This
review judgment has been occasioned by the rather incomprehensible
conduct by the learned Provincial Magistrate based at Masvingo
Magistrates Court. It is difficult to understand as to why the
learned Provincial Magistrate, with all his experience, would conduct
himself as a loose cannon. The baffling thing is why he decided not
to follow simple, straightforward, ...
This
review judgment has been occasioned by the rather incomprehensible
conduct by the learned Provincial Magistrate based at Masvingo
Magistrates Court. It is difficult to understand as to why the
learned Provincial Magistrate, with all his experience, would conduct
himself as a loose cannon. The baffling thing is why he decided not
to follow simple, straightforward, and clear instructions outlined in
the Order granted by this court. What is unfortunate is that the
learned Provincial Magistrate would want to make this court part of
the patently injudicious antics.
The
background facts in this matter are as follows;
The
accused was arraigned before the learned Provincial Magistrate
sitting at Masvingo on 6 April 2018 facing a charge of culpable
homicide arising from a road traffic accident. The matter proceeded
by way of trial as the accused pleaded not guilty to the charge.
The
facts giving rise to the charge are that on 7 January 2018 the
49-year-old accused, at about 15:10hrs, was driving a public service
vehicle, a Higer bus, registration number ABX 6489 along the Beit
Bridge-Masvingo Road towards Masvingo and had 27 passengers on board.
At
about the 3km peg from Masvingo the accused was driving behind a DNC
bus going in the same direction. In front of that DNC bus was also a
small motor vehicle also travelling towards Masvingo. The accused
decided to overtake both vehicles at an open curve with his vision
clearly impaired. Unknown to the accused there was another bus
belonging to Khaye Bus Company, registration number HD 77 HG GP,
which had broken down near the 3km peg as it was also travelling
towards Masvingo and was encroaching on to the Masvingo bound lane.
There were triangle reflective signs placed near this bus to warn
other motorists of the hazard. This prompted the small vehicle and
the DNC bus in front of the accused to stop as there was a Land Rover
Discovery, registration number AEB 0047, driven by Kudakwashe Jani,
travelling in the opposite direction towards Beit Bridge.
The
accused, in total disregard of basic road rules, and oblivious of
this danger, proceeded to overtake both the DNC bus and the small
vehicle which had stopped to allow safe passage of the Land Rover
Discovery vehicle. The driver of the Land Rover vehicle, upon
realising that a head on collision with the accused's bus was
imminent, swerved to his far left and off the road but his valiant
efforts were in vain as the accused, also in panic, swerved to the
same direction. This resulted in a head on collision.
The
accused's bus literally climbed over the Land Rover vehicle and
dragged it for about 18 metres. The bus only stopped when its front
axle was suspended in the air and its rear axle suspended in a ditch.
Tragically, all the six (6) people in the Land Rover Discovery
vehicle died. These were Kudakwashe Jani, Savanna Jani, Cecilia
Mpalisa, Beatrice Mpalisa, Fungai Manyangadze and one Mahera. Three
of them died on the spot and the other three on admission at Masvingo
General Hospital. Fortunately, no one in the accused's bus was
injured.
It
is clear from these facts that the accused was negligent. This is so
because the accused, inter
alia,
decided to overtake on a bend; was following too close to the DNC
bus; was over speeding in an 80km zone without keeping a proper
lookout, hence he failed to stop or act reasonably when the accident
was imminent. The accused clearly disregarded other road users.
Despite
his rather misplaced protestations the accused, who was legally
represented during the trial, was properly convicted of the charge.
The evidence against him was simply overwhelming and the facts simply
did speak for themselves.
The
only issue which may arise is whether the accused should have been
charged of one (1) Count of culpable homicide or six (6) Counts of
culpable homicide as six (6) people died, albeit arising from the
same bad driving conduct.
This
issue may be properly resolved after informed argument and is not the
gist of this review judgment.
The
accused was surprisingly sentenced to a fine of $1,000, or, in
default of payment, to serve 6 months imprisonment with additional 6
months wholly suspended for 5 years on the usual condition of good
behaviour.
