Motoring offence https://old.zimlii.org/taxonomy/term/10130/all en S v Mashangwe (HB 99-21, HCAR 807/21 Ref Case CRB LPN 319/20) [2021] ZWBHC 99 (03 June 2021); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2021/99 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>HB 99/21</p> <p>HCAR 807/21</p> <p>CRB LPN 319/20</p> <p><strong>  THE STATE</strong></p> <p> </p> <p><strong>Versus</strong></p> <p> </p> <p><strong>TENDAYI SOLOMON MASHANGWE</strong></p> <p> </p> <p>IN THE HIGH COURT OF ZIMBABWE</p> <p>MAKONESE J</p> <p>BULAWAYO 3 JUNE 2021</p> <p> </p> <p><strong>Criminal Review</strong></p> <p> </p> <p>            <strong>MAKONESE J:        </strong>It is an established principle of sentencing that once a court convicts an accused person and elects to impose a term of imprisonment whether such imprisonment is an effective term or is wholly or partially suspended, a court may not impose another separate distinct and stand-alone prison term for the same single count.  Imposing an additional prison term for the same count amounts to sentencing an accused person twice for the same offence.</p> <p>            The accused appeared  before a magistrate at Lupane on 20th November 2020 facing one count of driving a motor vehicle without a valid drivers’ licence in contravention of section 6 (1) (a) as read with section 6 (5) of the Road Traffic Act (Chapter 13:11).  The accused pleaded guilty to the charge and was duly convicted.  At the time of the commission of the offence accused was driving a Toyota Haice commuter omnibus with four passengers on board.  Accused was driving a public service vehicle without a valid licence.  The offence attracts a minimum mandatory sentence of 6 months imprisonment unless there are special circumstances warranting the imposition of a lessor sentence. The trial magistrate in the court <em>a quo</em> determined that no such special circumstances existed. In sentencing the accused, the learned magistrate imposed a sentence of 6 months imprisonment. In addition, a further 6 months was suspended for 5 years on the usual conditions of future good conduct.</p> <p>The scrutinising Regional Magistrate queried the sentence, pointing out that the accused had been sentenced to two stand-alone sentenced for the same offence.  The learned trial magistrate commented as follows:</p> <p>“…  I though in the absence of special circumstances as in this case, having fulfilled the lower limit of 6 months imprisonment, I could suspend the other 6 months on condition of good behaviour”.</p> <p> </p> <p>The learned magistrate clearly erred in his approach to sentence.  It was not competent to impose a separate and distinct sentence of 6 months, though suspended, once he chose to impose the minimum mandatory sentence prescribed by the Act.  The sentence of the court <em>a quo</em> is irregular as the accused was sentenced twice for the same and single count.</p> <p>In the circumstances the additional suspended sentence of 6 months cannot be allowed to stand.  It is ordered as follows:</p> <ol> <li>The conviction be and is hereby confirmed.</li> <li>The effective sentence of 6 months imprisonment shall stand.</li> <li>The additional sentence of 6 months suspended on the usual conditions is hereby set aside.</li> </ol> <p> </p> <p>Mabhikwa J ………………….. I agree</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/99/2021-zwbhc-99.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=17007">2021-zwbhc-99.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2021/99/2021-zwbhc-99.pdf" type="application/pdf; length=310533">2021-zwbhc-99.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li></ul></span> Thu, 10 Jun 2021 10:52:58 +0000 Sandra 10047 at https://old.zimlii.org S v Goche (HMT 18-20, CA 88/19) [2020] ZWMTHC 18 (27 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/18-0 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>IRIMAI GOCHE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 5 February 2020 and 27 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal  </strong></p> <p> </p> <p> </p> <p><em>C N Mukwena</em>, for the appellant  </p> <p><em>M Musarurwa</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: On 11 October 2019 the appellant was convicted of contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] for reckless driving and was sentenced to 2 years imprisonment, in addition he was prohibited from driving commuter omnibuses or heavy vehicles for the rest of his life in term of s 54 (4) (a) (b), further appellant’s licence was cancelled.</p> <p>            The appellant noted an appeal against both conviction and sentence. The state does not oppose the appeal in terms of s 35 of the High Court Act [<em>Chapter 7:06</em>] more particularly on the aspect of conviction. Having read the arguments presented before us by both counsel, we have the view that the concession by the state as against conviction was properly made and the conviction of the appellant for contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] is set aside and substituted by a conviction for contravening s 52 (2) of the Road Traffic Act, that is for dangerous driving.</p> <p>            As regards sentence, the conviction of reckless driving has been set aside, this court is at large to interfere with the sentence of 2 years imprisonment. The act provides an option of a fine of level 10 or for imprisonment of 1 year or to both. The manner the appellant drove on the day in question exposed both passengers and human traffic to serious danger, it is fortunate that no one died on the day in question. The conviction of appellant for dangerous driving is equally serious and it is my considered view that a fine will meet the justice of the case when cumulatively taken with the imminent prohibition. In the result the following order is returned:</p> <ol> <li>Both appeals against conviction and sentence are upheld.</li> <li>Accused is found guilty for contravening s 52 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] dangerous driving.</li> <li>RTGS 6000 or in default of payment 5 months imprisonment.</li> <li>Accused is prohibited from driving class 1 and 2 motor vehicles for a period of 2 years.</li> </ol> <p>MWAYERA J agrees _______________</p> <p> <em>Chibaya &amp; Partners,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/18/2020-zwmthc-18_0.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24068">2020-zwmthc-18.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/18/2020-zwmthc-18_0.pdf" type="application/pdf; length=296432">2020-zwmthc-18.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-matter-appeal">Criminal matter (Appeal)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-magistrates-court">appeal from magistrates court</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-high-court-0">appeal to High Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Tue, 07 Jul 2020 11:14:29 +0000 Sandra 9767 at https://old.zimlii.org S v Chirozva (HH 355-20, CA 25/19) [2020] ZWHHC 355 (01 June 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/355 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>PROSPER CHIROZVA</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ</p> <p>HARARE, 18 May 2020 &amp; 1 June 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>N. Chigoro</em>, for the appellant</p> <p><em>A. Muziwi</em>, for the respondent</p> <p> </p> <p> </p> <p>MUSAKWA J: The appellant was convicted of culpable homicide whereupon he was sentenced to 3 years’ imprisonment of which 1 year was suspended for 5 years on condition of good behaviour. Although the appellant noted an appeal against conviction and sentence, at the hearing of the appeal Mr <em>Chigoro</em> abandoned the appeal against sentence.</p> <p>The grounds of appeal are as follows:</p> <p>1.         The trial court erred in admitting contradictory evidence.</p> <p>2.         The trial court erred in holding that the appellant assaulted the deceased several times when the State indicated that he slapped the deceased once.</p> <p>3.         The trial court erred in finding that by chasing the deceased who was fleeing from justice and slapping him once, the appellant was grossly negligent.</p> <p>4.         The trial court erred in overlooking the road traffic accident as the possible cause of the deceased’s death.</p> <p>The facts of the matter are that the deceased was aged 66 years. On 26 September 2016 the deceased who was riding a motor bike was involved in some traffic incident whose particulars are not clear. The incident involved the appellant who was driving a Nissan Caravan motor vehicle. The incident took place along Samora Machel Avenue somewhere in Eastlea. It would appear that the deceased drove away under circumstances in which the appellant felt he was fleeing. This is despite the appellant’s own testimony that after the accident people had begun to converge on the scene. The appellant thought that the deceased might have feared being lynched, hence the flight. The appellant pursued and caught up with the deceased along Northampton Crescent in Eastlea. He admitted to slapping the deceased once.</p> <p>On the other hand, state witnesses stated that the appellant assaulted the deceased several times and the deceased fell down. The witnesses to this incident were two ladies who worked for a land development company that is situated near the scene of confrontation. The commotion that ensued when the appellant caught up with the deceased attracted them to the scene. Both ladies stated that they saw a motor bike and a silver minibus. According to Caroline Sharon Nyarumba, as she walked towards the scene the appellant removed the deceased’s helmet and beat him on the head. The deceased fell on his back. She also talked of the deceased being pushed and the bike falling on him. When the appellant was asked why he was beating the deceased, he replied that this was because the deceased had caused an accident along Samora Machel Avenue. As people started to gather, the appellant drove away. As they assisted the deceased, he appeared to be disoriented and bled from the mouth. The deceased could not stand on one of the legs.</p> <p>Pamela Cecilia Zamba also gave evidence largely similar to that of Caroline Sharon Nyarumba. At the time she got out of the office she saw the deceased seated on the motor bike whilst the appellant assaulted him. The appellant first slapped the deceased and then pushed him. When the appellant slapped the deceased his helmet fell off. She stated that the appellant gave his reason for assaulting the deceased as the accident that had occurred along Samora Machel Avenue. She sought to restrain the appellant but failed. When the deceased was struck with a fist he fell on his back and started to bleed from the mouth. When they drew the appellant’s attention to the deceased’s condition, the appellant walked away.