STATE v CHITAMBWE (370 of 2025) [2025] ZWHHC 370 (26 June 2025)

4 HH 370 - 25 CRB 4246/25 STATE versus PETER CHITAMBWE HIGH COURT OF ZIMBABWE **MUREMBA & MANDAZA JJ** HARARE; 26 June 2025 **Criminal Review Judgment** MUREMBA J: 1. In Count 1, the offender was charged with and convicted of driving a public service vehicle, a Toyota Hiace without being the holder of a valid driver’s licence, in contravention of section 6(1)(a) of the Road Traffic Act (RTA). While operating the vehicle, he failed to maintain a proper lookout and reversed into a shop door. As a result, he was charged with Count 2: driving without due care and attention, in contravention of section 51(1) of the RTA. 2. I find no irregularities in the proceedings relating to the convictions in both counts and the sentence in Count 2 and accordingly confirm them. However, the sentence imposed for Count 1 raises concern. The offender was sentenced to 12 months’ imprisonment, of which 6 months were suspended for 5 years on condition of future good behaviour. The remaining 6 months were suspended on condition that the accused performs 210 hours of community service. Additionally, the offender was prohibited from driving Class 2 vehicles for life. 3. In terms of s 6(5) of the RTA, if a person drives a commuter omnibus or a heavy vehicle without a licence, the penalty is: “a period not exceeding five years and not less than six months, **unle** ss he satisfies the court that 1. he possessed a licence issued to him in respect of commuter omnibuses or heavy vehicles, as the case may be; and 2. the licence referred to in paragraph (a) ceased to be valid on the expiry of the period referred to in subsection (1) of section fourteen A; and 3. he could lawfully have renewed the licence referred to in paragraph (a) and, had he done so, he would have been entitled to drive the commuter omnibus or heavy vehicle concerned; or **unless** he satisfies the court, in terms of section eighty-eight A, that there are special reasons in the case why that penalty should not be imposed upon him.” 4. This provision imposes a qualified mandatory sentence. The penalty must not be less than six months' imprisonment, and can go up to five years. However, this mandatory sentence does not apply automatically. There are two exceptions under which a court may depart from the mandatory sentence and impose a lesser sentence. Firstly, if the offender proves that he had previously held a valid licence, the licence expired in accordance with section 14A (1), and he could lawfully have renewed it and remained entitled to drive. Secondly, if the offender satisfies the court that special reasons exist. In short, if a person drives a commuter omnibus or a heavy vehicle without a licence, the mandatory sentence should be imposed unless the offender meets the legal thresholds for either the technical exception or special reasons. 5. In the present matter, the trial magistrate did not to impose the mandatory sentence, citing the offender’s status as a student and reasoning that an effective custodial term would jeopardize his future career. However, according to the certificate of previous convictions that was produced at the hearing of the matter, the offender does not possess any driver’s licence, not even a Class 4 licence for light motor vehicles. This is a serious aggravating factor that should have been at the centre of the court’s consideration. 6. What is particularly concerning is that the offence occurred in the Central Business District, specifically at the intersection of Chinhoyi Street and Kwame Nkrumah Avenue in Harare, a location that is frequently busy with pedestrian and vehicular traffic. The offender indicated that he survives through piecemeal jobs and was working as a conductor on the day in question. Yet, despite holding the rank of Provincial Magistrate, the court did not interrogate this inconsistency: why, if the offender was merely a conductor, did he assume control of the vehicle? Even more troubling is the fact that the magistrate did not inquire whether there were any passengers in the vehicle at the time of the incident. If they were, it obviously means that he put their lives at great risk. It should also be considered that had any individual been present in that vicinity, the consequences could have been catastrophic. Passers-by might have sustained serious injuries or even lost their lives. This underscores the need by judicial officers to seriously interrogate the circumstances in which an unlicensed person operated a public service vehicle. 7. This case must also be understood within the broader context of a persistent and alarming pattern in Zimbabwe’s urban transport sector—wherein unlicensed conductors and touts frequently commandeer commuter omnibuses. This unlawful practice has led to numerous accidents, injuries, and fatalities. It is a matter of public safety and national concern. Courts are expected to play a pivotal role in curbing such conduct through the imposition of deterrent sentences that serve both punitive and preventive functions. 