Again,
not surprising, the accused paid the fine. Further, the accused's
licence was spared and the accused was only prohibited from driving
any motor vehicle for 6 months !! Needless to say this sentence
induces a sense of shock for its leniency.
Instead
of simply allowing sleeping dogs to lie as it were the accused had
the temerity to approach this court on appeal in respect of both the
conviction and sentence. The accused even callously suggested that a
fine of $400 was appropriate in this case.
The
accused's sense of justice is warped to say the least and his lack
of contrition is beyond measure.
This
matter was set before my brother MAFUSIRE J and myself, on appeal, on
3 October 2018 for argument. Both my brother MAFUSIRE J and myself
felt that grave injustice had been done in this case and eagerly
wanted to hear what meaningful argument counsel for the accused would
advance. Apparently, the State counsel…, as per the heads of
argument filed of record, had also glossed over such grave injustice
and simply submitted that the appeal in respect of both conviction
and sentence lacked merit without dealing with other anomalies
evident in this matter. This is precisely why we were both eager to
hear what counsel for the accused would say.
For
reasons yet to be explained, the accused's counsel decided not to
turn up for the appeal hearing despite being properly served for the
hearing.
One
may simply suspect that the accused and his legal practitioner
realised the folly of their decision to proceed with the appeal.
Counsel for the State rightly applied to have the appeal dismissed
for want of prosecution.
Be
that as it may, we inquired from counsel for the State about the
other anomalies in this matter and sought his views. This related to
the manifestly lenient sentence, the failure by the trial court to
make a clear finding of the accused's gross negligence, and the
failure to impose mandatory sanctions provided for in terms of
section 64 of the Road Traffic Act [Chapter
13:11]
relating to cancellation of the accused's driver's licence and
prohibition from driving commuter omnibus and heavy vehicles for
life.
We
pointed out to counsel for the State that his approach in this matter
was perfunctory as he did not address these mundane issues. We thus
inquired from counsel for the State as to the proper way forward.
Counsel for the State agreed that this matter be remitted to the
trial court to remedy the omissions of failure to comply with the
provisions of the Road Traffic Act [Chapter
13:11].
Our
view in this matter was that despite the manifestly lenient sentence
which raised our judicial eyebrows we were hamstrung to increase the
sentence as the accused was in default. Fairness and justice would
demand that before such a drastic action could be taken, as provided
for in section 38(4) of the High Court Act [Chapter
7:06]
the accused should be heard.
Indeed,
if the accused or his counsel were present we would have, without
doubt, interfered with the substantive sentence of the court a
quo
by setting aside and substituting it with a custodial sentence of not
less than two years.
This
is informed by the fact that the accused was grossly negligent while
driving a public service vehicle carrying passengers and totally
disregarded road regulations causing the loss of six innocent lives
without even being contrite. Be that as it may, we still felt that
the accused could not escape the sanctions provided for in terms of
section 64(3) of the Road Traffic Act [Chapter
13:11].
The provisions of section 65(6) of the Road Traffic Act [Chapter
13:11]
should therefore be invoked.
In
the result, we granted the following Order in default:
“In
default
IT
IS ORDERED THAT;
1.
The appeal be and is hereby dismissed for want of prosecution. It is
however noted that the sentence passed is manifestly lenient.
2.
The matter be and is hereby remitted to the trial court for purposes
of complying with the provisions of section 64 of the Road Traffic
Act [Cap 13:11] relating to a proper order on prohibition and
cancellation of the driver's licence.
3.
That the degree of negligence is reckless and that the provisions of
section 53 of the Road Traffic Act [Cap 13:11] should be invoked in
the absence of special circumstances.
4.
That counsel for the State be and is hereby directed to summon the
appellant (the accused) within 14 days of granting of this order for
purposes of complying with paragraphs (2) to (4) of this order.”
The
drama in this matter continued.
