THE State V Kudakwashe GIFT Hombarume

### Preamble
1
HH 468-25
Case no. HCHCR 4559/25
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THE STATE

and

KUDAKWASHE GIFT HOMBARUME

HIGH COURT OF ZIMBABWE

DUBE JP

HARARE, 07 August 2025

Criminal Review

DUBE JP

Introduction

The record of proceedings in this matter was placed before me following a complaint lodged by Five Es Safety (Pvt) Ltd, with the Chief Magistrate who in turn requested this court to review the proceedings. The complaint raises concern about the adequacy and appropriateness of the sentence imposed by the trial court and serves as a trigger for this review which is conducted in terms of s29 (4) of the High Court Act.

Section 29(4) of the High Court Act [Chapter 7:06], stipulates as follows:

“29 (4) Subject to rules of court, the powers conferred by subsections (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”

Section 29 (4) of the High Court Act empowers the High Court, to intervene and exercise its review powers in criminal matters, whenever it has come to its attention that any criminal proceedings of an inferior court or tribunal fall short of real and substantial justice. There need not be a formal application for review of the proceedings for this court to exercise the powers conferred to it by s 29 (4) of the High Court Act. A review conducted in terms of this section must be undertaken in the interests of justice and is confined to assessing whether the proceedings were conducted in accordance with real and substantial justice. In exercising the review powers in terms of s 29 (4), this court does not exercise its appeal powers. A review carried out in terms of s 29 (4) is limited to the four corners of the record of proceedings.

This review judgment examines the propriety of the convictions and sentences imposed by the trial court to establish whether they are in line with established sentencing principles and trends, public interest and expectations in culpable homicide cases arising out of road traffic accidents.

Background Facts

The brief background facts to this review are as follows: The accused, a 24-year-old first offender appeared before the Mbare Magistrates Court facing two counts involving allegations of culpable homicide as defined in s 49 (a) (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], hereinafter referred to as the ‘Criminal Law Code’ and driving a motor vehicle without a driver’s licence in contravention of s 6 (1) (a) of the Road Traffic Act [Chapter 13:11], hereinafter referred to as ‘the Road Traffic Act’. The State allegations were that on the 9 April 2025, the accused was driving a Honda Shuttle motor vehicle along New Chitungwiza Road in Harare. As he approached Energy Park Service Station, he lost control of the vehicle which swerved to the left side and struck the now deceased, Custon Charumbira, who was walking on the left side of the road. Custon Charumbira sustained broken legs and severe head injuries and died at the spot. The particulars of negligence were that the accused person drove his vehicle at an excessive speed, failed to keep a proper lookout of the road ahead and failed to keep the motor vehicle under proper control. The allegations in the second count are simply that the accused drove the said vehicle without a driving licence resulting in the fatal accident.

The accused person pleaded guilty to both counts, whereupon he was convicted on his own plea of guilty. No issue arises from the conviction for culpable homicide. The conviction is confirmed.

With regards to the conviction for the offence of driving without a driver’s licence I observe as follows. Section 6 of the Road Traffic Act states as follows:

“6 Drivers of motor vehicles to be licensed

(1) Subject to this Act, no person shall drive a motor vehicle on a road unless he—

(a) is the holder of a valid licence issued to him in respect of motor vehicles of the class concerned; and

………….

(5) A person who contravenes subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.”

Section s 6 (1) (a) of the Road Traffic Act only requires all drivers of motor vehicles to be licensed and therefore only prohibits unlicensed drivers from driving motor vehicles. Read on its own, it does not stipulate consequences for disobedience. It is s 6 (5) of the Road Traffic Act which creates the offence and prescribes the penalties clearly, therefore, the prosecution fell into error when it drafted the charge of driving a motor vehicle without a licence without reference to s6 (5) of the Road Traffic Act. The trial court also erred when it failed to satisfy itself of the correctness of the citation of the statutory provisions which create the offence. Judicial officers are required to check the correctness of the citation and averments in the charge before it is put to the accused person. The offence of driving a motor vehicle without a licence is only created if s 6(1)(a) is read with s 6(5) and that must appear in the charge. However, the error did not result in any prejudice to the accused person since the elements of the offence were properly captured in the charge and duly canvassed by the trial court. The conviction for driving a motor vehicle without a valid licence, is therefore, also confirmed.

The accused person was sentenced to pay a fine of US$200 or the equivalent in ZIG and in default of payment, imprisonment for 4 months for the offence of driving without a valid driver’s licence. As stated above, a person who contravenes s 6 (1) of the Road Traffic Act is liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment: The fine of US$200 imposed by the trial court for driving an ordinary motor vehicle without a licence is therefore within the range of sentences normally imposed for that offence. A custodial sentence is only considered in circumstances where the offender was driving a commuter omnibus or heavy vehicle as envisaged in the proviso to s6 of the Road Traffic Act. In that case the accused person would be liable to imprisonment for a period not exceeding 5 years and not less than six months unless he or she falls into the exceptions specified therein. I will therefore not interfere with the sentence of a fine, which is hereby confirmed.

With regards to culpable homicide the trial court made the following findings. The accident had occurred whilst the accused was trying to avoid a cyclist and, for that reason, the degree of his negligence was ‘ordinary’ and that the accused deserved leniency in light of the finding on the degree of negligence. The court found other mitigating factors. The accused was a youthful first offender who had pleaded guilty to the charges. He had two dependants and was the sole breadwinner. He had shown remorse by undertaking to render assistance to the bereaved deceased’s family in the form of a future monthly food allowance coupled with an offer to pay school fees for the children of the deceased. The trial court was of the view that sending the accused person to prison would incapacitate him and he would not be able to fulfil the pledge. The trial court also found that the accused deserved leniency because he had already paid half the amount requested by the family as compensation as well as a beast. He had provided four (4) commuter omnibuses and a lorry to ferry mourners to Masvingo for the deceased’s burial. Be that as it may, the court discounted the sentence of a fine as it reasoned that such a sentence would ‘trivialise’ the crime of culpable homicide. It then settled for imprisonment suspended on conditions of good behaviour and community service, sentencing the accused as follows in count one: -

“24 months’ imprisonment, of which 12 months’ imprisonment is suspended for 5 years on condition that the accused does not, during that period commit an offence involving negligent killing of another in a road traffic accident and for which, upon conviction, he is sentenced to imprisonment without an option of a fine. The remainder of 12 months imprisonment is suspended on condition that accused performs 420 hours of community service….’’

.

Section 49 of the Criminal Law Code provides for the offence of culpable homicide arising out of a road traffic accident and stipulates as follows:

“Any person who causes the death of another person

negligently failing to realise that the death may result from his or her conduct or

realising that death may result from his or her conduct and negligently failing to guard against that possibility –

shall be guilty of culpable homicide and liable to imprisonment for life or any definite period of imprisonment or a fine up to or exceeding level fourteen or both.”

I note that having pleaded guilty to the charge, the accused admitted all the essential elements of the offence and all the particulars of negligence put to him. He accepted driving at an excessive speed in the circumstances of the case, failure to keep a proper lookout and failure to keep the vehicle under proper control. The trial court was obliged to make findings on the degree of negligence because that has a strong bearing to the assessment of the appropriate sentence and the sentence to be imposed, see S v Mapeka and Anor 2001 (2) ZLR 90 (H); S v Chitepo HMA 03-17; S v Silas HH 861-22. The cases are authority for the proposition that in determining the sentence to be imposed on the offender in a case of culpable homicide arising from a road traffic accident, the sentencing court must begin by recognising the degree of the offender’s culpability. Negligence can be ordinary or gross negligence and recklessness.  In S v Chigwagwa HH 234-21, the court stated as follows: with regards to the different categories of negligence in cases of culpable homicide committed in term s of s 49 of the Code:

“It occurs to me that over and above this, the accused’s degree of negligence is also an important factor which should be considered by the court when imposing the main punishment on the accused under s 49 (a) of the Criminal Law (Codification and Reform) Act. This factor could be either mitigatory or aggravatory. To illustrate this, if the degree of negligence is ordinary, the punishment or sentence should be lenient. If it is gross, the punishment or sentence should be stiff. If the accident was due to recklessness, the punishment or sentence should be stiffer. With ordinary negligence, the accused can be sentenced to a fine or community service, but with gross negligence or reckless driving, the accused can be sentenced to effective imprisonment.”