8. Regrettably, in this instance, the magistrate accepted the offender’s unverified claim of student status at face value without requesting any documentation from Harare Polytechnic College or another credible source. Not only was no proof tendered, but the court failed to assess whether this claim was even relevant at law. Even if it were true that the offender was a student, that status does not, in itself, amount to a special reason under section 6(5) of the Road Traffic Act to avoid a custodial sentence. To accept it as such sets a dangerous precedent: essentially giving students blanket immunity from accountability. 9. It is concerning that the Provincial Magistrate did not appear to fully engage with the seriousness of the offence and the potential risks it posed to public safety. The offender’s conduct was a criminal act that endangered lives. The decision not to impose the mandatory sentence, without proper inquiry or justification, signals a breakdown in the application of judicial discretion. Justice was not served. A stiffer sentence, consistent with the mandatory sentence, was both warranted and necessary to protect the public and to send a clear message that such recklessness will not be tolerated. 10. Section 29 (2) (b) (iii) of the High Court Act [_Chapter 7:06_] reads, “29 (2) If on a review of any criminal proceedings of an inferior court or tribunal, the High Court considers that the proceedings— (a)……… (b) are not in accordance with real and substantial justice, it may, subject to this section 1. ……….. 2. …………. 3. set aside or correct the proceedings of the inferior court or tribunal or any part thereof or generally give such judgment or impose such sentence or make such order as the inferior court or tribunal ought in terms of any law to have given, imposed or made on any matter which was before it in the proceedings in question;” 11. This provision confers substantive corrective authority on the reviewing judge. It empowers the reviewing judge to set aside a sentence imposed by the magistrate and substitute it with the appropriate mandatory sentence. Where a magistrate imposes a sentence that contravenes mandatory sentencing provisions under statute, such as the Road Traffic Act, or purports to exercise discretion where none is lawfully available, that constitutes a material misdirection in sentencing. Such a sentence is not compatible with real and substantial justice. The judge is therefore authorized not only to nullify the improper sentence but also to impose the sentence that ought to have been passed in terms of the law—in this case, the mandatory sentence provided for under section 6(5) of the Road Traffic Act. This provision serves to ensure that inferior courts do not subvert legislative intent, particularly where the legislature has clearly articulated itself through the enactment of mandatory penalties. The provision further protects public confidence in the administration of justice by correcting lenient or unlawful sentences that fail to reflect the seriousness of the offence. 12. Before varying the sentence, however, the reviewing judge must ensure that the offender is not prejudiced procedurally. This includes considering whether the offender was informed of the existence of the mandatory sentence during the trial and whether they were afforded the opportunity to place relevant evidence on record in support of an applicable exception or “special reason.” In _casu_ , the record of proceedings is completely silent on the fact that the offence attracted a mandatory sentence; what a mandatory sentence entails; and the inquiry into the exceptions contemplated under section 6(5)(a) to (c) or section 88A. The magistrate did not explain to the offender the obligation placed upon him to present evidence in support of the exceptions under section 6(5)(a) to (c) or section 88A in order to avoid the imposition of the mandatory sentence. The offender was merely asked to provide general mitigating factors, during which he mentioned that he is a student at Harare Polytechnic College studying Quantity Surveying, and that he was working as a conductor on the day of the offence. It was on this unverified basis that the trial magistrate concluded that a custodial sentence would jeopardize the offender’s career, and therefore imposed a non- custodial sentence. It is not even clear from the record of proceedings that the magistrate was aware that the penalty provision required her to impose a mandatory sentence in the absence of exceptions or special reasons. 13. Under the proviso to section 6(5) of the Road Traffic Act, the burden of proof lies with the offender to satisfy the court that all three conditions listed in paragraphs (a) to (c) have been met. These requirements are conjunctive—each one must be established on a balance of probabilities to justify departure from the prescribed mandatory sentence. The language of the provision— “ _unless he satisfies the court_ …”—clearly places the onus on the offender. To that end, the offender must produce admissible evidence demonstrating that he previously held a valid licence for the relevant class of vehicle (i.e., a commuter omnibus or heavy vehicle), that the licence expired in the ordinary course under section 14A, and that the licence could lawfully have been renewed, entitling him to continue driving that class of vehicle. 