</p> <p>The thrust of Mr <em>Chigoro</em>’s submission was that the deceased may have died from injuries sustained from an accident as opposed from assault by the appellant. He based this submission on evidence from one of the witnesses to the effect that the deceased complained of a painful leg. He also submitted that it was not clear how the deceased’s helmet came off. This is because one witness stated that the appellant took off the helmet whilst another stated that the helmet came off due to the assault. On the other hand, the appellant stated that the deceased is the one who took off the helmet.</p> <p>Mr<em> Muziwi</em> submitted that the inconsistencies relied upon are immaterial. There was no evidence of an accident having occurred at the scene.</p> <p>The first ground of appeal is not concise. It is too vague for the ground to allege that the trial court erred in relying on contradictory evidence without specifying such evidence. I do not think that the matter was helped by Mr<em> Chigoro</em> highlighting such contradictions in his address. As was held in <em>S v McNab</em> 1986 (2) ZLR 280 (SC), in an appeal what the appellant attacks in the judgment of the convicting court must be set out in accordance with the rules. A ground of appeal must point in what specific manner the court erred.</p> <p>The second ground of appeal is equally bad. The case for the State was never that the appellant only slapped the deceased once. It is the appellant who claimed to have slapped the deceased once. The eye witnesses stated that the appellant struck the deceased several times and pushed him.</p> <p>On the third ground the trial court did not make a finding that the appellant was negligent by chasing the deceased and assaulting him once as is contended. On the contrary the trial court made a finding that the appellant pursued the deceased and when he caught up with him, assaulted him several times, causing him to fall on his back. The trial court correctly ruled that where death arises from an intentional assault, the accused is liable on the basis of foreseeability. As authority the trial court cited <em>R </em>v<em> John </em>1969 (2) RLR 23. Thus the reasoning by the trial court cannot be faulted.</p> <p>The last ground of appeal is without basis and is actually speculative. The real evidence that there was some accident on account of the deceased’s driving conduct came from the appellant. But the appellant never suggested that the deceased was injured. On the contrary the appellant stated that the deceased crossed his way and this resulted in the appellant being involved in an accident with another vehicle. As people started to gather the deceased panicked and fled, hence the chase by the appellant. State witnesses talked about the deceased complaining of a painful leg. They also testified about the motor bike falling on the deceased. This might have been the cause of the pain in the leg. Irrespective of whether the deceased had pain in the leg, that was not the cause of death. The post-mortem report noted the cause of death as subarachnoid haemorrhage and blunt head trauma. It must be borne in mind that State witnesses talked of assault on the head and the deceased falling on his back. Either of these mechanisms could have contributed to the head trauma and subarachnoid haemorrhage and certainly not a painful leg. As for foreseeability, the law does not require that an accused should foresee the exact manner of death. As was held by McNally JA in the unreported case of <em>S </em>v<em> Tanga</em> S-37-93 at p 8 of the cyclostyled judgment-</p> <p>“As to foreseeability, it seems that if even by means of a minor assault, you knock a man down and he hits his head and you kick him in the midriff, you must foresee the possibility of serious injury or even death. It is not necessary that you foresee the actual way he might die...”</p> <p>Accordingly, the appeal against conviction is hereby dismissed.</p> <p>MUZOFA J agrees .......................... </p> <p><em>Chigoro Law Chambers</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, legal practitioners for the state</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/355/2020-zwhhc-355.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=19142">2020-zwhhc-355.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/355/2020-zwhhc-355.pdf" type="application/pdf; length=320397">2020-zwhhc-355.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-common-law-crime">CRIMINAL LAW (Common Law Crime)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-common-law-offences">CRIMINAL PROCEDURE (SENTENCE) Common Law Offences</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/culpable-homicide-sentence">Culpable homicide (Sentence)</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Mon, 08 Jun 2020 09:20:37 +0000 Sandra 9640 at https://old.zimlii.org S v Goche (HMT 18-20, CA 88/19) [2020] ZWMTHC 18 (27 February 2020); https://old.zimlii.org/zw/judgment/mutare-high-court/2020/18 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>IRIMAI GOCHE</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA &amp; MUZENDA JJ</p> <p>MUTARE, 5 February 2020 and 27 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal  </strong></p> <p> </p> <p> </p> <p><em>C N Mukwena</em>, for the appellant  </p> <p><em>M Musarurwa</em>, for the respondent</p> <p> </p> <p> </p> <p>            MUZENDA J: On 11 October 2019 the appellant was convicted of contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] for reckless driving and was sentenced to 2 years imprisonment, in addition he was prohibited from driving commuter omnibuses or heavy vehicles for the rest of his life in term of s 54 (4) (a) (b), further appellant’s licence was cancelled.</p> <p>            The appellant noted an appeal against both conviction and sentence. The state does not oppose the appeal in terms of s 35 of the High Court Act [<em>Chapter 7:06</em>] more particularly on the aspect of conviction. Having read the arguments presented before us by both counsel, we have the view that the concession by the state as against conviction was properly made and the conviction of the appellant for contravening s 53 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] is set aside and substituted by a conviction for contravening s 52 (2) of the Road Traffic Act, that is for dangerous driving.</p> <p>            As regards sentence, the conviction of reckless driving has been set aside, this court is at large to interfere with the sentence of 2 years imprisonment. The act provides an option of a fine of level 10 or for imprisonment of 1 year or to both. The manner the appellant drove on the day in question exposed both passengers and human traffic to serious danger, it is fortunate that no one died on the day in question. The conviction of appellant for dangerous driving is equally serious and it is my considered view that a fine will meet the justice of the case when cumulatively taken with the imminent prohibition. In the result the following order is returned:</p> <ul> <li>Both appeals against conviction and sentence are upheld.</li> <li>Accused is found guilty for contravening s 52 (2) of the Road Traffic Act [<em>Chapter 13:11</em>] dangerous driving.</li> <li>RTGS 6000 or in default of payment 5 months imprisonment.</li> <li>Accused is prohibited from driving class 1 and 2 motor vehicles for a period of 2 years.</li> </ul> <p> </p> <p> </p> <p> </p> <p>MWAYERA J agrees _______________</p> <p> </p> <p> </p> <p> <em>Chibaya &amp; Partners,</em> appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, state’s legal practitioners</p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/18/2020-zwmthc-18.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24068">2020-zwmthc-18.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2020/18/2020-zwmthc-18.pdf" type="application/pdf; length=196027">2020-zwmthc-18.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/alteration-sentence">Alteration of sentence</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div></div></div> Wed, 25 Mar 2020 08:26:54 +0000 Sandra 9588 at https://old.zimlii.org S v Mambara (HH 126-20, CA 374/18) [2020] ZWHHC 126 (04 February 2020); https://old.zimlii.org/zw/judgment/harare-high-court/2020/126 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CLEVER MAMBARA </p> <p>versus</p> <p>THE STATE</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MUSAKWA &amp; MUZOFA JJ</p> <p>HARARE 25 November 2019 &amp; 4 February 2020</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p><em>J Mambara,</em> for the appellant</p> <p><em>T. Mapfuwa,</em> for the respondent</p> <p> </p> <p> </p> <p>            MUZOFA J: The appellant was found guilty of culpable homicide arising out of a motor vehicle accident in contravention of s 49 (a) of the Criminal (Codification and Reform) Act [<em>Chapter 9:23</em>] and driving without a licence in contravention of s 6 (1) (a) of the Road Traffic Act [<em>Chapter 13:11</em>]. He was sentenced to 24 months imprisonment in addition he was prohibited from driving for life in respect of the first count and 6 months imprisonment on the second count. He appeals against sentence only.</p> <p>            The facts to which the accused pleaded guilty were that on 3 March 2018 at around 08:30 hours he was driving a public service Toyota Hiace vehicle along Harare - Makumbe road towards Makumbe. On board his motor vehicle were two passengers and a load of 10 bags of cement. On approaching the 39 km peg, the appellant overtook a commuter omnibus which had stopped to drop some passengers. In the process of overtaking the appellant’s motor vehicle had a head on collision with a Nissan March registration number ACK 2017 travelling from Makumbe. The driver of the Nissan March later succumbed to head injuries sustained during the accident. The appellant, a non-holder of a driver’s licence admitted that he was negligent in that he was driving at an excessive speed in the circumstances; he failed to keep a proper look out and failure to stop or act reasonably when a collision seemed imminent.</p> <p>            The appellant appeals against sentence only before this court. The grounds of appeal set out in the notice of appeal can be summed as follows:</p> <p>            1.         That the court a <em>quo</em> misdirected itself in making a finding that the appellant drove                        recklessly thus imposing the minimum mandatory sentence of two years.</p> <p>2.         That the court erred in prohibiting the accused from driving for life all types of motor vehicles.</p> <p> </p> <p>3.         The erred in imposing a sentence of six months imprisonment in circumstances where the court did not fully explain the meaning of special circumstances in both counts</p> <p>            Mr <em>Mambara </em>for the appellant submitted and correctly so that on a charge and conviction of culpable homicide arising out of a driving offence, the trial court must first make a precise finding on the degree of negligence before assessing the appropriate sentence and referred this court to the cases of <em>S</em> v <em>Fungai Chitepo</em> HMA 3/17 and <em>Duduzile Manhenga</em> v <em>S</em> HH 62/15. For the respondent it was submitted that the court a <em>quo</em> made a finding based on the facts placed before it. The court correctly found the degree of negligence to be reckless.