Chinyama v State (406 of 2025) [2025] ZWHHC 406 (7 July 2025)

3 HH 406-25 HCHCR 1079/25 LAURA TADIWANASHE CHINYAMA versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 30 June & 7 July 2025 Criminal Appeal C Mucheche, for the appellant P A Gutu, for the respondent CHIKOWERO J: [1] This is an appeal against the whole judgment of the Magistrates Court sitting at Harare wherein the appellant was convicted following a full trial on a charge of negligent driving as defined in s52 (2) of the Road Traffic Act [Chapter 13:11]. The appellant was sentenced to pay a fine of US$ 300 in default of payment three months imprisonment. In addition she was sentenced to three month imprisonments the whole of which was suspended for five years on the conditions of good behavior. [2] The appellant was driving her motor vehicle along Lawson Avenue in Harare. On reaching the intersection with Prince Edward Road there was a step sign. The appellant faced this sign. Instead of stopping to give way to traffic coming from her right the appellant drove past the stop sign that is into the intersection where she collided with another motorist who was coming from the road on the appellant’s right. The appellant’s vehicle was damaged on the bumper while the complainant’s vehicle sustained damages on the rear left door. In other words, the appellant’s vehicle bumped onto the complainant’s vehicle‘s rear left door. [3] The Court a quo found that the appellant had been negligent in the manner that she drove. She failed to obey a stop sign. She failed to keep a proper lookout. She should only have drove into the intersection on satisfying herself that it was safe to do so. The stop sign meant that she had to stop for traffic coming from the road on her right, proceeding beyond the sign only when it was safe to do so. [4] The appellant’s defence was that she had obeyed the stop sign by stopping at the intersection. However, a motorist on the road to the appellant’s right (who ought to have preceded the appellant into the intersection) had stopped, out of courtesy, to allow the appellant to enter the intersection first. The appellant obliged, only to collide with the complainant’s vehicle, also coming from the other, lane to the appellant’s right. The complainant’s vehicle came from behind the motorist who had given the appellant precedence meaning that it had not been visible to the appellant before the appellant entered the intersection. [5] The accident occurred during the lunch hour. This was in broad day light. [6] After assessing the evidence (including that of a female vendor who was struck by the appellant’s vehicle as it had veered off the road) the court a quo concluded that the appellant had drove negligently. She failed to stop at an intersection controlled by a stop sign. She failed to keep a proper lookout. She proceeded into the intersection when it was not safe to do so as there was the complainant’s vehicle approaching from the road to the appellant’s right. The appellant’s story about the presence of the motorist who gave her precedence was false. Even if that motorist existed, and had acted in the manner claimed by the appellant, that would still not absolve the appellant from the positive duty imposed on her by the stop sign to proceed into the intersection only on satisfying herself that it was safe to do so. The appellant was guilty of negligent driving. [7] In defending the conviction, Ms Gutu (whom we did not call upon to make oral submissions at the hearing of the appeal) said at paras 8 to 12 of her heads of argument: “8 A driver at a stop sign bears a positive duty to yield to oncoming traffic and may only proceed when it is objectively safe to do so (see Minister of Police v Skosana 1976 (4) SA 368(A) 9. None of the witnesses testified to have seen a motor vehicle courtesy the appellant to proceed when it was not her turn to enter into the intersection. 10. Even if the court would have believed the version of the appellant, it correctly rejected the issue giving cogent reasons. The courtesy that the appellant seeks to rely on does not and cannot override road rules. The only other time that a driver may lawfully ignore rad rules is when an intersection is manned by a law enforcement officer. Allowing drivers and other road users to create their own parallel system would inevitably lead to chaos. It is submitted that the driver of the red vehicle could not have lawfully given an instruction for the appellant to enter into the intersection. 11. The appellant proceeded into the intersection when it was not safe to do so and there were other vehicles still approaching from her right. 