Gross negligence was defined in S v Zembe HH252/15 as a, “serious or aggravated form of ordinary negligence of a high degree”. See also S v Smith & Ors 1973(3) SA. Ordinary negligence on the other hand is a failure to meet the ordinary standard of care. Where the conduct of the accused lies at the lower end of the negligence spectrum, a fine is appropriate with imprisonment being reserved for the most serious cases.

In this case the trial court fell into error in assessing the accused person’s degree of negligence. Whilst the trial court was alive to the requirement to assess the degree of negligence of the offence, it did not do a thorough job of it.   Whilst driving without a license is not an act of negligence, driving a vehicle without a valid driver’s licence has a bearing on the degree of negligence where an offender drives without a license and causes an accident due to that lack of skill, see S v Kamuchepa HMA23/18. It is a factor which should be considered alongside other factors, in this case, the accused person’s lack of skill was exacerbated by the fact that he drove at an excessive speed in the circumstances and could not keep his vehicle under proper control. In addition, failed to keep a proper look. I find that the trial court paid lip service to the requirement to assess the degree of negligence and erred in its approach to the assessment of negligence. Its finding that the accused person’s degree of negligence was ordinary negligence simply because the offence accident occurred whilst he was trying to avoid a cyclist hence the degree of negligence is ordinary was, therefore, too simplistic a manner of assessing the degree of negligence in this case. It did not make reference at all to the particulars of negligence in its assessment of the degree of negligence.

The accused person was represented by a legal practitioner at his trial. The legal practitioner did not make any meaningful submissions regarding the accused person’s degree of negligence.  The court does not appear to have taken the views of the State regarding the degree of negligence into account because it did not refer to the submissions in its sentencing judgment despite contentions by the State that the facts of the case disclosed gross negligence.

In assessing the degree of negligence, the trial court also ought to have considered the contents of the Traffic Accident Book produced which was produced by consent. It failed to do so and therefore did not consider the accident report prepared by the police officer who attended the scene in assessing the degree of negligence. The investigating officer observed that the accused was the “sole causer of the accident as he failed to exercise high degree and skills well expected from a reasonable driver under same circumstances by travelling at an appropriate speed, which he failed to do and later on caused an accident and death of an off-road pedestrian on spot’’. In the Traffic Accident Book, the accused was reported to have been travelling at 80 to 100 km/hr in an area with a 60 km /hr speed limit. He only managed to stop 67 metres from the point of impact which factor is indicative of excessive speeding. His vehicle sustained extensive frontal damages which include, frontal left side damages on grill, front bumper, buckled bonnet, shattered windscreen confirming that he was travelling at an excessive speed. The failure by the trial court to consider the admitted particulars of negligence as well as the report and observations in the Traffic Accident book, all, constitute a misdirection by the trial court which would, ordinarily, warrant our interference with the sentencing discretion of the trial court. See S v Sidat 1997 ZLR (1) 487.

A driver who drives along a public road should expect that there will be distractions on the road. He is expected to drive at a speed that will enable him to stop when faced with a sudden emergency and avoid any imminent danger. The submission by the State that there are humps on either side of the road was suggestive of the fact that the accused drove with a disregard to road rules, failed to exercise caution and to slow down in the face of danger. Having encountered a cyclist on the road, the accused ought to have slowed down and brought his vehicle to an immediate stop which he would have been able to do had he been travelling at a safe speed. The facts of this case reveal a serious breach of road safety regulations by an offender who without restraint takes it upon himself to drive a vehicle without a licence, speeds and causes an accident leading to loss of life of an innocent person which factor the trial court ought to have considered in assessing the degree of negligence.  This accident happened around midday and in broad day light and visibility was clear. The accused would have seen the cyclist on time and taken appropriate steps to avoid the accident if he had been keeping a proper lookout.

