Neverson Siyapeya v The State

### Preamble
1
HB 196/20
HCB 257/20
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NEVERSON SIYAPEYA

And

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 8& 24 SEPTEMBER 2020

Bail Pending Appeal

T. Runganga for the applicant

K. Jaravaza for the respondent

MAKONESE J:	On the 23rd January 2020 the applicant was driving a Honda Fit motor vehicle bearing registration number AEB 2285 along Herbert Chitepo Street, in the Central Business District, Bulawayo.  The applicant collided with a stationary vehicle which was dropping off passengers near “Pick ’N’ Pay” supermarket.  The applicant did not stop his motor vehicle and fled the scene at high speed, turning right into 11th Avenue.  He struck and injured 3 pedestrians who were crossing the road.  Applicant drove his motor vehicle with one of the injured pedestrians clinging to the windscreen for about 80-100 metres before he was dislodged from the vehicle as applicant increased speed.  Applicant did not stop following the second incident.  He proceeded driving along 11th Avenue at high speed and turned into Fort Street.  Applicant lost control of the vehicle and struck a pedestrian who died on the spot from injuries suffered during the accident.

The applicant who was legally represented at trial appeared before a magistrate sitting at Bulawayo facing 5 counts of contravening provisions of the Road Traffic Act (Chapter 13:11).  In count one applicant was charged with driving without due care and attention in violation of section 51 (1) of the Act.  In count two applicant was charged with negligent driving in contravention of section 52 (2).  In count three applicant was charged with culpable homicide in violation of section 49 (1) of the Criminal Law (Codification and Reform) Act (Chapter 9:23).  In count four applicant was charged with failure to stop after an accident as defined in section 70 (2) (1) of the Road Traffic Act.  In the fifth count applicant was charged with driving without a licence in contravention of section 6(1) of the Road Traffic Act.

Applicant pleaded guilty in respect of all counts and was sentenced as follows:

Count one	-	Z$1 200/3months imprisonment

Count two	-	6 months of which 3 months was suspended leaving an effective 3 months imprisonment

Count three	-	5 years imprisonment of which 1 year was suspended leaving a total of 2 years effective

Count four	-	Z$800/60 days imprisonment

Count five	-	Z$1 500/3months imprisonment

Applicant has noted an appeal against sentence to this court indicating his dissatisfaction with the custodial sentence of 27 months imprisonment.  In his grounds of appeal, the applicant avers that it is disheartening to note that the learned magistrate in the court a quo disregarded all the basic principles of sentencing in imposing a custodial sentence which induces a sense of shock.  In broad terms the applicant’s grounds of appeal are:

There was gross irregularity in failing to consider the option of community service

The sentence imposed is not in accordance with real and substantial justice

The learned magistrate erred and misdirected himself by sentencing a first offender to a term of imprisonment

The learned magistrate paid lip service to the plea of guilty as a mitigating factor

In hisresponse to the grounds of appeal, the trial magistrate had this to say:

“I stand by me reasons for sentence. Applicant had a high level of negligence which clearly is reckless driving leading to loss of life.

The act by the accused was on a built up area that has traffic at any given time.

Appellant in mitigation stated that he offered to pay a cow as compensation not that he actually compensated.

This is a case that warranted a custodial term of imprisonment.”

The applicant placed reliance on the case of Duduzile Tracy Manhenga vs The State HH-62-15  The applicant averred that the facts of the present matter are similar to the case of Duduzile Manhenga v The State (supra).

A perusal of the cited case shows that the facts of that case are not similar and clearly distinguishable from this case.  The applicant’s legal practitioner goes on to quote a sentence from the judgment of BERE J (as he then was), in the following terms:

“I feel that a monetary penalty coupled with a suspended sentence would meet the justice of the case….”

I must warn that legal practitioners who cite cases and refer to specific paragraphs in the judgment that they must not do so with an intention to mislead the court.  The particular quotation from the judgment was deliberately taken out of context.  The facts giving rise to the charge in the case referred to are totally different from the facts of this case.  In that case the appellant was driving a motor vehicle along Sherwood Drive in Harare when she was involved in a road traffic accident that took the life of a motor cyclist who was cycling in the opposite direction.  An attempt to save the deceased was futile as he succumbed to injuries sustained in the accident upon admission to hospital. The appellant having offered unequivocal pleas of guilty to the offence of driving without a licence and culpable homicide, was subsequently found guilty as charged on both counts.  In respect of the first appellant was sentenced to pay a fine of US$300 or in default of payment 3 months imprisonment.  In respect of the second count of culpable homicide, the appellantwas sentenced to 24 months imprisonment of which 6 months were suspended for five years on the usual conditions of future good conduct.  The appellant felt aggrieved and sought the intervention of this court.  The court took the following position as regards the appeal against at page 2 of the cyclostyled judgment;

“It is not in dispute that a specific finding on the degree of negligence will inform the sentence to be imposed by the trial court, and generally speaking a finding on gross negligence or reckless driving called for a term of imprisonment unless there are compelling mitigating factors.  See State v Mtizwa 1984 (1) ZLR 280 and S v Dzvetu 1984 (1) ZLR 136” (underlining for emphasis)

The particulars of negligence are set out in the charge sheet.  It is clear that in count one the applicant hit a stationary motor vehicle and fled the scene.  He did not stop as required by the law.  In the second count applicant turned into Herbert Chitepo Street and went on to hit three pedestrians who were crossing the road.  Two of the pedestrians fell onto the tarmac whilst one of them was left precariously hanging on the windscreen as applicant drove for about 80-100 metres, before he was thrown off the vehicle.  Applicant did not stop to render assistance but drove on ahead, changing course and driving into Fort Street.  The applicant again fled the scene.  The pedestrians sustained serious injuries.  Applicant proceeded along Fort Street due south and went on to hit another person who was standing beside his vehicle.  The person died on the spot from injuries suffered in the traffic accident.  After this third incident applicant fled the scene.  Applicant was subsequently arrested and was found not to be a holder of a valid drivers’ licence.

If one looks at the cumulative effect of the applicant’s conduct on the morning in question, there can be little doubt that his conduct was reckless.  His moral blameworthiness was high.

If the applicant had committed a single incident in the nature of a hit and run accident, a non-custodial sentence may have been appropriate.  The fact that applicant did not stop after each incident shows a total disregard for the safety of other road uses, especially the pedestrians who were struck obviously unaware of the erratic behaviour of the applicant.  The applicant did not even stop even when he observed that one of the pedestrians who had been struck was hanging on the windscreen.  Applicant simply turned his motor vehicle and flung him off his vehicle and continued to drive at high speed.

In assessing the conduct of the applicant it is noteworthy that in mitigation, the applicant did not allege any stress on his part that may have led him to act so irrationally during the entire episode of these hit and run incidents.  In S v MurimbaHH-19-04, the court held that in an application for bail pending appeal the onus is on the applicant to show that he should be admitted to bail.  The considerations are:

The likelihood of his absconding; and

The prospects of success on appeal.

From a perusal of the record it is clear that on the day on question, the applicant was reckless and negligent.  The degree of negligence is not ordinary negligence as shown by the sequence of events.

It is my view that this was a serious case of negligence where human life was needlessly lost due to the negligent conduct of the applicant.    A custodial sentence was inevitable and appropriate having regard to all the circumstances of the case.  A non-custodial sentence would be wholly inappropriate in all the circumstances.  It was fortuitous that a single life was lost on this fateful day as applicant drove recklessly in a built up area full of pedestrians and vehicular traffic.

I find that there are not reasonable prospects of success on appeal against sentence.

Accordingly, the application is hereby dismissed.

Tanaka Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners