The accused was convicted on his own plea of guilty for culpable homicide arising out of a traffic accident in contravention of s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The trial court imposed a sentence of imprisonment which was suspended on various conditions. In addition to this sentence, the trial court ordered the endorsement of the accused person's driver's license in terms of s 66 of the Road Traffic Act [Chapter 13:11]. The scrutinising regional magistrate raised a query as to whether it was legally permissible to invoke the provisions of the Road Traffic Act in circumstances where an accused was convicted of an offence under the Criminal Law (Codification and Reform) Act.

Held, that as long as an accused person has been convicted of an offence involving murder, attempted murder, culpable homicide, assault or any similar offence by or in connection with the driving of a motor vehicle in terms of any law (whether common law or statute law) other than the Road Traffic Act, the court is obliged by virtue of s 64 to invoke the provisions of the
Road Traffic Act.

Cases cited:

Mhishi v The State HH 85-11 (unreported), referred to

S v Chaita & Ors 1998 (1) ZLR 213 (H), followed

Legislation considered:

Criminal Law (Codification and Reform) Act [Chapter 9:23], s 49

Road Traffic Act [Chapter 13:11], ss 64, 66

The accused was charged with the crime of contravening s 49 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], "(Culpable Homicide)".

The accused pleaded guilty to the charge. He was sentenced by a provincial magistrate to 12 months imprisonment of which six months imprisonment was suspended for five years on condition that the accused does not within that period commit any offence involving negligent driving and for which upon conviction he is sentenced to imprisonment without the option of a fine. The remaining six months imprisonment was suspended on condition that the accused completes 210 hours of community service at Glen View 4 Primary School. In addition, the accused was advised to surrender his driver's licence with the clerk of court, Mbare for endorsement in terms of s 66 of the Road Traffic Act [Chapter 13:11].

The facts were that the accused was a holder of a valid Zimbabwean driver's licence for classes 2, 4 and 5. On 5 June 2014 at around 09:30 am the accused was driving a NISSAN CARAVAN registration number ACR 7655 along 37 Crescent due South. On approaching the gate of house number 2278 Glenview 1, Harare, the accused person negligently ran over a pedestrian who was picking wild berries (nyii) in the road. The pedestrian sustained some injuries and died on the spot. The pedestrian was a minor aged three years. The particulars of negligence were listed as failing to have a proper lookout of the road, failing to stop or act reasonably when an accident or a collision seemed imminent and failing to exercise a high degree of care from a driver who sees children in the road.

The conviction is confirmed as being in accordance with real and substantial justice.

The acting regional magistrate who received the record of proceedings for scrutiny raised a query with the trial magistrate in the following terms:

"Since the accused was charged under the Criminal Law Codification and Reform Act, was it competent for the court to invoke the provisions of the Road Traffic Act to order endorsement of accused's driver's licence? (See attached High Court judgment of Mhishi v The State HH 85-11)."

The learned trial magistrate defended his decision and responded to the regional magistrate in the following manner:

"...The court, in ordering for endorsement of the accused' licence, was guided by the case of S v Chaita & Ors 1998 (1) ZLR 213 (H) where the accused was charged of culpable homicide arising out of traffic accident and was sentenced in terms of provisions of the Road Traffic Act. The court believes it will be unfortunate for an accused charged in terms of s 49 of the Code to benefit from the non-imposition of penalties which would have been imposed in terms of the Road Traffic Act. Reference is made to S v Dzvata 1984 (1) ZLR 136 (H).

I will nevertheless stand guided in the event that I made a wrong finding."

The regional magistrate has now referred the record of proceedings for review. She posed the question whether the common law position still applies under the present regime where culpable homicide is now a statutory offence under a statute which does not make reference to prohibition from driving under the Road Traffic Act? She said that she was not satisfied that it was competent for the court to invoke the provision of the Road Traffic Act (s 66) in sentencing the accused considering that the offence for which accused was convicted of is in terms of a statute and not a common law offence.

Section 66 of the Road Traffic Act provides that:

"66 Endorsement of licences

(1) Any licence held by a person who –

(a) is prohibited from driving in terms of section 62 or 63; or

(b) is permitted in terms of section 62 or 63 to drive a motor vehicle on a road subject to conditions,

shall be endorsed with the particulars of such prohibition or conditions in such manner as may be prescribed."