</p> <p>            The proper position of the law was set out by the appellant’s counsel. In a case involving culpable homicide from a driving offence, it is imperative for a court to ascertain the degree of negligence. Culpable homicide always entails some form of negligence. The negligence has a progression path which is relative to the offences in the Road Traffic Act. It could be driving without due care and attention (section 51) negligent or dangerous driving (section 52) or reckless driving (section 53). An assessment of the degree of negligence at the sentencing stage helps the court in coming up with an appropriate sentence. It then becomes important to ascertain exactly what transpired from the appellant of course considering the State case. There must be a factual basis to support the factual finding by the court. This is in tandem with s 64 (3) of the Road Traffic Act. This is the thrust in the <em>Manhenga</em> and C<em>hitepo</em> cases (supra) see also <em>S</em> v <em>Ngwenya</em> HH 331/17.</p> <p>            In the present case the court canvassed the essential elements and specifically put the particulars of negligence to the appellant. He admitted that he failed to stop or act reasonable when a collision seemed imminent, <em>Mr Mambara</em> tried to explain over the bar that the appellant was driving behind a commuter omnibus which suddenly stopped and the appellant’s reaction was meant to avoid hitting the back of the commuter omnibus. He urged this court to take judicial notice of the reckless driving of these public transport drivers. It is a paradox that <em>Mr Mambara</em> would make such a submission when the appellant was one of the commuter omnibus drivers. Taking such notice would certainly be prejudicial to the appellant’s case. That submission, in our view confirms the magistrate’s finding. Firstly it shows that the appellant was driving too close to the motor vehicle in front. The evidence before the court does not confirm the submission made that this court can adopt the reasoning in <em>S v Mauwa</em> 1990 (1) ZLR (235 (SC) that where a driver is put in danger by negligence of another he is not to blame if he does not respond as expected. The commuter omnibus ahead of the appellant did not suddenly stop; there is evidence in the traffic accident book that shows that the driver of the commuter bus indicated the intention to turn left.  The appellant confirmed this. The appellant did not reduce his speed or even apply his brakes at all. This is clear from his responses to the Magistrate he did not even mention it. The traffic sketch plan does not even show any brake marks. All these are indicators of over - speeding and non-action by the appellant. In mitigation the appellant was asked why he committed the offence, he stated that he was not concentrating. The totality of the exchange between the court and the appellant shows that appellant was asked questions such that if he wished to give details to the court he could have. If he did not then, that cannot be held against the court.</p> <p>We totally agree with the judgments of this court relied upon by the appellant on the valid point that a trial court should not completely rely on the broad particulars set out in the state outline. However these provide a critical springboard for all the relevant facts to be set out. As already noted when they are put to the accused it is for the accused to provide information. Where no information is provided, then the court is entitled to make a finding on what is before it.</p> <p>The appellant overtook without checking whether there was oncoming traffic. There is no doubt about it. Before overtaking a driver must satisfy himself that he is able to clear the path of oncoming traffic timeously and safely. Where an overtaking vehicle collides with an approaching vehicle travelling on its correct side of the road this is strong evidence that the driver was driving recklessly. See <em>Cooper and Bamford,</em> South African Motor Law, 1965.Reckless driving has been defined in both case law and authoritative texts. The definition set out in <em>R v Phillipson</em> 1957 (1) SA 114(SR) is most reflective of the driver’s state of mind, it was said to be,</p> <p>‘…denoting an intention to bring about a result, or the conscious taking of the risk of bringing about an undesired result , the possibility of which must necessarily have been foreseen.</p> <p>To my mind, anyone who overtakes without checking the safety of such a maneuver and is involved in a head on collision is <em>prima facie</em> reckless. This was in the morning and it can only be assumed that the visibility was good. The possibility of oncoming traffic is obvious and the appellant took a conscious risk to overtake without checking. The court explained in its reasons for sentence why it concluded that the degree of negligence was reckless. We find no misdirection in that finding.</p> <p>            A finding of reckless driving directs the court to sentence the accused in terms of s 53 (4) of the Road Traffic Act. Since the appellant was driving a public service vehicle he was liable to imprisonment for a period not exceeding fifteen years and not less than two years unless there are special circumstances.</p> <p>            As correctly submitted for the respondent, the court explained the meaning of special circumstances but failed to give the appellant an opportunity to respond. Clearly this was a misdirection. We directed counsel to address the court on special circumstances in this case. He highlighted that there was a sudden emergency as the motor vehicle in front suddenly stopped. The appellant had to take evasive action to avoid colliding with the motor vehicle. For the respondent it was submitted that the form of sudden emergency did not constitute a special circumstance. It actually showed that appellant was driving too close to the vehicle in front, over - speeding and did not keep a proper look out.</p> <p>            It is trite that what constitute special circumstances are those factors peculiar to the commission of the offence as defined in the Act. We do not believe there was a sudden emergency. The motor vehicle in front actually indicated its intention to turn left. That indication should have led the appellant to reduce speed and prepare for anything that the motor vehicle in front may do. What transpired on the day was properly summed up by the appellant that he was not concentrating. It is correct that driving without a licence is not a particular of negligence. However there is nothing wrong in a court bearing in mind that the accused, was not a holder of a driver’s licence at the time the offence was committed. It is a highly aggravating factor. We do not believe there are special circumstances in this case. Drivers of public service vehicles should endeavor to exercise a high degree of care to avoid carnage on the roads. The court was therefore entitled to impose the minimum mandatory sentence of 24 months imprisonment.</p> <p>            In addition the court prohibited the appellant from driving all types of motor vehicles. Obviously the court fell into error. Subsection (4) of s 53 of the Road Traffic Act prescribes the sentence as follows,</p> <p>(4) Subject to Part IX, a court which convicts a person of an offence in terms of subsection (1) involving the driving of a motor vehicle shall—</p> <p>(<em>a</em>) if the person has not previously been convicted of a similar offence within a period of ten years immediately preceding the date of such first-mentioned conviction—</p> <p>(i) in the case of a first-mentioned conviction which does not relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving for a period of not less than six months; or</p> <p>(ii) in the case of a first-mentioned conviction which does relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving—</p> <p>A. a motor vehicle other than a commuter omnibus or a heavy vehicle for a period of not less than six months; and</p> <p>B. a commuter omnibus or a heavy vehicle during his lifetime; or</p> <p> </p> <p> There was no basis to extend the prohibition to all classes of motor vehicles. The appellant should have been banned for life from driving a commuter omnibus or a heavy vehicle. In respect of other vehicles the court must prohibit the accused from driving for a period of not less than 6 months. It can be argued that the court a <em>quo</em> exercised its discretion to give a life ban since the section only gives the minimum. However the court did not justify why the appellant should be prohibited from driving other classes of motor vehicles for life. In the circumstances of this case, there is no basis to ban the appellant for life in respect of other vehicles. The sentence should therefore be interfered with to that extent.</p> <p>            In respect of the second count, the court <em>a quo</em> failed to comply with the provisions of the law. A perusal of the record shows that when the plea of guilty was entered the Magistrate proceeded in terms of s 271 (2) (b) of the Criminal Procedure and Evidence Act [<em>Chapter 9:07</em>]. The section requires that the court explains the charge and the essential elements of the offence to the accused person. The explanation given should be recorded as provided for in   subsection (3) thereof. In this case the Magistrate only canvassed the essential elements in respect of the first count. Nothing was referred to in respect of the second count. Surprisingly the verdict was recorded as guilty for both counts.</p> <p>            The requirement to explain the charge and the essential elements cannot be compromised where an accused is facing a possibility of a custodial sentence. The accused has to understand the nature of the offence to which he has pleaded guilty. The nature of the explanation that the court must give reposes to the accused his right to a fair trial. Thus in <em>S</em> v <em>Dube </em>1988 (2) ZLR 385 (SC) the Supreme Court held that the procedure in s 271 (2) (b) should be adequate to ensure a fair trial although in some cases it may be necessary for the court to explain to the accused at an early stage that the offence to which he is admitting is serious and attracts a heavy penalty. By parity of reasoning clearly in this case the procedure adopted by the court a <em>quo</em> denied the appellant his right to a fair trial.</p> <p>The appellant did not raise issue with the non-compliance with s 271 (2) (b) of the Criminal Procedure and Evidence Act. Even before this court counsel for the appellant was prepared to sweep the issue under the carpet when his attention was drawn to this anomaly. However this court cannot close its eyes on a glaring irregularity. We are at liberty to exercise our review powers and remit the matter for a proper consideration.