Negligent
Driving
CHEDA
J:
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 accused is that on the 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 accused's license was not endorsed and also why
he was not prohibited from driving for a certain period as required
by the 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 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 state 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 trail 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.
NDOU
J agrees……………………………………………….
