CHEDA J: This
is a review judgment.
The
accused was charged with culpable homicide which charge he pleaded guilty to,
was convicted and sentenced to $100 billion or in default of payment 20 days
imprisonment.
The
facts of the matter which are common cause are that, on the 2nd
December 2005 at about 1345 hours accused was driving a Toyota Hiace Minibus
from Bulawayo
to Filabusi. When he got to Esigodini he
lost control overturned and the vehicle fell over a cliff. Accused was carrying 14 passengers and one of
the passengers died as a result of the injuries sustained from the accident.
The
cause of the accident was as a result of his negligence, the particulars of
which are:-
(1) driving at a speed which was excessive
in the circumstances.
(2) failure to keep the vehicle under proper
control, and
(3) failure to stop or act reasonably when
the accident seemed imminent.
In
terms of the Road Traffic Act amendment 3/2000 the learned trial magistrate
should have enquired into the special circumstances of the offence in order to
establish the question of prohibition from driving. That failure is a misdirection on his part.
The
learned trial magistrate (Mr. Zvenyika)
is a magistrate of significant experience and has handled similar cases
before. This is one of those cases which
he should have noted without difficulty.
Magistrates
should bear in mind that they are there to dispense justice and they should not
only look at the accused, but, at the victims as well. The vehicle in question was overloaded and
one passenger died, all this seems to have eluded the learned magistrate's
attention.
There
has been some injustice in this matter and as such I am unable to certify these
proceedings as being in accordance with real and substantial justice.
The
matter is referred back to the same magistrate to carry out the enquiry with
regards to the question of special circumstances.
Cheda
J…………………………………………….
Ndou J agrees…………………………………..
