THE State V Ruzvidzo Freedom

### Preamble
1
HH 541-25
HCHCR 5042/25
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THE STATE

versus

RUZVIDZO FREEDOM

HIGH COURT OF ZIMBABWE

MUREMBA & MUTEVEDZI JJ

HARARE; 15 September 2025

Criminal Review

MUREMBA J:

This automatic review is in respect of an offender who was convicted of reckless driving involving a commuter omnibus, in violation of section 53(2)(a) of the Road Traffic Act [Chapter 13:11].

At the conclusion of a contested trial, the trial magistrate made a finding that the offender drove a Toyota Hiace public service vehicle, in a reckless manner. On 20 June 2025, at the intersection of Second Street Extension and Upper East Road, Harare, the offender wantonly disregarded standard road rules by driving the said vehicle into oncoming traffic, thereby endangering other road users. He was, however, not involved in a road traffic accident.  The offender was duly convicted of reckless driving, and his conviction is hereby confirmed.

The trial court imposed a custodial sentence of two years and further prohibited the offender from driving motor vehicles in classes 2, 4, and 5 for his entire lifetime, with cancellation of his driver’s licence accordingly.  The sentence is couched as follows.

Offender is sentenced to 2 years imprisonment.

The offender is prohibited from driving classes 2, 4 and 5 vehicles for his entire lifetime.

Accused licence is cancelled by operation of the Law.

The Zimbabwe Prisons and Correctional Services shall surrender the accused person's licence to the Assistant clerk of court Harare Magistrate Court within 48 hours of this order to enable the offender’s licence to be submitted to the Registrar Road Traffic Licences for endorsement of the details of the current conviction.”

In terms of Section 53(2)(a) of the Road Traffic Act, a person convicted of reckless driving involving a commuter omnibus is liable to imprisonment for a period ranging from two to fifteen years. This provision prescribes a mandatory minimum sentence of two years’ imprisonment. The trial magistrate was, therefore, correct in sentencing the offender to a custodial sentence of 2 years. This part of the sentence is hereby confirmed.

However, the driving prohibition and licence cancellation imposed by the trial magistrate raise serious concerns. The magistrate prohibited the offender from driving motor vehicles in Classes 2, 4, and 5 for life, and cancelled the corresponding licence classes, despite the fact that the offender was being convicted for the first time. This sentencing approach is procedurally irregular and clearly disproportionate when measured against the statutory framework governing first-time offenders. The error stems from a misinterpretation and misapplication of Section 53 of the Road Traffic Act, which outlines specific penalties for reckless driving based on the number of prior convictions. I will now explain the applicable penalties for reckless driving of a commuter omnibus, with reference to the relevant subsections.

The provision reads as follows.

“53 Reckless driving

(1) In subsection (4)—

“Similar offence” means an offence in terms of subsection (2) involving the driving of a motor vehicle or an offence, whether in terms of a law of Zimbabwe or any other law, of which the dangerous, negligent or reckless driving of a motor vehicle on a road is an element;

“Special circumstances” means special circumstances surrounding the commission of the offence concerned, but does not include special circumstances peculiar to the offender.

(2) A person who drives a vehicle on a road recklessly shall be guilty of an offence and liable—

(a) subject to section eighty-eight A, where the vehicle concerned was a commuter omnibus or a heavy vehicle, to imprisonment for a period not exceeding fifteen years and not less than two years; or

(b) in any other case, to a fine not exceeding level twelve or to imprisonment for a period not exceeding ten years or to both such fine and such imprisonment.

(3) A person charged with an offence in terms of subsection (2) may be found guilty of an offence in terms of section fifty-one or fifty-two, if such are the facts proved.

