The State v Alfred Dube

### Preamble
1
HB 231/22
HCAR 644/22
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THE STATE

Versus

ALFRED DUBE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 31 AUGUST 2022

Review Judgment

TAKUVA J:	This matter was referred to the Registrar of this court by the learned scrutinising Regional Magistrate at Hwange.  The Regional Magistrate’s query is that the trial court failed to comply with section 52 (4) (c) of the Road Traffic Act Chapter 13:11 (the Act) which provides that “(c) in the case of an offence involving the driving of a commuter omnibus or a heavy vehicle, shall prohibit the person from driving for a period of not less than two years.

Provided that the court may decline to prohibit the person from driving in terms of (b) or (c) if it;

“(a)	considers that there are special circumstances which justify the court in so declining;

endorse the special circumstances referred to in paragraph (a) on record of case when passing sentence;”

The brief facts are that the accused was arraigned before a magistrate sitting at Hwange Magistrates Court facing a charge of negligent driving as defined in section 52 (2) of the Act.  The charge specifically refers to accused being the driver of a “public service” motor vehicle namely a DAF XF truck registration number AEZ 2473 towing a trailer registration number AEZ 4470, negligently drove the said vehicle resulting in the accused hitting a cyclist causing him to fall and sustain a right leg fracture.

The accused pleaded guilty and was convicted.  Nothing turns on the conviction.  After considering mitigation the trial court sentenced him to pay a fine of $15 000,00 in default of payment of 4 months imprisonment.    In addition 2 months imprisonment is wholly suspended for 5 years on condition of good behavior.  Upon scrutinizing the proceedings the Regional Magistrate raised a query with the trial court.  The trial court submitted its response and the Regional magistrate referred the matter to this court with the following comments;

“…  The record of proceedings does not shade light why the DAF XF truck is said to be a public service vehicle.

In terms of section 2 of the Road Traffic Act, a public service vehicle means a motor vehicle in respect of whose motor operations, an operator’s licence is required in terms of the Road Motor Transportation Act Chapter 13:15.

The DAF XF truck was possibly a heavy truck as defined in section 2 of the Rod Traffic Act which states as follows:

“heavy vehicle means a motor vehicle exceeding two  thousand three hundred kilograms net mass but does not include a passenger motor vehicle having sitting accommodation for less than eight passengers.”

The State was however silent regarding the net mass of the truck.  This was crucial information to inform the magistrate whether or not to invoke the provisions of section 52 (4) (c) of the Road Traffic Act … In casu the trial magistrate sentenced the accused as if the accused was driving an ordinary private motor vehicle and in such a scenario the court can exercise its discretion whether to prohibit from driving and or to cancel the driver’s licence or not.  I raised a query on the basis that the car involved in this case is a DAF XF truck, possibly a heavy truck.

In her response to the query that I had raised why she did not invoke section 52 (4), she seemed not to have been aware of section 52 (4) (c) of the Road Traffic Act.  It is against this background that I could not certify the proceedings as it is not clear whether the DAF XF truck is a heavy vehicle or not …  I therefore refer this record for review for corrective action and if possible, guidance.”

The trial court conceded its error in the following words:

“The court did not probe the State as to why the vehicle in question was being referred to as a public service motor vehicle.  At this point the trial magistrate appreciated that it would have been prudent to ask State Counsel why the vehicle was being referred to as a public service motor vehicle.

The trial magistrate read section 52 (4) (a) in isolation of (c) of the Road Traffic Act and thought that it was not mandatory to prohibit the accused from driving because of the use of the word may.  However, after going through the minute and the Road Traffic Act again the magistrate appreciates that part c makes it mandatory to prohibit the accused from driving and as such the court made an error of not invoking the relevant section in sentencing the accused.”  (my emphasis)

A court trying offences arising from the Road Traffic Act must carefully consider the technical nature of these offences especially its penalty provisions.  Ignorance of the Act’s provisions relating to when it is mandatory to prohibit an offender from driving, when it is mandatory to cancel a licence and the essential elements of the crimes therein spells danger for the uninformed court.

In casu right from the out-set the trial magistrate failed to appreciate the significance of the terminology used in the Act.  In my view, the least the trial magistrate could have done in the circumstances would have been to draw the State’s attention to the definition of a “heavy vehicle” in section 2 of the Act so that it could address the court as regards the net mass of the truck in order to assist the court on the assessment of an appropriate sentencing regime to adopt.

If the court had been informed that the description of the truck as a heavy vehicle in the charge was significant to the nature of the sentence the court would not have sentenced the accused blindly.  The terms “heavy vehicle” , “commuter omnibus” and “public service vehicles” are critical when it comes to sentencing offenders under the Act – see S v Chivharanga Paddington Tongi HMT 54/19 where MWAERA J (as she then was) made the following remarks.

“it is important to take note of the distinction made in the Road Traffic Act for negligent driving of a commuter omnibus or heavy vehicle 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 time offender and a repeat offender.  In respect of a commuter omnibus or a heavy vehicle, the Act provides for mandatory prohibitions of at least two years.”

It should be noted that section 52 of the Act does not make reference to a public service vehicle, instead it refers to a commuter omnibus and a heavy vehicle as motor vehicles that are subject to the operation of section 52 (4) (c).  In that regard the mere reference to a motor vehicle in a charge namely that it is a public service vehicle standing on its own, is neither here nor there for purposes of sentence.  What is crucial is making reference to a motor vehicle as an ordinary private vehicle, an omnibus or a heavy vehicle.

In casu the court a quo’s failure to comply with the provisions of section 52 (4) (c) in its assessment of an appropriate penalty is a gross irregularity.  Clearly the sentence is incompetent and should not stand.

Accordingly, it is ordered that:

The conviction be and is hereby confirmed.

The sentence be and is hereby set aside.

The matter be and is hereby remitted to the same magistrate for re-sentencing using the proper legal provisions.

The accused must be refunded the fine in the amount of RTGS$15 000,00.

Takuva J ……………………………

Moyo J …………………………… I agree