</p> <p> </p> <p>            From the foregoing the appeal partially succeeds and the following order is made,</p> <ol> <li>The appeal against sentence in the first count is partially upheld.</li> <li>The sentence is set aside and substituted by the following</li> </ol> <p>“24 months imprisonment. In addition the accused is prohibited from driving any commuter       omnibus or heavy truck for life and is also prohibited from driving other classes of motor vehicles for 6 months.”</p> <p>            3. The appeal in count two is allowed.</p> <p>4. The conviction and sentence is hereby set aside.</p> <p>            5. The matter is remitted for a trial <em>de novo</em> before a different Magistrate</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>MUSAKWA J AGREES:…………………………………………</p> <p> </p> <p><em>J Mambara &amp; Partners</em>, appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/126/2020-zwhhc-126.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=25840">2020-zwhhc-126.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2020/126/2020-zwhhc-126.pdf" type="application/pdf; length=234632">2020-zwhhc-126.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/masvingo-high-court/2017/3">S v Chitepo (HMA 03-17 CRB MSVP 2168/16) [2017] ZWMSVH 03 (03 February 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2014/62">S v Manhenga (CRB 9424/13) [2015] ZWHHC 62 (17 November 2014);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div></div></div> Wed, 19 Feb 2020 10:23:15 +0000 Sandra 9497 at https://old.zimlii.org S v Tongi (HMT 54-19, CA 15/19) [2019] ZWMTHC 54 (25 July 2019); https://old.zimlii.org/zw/judgment/mutare-high-court/2019/54 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHIVHARANGE PADDINGTON TONGI</p> <p>versus</p> <p>THE STATE</p> <p> </p> <p>                                                                                                                       </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MWAYERA and MUZENDA JJ</p> <p>MUTARE, 19 June and 25 July 2019</p> <p> </p> <p> </p> <p><strong>Criminal Appeal</strong></p> <p> </p> <p> </p> <p> </p> <p><em>TT Sigauke</em>, for the Appellant</p> <p><em>J Chingwinyiso</em>, for the Respondent</p> <p> </p> <p> </p> <p>MWAYERA J: The appellant was convicted on his own plea of guilty to a charge of negligent driving as defined in s 52 (2) (a) of the Road Traffic Act [<em>Chapter 13:11</em>]. 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.</p> <p>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.</p> <p>Dissatisfied with the sentence imposed the appellant approached this court seeking that the sentence imposed by the court <em>a quo</em> 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 <em>a quo</em> 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 <em>a quo</em> prohibited the appellant from driving for 6 months. The cancellation of the driver’s licence was not automatic following prohibition.</p> <p>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.</p> <p>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 [<em>Chapter 13:11</em>] under which appellant was charged and convicted provides as follows:</p> <p>Sections 52 (2)</p> <p>“A person who drives a vehicle on a road</p> <ul> <li>Negligently or</li> <li> </li> </ul> <p>Shall be guilty of an offence and liable to</p> <ul> <li> </li> </ul> <ul> <li>in any case, a fine not exceeding level seven or to imprisonment not exceeding 6 months or both such fine and such imprisonment.</li> <li> </li> <li>Subject to part ix a court convicting a person of an offence in terms of subsection 1 involving driving of a motor vehicle</li> </ul> <ul> <li>, (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.”</li> </ul> <p> </p> <p>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 s 52 (2). Given the circumstances of this case and the particulars of negligence namely</p> <p>“1. That accused failed to stop when an accident seemed imminent.</p> <p>2. Failed to keep his vehicle under proper control.</p> <p>3. Travelling at an excessive speed under the circumstances.</p> <p>4. Failing to keep a proper look out under the circumstances.”</p> <p> </p> <p>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.</p> <p>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.</p> <p>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 s 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.</p> <p>See <em>S v Mujari</em> 1997 (1) ZLR 508 and <em>S v Chitepo</em> 2017 ZLR (1) 237. Also <em>State v Gaven Chifodya</em> HH 171/18 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.</p> <p>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 s 52 (2) as read with s 54 (4) (a) and (b) of the Road Traffic Act [<em>Chapter 13:11</em>] does not seem to suggest cancellation of the driver’s licence for contravention of s 52 (2) (a) unless the conviction is a second or subsequent conviction.</p> <p>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 [<em>Chapter 9:23</em>] 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.</p> <p>The alternative imprisonment to the fine is disproportionate and it will be interfered with. From the foregoing the appeal against sentence is meritorious.</p> <p>Accordingly it is ordered that:</p> <ol> <li>The appeal against sentence be and is hereby upheld.</li> <li>The sentence by the court <em>a quo</em> is set aside and substituted as follows:</li> </ol> <p>$250-00 or in default of payment 2 months imprisonment</p> <p>MUZENDA J agrees_____________________</p> <p><em>Gonese and Ndlovu</em>, Appellant’s legal practitioners</p> <p><em>National Prosecuting Authority</em>, Respondent’s legal practitioners </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/54/2019-zwmthc-54.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=30561">2019-zwmthc-54.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/mutare-high-court/2019/54/2019-zwmthc-54.pdf" type="application/pdf; length=117112">2019-zwmthc-54.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/c">C</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/review-sentence">Review (Sentence)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/masvingo-high-court/2017/3">S v Chitepo (HMA 03-17 CRB MSVP 2168/16) [2017] ZWMSVH 03 (03 February 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div></div></div> Wed, 28 Aug 2019 09:21:14 +0000 Sandra 9378 at https://old.zimlii.org S v Chifumuro (HMA-58-18, CRB MSVP 549/18) [2018] ZWMSVHC 58 (13 December 2018); https://old.zimlii.org/zw/judgment/masvingo-high-court/2018/58 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p> </p> <p> </p> <p> </p> <p>THE STATE</p> <p>Versus</p> <p>ERNEST CHIFUMURO</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MAWADZE J</p> <p>MASVINGO, 13 DECEMBER, 2018</p> <p> </p> <p> </p> <p><strong>Criminal Review</strong></p> <p>                                                                                                           </p> <p> </p> <p>MAWADZE J:            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.</p> <p>The background facts in this matter are as follows;</p> <p>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.</p> <p>The facts giving rise to the charge are that on 7 January 2018 the 49-year-old accused, at about 15.10 hrs, 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.</p> <p>At about the 3 km 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</p> <p> </p> <p>Khaye Bus Company registration number HD 77 HG GP which had broken down near the 3 km 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.</p> <p>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 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 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 accused’s bus was injured.</p> <p>It is clear from these facts that the accused was negligent. This is so because the accused <em>inter alia</em> 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.</p> <p>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 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.</p> <p> </p> <p> </p> <p>The accused was surprisingly sentenced to a fine of $1000 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 accused paid the fine. Further, the accused’s licence was spared and 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.</p> <p>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 $400.00 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.</p> <p>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 <em>Mr Tembo</em> 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 <em>Mr</em> <em>Muchineripi </em>of Muchineripi and Associates whose correspondent legal practitioners were Ruvengo Maboke and Company would say.</p> <p>For reasons yet to be explained 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. <em>Mr Tembo</em> for the State rightly applied to have the appeal dismissed for want of prosecution.</p> <p>Be that as it may, we inquired from <em>Mr Tembo</em> 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 accused’s gross negligence, and the failure to impose mandatory sanctions provided for in terms of s 64 of the Road Traffic Act [<em>Cap 13:11</em>] relating to cancellation of accused’s driver’s licence and prohibition from driving commuter omnibus and heavy vehicles for life. We pointed out to <em>Mr Tembo</em> that his approach in this matter was perfunctory as he did not address these mundane issues. We thus inquired from <em>Mr Tembo</em> as to the proper way forward. <em>Mr Tembo</em> agreed that this matter be remitted to the trial court to</p> <p> </p> <p>remedy the omissions of failure to comply with the provisions of the Road Traffic Act [<em>Cap</em> <em>13:11</em>].</p> <p> </p> <p>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 s 38(4) of the High Court Act [<em>Cap 7:06</em>] 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 <em>a quo</em> 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 s 64(3) of the Road Traffic Act [<em>Cap 13:11</em>]. The provisions of s 65(6) of the Road Traffic Act [<em>Cap 13:11</em>] should therefore be invoked.</p> <p>In the result we granted the following Order in default:</p> <p>“<em>In default</em></p> <p><em>IT IS ORDERED THAT</em>;</p> <ol> <li><em>The appeal be and is hereby dismissed for want of prosecution. It is however noted that the sentence passed is manifestly lenient.</em></li> <li><em>The matter be and is hereby remitted to the trial court for purposes of complying with the provisions of s 64 of the Road Traffic Act [Cap 13:11] relating to a proper order on prohibition and cancellation of the driver’s licence.</em></li> <li><em>That the degree of negligence is reckless and that the provisions of s 53 of the Road Traffic Act [Cap 13:11] should be invoked in the absence of special circumstances.</em></li> <li><em>That Mr Tembo 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</em>.”