We
were pleasantly bemused when, on 8 October 2018, we received a letter
from counsel for the State dated 4 October 2018 requesting a written
judgment and full reasons thereof in respect of the Order we had
granted. We responded the same day and politely reminded counsel for
the State that we granted the Order for dismissal of the matter for
want of prosecution after he had made the application for such an
Order as the counsel for the appellant (accused) was in default and
that the remittal of the matter to the trial Magistrate was for
purposes of complying with the law relating to assessment of
prohibition from driving motor vehicles and cancellation of the
driver's licence in accordance with the provisions of section 64 of
the Road Traffic Act [Chapter
13:11].
Further, we pointed out that we gave these brief reasons in the
presence of counsel for the State himself and that we had directed
him, as counsel for the State present, to ensure compliance with the
Order or to give teeth to the Order as it were.
The
accused was subsequently summoned and the brief notes by the learned
Provincial Magistrate reflect that he protested that his legal
practitioner was the author of his problems. Surprisingly, the
learned Provincial Magistrate did not probe as to what the accused
meant by this or why the accused was blaming his legal
practitioner…,. Thereafter, the accused opted to proceed without
legal representation.
The
record of proceedings reflects the following;
“What
special circumstances are explained to the accused and understood.
By
Court
Do
special circumstances exist in this case?
A.
Yes, it was an accident. I did not think that such an accident was
going to happen. This problem was caused by my lawyer. I have 3 wives
and 11 children.
Findings
No
special circumstances in this case.
Sentence
altered as per Judge's request to imprisonment.
3
years imprisonment of which 6 months is suspended for 5 years on
condition accused does not contravene section 51, 52, 53 of the Road
Traffic Act or driving under influence of a drug for which upon
conviction accused is sentenced to imprisonment without the option of
a fine.
In
addition, accused is prohibited from driving a motor vehicle, other
than a commuter omnibus or a heavy vehicle, for a period of 2 years
and is prohibited from driving a commuter omnibus or a heavy vehicle
during his life time. Accused person's licence is declared
cancelled. Further, the Clerk of Court is instructed to refund
accused $1,000 within 7 days.
Accused
to surrender his licence with the Clerk of Court within 7 days.”
(sic)
It
is indeed mind boggling as to how the learned Provincial Magistrate
proceeded in this manner. A number of issues arise from this.
In
terms of procedure, the learned Provincial Magistrate should have
explained to the accused why he had been summoned and to read out the
High Court order to the accused. Probably this was done but the
record reflects otherwise.
The
learned Provincial Magistrate was enjoined to fully and properly
explain to the accused, who was now unrepresented, what special
circumstances entail and the consequences arising from an absence of
such special circumstances: See S v Manase
2015
(1) ZLR 160 (H) as per MUREMBA J.
The
accused's right to a fair hearing, as enshrined in section 69 of
the Constitution, cannot be taken lightly. As an experienced
magistrate
one would not expect the learned Provincial Magistrate to approach
proceedings in such a cursory manner.
It
is important to note that in the initial reasons for judgment, soon
after the trial, the learned Provincial Magistrate had not
specifically dealt with the factual finding in relation to the
accused's degree of negligence other than simply mentioning, in
passing, that the accused's degree of negligence was high (whatever
that means). Again, there are a plethora of cases from this court
dealing with this aspect. See S v Dzvatu 1984 (2) ZLR 136 (H); S v
Mtizwa 1984 (1) ZLR 230 (H); S v Chaita & Ors. 2001 (2) ZLR 90
(H).
What
is even worrying is that the trial prosecutor, while addressing the
court in aggravation soon after the accused's conviction,
specifically referred the learned Provincial Magistrate to the
provisions of section 64 of the Road Traffic Act [Chapter 13:11].
Apparently, this still did not find traction with the learned
Provincial Magistrate who simply proceeded to prohibit the accused
from driving any class of motor vehicle for 6 months after imposing a
fine of $1,000 - which sentence was manifestly lenient.
The
major concern, however, is why, in purporting to comply with the
Order of this court, the learned Provincial Magistrate decided to
mislead the accused that this court had directed that the accused
should be sentenced to a term of imprisonment.
