State vs Gwenzi (HCC2/26) [2026] ZWCHHC 2 (30 January 2026)

4 HCC 2/26 HCCR 1674/25 CHNCD 1095/25 THE STATE Versus TAKUDZWA GWENZI HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 22 January 2026 Criminal Review MUZOFA J: Introduction [1] This record of proceedings was placed before me for review following a complaint against the sentence imposed on the accused. [2] The accused was convicted with three charges arising from a road traffic accident. He pleaded guilty to culpable homicide, driving without a driver’s licence, and failure to stop after an accident in contravention of s 49 of the Criminal Law Codification and Reform Act [Chapter 9:23], s 6(i)a as read with s 6(5) and s 70(2) (ii) and s 70(3) of the Road Traffic Act [Chapter 13:11] (the Road Traffic Act) respectively. He was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended on the usual conditions of good behavior. The remaining 18 months imprisonment was suspended on condition of performance of community service. [3] The deceased’s parents filed a complaint with the Chief Magistrate’s Office. The complaint triggered the referral of this matter for review especially on the appropriateness of the sentence. A covering note accompanied the record of proceedings highlighting the perceived inadequacies in the assessment of sentence by the trial Magistrate. The sentiments are correct, the trial Court failed to properly apply itself in dealing with the matter. [4] Besides the failure to apply properly the sentencing principles, I also noted that the trial Court did not sentence the accused in respect of the second and third counts. There is no indication that all counts were treated as one for sentence which would still be a misdirection. It also did not consider whether to prohibit the accused from driving. Factual background [5] The accused, a 20-year-old young man appeared before a Magistrate sitting at Chinhoyi Court facing three counts from a road traffic accident as already set out. [6] The common cause facts are that on the 17th of November 2024 around 0400 hours he drove a Honda Fit registration number AFD 9831 along the Chegutu-Chinhoyi road with two passengers. About a kilometer from the Chinhoyi central business centre near Sips bar at the 89km peg, he hit five pedestrians. Four were injured but survived, one did not, he died. Instead of rendering some assistance, the accused disappeared from the scene. [7] He was later arrested and appeared before the Magistrate. He pleaded guilty to the three counts. The accused was legally represented during the proceedings. His legal practitioner duly confirmed that the accused fully understood the charges and the pleas were unequivocal. After production of documentary evidence, the Court then convicted him without canvassing the essential elements. It relied on the assurances by the legal practitioner that the pleas were genuine. This procedure is provided under s 271 (2) (b) of the Magistrates Court Act (Chapter 7:10). [8] The record of proceedings shows that the accused excepted to the charges. Written submissions were filed. The record of proceedings does not show what happened to the exception. A Magistrate Court is a Court of record. Everything that takes place must be recorded. [9] Where an exception is taken, a Court is obliged to address it. Section 171 of the Criminal Procedure and Evidence Act (Chapter 9:07) provides the guidelines on how to deal with exceptions as follows, ‘171 Exceptions (1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith and if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge. (2) When the accused pleads and excepts together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.’ [10] Depending on how the accused introduces the exception the Court must, as a matter of procedure dispose of it. It is a misdirection to simply ignore it. In this case it is unclear what transpired. What I noted is that some of the issues objected to in respect of the charge seem to have been corrected. The error by the trial Court is its failure to record what transpired. Since the accused was legally represented and no further objections were raised, something must have happened but the Court did not record it. There is no excuse for failure to record. The sentencing judgment [11] As already stated, the trial Court focused on the culpable homicide charge only. In assessing sentence, the trial Court assessed the degree of negligence. It referred to relevant authorities which means there was a full appreciation of what was expected. It concluded that the degree of negligence was gross although l could have settled for reckless considering the circumstances of the case. It is the assessment of the mitigating and aggravating factors that the trial Court failed to fully appreciate what was before it. As a result, its findings which overlooked certain important factors led to an incompetent sentence. Had the court considered the broad factors and the circumstances surrounding the commission of the offence it could have decided differently. [12] In assessing the degree of negligence, the court must consider the circumstances surrounding the commission of the offence. These are apparent from the particulars of negligence, the accused’s responses in canvassing essential elements, the submissions and the rest of the evidence. [13] In Chigwagwa HH 234/21 Muremba J suggested that the court must ask all the relevant questions when canvassing the essential elements since the court is already alive to the fact that it has to assess the degree of negligence. It must not be enslaved by the particulars of negligence which are usually