On 21 January 2014 the accused was driving a haulage truck from Gweru to Chinhoyi. When the accused approached the 108km peg along the Harare-Bulawayo Road, he lost control of the vehicle and side-swiped an oncoming haulage truck. The deceased, who was a passenger in his vehicle, sustained multiple fractures from which he succumbed on admission to hospital.
The accused was convicted on his own plea to contravening section 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Act) (Culpable Homicide).
The
accused was sentenced as follows;
“To
pay a fine $300=, or, in default of payment, 3 months imprisonment.
In addition, the accused person is hereby being prohibited from
driving all classes of motor vehicles for 6 months.”
The
learned Regional Magistrate who scrutinised the proceedings 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.”
The
offence of culpable homicide is created by section 49 of the Criminal
Law (Codification and Reform) Act [Chapter 9:23]. Section 49 of the
Criminal Law (Codification and Reform) Act reads as follows;
“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.”
The
penalty section of
the Criminal Law (Codification and Reform) Act simply
provides for a sentence of life or any shorter period or a fine up to
or exceeding level fourteen or both. It does not provide for
prohibition from driving.
This
section requires to be read in conjunction with section 64 of the
Road Traffic Act [Chapter
13:11].
Section 64 of the Road Traffic Act provides as follows;
“64
Prohibition from driving on conviction of certain offences
(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 other
penalty which it may lawfully impose, prohibit the person from
driving for such period as it thinks fit.
(2)
Subject to subsection (3), on a second or subsequent conviction for
an offence at common law, which offence involves killing or injuring
or attempting to kill or injure a person by or in connection with the
driving of a motor vehicle on a road, the court concerned shall
prohibit the person convicted from driving for a period of not less
than twelve months unless such court, having regard to the lapse of
time since the date of the previous or last previous conviction for
such offence, prohibits the person convicted from driving for a
shorter period or declines to prohibit such person from driving and
endorses its reasons for so prohibiting or declining on the record of
the case when passing sentence.
(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…,.”
Section
64(1) of the Road Traffic Act 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. Section 64(3) entitles a court convicting an
offender of murder, attempted murder, culpable homicide, assault or
any similar offence or any offence involving driving of a motor
vehicle, where the court is satisfied that the convicted person would
have been convicted of an offence in terms of this act prohibit such
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 Code
or any other law, to order prohibition from driving a specified class
of vehicles for a specified period. It is immaterial that the penalty
section of section 49 does not provide for prohibition as a sanction.
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.
Ultimately,
the trial court did not misdirect itself when it imposed an order
prohibiting the accused 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.
In
any case, 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….,.
The
trial court cannot be faulted for the stance it took. I am satisfied
that proceedings in this matter were conducted in accordance to real
and substantial justice.
I
confirm the proceedings.
