State v Qalani Ncube

On 5 September 2021 at around 1530 hours, the accused was driving a Toyota Hiace commuter omnibus (registration number ABQ 0034) towing an unregistered trailer along the Bulawayo-Tsholotsho road with 15 passengers on board. At the 38 km peg, the conductor Kwanele Moyo and two other passengers disembarked for a recess. After the recess, these three persons boarded the trailer instead of the vehicle. At the 48 km peg, the tow-hitch broke and the trailer disconnected from the motor vehicle. The trailer swerved sideways and the three persons were thrown onto the tarmac. Kwanele Moyo died as a result of injuries sustained when he hit the road surface. The other two passengers suffered serious injuries. The accused was convicted of culpable homicide on his own plea of guilty before a Provincial Magistrate at Plumtree and sentenced to pay a fine of RTGS $30,000 or 5 months imprisonment in default, and prohibited from driving all classes of motor vehicles for 6 months.

• Whether the trial Magistrate complied with the mandatory provisions of section 64(3) of the Road Traffic Act in conducting an inquiry into the degree of negligence
• Whether the accused was given an opportunity to make submissions on special circumstances before a prohibition from driving was ordered in terms of section 66(4) of the Road Traffic Act
• Whether the sentence imposed was appropriate given that the vehicle was a commuter omnibus attracting higher penalties under section 52(2)(a) of the Road Traffic Act

The conviction was confirmed. The sentence was set aside and the matter was referred back to the trial Magistrate for a proper inquiry in compliance with the mandatory provisions of sections 64(3) and 66(4) of the Road Traffic Act, and for re-sentencing in accordance with law.

In culpable homicide cases arising from road traffic accidents, compliance with the mandatory procedural requirements of the Road Traffic Act is essential. Specifically: (1) A proper inquiry must be conducted into the degree of negligence in accordance with section 64(3) of the Road Traffic Act before sentence is imposed; (2) Before ordering a prohibition from driving, the court must afford the accused an opportunity to make submissions on special circumstances as required by section 66(4) of the Road Traffic Act; (3) Where the vehicle involved is a commuter omnibus or heavy vehicle, the enhanced penalties under section 52(2)(a) must be considered. Failure to comply with these mandatory provisions constitutes a misdirection warranting setting aside of the sentence on review.

The court expressed concern that despite numerous available judgments providing guidance on the proper procedures to be followed in culpable homicide cases arising from road traffic accidents (including State v Chirwa HB 124-04, State v Chaita & Ors 1998 (1) ZLR 213 H, and State v Mapeka & Anor 2001 (2) ZLR 90 (H)), judicial officers continue to make the same mistakes. This suggests a systemic problem requiring attention beyond individual case correction.

This case reinforces the importance of strict compliance with mandatory procedural requirements in culpable homicide cases arising from road traffic accidents in Zimbabwe. It emphasizes that judicial officers must conduct a proper inquiry into the degree of negligence as required by section 64(3) of the Road Traffic Act before sentencing. Additionally, before imposing a prohibition from driving, the court must afford the accused an opportunity to make submissions on special circumstances in terms of section 66(4). The judgment also highlights the enhanced penalties applicable when the vehicle involved is a commuter omnibus or heavy vehicle under section 52(2)(a). The case demonstrates the supervisory role of the High Court through criminal review to ensure correct application of the law, particularly in ensuring procedural fairness and proper sentencing.