State v Tsindi Tatenda

### Preamble
1
HB 62/21
HCAR 287/21
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STATE

Versus

TSINDI TATENDA

HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 22 MARCH 2021 AND 1 APRIL 2021

Criminal Review

MAKONESE J:	In terms of section 52 (4) (c) of the Road Traffic Act (Chapter) 13:11 where a person is convicted of an offence involving the driving of a commuter omnibus or a heavy vehicle, the court shall prohibit the person from driving a vehicle for a mandatory period of not less than 2 years, unless there are special circumstances.  An International Truck is a heavy vehicle.  That fact should ordinarily be disclosed in the charge sheet and state outline.  The sentencing court should in all traffic violations be  careful to establish and ascertain the class of motor vehicle involved in the matter at hand, in order to impose an appropriate sentence.

This matter has been referred for the review by the Scrutinising Regional Magistrate at Beitbridge. On the 3rd of November 2020 the accused appeared before a magistrate facing a charge under section 52 (2) of the Road Traffic Act for negligent driving.  The accused pleaded guilty and was convicted on his own plea.  Nothing turns on the conviction.  It is the sentence that was queried by the Regional Magistrate.  The trial Magistrate ordered the accused to pay a fine of RTGS $4 000, in default of payment, 3 months imprisonment.  In addition 2 months was wholly suspended on condition accused restitutes the complainant the sum of USD 100 at the prevailing inter-bank rate of exchange by 20th November 2020.

The trial Magistrate conceded that she failed to take into consideration that the international truck was classified as a heavy vehicle.  She ultimately failed to canvas special circumstances as required by the penal provisions under section 52 (4) (c).  This omission must have arisen because whilst the charge sheet specifically makes reference to the International Truck, the outline of the state case does not make mention of the truck being a heavy vehicle.  In the event, the issue of the existence or otherwise of special circumstances was never canvassed.  This court is not in a position to make a finding on special circumstances on review.  The matter must be remitted back to the trial Magistrate for an enquiry into special circumstances.

The second issue raised in this review is that the trial Magistrate ordered restitution in favour of the complainant.  The trial Magistrate has indicated that she intended to order compensation to the complainant for damages suffered in the accident.  The  magistrate that she unconsciously ordered restitution. Compensation could only be awarded following an application by the state.

In sentencing accused persons, the court should always apply its mind to the penal provisions of a statute.  This can only be achieved effectively if the sentencing Magistrate refers to the provisions of the Act before imposing the sentence. By averring that she “unconsciously” ordered restitution instead of compensation, the trial magistrate is in effect indicating that she did not apply her mind.

The scrutinizing Regional Magistrate has requested this court to correct the sentence. This can only be done by a remittal of the matter to the court a quo. In the result and accordingly the following order is made:

The conviction is confirmed.

The sentence is hereby set aside.

The matter is remitted to the trial magistrate who shall:

Recall the accused and enquire into the issue of special circumstances and re-sentence the accused in terms of the law.

Consider the issue of compensation in terms of the law.

Makonese J………………………………………….

Kabasa J ……………………………………….. I agree