He
then proceeded to impose a sentence of 3 years imprisonment - without
even asking the accused to show cause why such a sentence should not
imposed.
In
fact, it is difficult to appreciate why the learned Provincial
Magistrate deemed it fit to deal with paragraph (1) of our Order
which relates to the substantive sentence. That Order is crystal
clear that the accused was to be summoned by the trial court for
purposes of complying with paragraphs (2) to (4) of that Order and
not paragraph (1). It is therefore disingenuous for the learned
Provincial Magistrate to untruthfully suggest, let alone allege that
this court ordered him to alter the accused's substantive sentence.
As already said, the learned Provincial Magistrate simply decided to
take leave of his senses and cause further confusion in this matter
by embarking on a frolic of his own.
The
learned Provincial Magistrate should have appreciated that he was now
functus
officio
in relation to the substantive sentence he had imposed on the accused
of a fine of $1,000. As a result, he could only competently revisit
that sentence after being ordered to do so by this court and after
this court had interfered with such a sentence and setting it aside.
This court had clearly not done so for obvious reasons despite noting
that a clear injustice had been occasioned by imposing a manifestly
lenient sentence.
The
effect of the conduct of the learned Provincial Magistrate is not
only to taint the image of this court but to ignore all basic aspects
of procedural law.
In
essence, therefore, the accused now has two separate sentences on the
same matter, one of a fine of $1,000 and the other of a custodial
term of 3 years. Both sentences are extant.
Such conduct is clearly improper and incompetent. This court is
enjoined to correct such an anomaly by exercising its review powers
to ensure that basic tenets of justice are adhered to.
This
court is quite alive to the fact that the accused deserved a harsher
penalty other than the fine initially imposed. However, as things
stand, this court is unable to correct such an injustice in relation
to the substantive sentence for reasons already stated.
What
is proper in the circumstances is to now correct all these anomalies
by setting aside the sentence of 3 years imprisonment imposed by the
learned Provincial Magistrate, the order relating to prohibition from
driving any motor vehicle for 6 months and the order in relation to
the refund of $1,000.
The
order in relation to prohibition from driving any motor vehicle other
than and/or commuter omnibus or a heavy vehicle for 2 years and from
driving a commuter omnibus or a heavy vehicle for life and the
cancellation of the accused's driver's licence should be upheld.
In
view of the aforementioned, we are still unable to certify the
proceedings as in accordance with real and substantial justice in
relation to the substantive sentence of a fine of $1,000 which
sentence shall remain operational despite the misplaced endeavour by
the learned Provincial Magistrate to alter that sentence improperly.
In
the result, the following order is made;
IT
IS ORDERED THAT;
1.
The conviction of the accused be and is hereby confirmed.
2.
The sentence of 3 years imprisonment of which 6 months imprisonment
is suspended for 5 years on the usual conditions be and is hereby set
aside.
3.
The initial sentence imposed by the court a
quo,
of a fine of $1,000 or in default of payment 6 months imprisonment
with additional 6 months imprisonment suspended for 5 years on
condition accused does not negligently cause the death of another
person arising from a road traffic accident be and is hereby
reinstated.
4.
The accused be and is hereby prohibited from driving any motor
vehicle other than a commuter omnibus or a heavy vehicle for a period
of 2 years and is prohibited from driving a commuter omnibus or a
heavy vehicle during his lifetime.
5.
The accused's driver's licence be and is hereby cancelled.
6.
In relation to the substantive sentence of a fine of $1,000 or in
default of payment 6 months imprisonment with additional 6 months
wholly suspended, we are unable to certify that sentence as being in
accordance with real and substantive justice and therefore we
withhold our certificate.
7.
The Registrar be and is hereby directed to bring this review judgment
to the attention of the Chief Magistrate to ensure that the conduct
of the learned Provincial Magistrate is not repeated.
The
accused should again be recalled and advised of this outcome. If the
accused pays the fine he should be released from prison forthwith.
