1

HH 831-15

CRB 1167/2015

THE STATE                                                              

versus

MAHOKO WANKIE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 21 October 2015

Criminal Review

MAFUSIRE J: This case was referred for review by the regional magistrate, upon scrutiny, in terms of s 58 (3) of the Magistrate’s Court Act, [Chapter 7:10]. The issue was whether, in a conviction for culpable homicide, the trial magistrate had misdirected himself,not only in sentencing the accused to a mere fine instead of a custodial term, but also in passing an order of prohibition from driving without first making an enquiry into special circumstances as required by the Road Traffic Act, [Chapter 13: 11] (“RTA”).

The facts were these. The accused was a commuter omnibus driver. Whilst driving along the Harare-Hwedza Road his vehicle struck a seven year old girl at the 51 kilometre peg as she tried to cross the road. The girl sustained serious head injuries. She died in hospital four days later. The accused pleaded guilty to culpable homicide as defined by s 49 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], (“the Criminal Code” or “Code”). The section reads:

“49      Culpable homicide

Any person who causes the death of another person-

1. negligently failing to realise that death may result from his or her conduct; or
2. realising that death may result from his or her conduct and negligently failing to guard against that possibility;

shall be guilty of culpable homicide and liable to imprisonment for life or any shorter period or a fine up to or exceeding level fourteen or both.”

I have highlighted “negligently” because that, undoubtedly, is the bedrock of the charge.

The particulars of negligence were listed as follows:

• travelling at a speed which was excessive under the circumstances;
• failing to stop or act reasonably when an accident seemed imminent;
• failing to keep a proper lookout under the circumstances;
• failing to sound a horn;
• failing to exercise the high degree of care called for from a driver who sees children in the road in front of him.

The trial magistrate canvassed the essential elements by repeating the particulars of negligence. The accused admitted them all. The magistrate then pronounced that he had found the accused guilty of “gross” negligence.  He sentenced him to a fine of $200, or in default, three months’ imprisonment. In addition he prohibited him from driving for six months.

On scrutiny, the regional magistrate raised the following query:

“3.       It is my view that the sentence is too lenient if the degree of negligence was gross. The trial magistrate was supposed to have acted in terms of section 53 of Road Traffic Act. The state preferred five particulars of negligence which were all admitted by accused, therefore it was a typical case of gross negligence. In the light of the review judgment by Cheda J in S v Muchairi HB41/06, a custodial sentence would have been appropriate.

4.         Furthermore the trial magistrate prohibited accused from driving without making an inquiry into special circumstances. In my view he erred.”

Section 53 of the RTA, referred to by the regional magistrate, provides a penalty of, inter alia, imprisonment for between two to fifteen years for, inter alia, a commuter omnibus driver found guilty of reckless driving. In addition, his licence shall be cancelled, and he himself prohibited from driving a commuter omnibus during his life time, unless there are special circumstances. The sanction is heavier for a repeat offender.

The central issue in this review case has been dealt with by the courts before. A common thread running through cases such as S v Dzvatu[1]; S v Mtizwa[2]; S v Chaita & Ors[3]; S v Mapeka& Anor[4] and S v Muchairi[5] is that in a charge of culpable homicide, it is necessary for the trial court to make a precise finding on the degree of negligence. In Mapeka, CHINHENGO J, quoting himself in Chaita[6], said[7]:

“It will be apparent that while negligence is the basis of a conviction of the accused for culpable homicide, that does not necessarily mean that the accused’s conduct amounted to one of the more serious examples of driving conduct such as reckless driving … nor does it mean that it was not a less serious form of conduct. Negligence, for the purposes of a conviction for culpable homicide, is the minimum level of conduct that is required to establish the offence. It has however, various gradations which not only should be established at the plea stage or by evidence during trial but should also be established for the purposes of sentence.”

In terms of s 49 of the Criminal Code, if death is caused “negligently” that by itself amounts to culpable homicide. As CHINHENGO J observed in Chaita and Mapeka, negligence is the minimum standard required to establish the offence. But even in a plea case, the degree of negligence must be established. It is necessary that the accused be made conscious of what he may be pleading guilty to. In the present case, it was only when pronouncing the verdict, albeit after repeating the particulars of negligence as the essential elements of the crime, that the trial magistrate mentioned gross negligence for the first time. Thus, there is no telling whether or not the accused, in admitting those particulars of negligence, was conscious of the fact that they amounted to, or would be construed to mean, gross negligence, and not just ordinary negligence as envisaged by s 52 (2) (a) of the RTA.

