Court name
Masvingo High Court
Case number
28 of 2021
Case name
S v Teya
Media neutral citation
[2021] ZWMSVHC 28
Judge
Zisengwe J

 

 

    HMA 28-21

CRB MSVP 202-21              

 

 

 

 

 

 

 

STATE

vs

KUDAKWASHE TEYA

 

 

 

HIGH COURT OF ZIMBABWE

ZISENGWE J.

MASVINGO, 26 May, 2021

 

                                                                

 

Criminal Review

 

 

ZISENGWE J:            On 30th January, 2021 the accused who was the driver of a motor vehicle (described in both the charge and the State outline as a Freight Liner Columbia truck”) approached a roadblock manned by several members of the Zimbabwe Republic Police (ZRP) and the Zimbabwe National Army (ZNA) at a place called the Craft Centre in the town of Masvingo. It was his patently unorthodox driving conduct coupled with his impertinence and flagrant disobedience to the lawful instructions given to him by the police that triggered the dramatic series of events which culminated in him being arrested and hurled before the magistrates’ court on three charges under the road traffic Act [Chapter 13:11] (“the Act”).

The officers manning that road block observed that the accused was, without justification, driving in the right lane, that is the lane for oncoming traffic. When accused was stopped by the police and asked to explain his erratic driving conduct and to produce documentation for the cargo which he had on board and his driver’s licence, he refused. He was then informed that he was under arrest and was to be taken to the nearest police station so that he could pay a fine specifically for his conduct in driving “against on-coming traffic”. It is from then on, that events took a dramatic and altogether unexpected turn. 

Instead of simply complying with that instruction the accused locked his motor vehicle and sped off striking a road block site cone in the process. The police were however not to take things lying down as they gave chase using some civilian’s motor vehicle.

Accused’s scandalous driving conduct was to repeat itself at a roadblock (manned by several officers) across town a couple of kilometres from the first. This was at a place identified in the state papers as the “croco motor depression”. In this regard the agreed facts are that the accused basically ignored the signal waved by the police officers manning it for him to stop. Instead he accelerated and struck one of the road block drums before speeding off once again. His misadventure came to a screeching halt at the third road block some ten odd kilometres from the second, when armed details of the Police Support Unit who had been alerted of accused’s conduct stood on the road facing accused poised to deal with what the State calls “any eventualities”.

For his troubles accused earned himself three charges, namely failure to comply with police instructions and two counts of reckless driving (i.e. in contravention of sections 72(1) and 53(2) of the Act, respectively)

The first count relates to his refusal to supply upon demand by the police of his driver’s licence and his cargo particulars. The first reckless driving charge stems from his conduct in driving on the wrong side of the continuous white line and the second reckless driving charge emanates from his flagrant disregard of a proper signal for him to stop resulting in him hitting police drums at the second road block.

The accused candidly admitted his wrong doing on all three charges and was duly convicted as charged before being sentenced as follows: -

Count 1: To pay a fine of $2000 or in default of payment 15 days imprisonment

 

Counts 2 and 3: Treated as one for sentence. 4 months’ imprisonment wholly suspended for five years on condition accused does not within that period commit any offence involving negligent driving for which upon conviction accused is sentenced to imprisonment without the option of a fine.

When the record was submitted to the learned Regional Magistrate for scrutiny, the latter observed, correctly in my view, that the trial Magistrate had regrettably neglected to canvass the question of the type of motor vehicle (the Regional Magistrate employs the term “class” of motor vehicle) it being relevant for sentencing purposes in cases of reckless driving. He then caused the record of proceedings to be transmitted to this court for review in terns of section 58 (3) of the Magistrates Court Act, [Chapter 7:10].

The relevant sentencing section of the Road Traffic Act provides as follows;

 

53.       Reckless driving

 

(1)        …..

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

 

  1. subject to section eighty-eight A, where the motor 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

 

  1. 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)        …..

 

(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

 

  1. 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 –

 

  1. 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

 

  1. 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 –

 

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

 

  1. a commuter omnibus or a heavy vehicle during his lifetime; ….