12. Even taking into account the point of impact, the appellant would not have sustained damages on her bumper if she had already entered the intersection. It is the respondent’s view that the appeal against conviction lacks merit and ought to be dismissed.” [8] This argument is well made. The appeal against the judgment of the court a quo convicting the appellant of negligent driving is completely devoid of merit. [9] As regards the appeal against the sentence we share the respondent’s view that the sentence imposed is vitiated by irregularity. There was no compliance by the court a quo with the peremptory provision of s 90 of the Road Traffic Act [Chapter 13:11] prior to the passing of sentence on the appellant. That section reads: “90 Certificate of Registrar to be produced before sentence nay be passed in certain cases. A court which has convicted any person on a charge contravening section fifty two, fifty three, fifty four, fifty five, seventy six or seventy seven shall not pass sentence upon him until there has been produced to the court a certificate, signed by or on behalf of the Registrar, stating whether or not, according to the records kept by the Registrar, the convicted person has previously been convicted of any offence involving a motor vehicle and setting out the particulars of any such previous conviction recorded in the records: Provided that the court may pass sentence without such a certificate having been produced if the court is satisfied from evidence before it, that - the person has previously been convicted of an offence involving a motor vehicle and accordingly the court is required, in the absence of special circumstances in the case, to prohibit the person from driving, and it would not be in the interests of justice to delay passing sentence upon the person pending the production of such a certificate, and the court shall endorse on the record of the case its reasons for so passing sentence” See S v Manyika HH 138/04. [10] Indeed, there is no evidence on record to justify the court a quo’s non-adherence to the peremptory provisions of s90 the Act. The certificate of the Registrar was not tendered. There is no indication that efforts were made to obtain it and, if so, what those efforts yielded. In fact, there is no mention of the certificate. The record is silent on whether sentence would have been delayed if efforts were made to obtain the certificate before passing of sentence. No reasons were endorsed on the record of the case for passing sentence without the production of the certificate. Both counsel did not object to this court invoking its powers of review by setting aside the sentence and remitting the matter to the trial court for the same magistrate to comply with the provisions of s90 of the Act before passing sentence, afresh, on the appellant. [11] In the result, IT IS ORDERED THAT; The appeal against the conviction be and is dismissed.In the exercise of this court’s powers of review the sentence imposed on the appellant is set aside.The matter is remitted to the court a quo for the same magistrate who presided over the trial to comply with the provisions of s 90 of the Road Traffic Act [Chapter 13:11] before passing sentence afresh, on the appellant. Chikowero J:.................................................................... Zhou J:.................................................................................... Agrees. 3 HH 406-25 HCHCR 1079/25 3 HH 406-25 HCHCR 1079/25 LAURA TADIWANASHE CHINYAMA versus THE STATE HIGH COURT OF ZIMBABWE ZHOU & CHIKOWERO JJ HARARE, 30 June & 7 July 2025 Criminal Appeal C Mucheche, for the appellant P A Gutu, for the respondent CHIKOWERO J: [1] This is an appeal against the whole judgment of the Magistrates Court sitting at Harare wherein the appellant was convicted following a full trial on a charge of negligent driving as defined in s52 (2) of the Road Traffic Act [Chapter 13:11]. The appellant was sentenced to pay a fine of US$ 300 in default of payment three months imprisonment. In addition she was sentenced to three month imprisonments the whole of which was suspended for five years on the conditions of good behavior. [2] The appellant was driving her motor vehicle along Lawson Avenue in Harare. On reaching the intersection with Prince Edward Road there was a step sign. The appellant faced this sign. Instead of stopping to give way to traffic coming from her right the appellant drove past the stop sign that is into the intersection where she collided with another motorist who was coming from the road on the appellant’s right. The appellant’s vehicle was damaged on the bumper while the complainant’s vehicle sustained damages on the rear left door. In other words, the appellant’s vehicle bumped onto the complainant’s vehicle‘s rear left door. [3] The Court a quo found that the appellant had been negligent in the manner that she drove. She failed to obey a stop sign. She failed to keep a proper lookout. She should only have drove into the intersection on satisfying herself that it was safe to do so. The stop sign meant that she had to stop for traffic coming from the road on her right, proceeding beyond the sign only when it was safe to do so. [4] The appellant’s defence was that she had obeyed the stop sign by stopping at the intersection. However, a motorist on the road to the appellant’s right (who ought to have preceded the appellant into the intersection) had stopped, out of courtesy, to allow the appellant to enter the intersection first. The appellant obliged, only to collide with the complainant’s vehicle, also coming from the other, lane to the appellant’s right. The complainant’s vehicle came from behind the motorist who had given the appellant precedence meaning that it had not been visible to the appellant before the appellant entered the intersection. [5] The accident occurred during the lunch hour. This was in broad day light. [6] After assessing the evidence (including that of a female vendor who was struck by the appellant’s vehicle as it had veered off the road) the court a quo concluded that the