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HMT54-19 - CHIVHARANGE TONGI vs THE STATE

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Procedural Law-viz criminal appeal.
Procedural Law-viz appeal re plea of guilty proceedings.
Procedural Law-viz appeal re guilty plea proceedings.
Road Traffic Law-viz negligent driving re section 52 of the Road Traffic Act [Chapter 13:11].
Sentencing-viz road traffic violations.
Procedural Law-viz appeal re the exercise of discretion by the trial court.
Sentencing-viz sentencing discretion of the primary court.
Sentencing-viz first offenders.
Sentencing-viz penalty provision of a statute.
Sentencing-viz special circumstances re assessment of degree of moral blame worthiness.
Sentencing-viz extenuating circumstances re assessment of level of moral blame worthiness.
Sentencing-viz special circumstances re mandatory sentences.
Sentencing-viz extenuating circumstances re prescribed sentences.
Procedural Law-viz rules of construction re directory provision iro use of the word "may".
Procedural Law-viz rules of interpretation re discretionary provision iro use of the term "may".
Procedural Law-viz rules of evidence re onus iro factual issues in doubt.
Procedural Law-viz rules of evidence re onus iro issues of fact in doubt.
Sentencing-viz the principle of equality of treatment.

Sentencing re: Approach iro Extenuating Circumstances, Assessment of Blameworthiness & Effect on Mandatory Sentences


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender.

It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

Appeal and Leave to Appeal re: Guilty Plea or Plea of Guilty


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Road Traffic Law re: Approach and Negligence


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Sentencing re: Road Traffic Violations


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Appeal re: Findings of Fact or Exercise of Discretion Made by Trial Court iro Terminated or Complete Proceedings


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Sentencing re: Approach iro Sentencing Discretion of Trial Court & Judicial Interference By Appeal or Review Court


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Sentencing re: Approach iro First Offenders


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Sentencing re: Approach iro Approach to Sentencing, the Penalty Provision of a Statute and the Pre-Sentence Inquiry


The appellant was convicted, on his own plea of guilty, to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant, who was driving a Toyota Ipsum, was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018, along Park Road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club, the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant, Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant, who admitted to having negligently caused the accident, was sentenced to pay a fine of $250, or, in default of payment, to undergo four (4) months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of six (6) months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed, the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal, in that, the respondent argued, that, the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of six (6) months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded, that, the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for six (6) months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles, on one hand, and a private vehicle, on the other hand.

Further, it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicles, the Road Traffic Act provides for mandatory prohibitions of at least two (2) years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arises.

In the present case, the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing, the trial court was to properly and judiciously exercise its sentencing discretion.

Section 52(2) of the Road Traffic Act [Chapter 13:11], under which the appellant was charged and convicted, provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)…,. : shall be guilty of an offence and liable to -

(i)…,.

(ii) In any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)…,.

(iv) Subject to part (ix), a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) May…, subject to para (c), if the person has not previously been convicted of such an offence, or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent, or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is, however, discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2) of the Road Traffic Act.

Given the circumstances of this case, and the particulars of negligence, namely:

“1. That, accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained, there were no fatalities, and, in fact, no evidence on extent of injuries.

The effective sentence, of a fine of $250, or, in default of payment, four (4) months imprisonment, and prohibition from driving all classes of motor vehicles, and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicles from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence, to consider prohibiting of all classes, is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court, in circumstances where improper exercise of the discretion is apparent, then, the Appellant Court ought to interfere with the sentence.

In this case, it was not necessary to consider prohibition, and, there was no justification for prohibiting from driving for all classes.

The court, after prohibiting, proceeded to cancel the driver's licence - yet the prohibition was for six (6) months.

The court erred in holding, that, cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) of the Road Traffic Act does not give the court the power to cancel a driver's licence.

The appellant, in this case, is a first offender who was convicted of negligently driving a light motor vehicle: see S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also, in State v Gaven Chifodya HH171-18 CHITAPI J lamented the failure by magistrates to appreciate traffic offences penalties.

