Lazarus Ndlovu v The State

On 12 June 2019 at around 1430 hours in Phakama suburb, Gwanda, the appellant drove a Toyota Fun-cargo registration number ADX 6829 on an unnamed road while not holding a valid driver's licence. A 2½ year old child was playing on the road near her parents' home at number 1218 Phakama. The appellant ran over the deceased child who sustained head injuries and died on the spot from severe brain damage caused by crash injury. The accident occurred in broad daylight on a residential road. The appellant pleaded guilty to two counts: (1) contravening section 6(1)(a) of the Road Traffic Act Chapter 13:11 (driving without a valid licence), and (2) culpable homicide as defined in section 49(b) of the Criminal Law (Codification and Reform) Act Chapter 9:23. The negligence alleged was failing to keep proper look-out and failing to exercise the high degree of care required when children are on the road. The appellant was a 57 year old first offender, married with 5 children and unemployed.

• Whether the sentence of 12 months imprisonment (10 months effective after 2 months suspended) was manifestly excessive
• Whether the trial court properly exercised its sentencing discretion
• Whether findings on the degree of negligence were adequately made
• What standard of care is required of drivers when children are present on or near the road

The appeal against sentence was dismissed. The sentence of 12 months imprisonment with 2 months suspended for 3 years (effective 10 months) was confirmed.

1. A motorist has a duty to reduce speed and exercise caution when children are observed within the vicinity of the road, as children have a propensity for impulsive and irrational action requiring greater care than is otherwise necessary (applying S v Duri 1989 (3) ZLR 111 (SC)). 2. An appellate court will only interfere with a trial court's sentencing discretion if the sentence is disturbingly inappropriate, not merely because it can, but because it must (applying S v Ramushu SC-25-93). 3. Being a first offender is not in itself sufficient reason to interfere with a court's sentencing discretion or to preclude effective custodial sentences. 4. In culpable homicide cases arising from driving offences, trial courts must make findings on the degree of negligence before assessing appropriate sentence, though substance prevails over form where such findings are effectively made.

The court observed that charges under section 6(1)(a) of the Road Traffic Act should properly be cited as contravening section 6(1)(a) as read with section 6(5), since section 6(1)(a) merely states who should drive while section 6(5) criminalizes non-compliance. The court also noted that the appellant's counsel conceded he could not raise new grounds of appeal in heads of argument and abandoned issues relating to defectiveness of the charge and failure to make findings on degree of negligence. The court commented that the appellant's argument that he could not be expected to exercise the same degree of caution as a licensed driver actually worked against him, as he ought not to have been driving in the first place. The court observed that the magistrate's decision not to invoke prohibition from driving provisions suggested the negligence was not deemed reckless or gross.

This case reaffirms important principles in Zimbabwean criminal law regarding: (1) the heightened standard of care required of drivers when children are present on or near roads; (2) the limits of appellate interference with sentencing discretion - only where sentences are 'disturbingly inappropriate'; (3) that being a first offender does not automatically preclude custodial sentences where the circumstances warrant it; (4) that unlicensed driving cannot be used as a mitigating factor to excuse negligent conduct; and (5) the importance of making findings on the degree of negligence in culpable homicide cases arising from driving offences, while recognizing that substance prevails over form where such findings are effectively made through the particulars of negligence.