(4) Subject to Part IX, a court which convicts a person of an offence in terms of subsection (1) involving the driving of a motor vehicle shall—

(a) if the person has not previously been convicted of a similar offence within a period of ten years immediately preceding the date of such first-mentioned conviction—

(i) in the case of a first-mentioned conviction which does not relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving for a period of not less than six months; or

(ii) in the case of a first-mentioned conviction which does relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving—

A. a motor vehicle other than a commuter omnibus or a heavy vehicle for a period of not less than six months; and

B. a commuter omnibus or a heavy vehicle during his lifetime; or

(b) if the person has previously been convicted of a similar offence within the period referred to in paragraph (a)—

(i) in the case of a second conviction—

A. which does not relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving for a period of not less than twelve months; or

B. which does relate to the driving of a commuter omnibus or a heavy vehicle, prohibit the person from driving—

I. a motor vehicle other than a commuter omnibus or a heavy vehicle for a period

of not less than twelve months; and

II. a commuter omnibus or a heavy vehicle during his lifetime; or

(ii) in the case of a third or subsequent conviction, prohibit the person from driving during his lifetime;

and shall, if the person is the holder of a licence, cancel the licence in respect of motor vehicles of the class to which such prohibition from driving extends:

Provided that such court may decline to prohibit the person from driving if it—

(a) considers that there are special circumstances in the case which justify the court in so declining; and

(b) endorses the special circumstances referred to in paragraph (a) on the record of the case when passing sentence.”

Although it appears to be labyrinthic, s 53 is fairly straightforward.  Below, I attempt to simplify it even further.

For a first conviction, that is, where the offender has not, in the preceding ten years, been convicted of a prior similar offence, section 53(2)(a) and 53(4)(a)(ii) apply. Such offender is liable to imprisonment for a period ranging from a minimum two to a maximum fifteen years. In addition, the court must prohibit the offender from driving all other classes of motor vehicles for not less than six months, and from driving a commuter omnibus or heavy vehicle for life. Consequently, the offender’s licence is cancelled in respect of both classes: the offender’s licence to drive commuter omnibus or heavy vehicles is cancelled permanently, while those for other classes of motor vehicles are cancelled for the duration of the prohibition which should be at least 6 months.

On a second conviction, that is where the offender has previously been convicted of a similar offence within the preceding ten years, section 53(4)(b)(i)(B) governs the penalties. The principal sentence remains the same.  It is imprisonment ranging from a minimum two years to a maximum fifteen years. The driving prohibition is however extended: the offender is barred from driving any other class of motor vehicle for not less than twelve months, and driving a commuter omnibus or heavy vehicle for life. The licence cancellation mirrors the prohibition, affecting both the commuter omnibus/heavy vehicle class permanently and the other motor vehicle classes for the duration of the prohibition which should be at least twelve months.

In the case of a third or subsequent conviction, section 53(4)(b)(ii) mandates a lifetime prohibition from driving all classes of motor vehicle, in addition to the same imprisonment range of two to fifteen years. The offender’s licence is cancelled in respect of all classes of motor vehicles, effectively disqualifying them from driving for life.

It must however, be noted that there is an exception under the proviso to section 53(4). A court may decline to impose a driving prohibition if it finds special circumstances surrounding the commission of the offence. These must not be personal to the offender. If such circumstances are found, the court must endorse them on the record when passing sentence.

It is important to understand the provision which relates to licence cancellation. It reads:

S53(4) – “Subject to Part IX, a court which convicts a person of an offence in terms of subsection (1) involving the driving of a motor vehicle shall….. and shall, if the person is the holder of a licence, cancel the licence in respect of motor vehicles of the class to which such prohibition from driving extends. (my underlining)

What the underlined portion signifies is that licence cancellation applies to each class of motor vehicle affected by the driving prohibition. The cancellation period corresponds directly to the duration of the prohibition for each respective class. For instance, if an offender is prohibited from driving Classes 4 and 5 vehicles for six months, and permanently prohibited from driving Class 2 vehicles, their licence will be cancelled for life in respect of Class 2, while the cancellation for Classes 4 and 5 will last only six months. After that period, the offender may reapply for a light vehicle licence, but they will remain permanently disqualified from driving commuter omnibuses or heavy vehicles.

