THE State V Gaven Chifodya

### Preamble
1
HH 171-18
CRB MBR 6684/16
---------


THE STATE

versus

GAVEN CHIFODYA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 8 March 2018

Criminal Review

CHITAPI J: The accused appeared before the Provincial Magistrate, Mbare Magistrate Court on 24 November, 2016. He was charged with the offence of culpable homicide as defined in s 49 (a) (1) of the Criminal Law (Codification & Reform Act), [Chapter 9.23]. It was alleged against him that on 9 October 2016 around 1800hours and along High Glen Road, Harare, the accused negligently drove his Toyota Lexus motor vehicle registration no. ACU 9930. Due to the accused’s negligence, he knocked down two pedestrians who died as a result of injuries which they sustained. The accused pleaded guilty to the charge. He was sentenced to 18 months imprisonment with 8 months suspended for 5 years on condition that he is not within that period convicted of an offence involving negligently causing the death of another human being for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining 10 months were suspended on condition that the accused performed community service for 350hours.

The proceedings in this matter offends one’s sense of justice and clearly fail the test of real and substantial justice. I have seen it fit to review the proceedings in the form of preparing a judgment which hopefully should act as a reference to the magistrate concerned in particular and generally to other magistrates who may in the course of their judicial duties come across a comparable case. I proceed to set out a summary of the agreed facts as they appear from a reading of the state outline whose contents the accused agreed to.

The accused is a mature adult aged 47 years old and holds a class 4 and 5 driver’s licence. On the day in question he is said to have been driving his Toyota Lexus motor vehicle along High Glen Road due east at high speed. As he sped, he lost control of the vehicle, veered off the road to the left and knocked down two pedestrians who were standing off the roadside. The two 19 year old pedestrians were thrown away on impact some five metres from where they had been standing. They suffered various injuries from which they died. From the post-mortem reports produced as exh 2 and 3, the deceased suffered compound fractures of their legs and one of them suffered brain injury.

The accused after knocking down the two pedestrians who were off the road to his left side of the road as aforesaid did not stop. He further swerved to the right side crossing the road and bumped into a stationery vehicle which had broken down and was parked off the road. The  resultant impact damaged the rear right side of the parked vehicle and its right wheel. The accused then swerved across the road once again and his vehicle finally stopped some 10 metres off the road on the left side of the road.

The particulars of negligence were listed as:

1. Fail to keep car under proper control.

2. Travelling at an excessive speed in the circumstances

3. Fail to stop or act reasonably when the accident seemed imminent.

4.  Fail to have a proper look out on the road ahead.

The accused had a previous conviction for drunken driving in contravention of s 46 (1) of the Road Traffic Act No. 48/76 for which he was fined $800-00 or in default 2 months imprisonment. The conviction was dated 18 May 2 000. The certificate evidencing the previous conviction was produced by consent as exh 1. The conviction is not connected with negligent driving. The magistrate did not appear to have taken it into account. A period of 16 years of incident or crime free driving would appear to me not to merit the previous conviction being treated as aggravatory. The period falls beyond the 5 and 10 year periods for which a court depending on the charge preferred against the offender would be obliged to consider imposing a prohibition from driving for such periods as are competent in terms of the Road Traffic Act in the absence of special circumstances. I do not propose to dwell on the issue of the old previous conviction nor to hold it against the magistrate that he did not take it into account. The magistrate was justified to disregard it.

The magistrate gave very brief reasons for sentence which on the record are inscribed in note form. They are listed as:-

“-	plea of guilty

-	degree of negligence

-	culpa homicide

- 	degree of negligence

-	not mandatory to send to jail

-	Chaita (sic) (l assume that it is a decided case name)

Deterrence

-	not to be overemphasized

-	deterrence cannot necessarily be achieved by jail. Jail may even contaminate and make 			one even worse

-	no amount of compensation can be equivalent to human life.

-	sentencing considerations would be not to match human life lost but to punish…….”

On the back of the summary jurisdiction sheet the magistrate endorsed the sentence by reference to the community service form which is commonly referred to as ‘formula A’. The sentence which I have alluded to was endorsed on the form aforesaid.

The admitted facts in this matter do reveal a case of a driver who can aptly be described as a madman flying on the motor way. The degree of negligence exhibited by the accused in his driving conduct was certainly gross if not reckless. High Glen Road is within Harare Metropolitan area and is not a highway. The accused’s failure to control his vehicle when there was no obstacle which disturbed his ability to control his motor vehicle was indicative of a careless or reckless abandon. It showed that he drove with a wanton disregard for the safety of himself other road users, pedestrians and property since High Glen Road passes through built up areas. The magistrate did not make a specific finding as to the degree of negligence exhibited by the accused. It was imperative for him to have done so because such a finding has a bearing on the assessment of the appropriate sentence to be imposed.

The accused’s legal practitioner submitted in mitigation quite correctly that in culpable homicide cases arising out of traffic accidents, the decision as to whether to impose imprisonment or a fine depends on the degree of negligence exhibited by the accused in his driving conduct. The accused’s legal practitioner referred the court to the cases of Dudu Manhenga v S HH 62/15; S v Mtizwa 1984 (1) ZLR 230 and S v Chaita (no citation given) in advancing the settled position that gross negligence invariably attracts a prison term. The accused’s legal practitioner however submitted that the accused’s driving conduct was neither grossly negligent nor reckless. It was submitted that his driving conduct exhibited ordinary negligence. The submission by the legal practitioner that the degree of negligence was ordinary was on the facts clearly insupportable and startling.

The prosecutor submitted that the accused’s driving conduct showed gross negligence because he lost control of the vehicle on a straight road when visibility was still good. He further submitted that there was nothing to hinder the accused’s view and that the motor vehicle which he bumped into had reflectors on it and the owners had also placed breakdown triangles on the road which the accused ploughed through.

As I have already indicated, the magistrate did not make a specific finding on the accused’s degree of negligence. However, from the admitted facts and as already alluded to, one can safely make the conclusions I have already made that the degree of negligence bordered on recklessness.  Additionally the accused  did not only committ two counts of culpable homicide by knocking down two pedestrians leading to their death, he veered across to his incorrect side of the road and struck a stationery vehicle. He again veered across the road and his vehicle stopped some 10 metres off away the road from his lane of travel. Such movie style of driving shows total loss of control of the vehicle due to speeding.

There are a plethora of cases dealing with the extrapolation of various degrees of negligence and/or distinguishing the degrees from recklessness as in the Mutizwa case. What is however clear to me is that each case must be treated on its own facts because a finding of the degree of negligence in any given case is a value judgment reached upon a consideration of the specific facts of the particular case. See S v Chidodo & Anor 1988 (1) ZLR 299 (H). The learned magistrate perfunctorily disposed of the matter without making specific enquiry of the matters which would have assisted him to reach an informed decision on sentence. I am of course harmstrung by the magistrate’s failure to dutifully make the necessary enquiries which he ought to have done. I can only depend on the agreed facts. Whilst the court in culpable homicide cases should not necessarily be swayed by the end result, being that death resulted from the accused’s negligence, it still remains a fact that life was lost needlessly and there is need to emphasize its sanctity. The learned magistrate clearly did not do justice to the case.

It is evident from the record that the magistrate appeared to have approached the matter from a mindset that this was just a traffic case in which death resulted. The fact that a person is riding or driving a vehicle does not make him any superior being to the pedestrian. When one takes charge of a vehicle, one assumes a great responsibility requiring  him or her to be mindful of the rights of not only other traffic on the road but persons and property within his surroundings. Speeding carries the risk that if a mishap occurs as happened in this case, a driver will have challenges in and may fail to control his vehicle with the result that the vehicle may pose danger if not injury to persons on and off the road and similarly to property. Urban roads are never intended to be used as racing tracks.

Since the accused was charged for culpable homicide under s 49 of the Criminal Law Codification & Reform Act, the magistrate should have treated the offence as a serious one. The sentence provided for the offence is imprisonment for life or any lesser term, a fine up to level 14 which is the highest level currently pegged at $5 000.00 or to both imprisonment and a fine. The accused’s manner of driving and the consequences it resulted in should in my considered view have been punished with an effective term of imprisonment of 3 years with a portion suspended for good behaviour. Community service though competent trivialized the enormity or recklessness shown by the accused in his driving conduct. The sentence is not certifiable as having reached the level of real and substantial justice.

That said, there is yet another matter which the magistrate failed to deal with. The magistrate was required to have regard to the provisions of s 64 of the Road Traffic Act, [Chapter 13:11]. It is convenient to set out the provisions of the said section. It provides as follows:

“64.	Prohibition from driving on conviction of certain offences

(1) Subject to this Part, a court convicting a person of an offence in terms of any law other 	than this Act or in connection with the driving of a motor vehicle on a road may, in addition to 	any other penalty which it may lawfully impose, prohibit the person from driving for such period 	as it thinks fit.

(2) Subject to subs (3), on a second or subsequent conviction for an offence at common 	law, which offence involves killing or injuring or attempting to kill or injure a person by or in 	connection with the driving of a motor vehicle on a road, the court concerned shall prohibit the 	person convicted from driving for a period of not less than twelve months unless such court, 	having regard to the lapse of time since the date of the previous or last previous conviction for 	such offence, prohibits the person convicted from driving for a shorter period or declines to 	prohibit such person from driving and endorses its reasons for so prohibiting or declining on the 	record of the case when passing sentence.

(3) If, on conviction of a person of murder, attempted murder, culpable homicide, assault     	or any 	similar offence by or in connection with the driving of a motor vehicle, the court 	considers-

(a) 	that the convicted person would have been convicted of an offence in terms of 				this Act  involving the driving or attempted driving of a motor vehicle if he had 				been charged with such an offence instead of the offence at common law; and

(b) 	hat, if the convicted person had been convicted of the offence in terms of this Act 			referred to in para (a), the court would have been required to prohibit him from 				driving and additionally, or alternatively, would have been required to cancel his 				licence;

the court shall, when sentencing him for the offence at common law-

(i)	prohibit him from driving for a period that is no shorter than the period 					of prohibition that would have been ordered had he been convicted of the 				offence in terms of this Act referred to in para (a); and

(ii)	cancel his licence, if the court would have cancelled his licence on 					convicting him of the offence in terms of this Act referred to I para (a).”

In terms of the provisions of s 64 aforesaid the magistrate was required especially bearing in mind the provisions of 64 (3) to enquire into the issue of prohibiting the accused from driving a motor vehicle. The magistrate did not enquire into the issue. It was a misdirection for him not to have done so. In fact the magistrate did not consider the provisions aforesaid at all and neither was he addressed on them.

I propose to adopt the approach adopted in the cases S v Sibanda and S v Magosvongwe HB 97/15 and S v Mununuri Got and S v Gilbert Sibanda HB 88/15 and order that an enquiry be conducted in terms of s 64 (3). I accordingly direct that the matter be remitted to the court a quo and that the accused person be summoned to appear before the magistrate who should deal with the issue of prohibition of the accused from driving as he ought to have done.

Zhou J: I agree……………