The State v Allen Nyambo

On 9 October 2016, the accused was driving a Yutong bus with 50 passengers on board along the Harare-Mutare Road towards Rusape, traveling behind a Nissan Presage. On approaching the 160.5 km peg, the other driver reduced speed as visibility was impaired due to smoke from a veld fire. The accused's visibility was also impaired and he failed to observe the driver reducing speed. He rammed into the back of the other vehicle, resulting in the death of one of the passengers in that vehicle from injuries sustained in the accident. The accused was charged with contravening section 49 of the Criminal Law (Codification and Reform) Act (culpable homicide).

• Whether the trial magistrate was obliged to prohibit the accused from driving and/or cancel his licence under section 64(3) of the Road Traffic Act following a conviction for culpable homicide arising from a traffic accident
• Whether the accused's conduct amounted to negligent driving under section 52(2) or driving without due care and attention under section 51 of the Road Traffic Act
• Whether the trial magistrate properly exercised her discretion in not imposing prohibition from driving or cancellation of licence

The proceedings were confirmed as being in accordance with real and substantial justice. The conviction and sentence imposed by the trial magistrate (a fine of $300 or 30 days imprisonment in default, with an additional 30 days imprisonment wholly suspended on condition of future good behaviour, without prohibition from driving or cancellation of licence) were upheld.

Section 64(3) of the Road Traffic Act only requires peremptory prohibition from driving and/or cancellation of a licence where the accused, if charged under the Road Traffic Act instead of at common law, would have been convicted of an offence that mandates such prohibition/cancellation. Where the accused's conduct would have constituted driving without due care and attention under section 51 of the Road Traffic Act, the trial court has discretion whether to impose prohibition from driving, and such discretion must be exercised judicially having regard to all the circumstances. The death of a person in a traffic accident does not automatically mean the accused's conduct amounts to negligent driving under section 52(2) rather than driving without due care and attention under section 51; the degree of negligence must be assessed on the facts of each case.

The court noted that driving without due care and attention is in fact a category or gradation of negligent driving, being a lesser degree of negligent driving as set out in section 52(2) of the Road Traffic Act. The court also observed that while the trial magistrate erred in her response to the scrutinizing magistrate by stating that section 51 does not provide for prohibition and cancellation of licences, this error did not impact the correctness of her decision not to prohibit the accused from driving or cancel his licence, as she had properly exercised her discretion based on the circumstances of the case.

This case clarifies the application of section 64(3) of the Road Traffic Act in cases where a person is convicted of culpable homicide arising from a traffic accident. It establishes that prohibition from driving and/or cancellation of a licence is not automatic in all culpable homicide cases, but depends on whether the accused would have been convicted of a Road Traffic Act offence that makes such prohibition/cancellation peremptory. The case also distinguishes between driving without due care and attention (section 51) and negligent driving (section 52(2)), emphasizing that the death of a person does not automatically elevate the offence to the more serious category. The judgment reinforces the trial court's discretion in sentencing and the importance of considering the specific circumstances of each case, including factors beyond the accused's control.