appellant had drove negligently. She failed to stop at an intersection controlled by a stop sign. She failed to keep a proper lookout. She proceeded into the intersection when it was not safe to do so as there was the complainant’s vehicle approaching from the road to the appellant’s right. The appellant’s story about the presence of the motorist who gave her precedence was false. Even if that motorist existed, and had acted in the manner claimed by the appellant, that would still not absolve the appellant from the positive duty imposed on her by the stop sign to proceed into the intersection only on satisfying herself that it was safe to do so. The appellant was guilty of negligent driving. [7] In defending the conviction, Ms Gutu (whom we did not call upon to make oral submissions at the hearing of the appeal) said at paras 8 to 12 of her heads of argument: “8 A driver at a stop sign bears a positive duty to yield to oncoming traffic and may only proceed when it is objectively safe to do so (see Minister of Police v Skosana 1976 (4) SA 368(A) 9. None of the witnesses testified to have seen a motor vehicle courtesy the appellant to proceed when it was not her turn to enter into the intersection. 10. Even if the court would have believed the version of the appellant, it correctly rejected the issue giving cogent reasons. The courtesy that the appellant seeks to rely on does not and cannot override road rules. The only other time that a driver may lawfully ignore rad rules is when an intersection is manned by a law enforcement officer. Allowing drivers and other road users to create their own parallel system would inevitably lead to chaos. It is submitted that the driver of the red vehicle could not have lawfully given an instruction for the appellant to enter into the intersection. 11. The appellant proceeded into the intersection when it was not safe to do so and there were other vehicles still approaching from her right. 12. Even taking into account the point of impact, the appellant would not have sustained damages on her bumper if she had already entered the intersection. It is the respondent’s view that the appeal against conviction lacks merit and ought to be dismissed.” [8] This argument is well made. The appeal against the judgment of the court a quo convicting the appellant of negligent driving is completely devoid of merit. [9] As regards the appeal against the sentence we share the respondent’s view that the sentence imposed is vitiated by irregularity. There was no compliance by the court a quo with the peremptory provision of s 90 of the Road Traffic Act [Chapter 13:11] prior to the passing of sentence on the appellant. That section reads: “90 Certificate of Registrar to be produced before sentence nay be passed in certain cases. A court which has convicted any person on a charge contravening section fifty two, fifty three, fifty four, fifty five, seventy six or seventy seven shall not pass sentence upon him until there has been produced to the court a certificate, signed by or on behalf of the Registrar, stating whether or not, according to the records kept by the Registrar, the convicted person has previously been convicted of any offence involving a motor vehicle and setting out the particulars of any such previous conviction recorded in the records: Provided that the court may pass sentence without such a certificate having been produced if the court is satisfied from evidence before it, that - the person has previously been convicted of an offence involving a motor vehicle and accordingly the court is required, in the absence of special circumstances in the case, to prohibit the person from driving, and it would not be in the interests of justice to delay passing sentence upon the person pending the production of such a certificate, and the court shall endorse on the record of the case its reasons for so passing sentence” See S v Manyika HH 138/04. [10] Indeed, there is no evidence on record to justify the court a quo’s non-adherence to the peremptory provisions of s90 the Act. The certificate of the Registrar was not tendered. There is no indication that efforts were made to obtain it and, if so, what those efforts yielded. In fact, there is no mention of the certificate. The record is silent on whether sentence would have been delayed if efforts were made to obtain the certificate before passing of sentence. No reasons were endorsed on the record of the case for passing sentence without the production of the certificate. Both counsel did not object to this court invoking its powers of review by setting aside the sentence and remitting the matter to the trial court for the same magistrate to comply with the provisions of s90 of the Act before passing sentence, afresh, on the appellant. [11] In the result, IT IS ORDERED THAT; The appeal against the conviction be and is dismissed. In the exercise of this court’s powers of review the sentence imposed on the appellant is set aside. The matter is remitted to the court a quo for the same magistrate who presided over the trial to comply with the provisions of s 90 of the Road Traffic Act [Chapter 13:11] before passing sentence afresh, on the appellant. Chikowero J:.................................................................... Zhou J:.................................................................................... Agrees.