Contrary to a finding of ordinary negligence, the facts disclose gross negligence. I am of the view that the proper finding would have been that of gross negligence.

In coming up with appropriate sentences, courts use a combination of legislative provisions which include the penalty provisions, sentencing guidelines, information about sentences in cases of a similar nature and judicial discretion. The Sentencing Guidelines serve as a framework within which judges should work and follow during the sentencing process, and are a vital part of the process. Over the years, the focus in assessing appropriate sentences has primarily been on the offender. There has been a paradigm shift.  In addition to the characteristics of the accused, courts are now formally obliged to explore the impact of the offence on the victim of crime. Our criminal justice system has embraced use of victim impact statements in its sentencing procedures introduced through the sentencing guidelines, a highly commendable development.

A victim impact statement is a tool used to inform the court about the consequences of an offence from the victim’s perspective. It is a pre-sentencing statement made by the victim of a crime, his or her representative or family member, which offers valuable insight into the impact the crime has had, including physical or mental injury, emotional suffering, psychological, social, financial loss, and health-related effects or impairment of fundamental rights, which the court is obliged to consider when determining an appropriate sentence. The victim impact statement affords an opportunity to the victim, his or her representatives or relatives an opportunity to participate in criminal proceedings and address the after effects of the crime. It gives the victim assurance that he or she has been listened to and heard. Participation in the trial process gives closure to the victim. A victim impact statement plays a crucial role in helping the court understand the victim’s experiences, the extent of the harm suffered, and the degree of the offender’s culpability.  A victim impact statement can be presented either orally or in writing. To ensure fairness, the accused must be given an opportunity to respond. The information provided assists the court in crafting a sentence that accurately reflects the harm caused to the complainant and, in some instances, to society as a whole. Ultimately, victim impact statements empower victims by giving them a voice in the justice process.

Having said that, the sentencing discretion reposes in the sentencing judicial officer. See S v Sidat, supra. A victim impact statement in no way serves as a means by a victim or his representative to usurp the sentencing discretion of the court and dictate what sentence the court should impose but can only influence it. Where a victim or his or her representative suggests the sentence a court should impose, such an opinion is given due consideration but is not binding on the court which retains its sentencing discretion. What seems to have overly informed the imposition of a sentence of community service are the views of the deceased’s relatives who expressed a desire for a non-custodial sentence. The victim impact statement given by the deceased person’s wife, Lucia Charumbira, revealed and acknowledged the emotional toll on the family of the loss and also attested to the accused’s good character. She highlighted the accused’s remorse, his substantial assistance with funeral expenses, including purchasing a coffin, groceries, and arranging transport, and his partial financial compensation to the family. He is said to have voluntarily paid civil damages. Notably, she recommended a non-custodial sentence, suggesting that a fine would suffice.

The personal interests of the deceased’s family took centre stage over the seriousness and prevalence of the offence and interests of the society.  The trial court missed it here. A victim impact statement cannot trump the interests of justice   Whilst the accused was contrite and rendered assistance to the family of the deceased, courts should not allow offenders to buy themselves out of a custodial sentence simply because they can pay compensation for the crime. The trial court misdirected itself by readily acceding to the deceased family’s request to not pass a custodial sentence and seemed to place too much emphasis on the views of Lucia Charumbira. That the accused assisted the family with the funeral and offered to help out in the future is mitigatory and works in the accused’s favour.  The court was not bound by the indication that the family did not want him to be imprisoned. A court sentencing an offender must always ensure that the punishment meted out suits both the offence, the offender and the interests of justice. The court failed to appropriately balance the mitigating factors against the seriousness of the offence and demonstrate adherence to the principles of proportionality and restorative justice.