couched in broad terms. [14] The particulars of negligence in this case were indeed broad; they were listed as failure to keep a proper look out and failure to keep the vehicle under proper control. The particulars were adequate to convict the accused. However, in assessing the degree of negligence more information was needed. For instance, what did it mean that he failed to keep a proper look out. Follow up questions like at what distance did he see the pedestrians, at what speed he was travelling, visibility, and his state of soberness since this was early morning. [15] Even if the court does not canvass the relevant questions to establish the degree of negligence when canvassing the essential elements, it is acceptable to ask the questions before sentence S v Mapeka 2001 (2) ZLR 90(H) cited in the Chigwagwa case (supra). It can also draw the information from the submissions. Fortunately, the legal practitioner in this case filed detailed submissions on the degree of negligence. These submissions must have assisted the Court to assess the degree of negligence. [16] The court in assessing the degree of negligence reasoned as follows: - “In the court’s view, by driving a defective vehicle without lights, the offender’s negligence amounts to gross negligence in the sense that there was a marked departure from the standards by which responsible drivers habitually govern themselves.” [17] Clearly the trial Court failed to assess the accused’s driving conduct properly. It based its findings on very limited factor (s). It relied on the particular of negligence that was listed in the State Outline but then cancelled using a pen. The trial Court failed to properly consider the accused’s conduct when the accident took place drawn from the listed particulars of negligence and submissions. Culpable homicide is a serious offence. It involves loss of life and the attendant long-term effects are devastating. Courts must treat it as such in dealing with cases under road traffic. A finding on the degree of negligence must be made by the court after a due factual enquiry has been conducted as recommended in S v Mutizwa1984(1) ZLR 230. The central issue is at the time the accident took place how did the accused conduct himself while driving? There was no analysis of what transpired in assessing the degree of negligence yet this was the fundamental issue. [18] Fortunately, the defence filed detailed submissions on how the accused drove the car. The trial Court‘s duty was to analyze what was admitted. It was submitted that, “In casu, the accused travelling at about 60km/hr and having seen the pedestrians at about 50m distance, reduced speed but continued travelling without seeing what was now in front of him after being dazzled by the lights. Despite reducing speed, he did not stop so as to avert collision. It is within this temporary blindness from the dazzling truck lights that culminated into the hitting (sic) the pedestrians who were in the midst of the road.” [19] The defence had done half the Court’s work in its submissions, it referred to the case of S v Mandwe 1993 (2) ZLR 233(SC) being authority that when dazzled a driver should stop or slow down to a manageable speed in order to see properly and control his/her motor vehicle. The accused admitted that he continued driving in this ‘temporary blindness’. [20] The accused literally confirmed that he kept on driving even if he could not properly see what was ahead yet he had already seen the pedestrians. He did not hoot. From his indications on the Traffic Accident Book the accused saw the pedestrians about 50m away and he was dazzled at 19.1 m which means when he was dazzled, he was aware that there were people on the road. He should have guarded against the possibility that the pedestrians would still be on the road. To proceed to drive when one cannot see and there is a high possibility that there are pedestrians on the road is decidedly negligent bordering on recklessness. [21] That said, even after finding the degree of negligence to be gross the Court did not properly assess the sentence. I must say the learned Magistrate was well aware of guiding precedent on this issue and duly cited the relevant authorities but failed to fully appreciate the guidance. It noted the sentiments in S v Manhenga HH 62/16 that generally speaking a finding of gross negligence or reckless driving calls for a term of imprisonment unless there are compelling mitigating factors. [22] In assessing sentence, the degree of negligence must be taken into account together with the mitigating and aggravating circumstances. The court considered it aggravating that he drove a defective vehicle (no lights) without a licence, he did not stop to ascertain whether any person was injured, failed to keep a proper look out and to keep the motor vehicle under control. To its credit it noted that the defective lights limited his vision yet it was still dark. [23] The mitigating factors listed were that the accused was a youthful first offender, he pleaded guilty, that the he was remorseful, he assisted during the funeral and promised to pay some compensation. It also took it as mitigatory that the victims were in the road and that only one medical affidavit was before the court, so it could not assess the extent of the injuries. One wonders why this was treated as mitigatory. It was common cause that the accused hit five people. [24] I comment in passing on the other pedestrians. There was no mention whether the accused was charged for hitting the other four pedestrians. As noted in the Chigwagwa case, it is irregular to overlook the accused’s conduct in respect of those who were injured. By comparison, had all the pedestrians died, the accused would have been charged with five counts of culpable homicide. There is therefore no justification for not preferring charges against the accused in respect of the other pedestrians. [25] Although the court did not specifically pronounce itself, it appears it concluded that the mitigatory factors outweighed the aggravating factors. It therefore settled for a non-custodial sentence which was contrary to decided cases that the Court referred to. Had the Court taken into account all the factors of the case especially that which was admitted by the accused in the submissions it could not have treated this matter as such. [26] Precedent shows that where the degree of negligence is gross a custodial sentence is appropriate, See S v Chitepo HMA 3/17 in which very instructive dictum by McNally J was referred that: “To my mind anyone who drives straight through a “Give way” sign at a T-junction and hits a lighted vehicle…..killing two people is prima facie grossly negligent. In view of the current increase in the number of tragedies on our roads, such conduct warrants a prison sentence. In principle that has always been the position – see S v Lusenge AD 138/81….I referred this matter to the Attorney-General and he agrees that a sentence and a prohibition from driving would have been appropriate.” [27] Some reference to decided cases may assist to demonstrate the sentencing trends in such cases. In the Chitepo case (supra), the accused hill started a tractor at night with one hand while a passenger perched precariously on the tractor’s mudguard. The passenger fell and was run over by the tractor. The two had been drinking. A custodial sentence of two years of which one year was suspended on usual conditions was confirmed. [28] In the Chigwagwa case the court withheld its certificate. The accused drove without a licence. Along the way she lost control and veered off the road and hit the deceased who was seated at her house with her neighbours. The trial court found the degree of negligence ordinary which the review Judge found wholly incompetent. The degree of negligence was supposed to be gross. It noted that a custodial sentence would have been appropriate although the accused would have escaped it due to her age. She was 68 years old. See also S v Chifodya HH 171-18. [29] The recent case of S v Hombarume HH 468/25 by the Judge President Dube with concurrence of the Deputy Judge President provides useful guidelines. In that case the accused, an unlicenced driver, drove a motor vehicle, lost control and hit a pedestrian walking on the left side of the road. The court a quo concluded that the degree of negligence was ordinary. It imposed a custodial sentence partly suspended on condition of good behavior and the remaining part suspended on condition of community service. [30] The proceedings were not confirmed. The case is authority that a Magistrate must thoroughly apply himself or herself in assessing the degree of negligence. Secondly that where an unlicenced driver causes an accident due to lack of skill, that factor must be taken as highly aggravatory. [31] In the line of cases cited the accused persons veered off the road and hit persons off the road. It does not necessarily follow that where the person hit was on the road then the accused’s culpability is reduced and must attract a lesser sentence. Each case must depend on its facts. [32] The decision as to whether to impose imprisonment, community service or fine depends on the degree of negligence exhibited by the accused in his driving conduct. In this case the accused was well aware that he had no authority to drive. He once held a learner’s licence. The highway code prohibits a person from driving without a licence or even drive an unroadworthy motor vehicle. These factors are listed as aggravating in the sentencing guidelines. The accused took a conscious risk to drive an unroadworthy motor vehicle without a licence. His situation was exacerbated by the faulty lights, he could not see but proceeded to drive taking a further risk, on what he may encounter on the road. He could not see where he was going limited by both his faulty lights and the dazzle lights from the truck. He should have stopped or reduced his speed to a level where he could see ahead. He reconciled with the possibility that he might hit the pedestrians. This was not a matter of pedestrians suddenly getting into the road. He actually saw them on the road; he had an opportunity to react to avoid hitting them. Sadly, his response was inadequate to avoid the accident. [33] It is indeed an overarching principle of the courts to spare youthful first offenders from incarceration. This is only applicable in deserving cases. A court’s duty is to balance the triad that is, the interests of justice, the offender and the crime. In this case the court overemphasized the accused’s circumstances. It did not even consider the victim impact statement and the interests of justice as a whole. The interests of justice require that drivers comply with road rules, to drive with a licence, drive road worthy vehicles. In this case the accused had faulty lights, he drove with his hazard lights while it was dark. The court must always not lose sight of the effect and consequences of the offence. [34] I associate myself with decided cases that such cases deserve a short custodial sentence. Community service trivializes the sanctity of life, especially where the driver embarks on driving in clear violation of the highway code. This is highly aggravating. His conduct after the accident showed lack of remorse. An appropriate sentence which promotes road safety accountability was supposed to be imposed. [35] The trial Court also failed to take into account the provisions under s 64(3) which provides: (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 had he been convicted of the offence in terms of this Act referred to in para-graph (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). [36] After convicting the accused, the Court was supposed to identify the relevant section under which the accused could have been charged under the Road Traffic Act. Since the degree of negligence was found to be gross the corresponding provision is s 52(2) of the Road Traffic Act. The Court was supposed to be guided by s52(4) (a) of the Road Traffic Act. The provision requires the Court to consider whether to prohibit the accused from driving for a period of time or even cancel the driver’s licence. [37] A Court must therefore make an inquiry and set out the reasons for its decision. It cannot simply ignore the provision. The purpose of that provision is to temporarily remove those involved in road traffic accidents from driving. It is beneficial to both the accused driver to recover from the traumatic experience and also to safe guard the motoring public. It does not matter that the accused was an unlicenced driver. In fact it is important that such an unlicenced driver be prohibited by an order of the Court since he has already demonstrated his inclination to flout the law. It is the cancellation of the driver’s licence that is of no effect since he was not a holder of a licence. Disposition [38] The court misdirected itself by failing to properly canvass the relevant aggravating circumstances which were more than the mitigatory circumstances. The court overemphasized the accused’s age, plea and assistance over the highly aggravating circumstances to continue driving when he could not see, driving a defective motor vehicle without a licence and his failure to take preventative measures to avoid the collision. Thereafter to abscond from the scene without rendering assistance. [39] The trial court also misdirected itself in failing to consider whether to prohibit the accused from driving in terms of s64(4) of the Road Traffic Act. It also misdirected itself by not imposing sentences in respect of the 2nd and 3rd counts, Accordingly, the following order is issued, The convictions are hereby confirmed to be in accordance with real and substantial justice.The sentence imposed on the 1st count is not in accordance with real and substantial justice, I withhold my certificate.The matter is referred to the court a quo to proceed in terms of s 64 of the Road Traffic Act (Chapter 13:11) and to assess sentence in respect of Counts 2 and 3. Bachi- Mzawazi J Agrees 4 HCC 2/26 HCCR 1674/25 CHNCD 1095/25 4 HCC 2/26 HCCR 1674/25 CHNCD 1095/25 THE STATE Versus TAKUDZWA GWENZI HIGH COURT OF ZIMBABWE MUZOFA J CHINHOYI, 22 January 2026 Criminal Review MUZOFA J: Introduction [1] This record of proceedings was placed before me for review following a complaint against the sentence imposed on the accused. [2] The accused was convicted with three charges arising from a road traffic accident. He pleaded guilty to culpable homicide, driving without a driver’s licence, and failure to stop after an accident in contravention of s 49 of the Criminal Law Codification and Reform Act [Chapter 9:23], s 6(i)a as read with s 6(5) and s 70(2) (ii) and s 70(3) of the Road Traffic Act [Chapter 13:11] (the Road Traffic Act) respectively. He was sentenced to 24 months imprisonment of which 6 months imprisonment was suspended on the usual conditions of good behavior. The remaining 18 months imprisonment was suspended on condition of performance of community service. [3] The deceased’s parents filed a complaint with the Chief Magistrate’s Office. The complaint triggered the referral of this matter for review especially on the appropriateness of the sentence. A covering note accompanied the record of proceedings highlighting the perceived inadequacies in the assessment of sentence by the trial Magistrate. The sentiments are correct, the trial Court failed to properly apply itself in dealing with the matter. [4] Besides the failure to apply properly the sentencing principles, I also noted that the trial Court did not sentence the accused in respect of the second and third counts. There is no indication that all counts were treated as one for sentence which would still be a misdirection. It also did not consider whether to prohibit the accused from driving. Factual background [5] The accused, a 20-year-old young man appeared before a Magistrate sitting at Chinhoyi Court facing three counts from a road traffic accident as already set out. [6] The common cause facts are that on the 17th of November 2024 around 0400 hours he drove a Honda Fit registration number AFD 9831 along the Chegutu-Chinhoyi road with two passengers. About a kilometer from the Chinhoyi central business centre near Sips bar at the 89km peg, he hit five pedestrians. Four were injured but survived, one did not, he died. Instead of rendering some assistance, the accused disappeared from the scene. [7] He was later arrested and appeared before the Magistrate. He pleaded guilty to the three counts. The accused was legally represented during the proceedings. His legal practitioner duly confirmed that the accused fully understood the charges and the pleas were unequivocal. After production of documentary evidence, the Court then convicted him without canvassing the essential elements. It relied on the assurances by the legal practitioner that the pleas were genuine. This procedure is provided under s 271 (2) (b) of the Magistrates Court Act (Chapter 7:10). [8] The record of proceedings shows that the accused excepted to the charges. Written submissions were filed. The record of proceedings does not show what happened to the exception. A Magistrate Court is a Court of record. Everything that takes place must be recorded. [9] Where an exception is taken, a Court is obliged to address it. Section 171 of the Criminal Procedure and Evidence Act (Chapter 9:07) provides the guidelines on how to deal with exceptions as follows, ‘171 Exceptions (1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith and if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge. (2) When the accused pleads and excepts together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.’ [10] Depending on how the accused introduces the exception the Court must, as a matter of procedure dispose of it. It is a misdirection to simply ignore it. In this case it is unclear what transpired. What I noted is that some of the issues objected to in respect of the charge seem to have been corrected. The error by the trial Court is its failure to record what transpired. Since the accused was legally represented and no further objections were raised, something must have happened but the Court did not record it. There is no excuse for failure to record. The sentencing judgment [11] As already stated, the trial Court focused on the culpable homicide charge only. In assessing sentence, the trial Court assessed the degree of negligence. It referred to relevant authorities which means there was a full appreciation of what was expected. It concluded that the degree of negligence was gross although l could have settled for reckless considering the circumstances of the case. It is the assessment of the mitigating and aggravating factors that the trial Court failed to fully appreciate what was before it. As a result, its findings which overlooked certain important factors led to an incompetent sentence. Had the court considered the broad factors and the circumstances surrounding the commission of the offence it could have decided differently. [12] In assessing the degree of negligence, the court must consider the circumstances surrounding the commission of the offence. These are apparent from the particulars of negligence, the accused’s responses in canvassing essential elements, the submissions and the rest of the evidence. [13] In Chigwagwa HH 234/21 Muremba J suggested that the court must ask all the relevant questions when canvassing the essential elements since the court is already alive to the fact that it has to assess the degree of negligence. It must not be enslaved by the particulars of negligence which are usually couched in broad terms. [14] The particulars of negligence in this case were indeed broad; they were listed as failure to keep a proper look out and failure to keep the vehicle under proper control. The particulars were adequate to convict the accused. However, in assessing the degree of negligence more information was needed. For instance, what did it mean that he failed to keep a proper look out. Follow up questions like at what distance did he see the pedestrians, at what speed he was travelling, visibility, and his state of soberness since this was early morning. [15] Even if the court does not canvass the relevant questions to establish the degree of negligence when canvassing the essential elements, it is acceptable to ask the questions before sentence S v Mapeka 2001 (2) ZLR 90(H) cited in the Chigwagwa case (supra). It can also draw the information from the submissions. Fortunately, the legal practitioner in this case filed detailed submissions on the degree of negligence. These submissions must have assisted the Court to assess the degree of negligence. [16] The court in assessing the degree of negligence reasoned as follows: - “In the court’s view, by driving a defective vehicle without lights, the offender’s negligence amounts to gross negligence in the sense that there was a marked departure from the standards by which responsible drivers habitually govern themselves.” [17] Clearly the trial Court failed to assess the accused’s driving conduct properly. It based its findings on very limited factor (s). It relied on the particular of negligence that was listed in the State Outline but then cancelled using a pen. The trial Court failed to properly consider the accused’s conduct when the accident took place drawn from the listed particulars of negligence and submissions. Culpable homicide is a serious offence. It involves loss of life and the attendant long-term effects are devastating. Courts must treat it as such in dealing with cases under road traffic. A finding on the degree of negligence must be made by the court after a due factual enquiry has been conducted as recommended in S v Mutizwa1984(1) ZLR 230. The central issue is at the time the accident took place how did the accused conduct himself while driving? There was no analysis of what transpired in assessing the degree of negligence yet this was the fundamental issue. [18] Fortunately, the defence filed detailed submissions on how the accused drove the car. The trial Court‘s duty was to analyze what was admitted. It was submitted that, “In casu, the accused travelling at about 60km/hr and having seen the pedestrians at about 50m distance, reduced speed but continued travelling without seeing what was now in front of him after being dazzled by the lights. Despite reducing speed, he did not stop so as to avert collision. It is within this temporary blindness from the dazzling truck lights that culminated into the hitting (sic) the pedestrians who were in the midst of the road.” [19] The defence had done half the Court’s work in its submissions, it referred to the case of S v Mandwe 1993 (2) ZLR 233(SC) being authority that when dazzled a driver should stop or slow down to a manageable speed in order to see properly and control his/her motor vehicle. The accused admitted that he continued driving in this ‘temporary blindness’. [20] The accused literally confirmed that he kept on driving even if he could not properly see what was ahead yet he had already seen the pedestrians. He did not hoot. From his indications on the Traffic Accident Book the accused saw the pedestrians about 50m away and he was dazzled at 19.1 m which means when he was dazzled, he was aware that there were people on the road. He should have guarded against the possibility that the pedestrians would still be on the road. To proceed to drive when one cannot see and there is a high possibility that there are pedestrians on the road is decidedly negligent bordering on recklessness. [21] That said, even after finding the degree of negligence to be gross the Court did not properly assess the sentence. I must say the learned Magistrate was well aware of guiding precedent on this issue and duly cited the relevant authorities but failed to fully appreciate the guidance. It noted the sentiments in S v Manhenga HH 62/16 that generally speaking a finding of gross negligence or reckless driving calls for a term of imprisonment unless there are compelling mitigating factors. [22] In assessing sentence, the degree of negligence must be taken into account together with the mitigating and aggravating circumstances. The court considered it aggravating that he drove a defective vehicle (no lights) without a licence, he did not stop to ascertain whether any person was injured, failed to keep a proper look out and to keep the motor vehicle under control. To its credit it noted that the defective lights limited his vision yet it was still dark. [23] The mitigating factors listed were that the accused was a youthful first offender, he pleaded guilty, that the he was remorseful, he assisted during the funeral and promised to pay some compensation. It also took it as mitigatory that the victims were in the road and that only one medical affidavit was before the court, so it could not assess the extent of the injuries. One wonders why this was treated as mitigatory. It was common cause that the accused hit five people. [24] I comment in passing on the other pedestrians. There was no mention whether the accused was charged for hitting the other four pedestrians. As noted in the Chigwagwa case, it is irregular to overlook the accused’s conduct in respect of those who were injured. By comparison, had all the pedestrians died, the accused would have been charged with five counts of culpable homicide. There is therefore no justification for not preferring charges against the accused in respect of the other pedestrians. [25] Although the court did not specifically pronounce itself, it appears it concluded that the mitigatory factors outweighed the aggravating factors. It therefore settled for a non-custodial sentence which was contrary to decided cases that the Court referred to. Had the Court taken into account all the factors of the case especially that which was admitted by the accused in the submissions it could not have treated this matter as such. [26] Precedent shows that where the degree of negligence is gross a custodial sentence is appropriate, See S v Chitepo HMA 3/17 in which very instructive dictum by McNally J was referred that: “To my mind anyone who drives straight through a “Give way” sign at a T-junction and hits a lighted vehicle…..killing two people is prima facie grossly negligent. In view of the current increase in the number of tragedies on our roads, such conduct warrants a prison sentence. In principle that has always been the position – see S v Lusenge AD 138/81….I referred this matter to the Attorney-General and he agrees that a sentence and a prohibition from driving would have been appropriate.” [27] Some reference to decided cases may assist to demonstrate the sentencing trends in such cases. In the Chitepo case (supra), the accused hill started a tractor at night with one hand while a passenger perched precariously on the tractor’s mudguard. The passenger fell and was run over by the tractor. The two had been drinking. A custodial sentence of two years of which one year was suspended on usual conditions was confirmed. [28] In the Chigwagwa case the court withheld its certificate. The accused drove without a licence. Along the way she lost control and veered off the road and hit the deceased who was seated at her house with her neighbours. The trial court found the degree of negligence ordinary which the review Judge found wholly incompetent. The degree of negligence was supposed to be gross. It noted that a custodial sentence would have been appropriate although the accused would have escaped it due to her age. She was 68 years old. See also S v Chifodya HH 171-18. [29] The recent case of S v Hombarume HH 468/25 by the Judge President Dube with concurrence of the Deputy Judge President provides useful guidelines. In that case the accused, an unlicenced driver, drove a motor vehicle, lost control and hit a pedestrian walking on the left side of the road. The court a quo concluded that the degree of negligence was ordinary. It imposed a custodial sentence partly suspended on condition of good behavior and the remaining part suspended on condition of community service. [30] The proceedings were not confirmed. The case is authority that a Magistrate must thoroughly apply himself or herself in assessing the degree of negligence. Secondly that where an unlicenced driver causes an accident due to lack of skill, that factor must be taken as highly aggravatory. [31] In the line of cases cited the accused persons veered off the road and hit persons off the road. It does not necessarily follow that where the person hit was on the road then the accused’s culpability is reduced and must attract a lesser sentence. Each case must depend on its facts. [32] The decision as to whether to impose imprisonment, community service or fine depends on the degree of negligence exhibited by the accused in his driving conduct. In this case the accused was well aware that he had no authority to drive. He once held a learner’s licence. The highway code prohibits a person from driving without a licence or even drive an unroadworthy motor vehicle. These factors are listed as aggravating in the sentencing guidelines. The accused took a conscious risk to drive an unroadworthy motor vehicle without a licence. His situation was exacerbated by the faulty lights, he could not see but proceeded to drive taking a further risk, on what he may encounter on the road. He could not see where he was going limited by both his faulty lights and the dazzle lights from the truck. He should have stopped or reduced his speed to a level where he could see ahead. He reconciled with the possibility that he might hit the pedestrians. This was not a matter of pedestrians suddenly getting into the road. He actually saw them on the road; he had an opportunity to react to avoid hitting them. Sadly, his response was inadequate to avoid the accident. [33] It is indeed an overarching principle of the courts to spare youthful first offenders from incarceration. This is only applicable in deserving cases. A court’s duty is to balance the triad that is, the interests of justice, the offender and the crime. In this case the court overemphasized the accused’s circumstances. It did not even consider the victim impact statement and the interests of justice as a whole. The interests of justice require that drivers comply with road rules, to drive with a licence, drive road worthy vehicles. In this case the accused had faulty lights, he drove with his hazard lights while it was dark. The court must always not lose sight of the effect and consequences of the offence. [34] I associate myself with decided cases that such cases deserve a short custodial sentence. Community service trivializes the sanctity of life, especially where the driver embarks on driving in clear violation of the highway code. This is highly aggravating. His conduct after the accident showed lack of remorse. An appropriate sentence which promotes road safety accountability was supposed to be imposed. [35] The trial Court also failed to take into account the provisions under s 64(3) which provides: (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 had he been convicted of the offence in terms of this Act referred to in para-graph (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). [36] After convicting the accused, the Court was supposed to identify the relevant section under which the accused could have been charged under the Road Traffic Act. Since the degree of negligence was found to be gross the corresponding provision is s 52(2) of the Road Traffic Act. The Court was supposed to be guided by s52(4) (a) of the Road Traffic Act. The provision requires the Court to consider whether to prohibit the accused from driving for a period of time or even cancel the driver’s licence. [37] A Court must therefore make an inquiry and set out the reasons for its decision. It cannot simply ignore the provision. The purpose of that provision is to temporarily remove those involved in road traffic accidents from driving. It is beneficial to both the accused driver to recover from the traumatic experience and also to safe guard the motoring public. It does not matter that the accused was an unlicenced driver. In fact it is important that such an unlicenced driver be prohibited by an order of the Court since he has already demonstrated his inclination to flout the law. It is the cancellation of the driver’s licence that is of no effect since he was not a holder of a licence. Disposition [38] The court misdirected itself by failing to properly canvass the relevant aggravating circumstances which were more than the mitigatory circumstances. The court overemphasized the accused’s age, plea and assistance over the highly aggravating circumstances to continue driving when he could not see, driving a defective motor vehicle without a licence and his failure to take preventative measures to avoid the collision. Thereafter to abscond from the scene without rendering assistance. [39] The trial court also misdirected itself in failing to consider whether to prohibit the accused from driving in terms of s64(4) of the Road Traffic Act. It also misdirected itself by not imposing sentences in respect of the 2nd and 3rd counts, Accordingly, the following order is issued, The convictions are hereby confirmed to be in accordance with real and substantial justice. The sentence imposed on the 1st count is not in accordance with real and substantial justice, I withhold my certificate. The matter is referred to the court a quo to proceed in terms of s 64 of the Road Traffic Act (Chapter 13:11) and to assess sentence in respect of Counts 2 and 3. Bachi- Mzawazi J Agrees