In the circumstances of the present matter the offender’s conviction was the first. So, 53(4)(a)(ii) ought to have been applied regarding his prohibition from driving and the cancellation of his driving licences. He was liable to prohibition from driving any other class of motor vehicles for not less than six months, and from driving commuter omnibuses or heavy vehicles for life.   Importantly, 53(4)(a)(ii) does not authorize a blanket lifetime prohibition from driving all motor vehicles for a first-time offender. However, it can be argued that section 53(4)(a)(ii)(A), which prescribes a minimum prohibition period of six months from driving motor vehicles other than commuter omnibuses or heavy vehicles, leaves room for judicial discretion to impose a longer period, potentially even a lifetime ban. The absence of a specified maximum period in the provision suggests that the legislature intended to confer flexibility upon the sentencing court, allowing it to tailor the prohibition to the gravity of the offence.

Whilst it is admitted that the court has the discretion of imposing a longer period of prohibition or even a lifetime ban, such discretion must be exercised judiciously and in line with the principle of proportionality. The distinction drawn in section 53(4)(a)(ii) between the treatment of drivers of commuter omnibuses or heavy vehicles, where a lifetime ban is mandated, and other motor vehicles where only a minimum threshold is set indicates that the legislature did not intend for lifetime bans to be routine in the latter category. The language implies that while a court may impose a longer prohibition than six months, including potentially a lifetime ban, such a decision must be supported by compelling reasons and should not be automatic. Since the law is explicit in distinguishing between these two categories and in prescribing different durations for each prohibition, the imposition of a lifetime prohibition from driving all classes of vehicles may be viewed as excessive unless the facts disclose an unusually high degree of recklessness or danger to public safety.

Courts must also remain mindful of the broader implications of a lifetime sanction. In today’s society, a lifetime driving ban across all vehicle classes is an exceptionally harsh penalty that should be imposed only in the most extreme cases. Driving is often essential for employment, family obligations, and daily survival, making such a ban socially and economically debilitating. For a first-time offender, this kind of punishment is disproportionate and undermines the rehabilitative goals of modern sentencing. Courts must exercise caution and ensure that any such decision is supported by forceful reasons and that any such factors are clearly recorded. Without that, the penalty risks becoming arbitrary and may fall into the class of unjustified judicial overreach.

Therefore, while the legal framework in s 53(4)(a)(ii) permits a lifetime prohibition beyond the six-month minimum threshold for first - time convicts, it must be justified by the circumstances of the case and not imposed as a matter of course. Cancelling the Classes 4 and 5 licences for life in a first conviction scenario is a clear overreach. It is more severe than what the law prescribes for repeat offenders. It imposes a penalty that is not only more severe than that prescribed for second-time offenders, but one that is explicitly reserved for third or subsequent convictions under Section 53(4)(b)(ii), where a lifetime driving prohibition applies to all classes of motor vehicles. Applying such a severe penalty to a first offender not only violates the principle of proportionality in sentencing but also undermines the graduated structure of penalties intended by the legislature.

In short, the law mandates a tiered response to reckless driving offences, escalating in severity with repeated convictions.  A first-time offender must not be treated as though they have committed multiple offences. Doing so risks eroding public confidence in the fairness and consistency of judicial outcomes.

The sentencing judgment delivered by the trial magistrate reflects a troubling absence of judicial discretion in imposing a blanket prohibition on the offender from driving Classes 4 and 5 motor vehicles. This ban is not only excessive but also arbitrary, as the judgment fails to show that the court properly considered the specific circumstances surrounding the offence. Admittedly, driving against oncoming traffic is signifies utter recklessness. It is the reason why it carries a minimum mandatory two years’ imprisonment.  But apart from that the trial magistrate must have noted that the offender was not involved in any accident, and there were no other aggravating factors such as injury or damage. As such, the degree of recklessness remained at the base of the recklessness ladder. It cannot reasonably be classified amongst the most severe cases warranting such a harsh and far-reaching driving prohibition. Compounding the issue, is that the magistrate’s judgment offers no explanation for why the offender was also prohibited for life from driving light motor vehicles, a penalty that is clearly disproportionate and unsupported by the facts of the case.

Moreover, the record shows that when the offender was invited to furnish special circumstances, he was not informed that the court was contemplating a life time prohibition for classes 4 and 5. This omission undermines the fairness of the proceedings, as the offender was denied a meaningful opportunity to address the full scope of the contemplated sanction. In the absence of a full and clear explanation to the offender regarding the court’s intention to prohibit him from driving for life in respect of classes 4 and 5, the court ought to have confined the prohibition in respect of classes 4 and 5 to the statutory minimum period of six months. The failure to do so renders the sentence procedurally flawed and substantively disproportionate. The court’s discretion must be exercised judiciously, with transparency and regard to the statutory framework. In this instance, it was not.

