Whilst it might be a bitter pill to swallow for relatives and concerned citizens, there is generally nothing unusual for a magistrate to impose a fine or community service to a killer driver. However, each case must be dealt with according to its own facts and merits.
There was a public outcry when a Masvingo magistrate ordered an unlicensed killer driver to perform community service after a tragic road traffic accident along Jongwe Road in Pangolin.
The accident took three human lives and resulted in the injury of four other pedestrians.
As usual, some sections of the public were quick to point fingers at the trial magistrate. Our Constitution guarantees freedom of expression and opinion. For that reason, there is nothing wrong in expressing views on a court judgement.
That corruption is rife in Zimbabwe is undeniable. But to hasten to conclude that a particular magistrate is corrupt without doing a proper research is something else. I myself, have in the past publicly criticized some High Court and Supreme Court judgements. I however do thorough research before critiquing.
Facts of the case.
The fatal accident occurred in Pangolin, a high density suburb about 6kms out of Masvingo town . It happened on the 28th of August 2020. On the fateful day, 26 year old Tendai Twelezinhle Gondo whom I shall refer to as “the accused” was driving a Toyota Vista without a driver’s license.
The accused rammed into a car which was in front of him. Instead of stopping, he sped off from the accident scene. In the process, he tried to overtake an undisclosed number of cars which were in front of him. Put differently, he drove for a remarkable distance but on the wrong lane. The accused then lost control of the vehicle and bumped into a group of seven pedestrians. As if that was not enough, he did not stop. He sped off again, only to show up at the police station the following day.
One person died on the spot and two were pronounced dead upon arrival at Masvingo Provincial Hospital. The remaining four pedestrians sustained very serious injuries. The injuries were so serious to the extent that there is a possibility of permanent injury for one of the survivors.
These are the unchallenged facts that were presented to the magistrate.
The charges and sentence
The accused was charged with four counts; driving without a license, negligent driving arising out of ramming the car which was in front, culpable homicide and fail to stop after an accident. The propriety of the number of charges is a discussion for another day. What is important is the fact that the represented accused pleaded guilty to all four charges and was subsequently convicted.
The magistrate sentenced the accused to 24 months imprisonment, 12 months of which were suspended on the usual conditions of good behavior. The remaining 12 months were suspended on the condition that he performs 420 hours community service at a local school. In addition, he was prohibited from driving for 2 years.
Sentencing is not as easy as it might seem. Magistrates are guided by sentencing provisions set out in the relevant statutes, previous High Court and Supreme Court decisions and, above all, the circumstances surrounding each particular case.
In culpable homicide cases arising out of road traffic accidence, the majority of previous superior court decisions lean in favour of non-custodial sentences. In S v Duri (1989) the Supreme Court okayed the imposition of a fine to a driver who knocked down and killed a 5 year-old-child. In S v Ferreira (1992), the accused was also ‘fined’ for killing a 7-year-old boy. In S v Duduzile Manhenga (2015), an unlicensed driver paid fine for killing a cyclist.
As hinted earlier on, each case must be treated according to its facts and merits. In S v Lusenge, former Chief Justice Fieldsend ( 1981) remarked; “..unless it can be shown by the evidence that the accused is guilty of this class of negligence it would be improper to send a first offender to prison for a driving offence.”
The word “unless” imply that imprisonment can be justified in certain cases. It is in cases where the class of negligence is gross that imprisonment can be imposed. Negligence can be classified as either ‘ordinary’ or ‘gross’. In the case of S v Mtizwa, an accused drove on the wrong side of the road and killed a cyclist. The High Court found that imposition of a fine was inappropriate because the negligence was gross.
Two years ago, a fatal accident involving a Higer bus and a Land Rover occurred a few kilometres out of Masvingo town along Masvingo Beitbridge road. A total of six people died in the gross negligence case. High Court judges, Justice Mawadze and Mafusire frowned upon the imposing of a fine in the case (S v Chifumuro).
In the case under review, the unlicenced driver drove on the wrong side of the road in a high density suburb were traffic volume is normally high. That seven people were in the road is testimony that the road was even busier on the fateful day. That in my view is gross negligence, if not recklessness.
Having realised that he had run over a number of pedestrians, the accused did not bother to stop and render assistance to the victims. He left them to die! He sped off at a high speed, endangering more motorists and pedestrians. It goes without saying that his moral blameworthiness was very high.
As mentioned above, sentencing is not an easy process. A number of factors have to be considered. The accused is a youthful first offender who was said to be a GZU student. Although relatives have reportedly complained that he did not fulfil his promises, it is a fact that his family rendered financial assistance towards funeral and medical expenses.
Be that as it may be, the public prosecutor who dealt with the case was of the view that accused drove recklessly and hence imprisonment was inescapable. The trial magistrate however thought otherwise. In the S v Chifumuro case mentioned above, the public prosecutor also suggested imprisonment but the magistrate would hear none of it.
Recommendation and conclusion
If a person drives a commuter omnibus without a license, the law provides that imprisonment “must” be imposed regardless of whether or not the person is involved in an accident. In such cases, magistrates generally have no option but to impose not less than six months imprisonment. This is called a minimum mandatory sentence. Stock Theft is another example of an offence with a minimum mandatory sentence (nine years imprisonment).
It is high time the law gets amended such that if a person drives any form of motor vehicle without a license, he/she be imprisoned without any other option. The latter will go a long way in putting unlicensed persons off the steering wheel.
May the souls of all those who lost their lives through road traffic accidents rest in peace. Drive, ride and walk cautiously this festive season and forever. Human lives are precious and irreplaceable.
Wish you a happy new year 2021!
Fidelicy Nyamukondiwa is a former public prosecutor who writes here in his personal capacity. Follow @FidelNyams on Twitter. 0718975244 for views and comments