The greater reason why the specific degree of negligence must be established in a charge of culpable homicide is for the purposes of sentence. The more severe form of negligence there is the greater the penalty must be.

In Dzvatu the accused, whilst driving a military truck late at night, came out of a side road and ignored a “Give Way” sign. His vehicle hit a police vehicle which was travelling along the main road. Two policemen in the police vehicle died. The accused was found guilty of culpable homicide and fined $250. On review the sentence was criticised. McNALLY J, as he then was, said[8];

“To my mind, anyone who drives straight through a “Give Way” sign at a T-junction and hits a lighted vehicle travelling in the main road, killing two people, is prima facie grossly negligent. When it also seems that that person is to an unspecified degree under the influence of alcohol, then that belief is confirmed. In view of the current increase in the number of tragedies on our roads, such conduct warrants a prison sentence. In principle that has always been the position – see S v Lusenge AD 138/81. …… I referred this matter to the Attorney-General and he agrees that a prison sentence and a prohibition from driving would have been appropriate.”

In S v Mtizwa the accused pleaded guilty to culpable homicide. He had driven onto his wrong side of the road. He struck and killed a motor cyclist. He could not explain why he had been on the incorrect side of the road, or why he had not seen the motor cyclist at any time before the accident. He faced another charge, apart from culpable homicide. But for the latter, he was fined $200. On review the sentence was criticised for being disturbingly lenient. It was said an appropriate sentence would have been one of imprisonment and a prohibition from driving. The review judge, REYNOLDS J, said in assessing the appropriate sentence in culpable homicide cases, it is essential to determine the degree of negligence involved. He said normally, it is where recklessness or gross negligence is shown that a prison sentence should be appropriate. The learned judge also said that a court should not believe that it cannot enter a finding of gross negligence because there may be nothing to show that the driver was guilty of some form of wilful or wanton disregard of the rights of others. The court must make a value judgment.

Chaita was three cases of culpable homicide under one review judgment. In the first case, the accused had been driving a fully loaded bus. Suddenly faced with an emergency in the form of two bovines yoked together in the middle of the road, the accused’s reaction led to the bus plunging into the river. Two passengers died. The accused admitted the particulars of negligence. They comprised excessive speed, failure to keep a proper look-out and failure to stop or act reasonably when an accident seemed imminent. He was found guilty of two counts of culpable homicide and sentenced to a fine of $1 600.

In the second case, the accused had been driving an overloaded bus. A mere mechanic, he was neither employed as a bus driver nor even licensed to drive. He claimed he had been forced by his employer to drive the bus. His manner of driving was reckless right from the onset. To begin with, passengers had to endure three hours of waiting before he finally took-off. He failed to negotiate a round-about on his way out of the terminus. Along the way, he was failing to negotiate curves properly. He would sometimes engage the wrong gear, like reverse, instead of forward. He drove at an excessive. The bus would dangerously swerve from side to side. He ignored a plea to abandon the trip. The accident happened when he failed to negotiate a certain curve before a certain bridge. The bus plunged into the river bed. Four passengers died. The accused pleaded guilty to four counts of culpable homicide and of driving without a licence. On culpable homicide, the trial court ignored all the evidence of recklessness and accepted the accused’s plea of brake failure. He was sentenced to a fine of $1 500 or six months’ imprisonment. In addition, he was prohibited from driving any class of motor vehicles for six months.

 In the last case, the accused had been driving an unroadworthy truck that was loaded with livestock. To his knowledge the brakes did not work. From a distance of about 200 metres he observed some children playing by the left side of the road. He knocked down and killed one of them as it tried to cross the road. He had not blown his horn or slowed down his vehicle. The vehicle only came to a stop some two kilometres away from the scene of the accident. He pleaded guilty to culpable homicide. He was sentenced to a fine of $1 500 or four months’ imprisonment. Finding no special circumstances, the accused was prohibited from driving for 6 months.

In all three cases the learned judge criticised the trial magistrates’ incorrect approach to sentencing. Among other things, the respective degrees of negligence had not been directly established.The judge said if they had been established, the convictions for culpable homicide would no doubt have been predicated on gross negligence or recklessness. In the first two cases involving buses, the learned judge felt that custodial terms of imprisonment would have been more appropriate. Accordingly, he declined to certify the proceedings as being in accordance with real and substantial justice. The learned judge confirmed the sentence imposed in the last case.