</li> </ol> <p>The drama in this matter continued. We were pleasantly bemused when, on 8 October 2018, we received a letter from <em>Mr Tembo</em> 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 <em>Mr Tembo</em> 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</p> <p> </p> <p>motor vehicles and cancellation of the driver’s licence in accordance with the provisions of s 64 of the Road Traffic Act [<em>Cap 13:11</em>]. Further we pointed out that we gave these brief reasons in the presence of <em>Mr Tembo</em> 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.</p> <p>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 accused meant by this or why the accused was blaming his legal practitioner presumably <em>Mr Muchineripi</em>. Thereafter the accused opted to proceed without legal representation.</p> <p>The record of proceedings reflects the following;</p> <p>“<em>What special circumstances are explained to the accused and understood.</em></p> <p><em>By Court</em></p> <p><em>Do special circumstances exist in this case?</em></p> <ul> <li><em>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.</em></li> </ul> <p><em>Findings </em></p> <p><em>No special circumstances in this case.</em></p> <p><em>Sentence altered as per Judge’s request to imprisonment.</em></p> <p><em>3 years imprisonment of which 6 months is suspended for 5 years on condition accused does not contravene s 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.</em></p> <p><em>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 </em></p> <p> </p> <p> </p> <p> </p> <p> </p> <p><em>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 $1000 within 7 days.</em></p> <p><em>Accused to surrender his licence with the Clerk of Court within 7 days.</em>” (sic)</p> <p>It is indeed mind boggling as to how the learned Provincial Magistrate proceeded in this manner. A number of issues arise from this.</p> <p>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.</p> <p>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 <em>S </em>v <em>Manase 2015</em> (1) ZLR 160 (H) as per MUREMBA J. The accused’s right to a fair hearing as enshrined in s 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.</p> <p>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 accused’s degree of negligence other than simply mentioning in passing that 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 <em>S</em> v <em>Dzvatu 1984</em> (2) ZLR 136 (H), <em>S</em> v <em>Mtwizwa 1984</em> (1) ZLR 230 (H), <em>S</em> v <em>Chaita &amp; Ors. 2001</em> (2) ZLR 90 (H).</p> <p>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 s 64 of the Road Traffic Act [<em>Cap 13:11</em>]. Apparently this still did not find tranction 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 $1000.00, which sentence was manifestly lenient.</p> <p>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</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p>that 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.</p> <p>The learned Provincial Magistrate should have appreciated that he was now <em>functus</em> <em>officio</em> in relation to the substantive sentence he had imposed on the accused of a fine of $1 000.00. 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 $1 000.00 and the other of a custodial term of 3 years. Both sentences are <em>extant</em>. 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.</p> <p>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.</p> <p>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 $1 000.00. The order in relation to prohibition from driving any motor vehicle other than an or commuter omnibus or a heavy vehicle for 2 years and from driving or commuter omnibus or a heavy vehicle for life and the cancellation of the accused’s driver’s licence should be upheld.</p> <p> </p> <p>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 $1000.00 which sentence shall remain operational despite the misplaced endeavour by the learned Provincial Magistrate to alter that sentence improperly.</p> <p>In the result the following order is made;</p> <p>IT IS ORDERED THAT;</p> <ol> <li>The conviction of the accused be and is hereby confirmed.</li> <li>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.</li> <li>The initial sentence imposed by the court <em>a quo</em> of a fine of $1000 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.</li> <li>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.</li> <li>The accused’s driver’s licence be and is hereby cancelled.</li> <li>In relation to the substantive sentence of a fine of $1000 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.</li> <li>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.</li> </ol> <p>The accused should again be recalled and advised of this outcome. If accused pays the fine he should be released from prison forthwith.</p> <p> </p> <p> </p> <p>Mafusire J. agrees………………………………………………………….</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/58/2018-zwmsvhc-58.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26907">2018-zwmsvhc-58.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/masvingo-high-court/2018/58/2018-zwmsvhc-58.pdf" type="application/pdf; length=205341">2018-zwmsvhc-58.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/court">COURT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/abuse-process">abuse of process</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure">CRIMINAL PROCEDURE</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/review-criminal-procedure">Review (CRIMINAL PROCEDURE)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/110">S v Manase (CRB M 103/14) [2015] ZWHHC 110 (04 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Fri, 14 Dec 2018 10:57:27 +0000 admin 9225 at https://old.zimlii.org S v Nyamvura (HH 613-13, CRB RSPP 287/18) [2018] ZWHHC 613 (03 October 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/613 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>JOSEPH NYAMVURA</p> <p> </p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TSANGA &amp; CHITAPI J</p> <p>HARARE, 3 October 2018</p> <p> </p> <p> </p> <p> </p> <p><strong>Review Judgment</strong></p> <p> </p> <p> </p> <p>            CHITAPI J: The record of proceedings in this matter has been placed before me on review in terms of s 59 of the Magistrates Court Act [<em>Chapter 7:10</em>]. The accused a 32 years old first offender pleaded guilty to two charges. In count 1, it was alleged that on 2 January, 2018, along Chivhu –Nyazura road, he drove a commuter omnibus without being the holder of a licence in contravention of s 6 (1) of the Road Traffic Act. [<em>Chapter 13:11</em>]. The charge should for clarity be framed as “contravening s 6 (1) as read with the proviso to s 6 (5) in that the accused unlawfully drove a commuter omnibus (<em>details of the vehicle and where he was</em> <em>arrested whilst driving</em>) without being a holder of a valid licence issued in respect of the said motor vehicle.” In <em>casu</em> the charge alleged a contravention of s 6 (1) which only prohibits the driving of a vehicle without a valid licence. It did not refer to s 6 (5) which then makes it an offence to so drive. The proviso is important to refer to because it distinguishes punishment which may be imposed depending on the type of  motor vehicle concerned. If the vehicle involved is a commuter omnibus, a minimum sentence of 6 months must be imposed unless the convict satisfies the court of the existence of factors set out in the said  section which I shall deal with later in this judgment.</p> <p>            In count 2, the accused was charged with negligent driving as defined in s 52 (2) of the Road Traffic Act, [<em>Chapter 13:11</em>]. The charge arose from the same incident in that, whilst driving the same commuter omnibus without a valid licence as charged in count 1, the accused was negligent in failing to keep a proper look out, failing to keep the vehicle under proper control and failing to stop or act reasonably when an accident seemed imminent. Due to his negligent driving the commuter omnibus overturned once and landed in a ditch facing the opposite direction of the accused’s line of travel. Fortunately, it landed on its wheels. There were 11 passengers on board. Ten of the passengers sustained minor injuries and were treated at Rusape General Hospital and discharged. One passenger sustained a fracture of the right shoulder and had to be further managed at Parirenyatwa Hospital. He was treated and has recovered.</p> <p>            As with the 1st count, the charge should have specified that the accused was being charged with contravening s 52 (2) (a) as read with s 52 (2) (a) (i) of the Road Traffic Act, [<em>Chapter 13:11</em>]. Section 52 (2) (a) creates the offence of negligent driving whilst s 52 (2) (a) (i) is the penalty section applicable if the vehicle involved in the negligent driving is a commuter omnibus . The penalty which may be imposed is a fine not exceeding level ten or imprisonment not exceeding one year or both a fine and a term of imprisonment.</p> <p>The purpose of composing or framing a charge is to advise the accused in a precise, unambiguous wording of the nature of the offence or charge that the accused is facing on trial. Section 146 (1) of the Criminal Procedure &amp; Evidence Act, [<em>Chapter 9:07</em>] provides that a charge should set out the offence charged in such a manner and giving particulars as to the time, manner and place of commission as well as the particulars of the person as may be reasonably sufficient to inform the accused of the nature of the charge.  Section 146 aforesaid purports to distinguish between Statutory and non- statutory offences with statutory offences being covered under s 146 (2) which provides that with statutory offences, the charge should describe the offence in the words of the enactment or in similar wording.  <em>Provisos</em>, exemptions, exceptions, excuses or other qualifications include presumptions and onuses are not required to be included.  Following on the codification of crimes under the Criminal Law Codification and Reform Act, [<em>Chapter 9:23</em>], it can be argued that all crimes cognizable in Zimbabwe have been codified either under the Criminal Law Codification and Reform Act or as provided for in other statutes creating the other crimes.  Section 146 (4) provides that, where particulars which must be included in relation to offences listed in the first column of the second schedule to the Criminal Law codification and Reform Act, are not known to the Prosecutor, it is deemed sufficient to indicate in the charge that the unknown fact is so unknown.  Section 146 (5) provides that an indictment summons or charge “alleging the commission of a crime mentioned in subsection (4) shall not be held to be defective on account of the failure or omission to mention the section of the Criminal Law Code in which the crime is set forth. The application of s 146 relating to the essential averments which a charge should contain however is subject to the Criminal Procedure and Evidence Act and any other enactment.  In other words, unless the Criminal Procedure and Evidence Act or other enactment under which an accused is charged provides otherwise, the provisions of s 146 are all embracing when it comes to the framing of a charge.