The trial magistrate’s decision to prohibit the accused from driving classes 2, 4, and 5 for life without distinguishing between the vehicle involved in the offence and other classes was therefore excessive and ultra vires s 53(4)(a)(ii). The lifetime ban should have been confined to the class of vehicle involved in the offence, namely the commuter omnibus. The imposition of a lifetime prohibition on other vehicle classes, in the manner done, constitutes a misdirection in law. Imposing a lifetime driving ban across all classes of motor vehicles on a first-time offender convicted of reckless driving of a commuter omnibus is a measure so severe that it should be reserved only for exceptional circumstances.

The Road Traffic Act, under Section 53(4), provides a clear framework for escalating penalties based on prior convictions, and it does not contemplate a blanket lifetime prohibition for first offenders. For this reason, a blanket lifetime prohibition should only be imposed if the facts of the case are extraordinary. Where a court considers such a penalty, it must be thorough and deliberate in canvassing special circumstances, which, by law, must relate to the commission of the offence itself, not personal factors about the offender. The offender must be made to understand, in clear terms, that the burden lies on them to fully and persuasively address the court on any special circumstances that may justify leniency. This is not a procedural formality. It is a substantive safeguard against disproportionate punishment. The court must ensure that the offender is given a fair opportunity to present their case and that the record of proceedings explicitly reflects the offender’s submissions, the State’s submissions and the court’s reasoning. Failure to do so risks imposing a penalty that not only exceeds statutory bounds but also undermines the principles of fairness, proportionality, and judicial accountability.

In light of the foregoing, the prohibition imposed on the offender from driving motor vehicles in Classes 4 and 5 constitutes a clear misapplication of the law and ought to be set aside. It should be replaced with a prohibition period of six months, which is the statutory minimum prescribed under Section 53(4)(a)(ii), as there are no aggravating factors or circumstances that would justify a longer duration. Consequently, the cancellation of the offender’s licence in respect of Classes 4 and 5 must align with the period of the driving prohibition and should therefore be limited to six months.

In the result, the offender’s corrected sentence is as follows.

The offender is sentenced to 2 years’ imprisonment.

The offender is prohibited from driving classes 4 and 5 motor vehicles for 6 months.

The offender’s classes 4 and 5 licence is cancelled for 6 months.

The offender is prohibited from driving class 2 vehicles for his lifetime.

The offender’s licence for class 2 vehicles is cancelled for life.

The trial magistrate shall recall the offender from prison and formally advise him of the corrected sentence. The magistrate must also ensure that the corrected sentence is promptly communicated to the Registrar of Road Traffic Licences for the appropriate correction of the endorsement on the offender’s driving licence.

MUTEVEDZI J:

I am not only in agreement with my sister’s resultant order but with her entire reasoning. Her distillation of the applicable concepts cannot be bettered.  I only wish to emphasise the critical issue she raises in paragraphs 10, 17 and 18 in relation to affording an offender the opportunity to address the court on the existence of special circumstances. Whilst the principal sentence for reckless driving has a minimum mandatory penalty of two years’ imprisonment, judicial officers must note that s 53(2) (a) affords no room for an offender to escape the mandatory penalty through the usual avenue of special circumstances. Put bluntly, a court may not call upon the offender to address it on special circumstances in relation to the imposition of the minimum mandatory imprisonment. That address can only relate to the prohibition from driving. A court may not prohibit an offender from driving without affording him/her the opportunity to show cause why such prohibition must not apply to their case. My sister has already explained that the special circumstances must be confined to factors peculiar to the commission of the crime and not to the offender. Needless to state therefore, a magistrate who plucks a prohibition from nowhere commits a gross irregularity which vitiates their decision. Reference, on special circumstances, must be made to the endless jurisprudence developed by this court over the years.

MUREMBA J: ………………………..

MUTEVEDZI J Agrees……………….