Mapeka & Anor were two cases under one judgment. In the first case, the accused drove a commuter omnibus at an excessive speed. Just before the accident happened, he had ignored a warning by some passengers to reduce speed. The omnibus’ rear tyre burst. The accused lost control. The omnibus overturned and rolled over several times. Four passengers died. The accused pleaded guilty to four counts of culpable homicide. He was sentenced to twenty months’ imprisonment of which sixmonths were conditionally suspended. In addition, he was prohibited from driving all classes of vehicles for twelve months. Furthermore, his driver’s licence was cancelled.

In the second case, the accused, whilst driving a bus loaded with some passengers, encroached onto his incorrect side of the road. His speed was excessive. He collided with an on-coming vehicle. Four people died from the accident. He pleaded guilty to four counts of culpable homicide. On each count, he was sentenced to a fine of $2 000. In addition, he was prohibited from driving all classes of motor vehicles for six months.

In neither case did the trial magistrates establish the respective degrees of negligence. In respect of the first case, the review judge said without first establishing the degree of negligence, the term of imprisonment imposed by the trial magistrate was without a proper basis. The trial magistrate ought to have established gross negligence as a minimum requirement for imposing a sentence of imprisonment.

In the second case, the learned judge said not only did the trial magistrate fail to establish the accused’s degree of negligence, but also that he imposed a wholly inappropriate sentence. Noting that the sentences imposed in both cases were unduly lenient, the learned judge declined to certify the proceedings as being in accordance with real and substantial justice.

The above cases should remind trial courts of the duty cast upon them in cases of culpable homicide arising out of motoring offences. No sentence can be passed without regard being had to those offences listed in the RTA. In the present case, the trial magistrate noted that the accused had been grossly negligent. He came to this conclusion obviously on the basis of the particulars of negligence that formed part of the State case. In fact, there were other salient facts.The trial magistrate may, or may not have considered them. They were in the exhibits tendered in evidence by the State,with the accused’s consent. They included the police traffic accident book (“TAB”), which incorporated the sketch diagram of the scene of the accident, and the inspection report on the commuter omnibus by the vehicle inspection department (“VID”).

Of significance in the TAB,was the investigating officer’s opinion on the possible cause of the accident. The opinion was based on his observations at the scene of the accident and his further investigations, including indications by the accused. He wrote:

“Having seen kids on the side of the road the [accused] should have approached with a lot of caution. [Accused] failed to exercise caution hence should shoulder the blame.”

It is not clear from the rest of the record whether or not the deceased child had been alone before she was struck, or had been in the company of others. But from the investigating officer’s statement, it seems shehad been in the company of others. Furthermore, one of the particulars of negligence, which the accused admitted, related to the accused’s failure to exercise a high degree of care “… called for from a driver who sees children in the road in front of him.” If that was the case, and it must be accepted that it was, then not only should that have increased the accused chances of detecting the children by the side of the road well in time, but also that he should have taken greater precaution. Young children by the side of the road call for greater caution from motorists. Theyare sometimes unpredictable. They can suddenly dart into the road without warning. A reasonable motorist ought to be aware of that, and ought to be sufficiently alert to be able to prevent himself from running them over.Among other things, he should be prepared to bring his vehicle to an immediate stop, or to swerve his vehicle away from the children, or to take some other avoiding action, depending on the circumstances. Failure to do so is prima facie negligence.

Although none of the documents in the record mention the weather conditions or the state of visibility, it was common cause that the accident occurred just 45 minutes after mid-day in the month of May. From the sketch diagram, the accident happened on a straight stretch of the road. The accused should have seen the deceased child some 60,15 metres before impact. However, he only saw the child some 11, 85 metres before impact. The length of the skid marks was 12,9 metres, suggesting that the accused braked at just about the same time that he saw the child. He was evidently not keeping a proper look-out or plainly being inattentive.

On impact,the child was flung some six metres away, back to the edge of the road where she had come from. The accused only managed to stop the vehicle some 11,85 metres away from the point of impact. The VID report noted that the vehicle sustained frontal damage which comprised, among other things, a smashed and dislodged right fender, and a damaged indicator and bumper. That tends to confirm excessive speed.