14. It is the duty of the magistrate to explain to the offender that there exists a legal avenue to rebut the mandatory sentence—namely, by satisfying the conditions under section 6(5)(a)–(c). The court must also ensure that the prosecution is given a meaningful opportunity to respond to any such claims. This procedural balance is essential to upholdi ng fairness and preventing misuse of the exception. In the present case, the magistrate entirely bypassed this process. The offender was not made aware of the statutory requirements attached to the offence. This failure constitutes a significant irregularity. 15. Special reasons were also not canvassed as required in terms of s 88A of the RTA. The section reads: “Section 88A **When mandatory penalties need not be imposed** 1. Notwithstanding any other provision of this Act, if a person who has been convicted of an offence in terms of this Act for which a minimum penalty is prescribed satisfies the court that there are special reasons in the particular case why such a penalty should not be imposed upon him, the court may impose upon him any penalty within its jurisdiction: Provided that the court shall record any factor or circumstance which it is satisfied is a special reason for the purpose of this section” 16. This section permits the court to depart from a mandatory penalty only if the offender _satisfies the court_ that there exist _special reasons_ for not imposing the prescribed sentence. The provision further mandates that the court must explicitly record any such reasons. This formulation places the onus squarely on the offender. The court's discretion is not automatic, it is conditional, and must be exercised on the basis of facts that are thoroughly interrogated and recorded on the court record. In _S_ v _Ndabenkulu Mlilo_ HB 131-10, this court held that if the court is required to impose the mandatory sentence in terms of s 6(5) of the RTA, it should inquire into the existence of special reasons. 17. To properly canvass special reasons, the sentencing process must follow a clear and deliberate procedure. There must be a pre-sentence explanation to the offender. The magistrate should explain, in plain terms, that the offence ordinarily attracts a mandatory sentence; that the only means of avoiding such a sentence is by satisfying the court of the existence of special reasons; that the burden of raising and proving such reasons lies with the offender; and that those reasons must go beyond personal hardship or general mitigating pleas. They must rest on objective, verifiable facts that render the case truly exceptional. This explanation serves not only to protect the offender’s right to be heard, but also to uphold the integrity of the sentencing process. 18. The offender should then be invited to formally place any alleged special reasons on record. If the accused is unrepresented, the court bears a duty to assist the offender by exploring possible grounds for such reasons. The State must be afforded the opportunity to respond to the offender’s submissions. This includes the right to dispute the authenticity or adequacy of the alleged reasons, or argue against departure from the mandatory sentence. This adversarial exchange is fundamental to ensuring a fair and transparent sentencing process and upholding the public interest in consistent application of the law. Following this, the magistrate must render a clear ruling on whether the accused has discharged the burden of proving special reasons. The reasons for that determination must be recorded in full. A failure to undertake this inquiry or to record findings as required—constitutes a misdirection, rendering the sentence vulnerable to review or appeal. In _S_ v _Mbewe & Others_ 1988 (1) ZLR 7 (H), this court, in a criminal review involving a contravention of a provision under the Parks and Wildlife Act that prescribed a mandatory minimum sentence, held that failure to record special circumstances constitutes a misdirection that renders the sentence incompetent. 19. While it is unnecessary to enumerate examples of special reasons in this judgment, it must be underscored that assertions such as "I am a student," "I am unemployed," or "I am the breadwinner" are not, in themselves, special reasons. Only when such claims are coupled with compelling and exceptional circumstances can they possibly meet the statutory threshold. This is because these are mitigating factors which are of general application. Mitigating factors of general application refer to circumstances that are commonly presented by many offenders and are generally considered during sentencing to reduce the severity of the punishment. Things like being unemployed, being a student, or being the breadwinner are often true for many people who come before the court, and while they might earn a bit of leniency in some contexts, they are not unique or exceptional enough to be considered “special reasons” that justify departing from a mandatory sentence. 