</p> <p>            Reverting to s 146 (5), its application is limited to the Criminal Law Codification and reform Act.  In other words a failure to mention the section of that Act which creates an offence under the enactment does not render the charge defective.  The subsection does not provide that it is not essential to cite the section.  It also does not bar the taking of an objection to a charge as being defective where the statutory offence charged does not fall within the band of offences listed in column 1 of the second schedule to the Criminal Law Codification and Reform Act.</p> <p>In <em>casu</em>, I have made corrections to the charge in the first count to reflect the correct sections of the Road Traffic Act as they should have been cited.  The omission to cite the correct sections does not invalidate the charge because a mere defect in a charge does not invalidate the charge unless prejudice resulted or to use the wording used in criminal reviews, a substantial miscarriage of justice has occurred.  The reason why mere defects in a charge do not invalidate the charge or subsequent proceeding is that procedural laws are intended to promote or serve the ends of justice and not to subvert or frustrate them. However, notwithstanding that an imprecisely drafted charge will not defeat the charge, it must be stressed that the charge forms the foundation of the accusation and as such, meticulous care should be taken in drafting or framing the charge.  Good practice dictates that sections in an enactment relied upon for founding a charge should not only be cited but should be correctly cited.</p> <p>In <em>David Karombe</em> HH 264/15 hungwe j with the concurrence of Bere J (as he then was) relied on the judgment in <em>S</em> v <em>Carbon</em> 1973 (4) SA 615 and held that “a failure to refer to the section at all or reference to the wrong section of a statute does not affect the validity of a charge provided that it is clear that the accused  because of the factual description of the alleged offence, was aware of the nature of the charge and was not prejudiced”. I agree. Following on this therefore,  the convictions in this case will stand because the defect in citing the wrong sections of the Road Traffic did not cause any prejudice to the accused person.</p> <p>The accused was sentenced as follows in respect of the convictions.  On count 1, 3 years imprisonment with 1 year suspended on condition that the accused is not convicted of any offence involving the driving of a motor vehicle without a valid driver’s licence for which upon conviction he is sentenced to imprisonment without the option of a fine.  In addition the accused was prohibited from driving “motor vehicles” for life.  In regard to the prohibition order, the court is required in the absence of the accused showing the existence of factors stated in the provision to s 6 (6) of the Road Traffic Act, to impose a driving life ban or prohibition in relation to the class of vehicles to which commuter omnibuses or heavy vehicle are classed. Section 6 (6) aforesaid provides as follows</p> <p>            “(6) Subject to Part IX, a court convicting a person of an offence in terms of subs (5) may            prohibit him from driving for such period as the court thinks fit;</p> <p>Provided that, if the motor vehicle he was driving in contravention of subs (1) was a commuter omnibus or a heavy vehicles, as the case may be, belong, unless he satisfies the court that—</p> <ul> <li>he possessed a licence issued to him in respect of commuter omnibuses or heavy vehicles, as the case may be; and</li> <li>the licence referred to in para (a) ceased to be valid on the expiry of the period referred to in subs (1) of s fourteen A; and</li> <li>he could lawfully have renewed the licence referred to in para (a) and, had he done so, he would have been entitled to drive the commuter omnibus or heavy vehicle concerned;</li> </ul> <p>or unless he satisfies the court, in terms of s eighty-eight A, that there are special reasons in the case why such a prohibition should not be imposed upon him.”</p> <p>           </p> <p>            In determining sentence, the magistrate simply advised the accused that the offence of driving without a licence carried a mandatory custodial sentence of not less than 6 months and not more than 5 years and further that the court was obliged to prohibit the accused from driving for life unless the accused had “special circumstances peculiar to the offence.” The accused responded that he had been sent by his employer to carry stones and quarry from the mountain. He then collected hired hands to assist in the process after having been given money to pay them by his employer. The magistrate ruled that there were no special circumstances, hence the sentence imposed in count 1 as well as the order of prohibition or ban from driving for life. In my view, the magistrate misdirected himself in the determination of sentence in count 1.</p> <p>            Firstly, the magistrate did not explain the concept of special circumstances nor did he enquire into whether or not the circumstances set out in s 6 (6) (a) – (c) of the Road Traffic Act existed. This court dealt with and gave directions on how the issue of special circumstances should be handled in <em>S</em> v <em>Manase </em>HH 110/15. This is a must read and understand case for all magistrates. In summary, muremba J explained the procedure which must be followed. The court is required to fully explain clearly what special circumstances entail. The explanation given should be recorded and so should the accused’s explanation or answers. The accused may lead evidence in this regard and this should be explained to the accused. In <em>casu,</em> the explanation of special circumstances given to the accused was not recorded. The court simply invited the accused to address on special circumstances peculiar to the offence. For an unrepresented accused this was wholly inadequate because it cannot be said that the accused understood any explanation given. In fact, no explanation was given and it is not recorded that the accused understood the explanation assuming that any was given by the court. The accused was not advised of his rights to lead evidence on the issue.</p> <p>            In regard to the ban from driving, the record does not clearly show that vehicle in question was a commuter omnibus. The charge sheet and state outline referred to the vehicle as a “Toyota Hiace.” When plea recording, the magistrate did not ever use the word a commuter omnibus save when writing reasons for sentence. The fact that the vehicle was a Toyota Hiace did not make it a commuter omnibus without such fact being established or proved. In terms of the Road Traffic Act, a commuter omnibus is defined as:</p> <p>            “Commuter omnibus” means passenger public service vehicle which–</p> <ul> <li>has a seating accommodation for more than seven passengers; and</li> <li>is used to provide a passenger transport service in accordance with a permit issued under</li> </ul> <ul> <li>regulations made in terms of s 193 of the Urban Council Act [<em>Chapter 29:15</em>]; or</li> <li>Part V of the Road Motor Transportation Act [<em>Chapter 12:10</em>]</li> </ul> <p> </p> <p>The Road Traffic Act also defines as omnibus as “omnibus” means a heavy vehicle</p> <p>having—</p> <ul> <li>a net mass exceeding two thousand three hundred kilograms; and</li> <li>seating accommodation for seven or more passengers.</li> </ul> <p> </p> <p>There is therefore a distinction between an omnibus and a commuter omnibus. The</p> <p>latter operates under a permit issued in terms of s 193 of the Urban  Councils Act or Part V of the Road Motor Transportation Act. Thus, whilst the Toyota Hiace by design could have had a seating capacity of more than 7 passengers since it was loaded with 11 passengers as <em>per </em>the agreed facts, it did not follow that it qualified by definition as a commuter omnibus. Neither the charge sheet nor state outline described the vehicle as such and there was no other evidence to show or prove that the vehicle was a commuter omnibus. The magistrate was misdirected not to ascertain that indeed the Toyota Hiace qualified as a commuter omnibus in terms of the Act. For this reason, sentencing the accused on the basis that he drove a commuter omnibus without such material fact being proved was a misdirection. The irregularity committed in this respect was gross and resulted in a substantial miscarriage of justice.</p> <p>            To cure the irregularities, I can either set aside the conviction and sentence and order that the proceedings be commenced afresh before a different magistrate. I can also confirm the conviction, set aside the sentence and remit the case to the magistrate concerned to properly canvass the issues of special circumstances and the nature of the vehicle in issue, whether it was commuter omnibus or just an omnibus. I can also confirm the conviction, set aside the sentence and impose a different sentence which is informed by the facts and evidence.</p> <p>When the accused was asked to explain how he came to drive the vehicle, he indicated that he was about his employers business having been tasked to go and collect quarry from the mountains. The passengers were not fee paying but “guys” whom the accused was to pay for helping with collection of the quarry. The Toyota Hiace was therefore in use to carry quarry and the passengers were not commuters or commuting. This vital piece of evidence was not challenged by the State. The accused both in addressing special circumstances and in mitigation stated that he was going about his assignment as given by his employer. It was not disputed that he was so employed. Considering the definition of an omnibus in the Road Traffic Act, the accused had 11 passengers in the Toyota Hiace. I can safely therefore hold that the Toyota Hiace qualified as an omnibus but was not proven to be a commuter omnibus. The accused should have been sentenced on the basis that he drove an omnibus without being a holder of a valid driver’s licence and that he drove the omnibus negligently and overturned injuring the passengers in the omnibus. The accused addressed the court in mitigation of sentence and the prosecutor addressed the court and submitted that there are no special circumstances without elaboration. I am therefore in a position to assess the evidence and sentence the accused afresh. The following order is therefore made:</p> <ol> <li>The convictions of the accused on both the 1st and 2nd counts are confirmed save that in count 1, the record should reflect that the accused is guilty of contravening s 6 (1) as read with s 6 (5) of the Road Traffic Act, [<em>Chapter 13:11</em>].</li> <li>The sentences on both counts are set aside and substituted as follows:</li> </ol> <p>Count 1: 8 months imprisonment of which 2 months imprisonment is suspended for 3 years on condition that the accused is not within that period convicted of any offence involving the driving of any motor vehicle without a valid driver’s licence and for which upon conviction, he is sentenced to serve a term of imprisonment without the option of a fine.