The aggravating features of this case do not justify community service. The accused’s manner of driving having exhibited gross negligence, and the offence having been committed in aggravating circumstances, it called for the imposition of a short stiff custodial sentence.  With high rates of accidents on our roads, it is important that courts send a strong warning to offenders who drive without licences resulting in fatalities, that such conduct will attract censure of the courts. The court failed to consider that the accused drove the vehicle whilst unlicensed   resulting in an accident which makes the offence severe and aggravated. Culpable homicide is a very serious offence where it is committed in circumstances where the driver of the vehicle has no licence and causes the accident.

While the guidelines on community service state that whenever a sentence of less than 24 months imprisonment has been imposed, the court is obliged to consider imposition of community service, caution has been sounded. In S v Shariwa 2003(1) ZLR 314. In Muchirahondo v The State HMT 14-21 the court remarked as follows:

“It is correct that the sentence of 12 months falls in the grid of community service, but it does not follow that every case in which a sentence falls within the community service grid, community service must be imposed. What is important is that the court considered community service and ruled it out as inappropriate, as it would not only trivialize the offence but also undermine any otherwise noble form of punishment …”

This is another case that was not suited for community service regard being had to the aggravating features of the case. Community service imposed in circumstances such as these has the effect of trivializing the offence of culpable homicide arising from road traffic accidents. Although the accused is a youthful first offender, the circumstances of the occurrence of this offence dictated otherwise.

I now turn to deal with the trial court’s failure to consider prohibiting the accused from driving. Having found the accused guilty of culpable homicide albeit based on ordinary negligence, the trial magistrate ought to have been guided by the provisions of s 64(3) of the Act and address its mind regarding the requirement to prohibit the accused from driving. In S v Chaita and Ors 1998 (1) ZLR  213(H), the court emphasized the need for a court assessing sentence in a culpable homicide arising out of a road traffic accident to have regard to the provisions of s 64 (3) of the Act which stipulate as follows:

“(3) If, on convicting 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) that, if the convicted person had been convicted of the offence in terms of this Act referred to in paragraph (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 paragraph (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 in paragraph (a)...”

The import of this provision is that whenever a court has convicted an accused of culpable homicide that involves driving in terms of s49 of the code, it is obliged to consider prohibiting the accused from driving for a set period. The enquiry into prohibition from driving may be done as suggested by CHINHENGO J in S v Mapeka 2001 (2) ZLR 90 (H) where the court remarked thus:

“If the magistrate omits to ask these questions before he pronounces his verdict, he should ask them before he passes sentence. If he does not do so even at this stage, he should then attempt to draw certain inferences from the admitted facts before he can pass sentence.”

The requirement for prohibition applies whether the offender is licensed to drive or not. How this is to be done is laid out in precedent, see also S v Chaita & Ors (supra) and S v Chigwagwa (supra). Having found that the accused exhibited ordinary negligence albeit wrongly, the court ought to have gone further and determined whether to prohibit him from driving. The court did not seem to be alive to this approach. Had the court carried out the enquiry as required and prohibited the accused from driving, this would have had a deterrent effect not only on him but other would be offenders from driving without licenses thereby promoting road safety. Prohibiting unlicensed drivers encourages individuals to comply with the law and follow road safety regulations. The failure to consider prohibiting the accused from driving amounts to a misdirection on the part of the trial court.

Consequently, I order as follows:

The conviction and sentence in respect of count one be and is hereby confirmed.

The conviction in count two be and is hereby confirmed.

I am unable to confirm the sentence imposed by the trial court for culpable homicide

as being in accordance with real and substantial justice and hereby withhold my stamp.

The matter is accordingly remitted to the trial court to carry out an enquiry in terms of

s 64 (3) of the Road Traffic act in respect of the finding of culpable homicide.

The trial magistrate is hereby ordered to recall the accused person within 30 days of this order and carry out the enquiry as stipulated in paragraph 4 above.

DUBE JP…………………………………………………..

kwenda j agrees …………………….…………