State v Bhekimpilo Ndebele

On 19 February 2013 at 20:00 hours at the 15km peg along the Bulawayo-Beitbridge road, the accused was driving a commuter omnibus (Toyota Noah registration number ACJ 9413) carrying four passengers when he negligently caused the death of Aaron Munsaka. The deceased was struggling to cross the road when he was hit by the accused's vehicle. He fell on the roadside and sustained multiple head injuries including bruises on the face, forehead, hip, chest wounds and fracture of ribs 3-8. The deceased was rushed to hospital in an unconscious state, was admitted but later died on 30 March 2013. The pathologist found that multiple injuries as a result of the road traffic accident was the cause of death. The accused, a first offender, pleaded guilty to culpable homicide in contravention of section 49 of the Criminal Law (Codification and Reform) Act.

• Whether the trial magistrate properly applied the mandatory sentencing provisions relating to prohibition from driving when convicting a person of culpable homicide involving a commuter omnibus
• Whether section 52(4)(c) read with section 64(3) of the Road Traffic Act required the trial magistrate to prohibit the accused from driving for at least two years in addition to cancelling the driver's licence
• Whether the trial magistrate was required to enquire into special circumstances before declining to prohibit the accused from driving

The matter was remitted to the trial magistrate with a direction to proceed in terms of section 65(6) of the Road Traffic Act, Chapter 13:11, to rectify the sentencing irregularity by imposing the mandatory prohibition from driving for at least two years (unless special circumstances exist). The trial magistrate's attention was drawn to the provisions of subsection (8) of section 65, which requires notice to be given within 6 months from the date of conviction.

When a court convicts a person of culpable homicide arising from the driving of a commuter omnibus, section 52(4)(c) read with section 64(3) of the Road Traffic Act mandatorily requires the court to: (1) prohibit the convicted person from driving for a period of not less than two years, unless special circumstances exist which justify declining to impose such prohibition; and (2) cancel the driver's licence. Before declining to impose the mandatory prohibition from driving, the court must enquire into and find special circumstances, and must endorse those special circumstances on the record when passing sentence. The failure to impose the mandatory prohibition from driving and to enquire into special circumstances constitutes a serious material misdirection in sentencing.

The reviewing judge made several non-binding observations: (1) He noted that several reviewable proceedings from various magisterial stations revealed that quite a number of magistrates have no clue regarding traffic penal provisions, either through deliberate or careless refraining from acquainting themselves with the relevant provisions. (2) He strongly urged judicial officers to diligently apply their minds to their work and trial magistrates to understand and invoke the link between common law culpable homicide and the Road Traffic Act when it comes to sentencing. (3) He pointed out a draftsman's error in section 52, noting that subsections (3) and (4) make reference to subsection (1) instead of subsection (2) as the offence-creating provision, whereas subsection (1) simply defines special circumstances. (4) The trial magistrate's candid response acknowledging that all records tried and finalized before receiving the review judgment on 12 September 2013 contained the same error was noted, as was his acknowledgment that he had since become aware of the correct procedure.

This case is significant in Zimbabwean criminal and traffic law jurisprudence as it clarifies the mandatory sentencing requirements when a court convicts a person of culpable homicide arising from the driving of a motor vehicle, particularly a commuter omnibus. It emphasizes the interlinkage between the common law crime of culpable homicide (as codified in section 49 of the Criminal Law (Codification and Reform) Act) and the sentencing provisions in the Road Traffic Act. The judgment serves as important guidance to magistrates on the proper application of section 52(4)(c) read with section 64(3) of the Road Traffic Act, and the mandatory requirement to prohibit drivers of commuter omnibuses from driving for at least two years (absent special circumstances) in addition to cancelling the driver's licence. It also highlights the importance of judicial officers properly acquainting themselves with relevant statutory provisions and diligently applying their minds to sentencing.