It is true therefore, that where an accused was convicted of culpable homicide arising out of the use of a motor vehicle, the court before the coming into operation of the Criminal Law (Codification and Reform) Act, could invoke the provisions of the Road Traffic Act as per the authorities cited by the learned trial magistrate. That is the procedure outlined in the case of S v Chaita & Ors 1998 (1) ZLR 213 (H). That has always been the correct procedure.

To start with I agree with the regional magistrate's observations that the cases cited by the trial magistrate were dealt with prior to the coming into operation of the current Criminal Law (Codification and Reform) Act. However, there seems to be divided opinion whether the old procedure still applies or not given the judgment of Mhishi v The State HH 85-11 (unreported). The Mhishi judgment was delivered after the coming into operation of the current Criminal Law (Codification and Reform) Act. The judge of appeal in that case was of the view that the learned magistrate should neither have cancelled the appellant's driver's licence nor prohibit him from driving. He said at 4 of the cyclostyled judgment:

"As regards the cancellation of the appellant's driver's licence, it is my respectful opinion that the court a quo fell into error by sentencing the appellant as if he was charged in terms of the Road Traffic Act. The appellant was charged and pleaded guilty to contravening s 49 of the Criminal Law (Codification and Reform) Act, [Cap 9.23]. The penalty provision of that section does not provide for the cancellation of an accused's driver's licence nor does it provide for prohibition from driving. It therefore follows that the learned magistrate should neither have cancelled the appellant's driver's licence nor prohibit him from driving."

With the greatest of respect, I think the judge overlooked the provisions of s 64 of the Road Traffic Act. The section expressly says:

"64 Prohibition from driving on conviction of certain offences

(1) Subject to this Part, a court convicting a person of an offence in terms of any law other than this Act by or in connection with the driving of a motor vehicle on a road may, in addition to any other penalty which it may lawfully impose, prohibit the person from driving for such period as it thinks fit.

(2) Subject to subsection (3), on a second or subsequent conviction for an offence at common law, which offence involves killing or injuring or attempting to kill or injure a person by or in connection with the driving of a motor vehicle on a road, the court concerned shall prohibit the person convicted from driving for a period of not less than twelve months unless such court, having regard to the lapse of time since the date of the previous or last previous conviction for such offence, prohibits the person convicted from driving for a shorter period or declines to prohibit such person from driving and endorses its reasons for so prohibiting or declining on the record of the case when passing sentence.

(3) If, on convicting a person of murder, attempted murder, culpable homicide, assault or any similar offence by or in connection with the driving of a motor vehicle, the court considers –

(a) that the convicted person would have been convicted of an offence in terms of this Act involving the driving or attempted driving of a motor vehicle if he had been charged with such an offence instead of the offence at common law; and

(b) that, if the convicted person had been convicted of the offence in terms of this Act referred to in paragraph (a), the court would have been required to prohibit him from driving and additionally, or alternatively, would have been required to cancel his licence;

the court shall, when sentencing him for the offence at common law –

(i) prohibit him from driving for a period that is no shorter than the period of prohibition that would have been ordered has he been convicted of the offence in terms of this Act referred to in paragraph (a); and

(ii) cancel his licence, if the court would have cancelled his licence on convicting him of the offence in terms of this Act referred to in paragraph (a)." (my emphasis)

My understanding is that as long as an accused has been convicted of an offence involving murder, attempted murder, culpable homicide, assault or any similar offence by or in connection with the driving of a motor vehicle in terms of any law (whether common law or statute law) other than the Road Traffic Act, the court on convicting that accused must invoke the provisions of the Road Traffic Act. I say so because the Criminal Law (Codification and Reform) Act lists a number of Acts that it repealed and or amended when it came into effect. The Road Traffic Act is one such Act that was never expressly repealed or amended as far as the court's powers to prohibit, cancel and endorse an accused's driver's licence is concerned. It is therefore competent for the court to invoke the provisions of the Road Traffic Act as it did in sentencing the accused. The order that the accused should surrender his driver's licence with the clerk of court, Mbare for endorsement in terms of s 66 of the Road Traffic Act is therefore competent.

MUREMBA J concurred.