 

To that extent therefore, the type (or class) of motor vehicle (whether light, heavy or commuter omnibus) that was being driven by the accused was central for the determination of the appropriate penalty, and the trial Magistrate was enjoined to ascertain the same from the accused. This was something in respect of which the trial magistrate could neither speculate on nor disregard. I must hasten to point out that the question of the type or class of motor vehicle in question however does not in the context of this case affect conviction as in both instances accused admitted having driven that motor vehicle recklessly.

I am constrained to comment on the approach adopted by the trial court as expressed in its reasons for sentence in relation to the categorization of accused’s driving conduct where it concluded as follows:

“In the present case accused person drove in the wrong lane and did not cause injury to any person or vehicle. The court is of the view that the degree of negligence is ordinary”

 

The court could not, in one breath having convicted the accused of reckless driving, a concept which connotes a wilful disregard for the safety and rights of other road users, in the next seek to downplay accused’s degree of deviation from acceptable driving conduct to that of “ordinary negligence”. That amounted to a non-sequitur, it was a contradiction in terms. The distinction between negligence, gross negligence and recklessness was explored in S v Mtizwa 1984 (1) 230 (H), suffice it to say that REYNOLDS J had this to say with regard to recklessness:

“Recklessness”, on the other hand connotes not only a willful disregard for the safety and rights of other road users, but also cases of indifference or rashness or inadvertence in which consciousness of the consequences plays no part” S v Van Zyl supra, at 558 [1969 (1) SA 553 (AD). Recklessness may be shown by proof of gross negligence, but proof of gross negligence does not necessarily show recklessness (R v Greenland supra).

 

It would appear the trial magistrate conflated concepts attendant to cases of culpable homicide arising from road traffic offences where the court is required, for sentencing purposes, to make a finding on the proper categorization of accused’s driving conduct. In the instant case that issue did not arise not least given that the accused admitted having driven recklessly.  The facts of the present matter, particularly in count three where accused deliberately drove at a manned and barricaded police road block at high speed and disregarded signals for him to stop and striking the said barricades in the process, support a finding of recklessness. There was a willful disregard on his part of the rights and safety of other road users.

            Under the Act, different penal consequences ensue from a conviction under it depending on three key factors, namely, firstly the nature of the driving conduct constituting the transgression, (i.e. whether same amounts to driving without due care and attention or reasonable consideration for others, negligent or dangerous driving or reckless driving), Secondly, the type of vehicle driven by the accused (whether light motor vehicle on the one hand or heavy vehicle or commuter omnibus on the other) and thirdly whether the accused is a first or repeat offender. See S v Gaven Chifodya HH 171/18; S v Tongi HMT 54/19.

 If the motor vehicle in the instant case was a heavy vehicle (which I suspect, but not necessarily find, that it was, judging from its description as a “Freight Liner Columbia truck”) then the following were the inevitable consequences upon a first conviction of reckless driving:

  1. the imposition on the accused of a mandatory minimum prison term of two years (up to a maximum of fifteen years’ imprisonment) without the option to pay a fine;
  2. prohibition of the accused from driving of all classes of motor vehicles (save for heavy vehicles and commuter omnibuses) for a minimum period of six months; and
  3. prohibition of the accused from driving heavy vehicles and commuter omnibuses for life. Suffice it to say that prohibition could only be averted if there were special circumstances surrounding the commission of the offence justifying such non-prohibition.

Whereas the convictions in respect of each of the three counts are proper and are hereby confirmed, the same cannot be said in respect of the sentences imposed in respect of counts 2 and 3 owing to the failure by the trail court to have due regard to the provisions of Section 53(2) and (4) of the Act.

Consequently, following order be and is hereby given:

 

Order

 

  1. The convictions in respect of all three counts are hereby confirmed.

 

  1. The sentence in respect of count 1 is hereby confirmed.

 

  1. The sentence in respect of counts 2 and 3 are hereby set aside and the matter is hereby remitted to the trial court for sentencing afresh with due regard to the provisions of section 53 of the Road Traffic Act [Chapter 13:11].
  2. The accused to be brought before the court with 10 days of the receipt of this order for the court to comply with (3) above.

 

 

 

ZISENGWE J.

 

 

 

MAWADZE J. agrees ..............................................................