The State v Jesca Chigwagwa

The accused, a 68-year-old female first offender with 6 children and two grandchildren, pleaded guilty to driving without a licence in contravention of s 6(1) of the Road Traffic Act and culpable homicide in terms of s 49(a) of the Criminal Law (Codification and Reform) Act read with s 64(3) of the Road Traffic Act. On 21 May 2020 at around 10am, the accused, who was not a licensed driver, drove a motor vehicle in Glen Norah C, Harare, a high density residential area. Upon reaching a curve, she lost control of the vehicle and hit Tracy Mashungu (the deceased) who was seated outside her house with neighbours. The deceased fell to the tarmac, was dragged for some meters, sustained head injuries, and was pronounced dead on arrival at hospital. Two other people seated with the deceased were also hit and injured. The magistrate found the accused's degree of negligence to be ordinary. She was sentenced to $3000/4 months' imprisonment for count 1 and $15,000/6 months' imprisonment for count 2, with an additional 10 months' imprisonment wholly suspended for 5 years on condition of future good behaviour.

• What is the proper procedure for establishing an accused's degree of negligence in culpable homicide cases arising from motor vehicle accidents where the accused pleads guilty?
• Why is it necessary to ascertain the degree of negligence in such cases?
• Whether the magistrate properly exercised discretion in not prohibiting the accused from driving pursuant to s 64(3) of the Road Traffic Act?
• Whether the sentence imposed was in accordance with real and substantial justice?

Convictions on both counts confirmed. Sentence in count 1 confirmed. Certificate of real and substantial justice for sentence in count 2 withheld.

In culpable homicide cases arising from motor vehicle accidents where the accused pleads guilty, the court must conduct a thorough inquiry to establish the accused's degree of negligence by asking detailed questions about the circumstances of the accident, either during the canvassing of essential elements or before passing sentence. The degree of negligence must be established for two purposes: (1) to determine whether additional punishments under s 64(3) of the Road Traffic Act (prohibition from driving and licence cancellation) should be imposed, and (2) as a relevant mitigatory or aggravatory factor in determining the main sentence under s 49(a) of the Criminal Law (Codification and Reform) Act. An unlicensed driver who drives a motor vehicle on a public road in a residential area knowing the risks involved and causes death through loss of vehicle control demonstrates gross negligence, not ordinary negligence. When exercising discretion on whether to prohibit an accused from driving, the court must demonstrate its reasoning process and balance societal interests in protection from dangerous drivers against the individual circumstances of the accused.

The court observed that the accused should have been charged with a third count of negligent driving for hitting the two other victims who did not die, and that the magistrate should have inquired about this omission. While courts should not ordinarily interfere with prosecutorial discretion, a simple inquiry pointing out the omission would not undermine prosecutorial independence under ss 258 and 260 of the Constitution. The court noted that the fact the accused hit two other people clearly showed the culpable homicide was committed in aggravatory circumstances. The court also commented that if the magistrate had properly inquired and found gross negligence, while the accused (being an old female first offender) might have been spared effective custodial sentence, a heftier fine should have been imposed.

This judgment provides important guidance on the proper procedure for determining degree of negligence in culpable homicide cases arising from motor vehicle accidents, particularly where the accused pleads guilty. It clarifies the dual purpose of establishing degree of negligence (for both additional traffic-related penalties and as a sentencing factor), and provides detailed guidance on the type of thorough inquiry magistrates must conduct. The judgment emphasizes that unlicensed driving resulting in death should generally be classified as gross negligence rather than ordinary negligence. It also emphasizes that when exercising discretion (such as on whether to prohibit from driving), magistrates must explicitly demonstrate their reasoning process and balance societal and individual interests. The case serves as an important precedent for proper sentencing methodology in road traffic fatality cases.