20. In other words, just being in a difficult life situation is not enough. There needs to be something truly out of the ordinary, specific to the case, that sets it apart from the general run of offenders. In _Bepura Thompson_ v _The State_ HH 96-15, this court in dealing with an appeal involving s 6 (5) of the RTA, held that special reasons are reasons that are out of the ordinary which are peculiar to the offence and the offender. The court further held that economic expedience cannot be said to be a special reason. A clear distinction must therefore be drawn between special reasons and mitigating features which are of general application. See _S_ v _Mbewe supra_. 21. As already stated, in this case no inquiry into special reasons was conducted, and the sentence was imposed without satisfying the procedural and legal requirements. Accordingly, I am constrained to set aside the sentence and remit the matter to the trial magistrate for re-sentencing in line with the guidance provided in this review. This direction also applies to the driving prohibition imposed on the offender. The offender was barred from driving Class 2 motor vehicles for life without adherence to the procedural safeguards outlined in section 6(6) of the Road Traffic Act, which reads: “(6) Subject to Part IX, a court convicting a person of an offence in terms of subsection (5) may prohibit him from driving for such period as the court thinks fit: Provided that, if the motor vehicle he was driving in contravention of subsection (1) was a commuter omnibus or a heavy vehicle, the court shall prohibit him for life from driving motor vehicles of the class to which commuter omnibuses or heavy vehicles, as the case may be, belong, unless he satisfies the court that- 1. he possessed a licence issued to him in respect of commuter omnibuses or heavy vehicles, as the case may be; and 2. the licence referred to in paragraph (a) ceased to be valid on the expiry of the period referred to in subsection (1) of section fourteen A; and 3. he could lawfully have renewed the licence referred to in paragraph (a) and, had he done so, he would have been entitled to drive the commuter omnibus or heavy vehicle concerned; or unless he satisfies the court, in terms of section eighty-eight A, that there are special reasons in the case why such a prohibition should not be imposed upon him.” 22. In brief, section 6(6) of the Road Traffic Act sets out the mandatory driving disqualification applicable when a person is convicted of unlawfully driving a commuter omnibus or heavy vehicle. It provides that such a person must be prohibited for life from driving that class of vehicle, unless they satisfy the court that they meet the same exceptions outlined in section 6(5)—namely, that they previously held a valid licence, that it lapsed in terms of section 14A, and that it could have been lawfully renewed, or that there are special reasons justifying departure from the lifetime ban (as defined under section 88A). 23. The structure and legal effect of section 6(6) of the Road Traffic Act closely mirrors that of section 6(5). Both provisions impose mandatory penalties upon conviction—namely, a custodial sentence under section 6(5) and a lifetime driving prohibition under section 6(6). Importantly, both provisions permit departure from these mandatory outcomes only where the offender satisfies the court that they meet the prescribed statutory exceptions or that special reasons exist in terms of section 88A. In each instance, the onus rests squarely on the offender to place sufficient and credible evidence before the court. It is not for the court to presume the existence of such exceptions. Rather, a deliberate and structured inquiry must be conducted, and any findings—whether in favour or against the offender, must be clearly recorded on the court record. 24. It is therefore both procedurally and legally problematic that the Provincial Magistrate proceeded to impose a lifetime driving prohibition under section 6(6) without first explaining the nature and effect of the provision to the offender, or offering him an opportunity to make submissions on why such a prohibition should not be imposed. There is no record of any inquiry, no indication that the offender was made aware of the consequences, and no reasons given to support the disqualification. The prohibition was therefore imposed in a manner that was arbitrary, contrary to the law, and inconsistent with principles of natural justice. Such an omission undermines the fairness of the proceedings and renders the prohibition susceptible to being set aside. 25. In view of the foregoing, I give the following order. 1. The proceedings in count 2 are hereby confirmed. 2. The conviction in count 1 is confirmed. 3. The sentence in count 1 is set aside in its entirety and the matter is remitted to the trial magistrate for re-sentencing in line with the guidance provided in this review. **Muremba J** : ……………............................... **Mandaza J agrees** : ………………………..