The State v Edmore Ndlovu

### Preamble
1
HB 228/20
HCAR 1679/20
---------


THE STATE

Versus

EDMORE NDLOVU

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 22 OCTOBER 2020

Criminal Review

MAKONESE J:	This criminal review raises the question of the competency of treating the offences of negligent driving and driving without a drivers’ licence as one for the purposes of sentence.

The accused was arraigned before a magistrate facing one count of driving a motor vehicle negligently in contravention of section 52 (2) (a) of the Road Traffic Act (Chapter 13:11) and a second count of driving a motor vehicle without a valid licence in violation of section 6 (1) (a) of the same Act.  The accused was convicted on his own plea of guilty and sentenced to 12 months imprisonment of which 6 months imprisonment was suspended for 3 years on condition accused was not within that period convicted of an offence involving the driving a motor vehicle without a valid drivers’ licence.

The scrutinizing Regional Magistrate raised a query regarding the competency of the sentence.  Firstly, the issue was raised why the two offences were treated as one for purposes of sentence.  Secondly, the issue was raised how competent it was to suspend the sentence in respect of both counts, whose essential elements are totally different, regardless of the fact that they arise from the same incident.  The third aspect is that the trial magistrate failed to endorse his name, designation and the date of proceedings.  It is important for magistrates to ensure that the record is complete by endorsing all the details that will show the designation of the magistrate and the date of the proceedings.  Such information is in fact merely completed by inserting the name of the trial magistrate in a space provided on the charge sheet.  This procedural requirement does not involve an onerous task on the trial magistrate. The same goes for the date of the proceedings.  The date must be clearly written and shown. Where an appeal is noted the date becomes an extremely important detail.  Trial magistrates must not take for granted all details they are ordinarily required to provide on the charge sheet.

I now turn to deal with the substantive matters raised in this review.

Factual background

On 31st January 2020, around 1730 hours the accused was driving a Honda Fit motor vehicle, registration number AFF 5984 along an unnamed road near Nkanyiso Primary School, Tsholotsho, with two passengers on board.  Accused knew that he was not the holder of a valid drivers’ licence.  On approaching Nkanyiso Primary School gate, accused lost control of the vehicle, hit and injured a pedestrian, Lintle Sibanda, a 3 year old girl who was crossing the road.  After hitting the girl, accused’s vehicle veered off the road to the right, slamming into a gate on a house on the opposite side of the road.  The accused fled from the scene of the accident without rendering assistance.  As a result of this accident, Lintle Sibanda sustained serious injuries and was conveyed to hospital for treatment.  The accused was later arrested by the police along the Bulawayo-Tsholotsho road.

In the outline of the state case the particulars of negligence are listed as:

travelling at an excessive speed in the circumstances.

failing to stop or act reasonably when a collision seemed imminent

failing to keep a proper look out

failing to keep the vehicle under proper control.

What becomes apparent is that the essential elements on a charge of negligent driving are different from those on a charge of driving without a valid divers’ licence.  Whilst it is proper to treat two counts as one for the purposes of sentence where the charges arise out of the same facts other considerations are at play.  In his response to the query by the Regional Magistrate, the trial magistrate reasoned as follows:

“1.	The trial magistrate treated the two counts as one for sentencing purposes due to the fact that both counts were committed spontaneously from the same act.  Whilst the accused drove negligently, the accused also had no licence.

2.	Secondly, the suspension of sentence on condition that accused does not drive a motor vehicle without a licence was militated, in the opinion of the trial magistrate, by the fact that the negligence on the road may have  been largely contributed by the accused’s lack of appreciation of road rules.  This appreciation is realised when one acquired a valid drivers’ licence in terms of the law.  These are the facts peculiar to this particular case.  Had it been that the accused had a valid licence and yet drove a motor vehicle negligently a different condition suspension (sic) could have been imposed therein.

3.	As regards the omission of the endorsement of his name designation and date, the trial Magistrate admit (sic) an oversight on his part.  Such negligible errors would not be repeated in future.  Some has been rectified accordingly.  In all the issues raised herein, I stand guided nonetheless.” (underlining  for emphasis)

The reasoning of the trial magistrate is to say the least confusing and hard to follow.  The starting point though, is that in deciding whether more counts than one can be treated as one for the purpose the trial magistrate must exercise a discretion. This sentencing discretion must be judiciously exercised.  The broad general guidelines have been set out in several cases in this jurisdiction.  See John Zacharia v The State HH-17-02.  In deciding whether to pass a globular sentence a judicial officer must be guided by the following factors which are not exhaustively stated:

the offences are the same or of a similar nature; and

the offences are closely linked in time; or

the offences arise out of the same transaction.

See; State v Chayisva HH-17-04.

John Reid Rowland in Criminal Procedure in Zimbabwe, states the following at p 25-15;

“Where the accused is convicted of two or more offences, it is preferable that he should be sentenced separately for each offence especially where the offences are entirely different.  In most cases there is no practical advantage in imposing a globular sentence, where all counts are treated as one for sentence.  An exception might arise where it is decided, in dealing with a juvenile, to place him in a training institute or impose a sentence of whipping.  The imposition of a globular sentence often causes difficulties on appeal or review.  Consequently, one globular sentence for two or more offences should only be considered where the offences are the same or of a similar nature and are closely linked in time.  A common example is forgery and uttering.”

The offences in this matter arise from the same transaction.  They are closely linked in time and they relate to a contravention of the Road Traffic Act. Both counts arise from the same transaction. What should be borne in mind, however, is that the two offences have distinct essential elements.  An accused may commit the offence of negligent driving whilst being the holder of a valid drivers’ licence.  In that scenario, the sentence for negligent driving will depend on the penal provision and the circumstances of the particular case.  Negligent driving is not necessarily committed because one is not the holder of a drivers’ licence.  The offence of driving without a licence has separate and distinct essential elements.  The sentence for driving without a valid licence cannot ordinarily be treated as one for the purpose of sentence with the offence of negligent driving.  The irregularity of treating these offences as one for the purpose of sentence immediately becomes apparent when one examines the sentence imposed by the trial magistrate in the court a quo.  That sentence is in the following terms:

“… 6 months imprisonment is suspended for 3 years on condition accused does not within that period commit an offence involving driving a motor vehicle without a valid licence for which upon conviction he is imprisoned without the option of a fine.”

In the event that accused is convicted of any other offence in violation of the Road Traffic Act, such as negligent driving or driving without due care and attention, the suspended sentence becomes meaningless. The suspended sentence cannot be brought into effect. These two offences should therefore, not have been treated as one for the purpose of sentence.  The trial magistrate’s sentence seems to suggest that one can commit a crime of negligent driving in future because the accused would be in possession of a valid drivers’ licence.  The sentence seems to suggest that the accused is only being punished because he was not the holder of a valid licence, regardless of the fact that he was negligent.

For the foregoing reasons, the sentence of the court a quo suffers from irregularity.

In the circumstances I am unable to certify these proceedings as being in accordance with real and substantial justice.

I accordingly make the following order;

The conviction is herby confirmed

The matter is remitted back to the trial magistrate for re-sentencing in terms of the law.

Moyo J …………………………………….. I agree