</p> <p>Count 2- 6 months imprisonment.</p> <ol> <li>The sentences in counts 1 and 2 shall run concurrently.</li> <li>As the accused has served the effective term, he shall forthwithbe liberated from custody.</li> </ol> <p> </p> <p>TSANGA J: agrees …………………………….</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/613/2018-zwhhc-613.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=24747">2018-zwhhc-613.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/613/2018-zwhhc-613.pdf" type="application/pdf; length=159500">2018-zwhhc-613.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/criminal-law-statutory-offences-other-offences-under-criminal-law-code">CRIMINAL LAW STATUTORY OFFENCES (Other than offences under Criminal Law Code)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/criminal-procedure-sentence-general-principles">CRIMINAL PROCEDURE (SENTENCE) General Principles</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/multiple-counts-sentence">Multiple counts (Sentence)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/passing-sentence">Passing of (Sentence)</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/harare-high-court/2015/264">S v Karombe (CA 506/13 ) [2015] ZWHHC 264 (28 January 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2015/110">S v Manase (CRB M 103/14) [2015] ZWHHC 110 (04 February 2015);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1931/18">Magistrates Court Act [Chapter 7:10]</a></div><div class="field-item even"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2016/2">Criminal Procedure and Evidence Act [Chapter 9:07]</a></div></div></div> Wed, 31 Oct 2018 08:10:36 +0000 admin 9129 at https://old.zimlii.org S v Biza (HH 116-18, CRB NO. 81/17) [2018] ZWHHC 116 (23 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/116 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>THE STATE</p> <p>versus</p> <p>NIXON BIZA</p> <p>HIGH COURT OF ZIMBABWE<br /> TSANGA J<br /> HARARE, 23, 24, 25, October, 2, 22 November 13 December 2017</p> <p>                   and 23 February 2018</p> <p><strong>Assessors</strong>:       1.         Mr Mhandu<br /> 2.         Mr Mtambira</p> <p><strong>Criminal Trial</strong></p> <p><em>N Mazvimbakupa,</em> for the state<br /> <em>N Mugiya, </em>for the accused</p> <p>            TSANGA J: The accused faced a charge of murder arising from the death of a policeman he was said to have run over at a police stop with his commuter omnibus registration ABZ 2324 on the 2nd of October 2016. The deceased officer, Tapera Cleopas, was said to have been standing in the inner lane close to the dotted white line whilst facing oncoming traffic which he was trying to stop. As the accused approached the spot where the deceased was, he was said to have changed lanes from the outer lane to the inner lane and accelerated speed. He had hit the deceased with the left corner of his vehicle resulting in the deceased hitting the wind screen and falling to the ground. It was the State case that the accused had then stopped about 100 m from the point of impact, a fact they attributed to his speed.</p> <p>The accused pleaded not guilty. He acknowledged knowing that they were police at the spot and indeed noticing them, although equally observing that they were none stopping traffic in the middle of the road at that material time.</p> <p><strong>The state’s evidence</strong></p> <p>The State's chief witness was Patience Chipakanwa a vendor who had been selling drinks on the opposite side of the road. She had earlier on had a conversation with the deceased about the sale of a drink and when that conversation ended she had continued to observe his activities. From her vantage point, she told the court that at the material point the deceased had been hit, he had been standing in the middle of the road trying to signal the accused’s vehicle to stop. Whist the deceased had indeed attended to a vehicle at the side of the road, according to this witness, he was, however, in the middle of the road at the crucial time as he had finished with that other vehicle.</p> <p>The accused's vehicle, whilst coming from the direction of town along the Chitungwiza road, had at the spot where the police were stationed, moved from the inner lane to outer lane at high speed and had hit the deceased. She emphasized that the accused had been speeding and pointed to the fact that he had only finally stopped at a considerable distance from the point of impact, a fact which she attributed to his speed. At the inspection in loco she estimated his stopping point of approximately 68m from the point of impact. She had not heard any hooter. The accident happened at about midday on a Sunday when there was little traffic. The policeman was in uniform and had reflectors.</p> <p>The second witness was Kudzayi Nyangombe, a police constable with Chitungwiza Traffic. He was at the scene on that day and he too reiterated that the accused was traveling at high speed and the fact that he had changed lanes. According to him, when he changed lanes he was already near the police officer standing on the white line who was signalling him to stop. He had increased speed and had hit him with the left side of his vehicle. He said the accused’s speed had drawn his attention and he further told the court that a normal person can discern when a car is speeding. He told court that the speed limit in that area is 80 km but that he did not know what actual speed the accused was driving at, at that time. He further corroborated the first witness that the deceased had stopped a vehicle but was through dealing with it at the time of the accident. Since he was through with that vehicle, as far as this witness was concerned, there was no other vehicle at the time. His estimate of the distance where the accused’s car had stopped after the impact was about 70 to 100m. He acknowledged that the road block was a blitz and therefore there was no “police ahead” sign or drums.</p> <p>The third state witness was Chiedza Mapuranga, also a police officer who was at the scene on that day. She told the court that the deceased was standing behind her that day stopping cars. She also repeated that the accused’s vehicle had moved from the outer lane to the inner lane whilst increasing speed and that the deceased had been hit whilst standing in the middle of the road. She too told the court that the accused was indeed speeding and that she had wondered how he would manage to stop given his speed. She also told the court that the accused had intentionally struck the deceased because he did not want to be stopped. She emphasized that since the accused knew there was a roadblock, he should have exercised heightened caution when passing through there.</p> <p>In summary, all three of the state witnesses said the accused was speeding although they could not state his actual speed. No velocity expert was called. All three said he had moved over from outer lane to the inner lane. The distance recorded where he had stopped at the time of the accident was put by the police at 101 meters. The post mortem report showed that the deceased had died as a result of head injury arising from the road traffic accident.</p> <p><strong>The accused’s evidence</strong></p> <p>He told the court that at the material time that he got to the spot where the police were, he was traveling at 50 km an hour. He told the court that he had slowed down to 15 km an hour even though he had not been slowed down as police were attending to other vehicles. Just as he was about to go past a vehicle that had been stopped and was on the outer left lane, the now deceased policeman had emerged and rushed onto to the road in front of the his Commuter Omnibus. He had swerved to the right and said he had hooted but that it had been too late and the policeman had been caught by the left mirror. He said he had stopped the car after about 30m from the point of impact and had dashed to assist. His explanation was that he had stopped where he had because that was the safe place to do so and not because he was speeding. He said the accident occurred because the deceased had not checked the road and he surmised that he was in fact trying to cross the road. Whilst accused in his defence outline said he never changed lanes, the fact that he had was a point all three of the state witness were in agreement with.</p> <p>Material to his evidence was that he told the court in cross examination that he had seen the police at that spot as it was common for them to be there. He had also seen them on the other side of the road as well on his way into town earlier that day. His primary defence therefore was simply that at the point in time when he drove through, they had been no police on the road to stop him. He had increased speed because he assumed that he was not being stopped.</p> <p>As was put to him in cross examination:</p> <p>Q:        You indicated you were travelling at 50km an hour and reduced speed. To what?</p> <p>A:        To around 15-20 km.</p> <p>Q:        Now do you confirm that when you approached the bus stop you noticed the police.</p> <p>A:        Yes.</p> <p>Q:        After you reduced speed did you increase again?</p> <p>A:        Yes, on the road there were no police, so I increased.</p> <p>Q:        To what?</p> <p>A:        To about 40kms</p> <p>Q:        So when you hit deceased is it your evidence you were travelling at 40km?</p> <p>A:        Maybe 40 or a bit below.</p> <p>He told court that when he hit the deceased he had in fact stopped about 10m but that due to safety issues as there were cars behind him he had proceeded to stop where it was safety do so, on the outer lane. He also surmised that if the deceased had been facing him, then he would have sustained facial injuries instead of being hit at the back of his head. He denied travelling at a speed that threw the deceased into the air.</p> <p><strong>Tatenda Chigocha</strong> who was also in the vehicle with the accused gave evidence. He was a conductor on the vehicle. He had not seen the deceased being struck but had merely heard a thud. The driver had applied brakes and had stopped where safe to do so. Materially he could not tell the court how the deceased was struck because he had not seen this himself.</p> <p><strong>Teddy Shoniwa </strong>also gave evidence. He was in the front passenger seat when the accident occurred. His evidence did not add much to the factual matrix other than that he was the one who had shouted out that there was a person on the road just before he was struck. He too said that there was a car on the left and that is why the driver may not have seen him emerge. He too merely surmised that he may have been crossing the road. He said the driver had stopped the car about 10m before they told him to park where safe. He had not noticed the police himself but had seen them there immediately after the accident.</p> <p><strong>Analysis</strong></p> <p>The crucial issue in this trial is whether accused was traveling at a high speed at all and if so whether he did so with the intention of killing the policeman. We deal firstly with the issue of speed. Whilst no evidence was before this court as to the actual speed he was traveling at, this court believed the witnesses who said he was traveling at high speed. This is because the acquisition of that memory was closely linked to the happening of the event. It would have been retained by the witnesses as a material aspect of their evidence of the cause of the accident. We do not believe that the witnesses were distorting memory when they said the accused was speeding. Also, if the accused was travelling at the low speed which he claimed to have been travelling, which he claimed was 40km an hour or lower, he would have been able to effectively apply his brakes and to stop.</p> <p>Furthermore, the accused himself conceded that he had seen the police. This is crucial. The accident did not happen because the accused person was totally oblivious of the police presence. In his own words, he had seen the police, and his point, to re-emphasise, was simply that they were not in the middle of the road at the time. Whilst he denied changing lanes the evidence from all State witnesses was that he had done so. We believed the witnesses on this score as it tallies with his own admission that he had increased speed because they were no police on the road. There was no reason for them to lie. If, as we do, accept the evidence that there was a car that was on the outer left lane, then all the more reason why he would have moved to the inner lane as that is generally the faster lane.</p> <p>As stated in <em>S </em>v <em>Chitepo</em> HMA 3 /17, “it is now trite that in a charge and conviction of culpable homicide arising out of a driving offence, it is essential that the trial court should first make a precise finding on the degree of negligence before assessing the appropriate sentence.</p> <p>Now <em>in casu,</em> the accused knowing as he did that the police were present at the spot for the sole purpose of stopping cars, it makes no sense that he would have increased his speed unless his intention in doing so was to avoid being stopped. To increase speed when going through a police check point was highly culpable. He also failed to keep a proper look out and the accident also happened during the day when visibility was very good. Because of his speed he had clearly been unable to stop when the accident was imminent.</p> <p>To quote from <em>S </em>v <em>Duri</em> 1989(3) ZLR 111 (SC):</p> <p><strong><em>"To be liable a driver need not have foreseen the precise manner in which his conduct led to the occurrence which caused the complainant harm. Provided the manner in which the harm occurred was 'within the range of ordinary human experience' the defendant is liable." </em></strong></p> <p>Having in fact seen the police his action in increasing speed within that police area was in fact grossly negligent if not bordering on being reckless as he should have realised the delicate nature of the zone he was travelling through and the real possibility of knocking someone within that area. Indeed he had a duty to slow down precisely because of that very real possibility of the police emerging to stop him in that zone. It made absolutely no sense to increase speed. If he was initially travelling at 50 km/hr as he claimed and then slowed down to 15 km/hr only to peak at 40 km/hr or below, it seems unlikely that the accused would have been unable to stop his vehicle or even that the deceased policeman would have sustained the fatal injuries that he did. The post mortem report which was produced in court as an exhibit No.1 showed that the accused had as a result sustained multiple bruises and a fracture and had died of head injury due to the road traffic accident. The windscreen had been shattered, the rear view mirror broken whilst the car had also been dented in front as a result of the impact. The accused though told the court that a dent to the front of the car was already there before the accident.</p> <p>It is our view that he was grossly negligent in driving through the area at high speed well knowing the police were present. We do accept that the deceased policeman may have just completed dealing with another vehicle at the time that he tried to stop the accused. What is clear is that at the material time that he was hit he was indeed on the demarcated white line in the middle of the two lanes. We do not believe that he was trying to cross the road without looking. That is mere conjecture and if the accused and his witnesses had seen that it was indeed what he was trying to do, there would have an opportunity to take corrective action if the accused was driving at the low speed he claimed to have been driving. The whole purpose of reducing speed is to enable a car to stop suddenly if need be. It would be unrealistic to pretend that Kombi drivers do not loath being stopped by the police and that his intention was all probability to avoid being stopped when he increased speed within that zone.</p> <p>It is not surprising that the witnesses on both sides varied on estimation of distance in particular how far the car had stopped and also on how many cars were in fact at the scene on the that day. Memory decays over time and on both sides there would have been exposure to post accident information. The accident was anxiety producing and overestimates or underestimates of where the car had stopped are to be expected depending on whose side the evidence is given. However from the witness statements and the state case, what we accept is that the car had stopped at least a maximum distance of 100 meters from the point of impact.</p> <p>We are however not convinced that he intended to kill in the sense of committing a murder. In the result against the backdrop of the facts we find the accused not guilty of murder in terms of s 47 but guilty of culpable homicide in contravention of section 49 (1) of the Criminal Law (Codification and Reform) Act [<em>Chapter 9:23</em>].</p> <p><strong>Sentence</strong></p> <p>The accused is 46 years old, married with three children. He is said to be the sole breadwinner. In mitigation, his cooperation with the police was highlighted including his assistance to the deceased’s family for funeral expenses. He has been out on bail and has attended court without fail. In sentencing him the court was urged to take all these factors into account. In aggravation he was said to have been driving a public service vehicle and had passengers in the vehicle when he sped through the police point which he knew was there.</p> <p>As regards when a term of imprisonment is appropriate in cases of culpable homicide resulting from negligent driving, courts will normally impose a sentence of imprisonment without the option of a fine where the driver has been reckless or grossly negligent or was under the influence of liquor or drugs. See <strong><em>S v Lusenge</em></strong><strong><em> C AD-138-81. </em></strong>A custodial sentence is appropriate in this case because there is clearly a need for the police to be respected at all times. In passing sentence this court takes cognisance of the tendency of Commuter Omnibus drivers to try and avoid the police and the common practice of speeding and of reckless manner of driving by such drivers. This cannot be ignored. His behaviour clearly put the lives of many at risk.</p> <p>Culpable homicide arising from a road traffic accident is also referenced to the Road Traffic Act when it comes to sentencing in that prohibition from driving may also be included in addition to any other penalty imposed. See s 64 of Road Traffic [<em>Chapter 13:11</em>] <em>S </em>v<em> Goto </em>and <em>S </em>v <em>Sibanda HB-88-15.</em> The accused was a first offender. Negligent driving which involves a Commuter Omnibus would generally attract the additional penalty of prohibition from driving unless there are special circumstances. Whilst the accused clearly drove highly negligently if not bordering on recklessness in passing through an area where he knew they were police at high speed and failing to keep a proper lookout, there was an element of contributory negligence on the part of the police. Besides being an unmarked road block, the practice by the police of suddenly springing onto the road is clearly undesirable and dangerous not only to the police themselves but to members of the public who may be travelling in the vehicle they will be attempting to stop. In the courts view, these were the special circumstances in this matter which permit the court to refrain in this instance from prohibiting him from driving. Whilst cancellation of the licence and prohibition from driving will not be passed in this instance, the case calls for a custodial sentence in that by increasing speed in an area where they were police officers in order to avoid being stopped, the accused  then failed to keep a proper look out. As a result, there was a needless loss of life.</p> <p>            Accordingly the following sentence is imposed:</p> <p>30 months imprisonment of which 18 months is suspended for five years on condition the accused does not during that time commit an offence involving negligence to which he is sentenced to a term of imprisonment without the option of fine. Effective sentence: 12 months.</p> <p><em>National Prosecuting Authority, </em>State’s legal practitioners<br /> <em>Mugiya &amp; Macharaga Law Chambers, </em>accused’s legal practitioners</p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="Microsoft Office document icon" title="application/msword" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/116/2018-zwhhc-116.doc" type="application/msword; length=73216">2018-zwhhc-116.doc</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/116/2018-zwhhc-116.pdf" type="application/pdf; length=181211">2018-zwhhc-116.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/culpable-homicide">Culpable homicide</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/murder">Murder</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/motoring-offence">Motoring offence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/road-traffic-act-chapter1311">Road Traffic Act [Chapter13:11]</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/negligence">Negligence</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/motoring-case">Motoring case</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/masvingo-high-court/2017/3">S v Chitepo (HMA 03-17 CRB MSVP 2168/16) [2017] ZWMSVH 03 (03 February 2017);</a></div></div></div><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/1976/48">Road Traffic Act [Chapter 13:11]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/23">Criminal Law (Codification and Reform) Act [Chapter 9:23]</a></div></div></div> Tue, 15 May 2018 13:11:15 +0000 admin 8795 at https://old.zimlii.org