MUTEMA J: On 28 February, 2011 I wrote the following
review query to the trial provincial
magistrate Wochiunga esq. who was then stationed at Harare Magistrates Court:
"These proceedings are redolent with
irregularities.
1.
In
respect of count 1, the accused was charged with and convicted of negligent driving
in contravention of s 52(2) (presumably (a) since this was not indicated) of
the road Traffic Act, [Cap 13:11]. The negligent driving in question involved
the driving of a commuter omnibus. He
hit a pedestrian who fell down and sustained bruises. This was on 10 March 2010. For this offence accused was sentenced to 4
months imprisonment wholly suspended on condition he performs 140 hours of
community service at Rugare Police commencing 21 February 2011.
2.
Regarding count 2, accused was charged
with and convicted of "culpable homicide as defined in s 47". The charge does not specify s 47 of which
statute. I would want to know the
statute containing s 47 which defines the culpable homicide. The culpable homicide involved the driving of
a commuter omnibus on 10 November, 2010 in which two people, viz Martin Munjeya
and Edwin Chigodoma perished following a head-on collision of the commuter
omnibus and a Toyota Sprinter as a result of accused's negligence. Accused was sentenced to 15 months
imprisonment of which 5 months was suspended for 3 years on condition he "does
not within that period contravene s 49 of the Criminal Law Act." I am not aware of any Act called the Criminal
Law Act. What chapter could it be?
The remaining 10 months imprisonment was
suspended on condition accused performed 350 hours of community service at
Rugare Police commencing on 21 February 2011- the very same date he was to
commence the community service in count 1 above. In both counts, the times and days for the
performance of the community service are the same. Since the two sentences were not ordered to
run concurrently, one would be excused for not understanding how the accused
will manage to perform both these community services. How does the trial magistrate explain away
this mix-up?
3.
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 2 years. This is pursuant to s 52 (4)(c) and the
interpretation gleaned from s 64 (3) (b) (i) of the Road Traffic Act. In the instant case, the enquiry regarding
special circumstances was conducted only in respect of count 1 and were not
found. The two offences were committed 8
months apart. The additional sentence of
prohibition from driving commuter omnibuses and heavy vehicles for 2 years
relates therefore only to count 1. It is
unknown whether in respect of count 2 accused had special circumstances or not.
The
general rule regarding sentences is that they run cumulatively in the absence
of an order for them to run concurrently.
Why then did the trial magistrate fail to enquire into the aspect of
special circumstances regarding count 2 and in their absence, also prohibit the
accused from driving commuter omnibuses and heavy vehicles for the 2 years, to
run either concurrently with the period in count 1 or cumulatively?
4.
While 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.
But since in casu the accused
was not prohibited from driving other classes of vehicles not named in the
order, it means therefore that he can obtain a driving licence and drive those
unnamed classes of motor vehicles. To
this end, did the trial magistrate exercise his discretion judiciously by not
prohibiting the accused from driving all classes of motor vehicles for a period
he deemed fit in both counts and then named classes for the 2 year period?
5.
While 2 people died in respect of count
2, only one post-mortem for Edwin Chigodoma was produced in court. Why was the post-mortem in respect of Martin
Manjeya not produced in order to link his death with accused's conduct. What if he did not die? Or if he died, what if the cause of his death
had nothing to do with accused's negligence?
Why did the trial magistrate not call for that post-mortem?
6.
Overall, the sentence imposed in this
case offends against my sense of justice.
It was too lenient considering these facts:
(a) accused
was a driver of a public service vehicle;
(b) he
bumped and injured a pedestrian in count 1;
(c) he
occasioned two deaths in count 2 - although the trial magistrate did not see it
fit to find out whether the deceased were passengers in the accused's commuter
omnibus or were occupants of the second vehicle;
(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 accused occasioned;
(f) The
dire consequences occasioned by accused to the families of the deceased in
terms both emotional stress and loss of breadwinners (Chigodoma was employed as
a security guard!);
(g) The
imperative need to send a clear signal to all public service vehicle drivers as
a deterrence.
It baffles the mind that all the
foregoing irregularities were committed by a provincial magistrate!
Could I have the trial magistrate's
comments at his earliest convenience."
It was only in
December, 2011 that I got the trial magistrate's response couched in these
words:
"Kindly place the record of proceedings before the honourable reviewing
judge with the
following comments:-
Firstly
the trial court would like to express its sincere apology for failure to resubmit
the record within the stipulated time period.
This was necessitated by the fact that the magistrate was transferred
from Harare Magistrates Court to Chivhu Magistrates Court with effect from 01
November 2011.
The trial
court has also take (sic) note of the issues raised by the honourable reviewing
judge. The trial court respectfully
concedes to the irregularities as pointed out.
The trial court promises never to err in that respect again.
The
trial court respectfully stand (sic) guided by the honourable reviewing judge."
Firstly
it does not persuade anyone, the trial magistrate included, that the inordinate
delay in responding to the query of 9 months was occasioned "by the fact that
the magistrate was transferred from Harare Magistrates Court to Chivhu
Magistrates Court with effect from 01 November 2011". By I
November, 2011 an 8 month delay had already endured. In the event the reason for the delay
proferred by the trial magistrates is fanciful.
Magistrates are not expected to lie in judicial correspondence.
Secondly, the
peroration that "the trial court respectfully concedes to the irregularities as
pointed out (and that) the trial court promises never to err in that respect
again" is a decoy. The errors enumerated
in the review query are too numerous and too basic to be committed by a
provincial magistrate unless of course he is incompetent. I am not persuaded that a judicial officer of
the grade of provincial magistrate can be so remiss in the performance of his
duties to the point of being incompetent if account is had of the sentence that
was meted out in these proceedings. In
point 6 of my review query supra I
stated that the sentence imposed offended against my sense of justice on
account of its leniency in view of the factors therein enumerated. I need not repeat those factors here suffice
to say that the suspicion seems strong that the level of incompetence displayed
in casu smells of corruption. I am cognisant 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.
In the result
there is no way that it can be even remotely said that these proceedings were
in accordance with real and substantial justice.
Accordingly I
withhold my certificate.
MTSHIYA J: Agrees...............
