KUDYA J: This record of proceedings was referred for
review by the scrutinizing regional magistrate who believed that the accused
had been charged with and convicted of and sentenced for a non existent
offence.
The
accused was charged with the offence of driving a commuter omnibus when he was
under the age of 25 purportedly in contravention of s 7 (1) (a) of the Road
Traffic Act [Chapter 13:11].
He
drove a commuter omnibus with 12 passengers along the Harare- Nyamapanda road.
He was arrested at a police road block in Murewa. His certificate of competence
and his national identity document showed that he was 23 years old at the time.
He was convicted on his own plea and sentenced to as follows:
"$20 000.00 or
in default of payment 10 days imprisonment. In addition 3 months imprisonment
is wholly suspended for 5 years on condition accused does not within that
period commit any offence involving the driving of motor vehicle for which no
valid drivers licence is held for which upon conviction is sentenced to
imprisonment without option of a fine. Invalid drivers licence "Certificate of
Competency" No 800974B 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 said Act. It reads:
7
Minimum age limits 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[Subsection repealed by section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 period as the court thinks fit.
[Subsection amended by section
4 of Act 3 of 2000.]
Paragraph
(c) of subsection (1) of s 7, above cited, prohibits a person who is under the
age of 25 from driving a commuter omnibus while paragraph (c ) of subsection
(2) of the same section invalidates any licence issued to a person under the
age of 25 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 Act was a general penalty section.
Subsection
(1) of section 10 of the Act sets out the 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 appear from the wording of subsection (1) as read with subsection (2) of s
10 of the Act that a specific licence to drive commuter omnibuses is issued to
persons between the ages of 25 and 70 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 subsection (2)
of s 7 of the Act would apply in the instant matter. If the certificate covered
an omnibus then it would be invalid and a
fortiori, if it did not then it remained valid.
In
the absence of an offence creating provision in the Act, a person under the age
of 25 who drives a commuter omnibus does not commit the offence that the
accused was charged with. This was an anomaly which was brought about by the
repeal of subsection (3) of s 7 and s 88 of the Act. There may be need for the
creation of both an offence creating and a penalty provision which specifically
relates to infractions of s 7 of the Act. In the absence of such provisions it
was remiss of the trial magistrate to convict let alone sentence the accused
for a non-existent offence. The error can only be corrected by setting aside
both the conviction and sentence.
It
seems to me that the accused may have infringed the provisions of subsection
(1) of s 6 of the Act which penalizes a person who drives a motor vehicle
without the requisite driver's licence for that class of motor vehicle. It will
be up to the Attorney-General to determine whether he should be charged with
that offence. Once convicted of driving a commuter omnibus without the
requisite licence the magistrate may in the absence of special circumstances
impose the mandatory minimum sentence outlined in subsection (5) of s 6 of the
Act. I will direct the Registrar to bring this judgment to the attention of the
Minister of Justice, Legal and Parliamentary Affairs, the Attorney-General, the
Law Reviser and the Chief Magistrate to move the appropriate amendment of s 7
of the Act and to alert both prosecutors and magistrates on the impropriety of
charging drivers under it.
Accordingly it
is ordered that:
- Both the conviction and sentence be and are hereby are
set aside
- The Registrar brings this judgment to the attention
of the Minister of Justice, Legal and Parliamentary Affairs, the
Attorney-General, the Law Reviser and the Chief Magistrate.
GUVAVA J: agrees 