The State v Albert Mhondiwa

The accused was charged with driving under the influence of alcohol in contravention of section 55(2) of the Road Traffic Act [Chapter 13:11]. On 23 July 2013 at about 20:13 hours along Plumtree road, Bulawayo, the accused drove a Granvia vehicle (registration number ACQ 3053) with an alcohol concentration of 187 mg/100mls of blood. He pleaded guilty and was convicted. The accused lost control of his vehicle and collided with a stationary vehicle that was correctly parked facing a shopping centre. He was sentenced to a US$300 fine or 6 months imprisonment. The matter came on criminal review where the scrutinizing regional magistrate raised four queries regarding the trial proceedings.

• Whether the charge was properly framed to include all essential elements of the offence under section 55(2) of the Road Traffic Act
• Whether the conviction should stand despite deficiencies in the charge and canvassing of essential elements
• Whether the trial magistrate erred in failing to prohibit the accused from driving as required by section 55(5)(a)(i) of the Road Traffic Act
• Whether the trial magistrate erred in failing to cancel the accused's driving licence as mandated by section 55(5)(a)(i) of the Road Traffic Act

The conviction was confirmed. The sentence was set aside and the matter was remitted to the same trial magistrate to recall the accused and sentence him anew after first enquiring into the issue of special circumstances in terms of section 55(5)(a)(i) of the Road Traffic Act. The subsequent substantive sentence must not exceed the earlier sentence of US$300 or in default of payment 6 months imprisonment.

The essential elements of contravening section 55(2) of the Road Traffic Act are: (a) one drove/attempted to drive a motor vehicle; (b) while under the influence of alcohol or drug or both; (c) to such an extent as to be incapable of having proper control of the vehicle. All these elements must be incorporated in the charge and canvassed with the accused. However, where an accused admits the conduct and the facts clearly demonstrate incapacity to control the vehicle, the conviction will stand despite deficiencies in framing the charge. Section 55(5)(a)(i) of the Road Traffic Act makes prohibition from driving (for not less than 6 months for first offenders) and cancellation of licence mandatory upon conviction under section 55(2), unless special circumstances exist. Trial magistrates must enquire into special circumstances before imposing sentence and must thoroughly acquaint themselves with relevant statutory provisions before sentencing.

The court noted that section 55(3)(a) of the Road Traffic Act creates a rebuttable presumption that where alcohol concentration in blood is not less than 150mg/100ml, the accused was under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The court observed that issues regarding legal presumptions are not commonly understood by lay persons and should be brought to an unrepresented accused's attention. The court also noted that the reference to subsection (1) in section 55(5)(a)(i) appeared to be a draftsman's error, as the offence-creating provision is actually subsection (2). The fourth query raised by the scrutinizing magistrate regarding the practice of writing "fine" before the amount was dismissed as of no consequence or moment.

This case is significant in Zimbabwean road traffic law as it clarifies the essential elements that must be included when charging an accused under section 55(2) of the Road Traffic Act. It emphasizes the mandatory nature of the prohibition from driving and cancellation of licence provisions under section 55(5)(a)(i), even for first-time offenders, unless special circumstances exist. The judgment serves as an important reminder to trial magistrates to thoroughly acquaint themselves with relevant statutory provisions before sentencing, particularly regarding mandatory sentencing provisions. It also demonstrates how reviewing courts will intervene to ensure procedural fairness and proper application of the law while preserving convictions where guilt is clearly established.