The State v Tadzai Karimakwenda

The accused appeared before the Provincial Magistrate at Chitungwiza on 3 February 2022. On 30 November 2021 around 7:30am, the accused was driving a Toyota Noah motor vehicle along Seke road. At the intersection of Seke road and Masotcha Ndlovu avenue, the accused negligently hit a female juvenile with his vehicle as she was crossing the road. The juvenile suffered soft tissue injury. The accused admitted that he failed to act reasonably when an accident seemed imminent and failed to keep a proper lookout. The accused held only a military licence, which does not qualify as a licence under the Road Traffic Act. The accused pleaded guilty to negligent driving under s 52(2) of the Road Traffic Act [Chapter 13:11]. The Provincial Magistrate convicted him and imposed a sentence of ZWL 15,000 or 60 days imprisonment, plus an order that the clerk of court forward details of the conviction for endorsement on any licence the accused might obtain in future. The Regional Magistrate referred the matter for review on the basis that the second part of the sentence was improper.

• Whether the second part of the sentence ordering prospective endorsement of a future licence was legally competent
• Whether the trial magistrate should have suggested additional charges for driving without a valid licence
• The proper application of s 6(b) of the Road Traffic Act regarding prohibition from driving
• The distinction between the Registrar of Road Traffic Licences and the Registrar of Vehicles
• Whether a military licence qualifies as a 'licence' under the Road Traffic Act

The conviction was confirmed. The sentence was partly set aside by quashing the second part directing the clerk of court to forward details of the conviction for future licence endorsement. The sentence was corrected to read: 'ZWL 15,000.00 or in default of payment 60 days imprisonment.'

There is no legal provision in the Road Traffic Act that permits or requires the endorsement of a conviction on a licence that an accused does not yet hold but may obtain in the future. If there is no licence to endorse, then no endorsement should be ordered (though prohibition may be imposed). A court should not suggest to the prosecution that additional charges be preferred against an accused, as this would interfere with the discretion of the Prosecutor General and could compromise judicial impartiality. A military licence does not qualify as a 'licence' as defined in s 2 of the Road Traffic Act [Chapter 13:11].

The court observed that although prohibition from driving was discretionary, serious thought should have been given to prohibiting the accused from driving given the seriousness of the negligent driving offence in which a pedestrian was knocked. The court suggested that such prohibition could be qualified by providing that it would terminate earlier if the accused obtained a proper driver's licence, which could incentivize the convict to become licensed and thereby cease being a danger to society as an unlicensed driver. The court also noted confusion in practice between the office of the Registrar of Road Traffic Licences (created by s 4 of the Road Traffic Act) and the Registrar of Vehicles (created by the Vehicle Registration and Licencing Act [Chapter 13:14]).

This case clarifies important principles regarding sentencing in road traffic matters in Zimbabwe. It establishes that there is no legal basis for ordering prospective endorsement of a licence that an accused may obtain in the future - endorsement can only apply to existing licences. The case reinforces the separation of powers by emphasizing that courts should not suggest additional charges to prosecutors, as this interferes with the discretion of the Prosecutor General and may compromise judicial impartiality. It also clarifies that military licences do not qualify as licences under the Road Traffic Act, and distinguishes between different statutory officers (Registrar of Road Traffic Licences vs Registrar of Vehicles). The judgment provides guidance on the proper exercise of discretion regarding prohibition orders under s 6(b) of the Road Traffic Act.