Peter Rukara v The State

### Preamble
1
HH 382-13
CA 213/12
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PETER RUKARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

TAGU and MUREMBA JJ

HARARE, 17 October 2013

Criminal Review

F. Murisi, for the appellant

M.E. Mavuto, for the respondent

TAGU J:  Initially this matter came as an appeal. The accused was appealing against sentence in respect of count 2. However, we could not proceed to deal with it as an appeal because of the procedural irregularity that we then noted. We then dealt with it as a review in terms of s 26 of the High Court Act [Cap 7:06]. Consequently no submissions were then made by both the appellant and respondent in respect of the appeal against sentence.

The history of this matter is that the accused was convicted at Chivhu Magistrates Court on 8 March 2012 on one count of contravening s 6(1) as read with s 5 of the Road Traffic Act [Cap 13:11] and on another count of Culpable Homicide.

The brief facts are that on 15 December 2011 at around 1430 hours the accused drove a motor vehicle, a Toyota Noah registration number ACH 8478 along Chivhu-Gutu road towards Gutu with 5 passengers on board. The accused drove the said motor vehicle when he was not a holder of a driver’s licence. When he got to a straight stretch of road he lost control of the vehicle which veered off the road to the right and overturned several times before landing on its wheels.

All the five passengers were injured and rushed to Chivhu General Hospital for treatment. One passenger who was seriously injured died two hours later.

The accused is alleged to have been negligent in the manner he drove the vehicle and this is what caused the accident and the subsequent death of the passenger.

The accused pleaded guilty to the first count of driving without a driver’s licence in contravention of s 6(1)(a) as read with s 5 of the Road Traffic Act and was duly found guilty. He was sentenced to a fine $50 in default of payment 10 days imprisonment. He further pleaded guilty to the second count of Culpable Homicide and was found guilty. He was sentenced to 6 months imprisonment.

The conviction and sentence in respect of count 1 is in order and it is confirmed.

It is with respect to the conviction on the second count of culpable homicide where we noted a procedural irregularity. The accused was just charged with Culpable Homicide instead of culpable homicide as defined in s 49 of the Criminal Law (Codification and Reform) Act [Cap 9:23]

The trial magistrate only canvassed the essential elements of the offence of negligent driving. He failed to canvass the essential elements of the offence of Culpable Homicide. The accused was therefore not asked whether he admitted that he caused the death of the deceased. The post mortem report was not produced to show the connection between the  death and the road traffic accident.

In our view this failure to canvass all the essential elements of culpable homicide is a gross irregularity and the conviction cannot be sustained. It has to be quashed.

Accordingly, and for the above reasons –

The conviction in respect of count 2 is quashed.

The matter is remitted back to Chivhu Magistrate court before the same Magistrate so that he recalls accused and properly canvasses the essential elements of count 2, i.e Culpable Homicide.

The sentence to be imposed upon the accused upon conviction should not be more than the sentence originally imposed on the accused.

TAGU J: ……………………………….

MUREMBA J: agrees ………………….