Wilson Nhamo v The State

### Preamble
1
HH 629-18
CA 399/16
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WILSON NHAMO

versus

THE STATE

HIGH COURT OF ZIMBABWE

HUNGWE & MUSHORE JJ

HARARE, 17 October 2017 & 25 September 2018

Criminal Appeal

S Chabuka, for the appellant

Ms S Fero, for the respondent

HUNGWE J	At the hearing of this appeal we made the following order after reviewing the record of proceedings in terms of s 26 of the High Court Act, [Chapter 7:06].

“The conviction be and is hereby quashed and the sentence set aside. The record is remitted to the court a quo for a trial de novo before a different magistrate.”

The reasons for the above order are as follows.

The appellant, who was unrepresented at his trial, pleaded guilty to one count of negligent driving in contravention of section 52(2) of the Road Traffic Act [Chapter 13:11]. He was sentenced to 36 months imprisonment of which 12 months was suspended on condition of future good behaviour. He was prohibited from driving all classes of motor vehicles for two years. His driver’s licence was to be endorsed with the particulars of the conviction. Dissatisfied with both the conviction and sentence he appealed to this court.

The first ground of appeal was that the essential elements of the charge were not met. The other two grounds of appeal speak to the dissatisfaction with the manner in which the essential elements were put to the appellant in terms of section 271 (2) (b) of the Criminal Procedure and Evidence Act, [Chapter 9:07]. In my view it is not necessary to recite these grounds here as the appeal requires a determination as to whether the procedure adopted in convicting him was proper. Section 271 (2) (b) of the Criminal Procedure and Evidence Act provides for a summary trial procedure where an accused pleads guilty to the offence charged. Because of the summary nature of the procedure, the court is enjoined to carefully satisfy itself not only that the plea of guilty is an informed admission of guilt but also that the admission of guilt is unequivocally, advisedly and genuinely made.  The way to do this when such legal concepts as negligence are involved would be to frame a set of simple questions whose answers would, in themselves demonstrate that the plea is not only a genuine admission of guilt but also an unqualified plea to the charge.

As can be seen from the record, the particulars of the offence were set out in the State Outline but these were not put to the appellant. It was essential to find out whether, among other things, the appellant drove his motor vehicle without due care and attention or at an excessive speed. It was important to find out whether the appellant had seen the complainant before the accident. It was imperative to ask whether he did not see people standing or moving about in the vicinity of the road in front of him. If these events were happening in the vicinity, he would have been alerted to the potential danger of driving through people crossing the road or milling around the road. He was not asked whether he was switching in-and-out of his lane. It was important to establish in this case whether the complainant suddenly emerged from the front the side of the road and dart into the path of the appellant's moving vehicle. All that happened it seems from the meagre facts in the State Outline was that the complainant was serenely walking across the road when she was hit by the appellant's moving vehicle.

Where there are several irregularities or defects in the proceedings in the trial court, an appeal court must ask itself whether these irregularities were so gross as to amount to a failure of justice. If the court cannot be satisfied that the appellant was not prejudiced in his defence by the irregularities or defects, it will set aside the conviction. This court can, in the exercise of its review powers, attend to addressing the procedural irregularities by making an appropriate order. See S v Matimba 1989 (3) ZLR 173.

The record reflects only the following questions:

Q:	What speed were you traveling in?

A:	20 - 30km

Q:	Were there any commotion in the road?

A:	No.

Q:	Admit on driving you failed to keep a proper look out resulting in you hitting 		the complainant?

A:	Yes.

Q:	Any right?

A:	No

Q:	Any defence to offer?

A:	No.

As I pointed out, negligence is such a legal concept that an ordinary driver would hardly understand whether or not he had a defence to a charge under s 52 (2) of the Act unless the questions asked are couched in such a way that the appellant would know whether or not he has a defence. The trial magistrate should have put the essential elements of the offence to the appellant. She did not. The particulars of the offence were unknown to the appellant. She had before her a State Outline, which was lacking in detail and in essential facts. In these circumstances, I am of the view that there was a failure of justice as the plea cannot be said to have been informed in all the circumstances of this case.

When the notice and grounds of appeal were referred to the trial magistrate for her comments, her response was that “all the essential elements were canvassed and are admitted to the particulars that constitute the offence”. The trial magistrate also defended the sentence she imposed which is clearly incompetent, if, as she says, she considered that the appellant was driving a private motor vehicle. Even if the appellant was driving a commuter omnibus it is clear from the penalty provisions in s 52(2) (b) (i) that the sentence imposed was incompetent. The learned trial magistrate claims in her response that she sentenced the appellant in terms of s 53(2) (b) of the Road Traffic Act. This is impermissible and highly irregular. The court was bound at law to consider the sentence for the offence of which it had convicted the appellant, not some different offence. As such the sentence imposed is incompetent.

It was for these reasons that we found that the proceedings were not in accordance with real and substantial justice. We therefore ordered that the conviction be quashed; the sentence be set aside and a trial de novo be instituted.

MUSHORE J agrees…………………………………

Mapaya & Associates, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners