guilty and require the prosecution to proceed with the trial:

Provided that…,.”

In Count One, the accused was sentenced to a fine of two hundred dollars [$200=], or, in default thereof, sixty [60] days imprisonment. However, in the light of the above misdirection, the conviction is hereby set aside and the sentence quashed….,.

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

(b)…,.

(c) The court a quo is hereby directed to recall the accused and pronounce to him the above altered verdicts and sentence.

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 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 realization in that regard, he made up his mind to conduct himself as he did reckless as to the outcome of the same….,.

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.