It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words, the circumstances of each case, the nature of infraction, nature of vehicle, and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting, that, the Road Traffic Act is explicit on sentencing provisions, including prohibition and cancellation of driver's licence, even for offences provided for in the Criminal Law (Codification and Reform) Act [Chapter 9:23] like murder, attempted murder, and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity, and, at the end deliver the just and appropriate sentences.

In the present case, the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State - it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with.

From the foregoing, the appeal against sentence is meritorious.

Accordingly, it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250, or, in default of payment, two (2) months imprisonment.

Sentencing re: Approach iro Co-Accused, Gender and Age Considerations & the Principle of Equality of Treatment


It is imperative, that, a court convicting a motorist for an infraction of the traffic laws, as provided for in the Road Traffic Act, ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicles from those of heavy vehicles and commuter omnibuses.

Criminal Appeal

MWAYERA J: The appellant was convicted on his own plea of guilty to a charge of negligent driving as defined in section 52(2)(a) of the Road Traffic Act [Chapter 13:11].

The appellant who was driving a Toyota Ipsum was alleged to have rammed into a Honda Ballade motor vehicle which was turning to Mutare Sports Club.

The brief facts informing the charge are that on 18 April 2018 along Park road, Mutare the appellant was driving a Toyota Ipsum carrying 13 bales of second hand clothes. On approaching Mutare Sports Club the appellant hit a Honda Ballade motor vehicle turning to the Sports Club being driven by the complainant Brown David Robin.

The complainant sustained head injuries and was hospitalised. Both vehicles sustained damages.

The appellant admitted he was negligent and that he caused the accident.

The appellant who admitted to having negligently caused the accident was sentenced to pay a fine of $250-00 or in default of payment to undergo 4 months imprisonment. The appellant was further prohibited from driving all classes of motor vehicles for a period of 6 months and his driver's licence was cancelled.

Dissatisfied with the sentence imposed the appellant approached this court seeking that the sentence imposed by the court a quo be interfered with by setting aside the cancellation of the driver's licence and the prohibition from driving.

The respondent partially opposed the appeal in that the respondent argued that the court a quo did not err in prohibiting driving all classes of motor vehicles for a period of 6 months as this was a sentencing discretion bestowed upon the court by the law.

The respondent's counsel conceded that the cancellation of the appellant's driver's licence could not stand given the court a quo prohibited the appellant from driving for 6 months.

The cancellation of the driver's licence was not automatic following prohibition.

It is important to take note of the distinction made in the Road Traffic Act of negligent driving of a commuter omnibus and/or heavy vehicles on one hand and a private vehicle on the other hand.

Further it is important to note the distinction on sentencing provisions for a first offender and a repeat offender.

In respect of commuter omnibus or heavy vehicle the Act provides for mandatory prohibitions of at least 2 years regardless of whether the convict is a first or repeat offender. It is only for the commuter omnibus or heavy vehicle that the question of special circumstances arise.

In the present case the appellant was driving a private car and was a first offender.

The court was at large to impose a sentence as guided by the statute.

In so doing the trial court was to properly and judiciously exercise its sentencing discretion. Section 52(2) of the Road Traffic Act [Chapter 13:11] under which appellant was charged and convicted provides as follows:

“Section 52(2)

A person who drives a vehicle on a road -

(a) Negligently; or

(b)……………….

Shall be guilty of an offence and liable to -

(i)……………….

(ii) in any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.

(iii)………………

(iv) Subject to part (ix) a court convicting a person of an offence in terms of subsection (1) involving driving of a motor vehicle -

(a) may, (underlining my emphasis) subject to para (c), if the person has not previously been convicted of such an offence or an offence, whether in terms of a law of Zimbabwe or any other law of which the dangerous, negligent or reckless driving of a motor vehicle on a road is an element within a period of 5 years immediately preceding the date of such mentioned conviction, prohibit the person from driving for such period as the court thinks fit.”