In Chaita & Ors CHINHENGO J held that in every case of culpable homicide arising out of a traffic accident, the court is required by s 64 (3) of the RTA to make a finding on the degree of negligence involved. That section, in summary, and for the purpose of a conviction for culpable homicide, provides that if the court considers that the accused would have been convicted of any one of the driving offences in terms of the RTA instead of an offence at common law, and that if on such conviction the court would have been required to prohibit him from driving, and additionally, or alternatively, cancel his licence, then the court should, when sentencing him for the offence at common law, prohibit him from driving for a period not shorter than that prescribed by the Act and cancel his licence, if cancellation was appropriate in terms of the Act.

Following the codification of the criminal law,culpable homicide is, of course, nowdefined in s 49 of the Code. But that is immaterial to the requirements of s 64 (3) of the RTA.

The trial magistrate found the accused guilty of gross negligence. The scrutinising magistrate thought that the particulars of negligence, as admitted by the accused, amounted to reckless driving as contemplated by s 53 of the Road Traffic Act.

According to REYNOLDS J in Mtizwa, gross negligence and recklessness may be cognates but they do not mean the same thing. Gross negligence, according to the learned judge, is simply a very serious or aggravated form of ordinary negligence. It implies conduct in which there is a marked departure from the standards by which responsible and competent drivers habitually govern themselves. On the other hand, recklessness connotes,not only a wilful disregard for the safety and rights of other road users, but also cases of indifference or rashness or inadvertence in which consciousness of consequences plays no part. Recklessness may be shown by proof of gross negligence, but proof of gross negligence does not necessarily show recklessness.

The regional magistrate did not explain why the admitted elements of negligence should amount to recklessness, and not gross negligence, or ordinary negligence as contemplated by s 52 of the RTA, or even driving without due care and attention as contemplated by s 51 of that Act.

In my view, neither the trial magistrate nor the regional magistrate may be faulted for their views on this. Recklessness, or the other forms of negligence as set out in the RTA, are abstract concepts. As such, they necessarily defy precision in definition. In my view, a judicial officer is ultimately called upon to make a value judgment. About negligence and value judgments, I said this in Munorwei v Muza & Ors[9]:

“There are no scales by which to weigh negligence. That then calls for a value judgment. In my view, a judicial officer called upon to give a value judgment is guided by his own notions of justice and fair play. He is guided by the general norms and sense of values generally prevailing in society. He makes an objective assessment: see generally S v Chidodo & Anor[10].”

In the present case, in spite of the salient facts referred to above, I consider that the accused was merely negligent. The degree of negligence exhibited by his conduct, though inexcusable, was in no way comparable to the degrees of negligence dealt with in the cases considered above. In the last of the three cases in Chaita & Ors, a sentence of $1 500 fine, coupled with a 6 months prohibition from driving, was confirmed on review.

Since it is my view that in casu, the accused was merely negligent, and not grossly negligent, let alone reckless, the trial magistrate, on sentence, should have been guided by s 52 of the RTA. In terms of that section, a driver of a commuter omnibus found guilty of driving negligently is liable to a fine not exceeding level ten, i.e. US$700, or to imprisonment for a period not exceeding one year, or to both such fine or such imprisonment. In addition,he shall be prohibited from driving for a period of not less than two years, unless there are special circumstances.

The trial magistrate’s misdirection was more glaring in relation to the order of prohibition from driving. He made no enquiry on special circumstances, despite imposing the prohibition. Furthermore, having decided to impose the prohibition, the period, a mere six months, was far too short than that prescribed, namely not less than two years. Because of this serious misdirection, I decline to certify the proceedings as being in accordance with real and substantial justice. However, after a careful consideration of all the circumstances,not least the somewhat insubstantial difference in the sentence that the trial magistrate actually passed and that which he ought to have passed in terms of s 52 of the RTA, the proceedings shall not be set aside.

21 October2015

TSANGAJ: agrees      …………………………..……

[1] 1984 (1) ZLR 136 (H)

[2] 1984 (1) ZLR 230 (H)

[3] 1998 (1) ZLR 213 (H)

[4] 2001 (2) ZLR 90 (H)

[5] HB41/2006

[6] At p 219E - G

[7] At p 92C - D

[8] At p 138F - G

[9] HH804/15, at pp 7 -7 of the cyclostyled judgment

[10] 1988 (1) ZLR 299 (H)