The State v Kudakwashe Gift Hombarume

On 9 April 2025, the accused, a 24-year-old unlicensed driver, was driving a Honda Shuttle motor vehicle along New Chitungwiza Road in Harare. As he approached Energy Park Service Station, he lost control of the vehicle which swerved left and struck the deceased, Custon Charumbira, who was walking on the left side of the road. The deceased sustained broken legs and severe head injuries and died at the scene. The accused was driving at an excessive speed (80-100 km/hr in a 60 km/hr zone), failed to keep a proper lookout, and failed to keep the vehicle under proper control. The vehicle only stopped 67 metres from the point of impact. The accused pleaded guilty to two counts: culpable homicide under s49 of the Criminal Law Code and driving without a driver's licence under s6(1)(a) of the Road Traffic Act. The trial court convicted him on both counts and sentenced him to a fine of US$200 for driving without a licence and 24 months imprisonment for culpable homicide (12 months suspended for 5 years on condition of good behaviour, and 12 months suspended on condition of 420 hours community service). Five Es Safety (Pvt) Ltd complained to the Chief Magistrate about the adequacy of the sentence, triggering this review under s29(4) of the High Court Act.

• Whether the trial court properly assessed the degree of negligence in the culpable homicide case
• Whether the sentence imposed for culpable homicide was appropriate and in accordance with real and substantial justice
• Whether community service was an appropriate sentence in the circumstances
• Whether the trial court erred in failing to consider prohibiting the accused from driving under s64(3) of the Road Traffic Act
• Whether the charge of driving without a licence was properly cited
• The proper consideration and weight to be given to victim impact statements in sentencing

1. The conviction and sentence in count two (driving without a licence - US$200 fine) confirmed. 2. The conviction in count one (culpable homicide) confirmed. 3. The sentence for culpable homicide withheld as not in accordance with real and substantial justice. 4. Matter remitted to the trial court to carry out an enquiry under s64(3) of the Road Traffic Act regarding prohibition from driving. 5. Trial magistrate ordered to recall the accused within 30 days to conduct the s64(3) enquiry.

In culpable homicide cases arising from road traffic accidents: (1) Courts must properly assess the degree of negligence (ordinary, gross, or reckless) by considering all admitted particulars of negligence, evidence including traffic accident reports, and relevant factors such as driving without a licence, as the degree of negligence directly impacts appropriate sentencing. (2) Driving without a licence, while not itself an act of negligence, is a relevant factor in assessing degree of negligence where lack of skill contributed to the accident. (3) Victim impact statements are valuable tools in the sentencing process and must be considered, but cannot usurp the court's sentencing discretion or allow offenders to avoid appropriate punishment through compensation - courts must balance victim wishes against the seriousness of the offence and societal interests. (4) Community service is not automatically appropriate for every sentence falling within the community service grid; it must not trivialize serious offences, particularly culpable homicide involving gross negligence and aggravating circumstances. (5) Courts are mandatorily required to consider prohibition from driving under s64(3) of the Road Traffic Act when sentencing for culpable homicide involving motor vehicles, whether the offender is licensed or not, and failure to do so constitutes a misdirection. (6) Under s29(4) of the High Court Act, the High Court may review criminal proceedings whenever they come to its attention as not being in accordance with real and substantial justice, even without a formal application for review.

The court made several important observations: (1) Victim impact statements are a commendable development in the Zimbabwean criminal justice system, representing a paradigm shift from focusing solely on the offender to also considering the victim's perspective, and serve to empower victims by giving them a voice in the justice process and providing closure. (2) With high rates of accidents on roads, courts must send strong warnings that driving without licences resulting in fatalities will attract judicial censure. (3) Courts should not allow offenders to 'buy themselves out' of custodial sentences simply because they can pay compensation for the crime. (4) The personal interests of a deceased's family cannot take centre stage over the seriousness and prevalence of the offence and the interests of society. (5) Legal practitioners representing accused persons have a duty to make meaningful submissions regarding degree of negligence, and prosecutors should ensure their views on this critical factor are properly articulated. (6) Judicial officers are required to check the correctness of citation and averments in charges before putting them to accused persons. (7) Prohibiting unlicensed drivers from driving encourages compliance with law and promotes road safety, having a deterrent effect not only on the offender but on potential offenders.

This Zimbabwean case is significant for establishing important principles regarding: (1) the proper assessment of degrees of negligence in culpable homicide cases arising from road traffic accidents, requiring consideration of all admitted particulars and evidence rather than simplistic findings; (2) the appropriate weight to be given to victim impact statements - while valuable, they cannot override the interests of justice or allow wealthy offenders to avoid appropriate punishment through compensation; (3) the limitations on community service as a sentence, particularly where it would trivialize serious offences like culpable homicide involving gross negligence; (4) the mandatory nature of considering prohibition from driving under s64(3) of the Road Traffic Act in all culpable homicide cases involving motor vehicles, whether the offender is licensed or not; and (5) the scope of review under s29(4) of the High Court Act, which empowers the High Court to intervene whenever criminal proceedings fall short of real and substantial justice, even without a formal application. The judgment emphasizes the need for deterrent sentences in road traffic fatalities, particularly where offenders drive without licences, to promote road safety and compliance with traffic regulations.