There is no provision for cancellation as it is specifically spelt out in case of repeat offences and offenders driving a commuter omnibus and/or heavy vehicles.

It is however discretionary for the sentencing court to decide on whether or not to prohibit a first offender charged under section 52(2).

Given the circumstances of this case and the particulars of negligence, namely:

“1. That accused failed to stop when an accident seemed imminent.

2. Failed to keep his vehicle under proper control.

3. Travelling at an excessive speed under the circumstances.

4. Failing to keep a proper look out under the circumstances.”

One cannot deduce anything more than ordinary negligence consistent with driving without due care and attention.

Although vehicles were damaged and injuries sustained there were no fatalities and in fact no evidence on extent of injuries.

The effective sentence of a fine of $250-00 or in default of payment 4 months imprisonment and prohibition from driving all classes of motor vehicles and cancellation of driver's license for class 2, 4 and 5 in the circumstances was unduly harsh.

It goes a long way in violating the proper exercise of sentencing discretion.

This is moreso when one considers that the prohibition is not mandatory.

A reading of the relevant Act depicts the legislative intention in differentiating first offenders and also differentiating drivers of private vehicle from those of public vehicles and heavy vehicles.

In cases of an infraction spelling out ordinary negligence to consider prohibiting of all classes is outrageous as the effective sentence would be too harsh.

Whereas sentence is a domain of the sentencing court in circumstances where improper exercise of the discretion is apparent then the appellant court ought to interfere with the sentence.

In this case it was not necessary to consider prohibition and there was no justification for prohibiting from driving for all classes.

The court after prohibiting proceeded to cancel the driver's licence yet the prohibition was for 6 months.

The court erred in holding that cancellation of driver's licence is automatic pursuant to a prohibition order.

Section 52(2)(a) as read with section 52(4) does not give the court the power to cancel a driver's licence.

The appellant in this case is a first offender who was convicted of negligently driving a light motor vehicle.

See S v Mujari 1997 (1) ZLR 508 and S v Chitepo 2017 ZLR (1) 237.

Also State v Gaven Chifodya HH171/18 CHITAPI J lamented the failure by Magistrates to appreciate traffic offences penalties.

It is imperative that a court convicting a motorist for an infraction of the traffic laws as provided for in the Road Traffic Act ought to acquaint itself with the relevant sentencing regimes as the legislature deliberately distinguished first offenders from repeat offenders and further distinguished drivers of light motor vehicle from those of heavy vehicles and commuter omnibuses.

The sentences are structured in such a manner as not to be one size fits all.

In other words the circumstances of each case, the nature of infraction, nature of vehicle and nature of offender are all pivotal in relation to the sentencing regimes.

A reading of section 52(2) as read with section 54(4)(a) and (b) of the Road Traffic Act [Chapter 13:11] does not seem to suggest cancellation of the driver's licence for contravention of section 52(2)(a) unless the conviction is a second or subsequent conviction.

It is worth noting that the Road Traffic Act is explicit on sentencing provisions including prohibition and cancellation of driver's licence even for offences provided for in the Criminal Law Codification and Reform Act [Chapter 9:23] like murder, attempted murder and culpable homicide in connection with driving motor vehicles.

It is clear warning on penalty provisions which has to be paid attention to when a sentencing court is exercising its sentencing discretion so as to be in conformity and at the end deliver the just and appropriate sentences.

In the present case the cancellation of the driver's licence was not properly sanctioned by the operation of law and thus incompetent as correctively conceded by the State, it cannot stand.

The alternative imprisonment to the fine is disproportionate and it will be interfered with. From the foregoing the appeal against sentence is meritorious.

Accordingly it is ordered that:

1. The appeal against sentence be and is hereby upheld.

2. The sentence by the court a quo is set aside and substituted as follows:

$250-00 or in default of payment 2 months imprisonment.

MUZENDA J agrees_____________________



Gonese and Ndlovu, Appellant's legal practitioners

National Prosecuting Authority, Respondent's legal practitioners

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