S v Manyika (CRB 11608 of 2002) [2004] ZWHHC 138 (9 May 2004)

HH 138­2004 CRB 11608/02 THE STATE versus JOSEPH MANYIKA HIGH COURT OF ZIMBABWE BHUNU J HARARE, 10 May 2004 Criminal Review BHUNU J: The accused was convicted on his own plea of guilty to 3 counts under the Road Traffic Act, [Chapter 13:11] on the 2nd of October 2002. In count one he was convicted of contravening Section 57(1)(b) of the Act in that he drove a motor vehicle without the owner’s consent. In count two he was convicted of negligent driving in contravention of Section 52(2) of the Act. Under count three he was convicted of driving without a driver’s licence in contravention of Section 6(i)(a) of the Act. Upon convicting the accused the trial magistrate proceeded to sentence the accused without a certificate from the Registrar stating whether or not the accused has previous convictions as is required by section 90 of the Act. That section provides that: “A court which has convicted any person on a charge of 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 upon the convicted person without such a certificate having been produced if the court is satisfied from the evidence before it that- a) (b) …………….. It would not be in the interests of justice to delay passing sentence upon the person pending the production of such certificate; And the court shall endorse on the record its reasons for so passing (my emphasis) sentence.” On the 21st October 2002 the learned regional magistrate wrote to the trial magistrate querying why he had proceeded to sentence the accused in the absence of the Registrar’s certificate. The scrutinising minute reads:- “Section 90 of the Road Traffic Act [Chapter 13:11] bars any court from sentencing a person of contravening section 52 without the registrar’s certificate of previous convictions. HH 138­2004 CRB 11608/02 Was the sentence imposed on count 2 competent? Section 66(4) of the Act requires that endorsement of the licence be made. Was Central Vehicle Registry informed of this conviction?” In response to the above queries the trial magistrate had this to say:- “I do concede that sentencing under Section 52 of RTA [Chapter 13:11] does require certificate of previous convictions from the Registrar’s office. The certificate is only available if on is registered as a driver. In this case the accused is not the holder of a driver’s licence. This means that he is not registered with the Registrar’office so they i.e. Registrar’s office has no record of the accused person. When accused was asked by the court why he committed this offence he said he was trying to learn how to drive with the said motor vehicle indicating that he is not the holder of a driver’s licence. This is why the trial magistrate who is very new in (the) field did not think. In such cases CVR should be informed of a conviction of someone who does not appear in their records. On a different note I think it would be very harsh for someone who was sentenced may be two years ago when he goes through the learning process of how to drive and then the test to only get a driver’s licence which is endorsed.” It is clear that the proviso to Section 90 of the Act gives the trial court a discretion as to whether or not to proceed to sentence the accused person without the certificate of previous convictions if it is satisfied ion the evidence before it that it would not be in the interest of justice to delay passing sentence. The trial magistrate’s response clearly demonstrates that there were good and justifiable grounds for proceeding to sentence the accused without the registrar’s certificate. In this regard the trial court did not misdirect itself. Where however the trial court adopts this procedure the presiding officer is required to record his reasons for sentencing the accused without the requisite certificate. This the trial magistrate did not do so. The trial magistrate only placed his reasons adopting that procedure after a query had been raised on scrutinising by the scrutinising regional magistrate. The trial magistrate then attempted to close the stables after the proverbial horses had bolted. HH 138­2004 CRB 11608/02 Had the trial magistrate recorded his reasons for proceeding to sentence the accused without the registrar’s certificate at the time he sentenced the accused his conduct in that regard would have been procedurally correct. It however appears to me that this is a case where justice was done but not according to law in that the procedural requirements of recording the reasons for proceeding to sentence the accused without registrar’s certificate were not observed. Having said that I do not think that it is necessary to quash the proceedings and drag the accused back to court on account of this minor technical error. The proceedings remain however procedurally incorrect. I cannot therefore certify them as being in accordance with real and substantial justice. As there was no prejudice to either party I think the justice of the case can be met by merely withdrawing my certificate. Section 66(4) of the Act relates to the submission of driver’s licences for endorsement. It therefore has no application where the accused is not a licenced driver. An obligation to advise to registrar of the conviction did not therefore arise in terms of that section as suggested by the learned scrutinising magistrate. Despite that observation the proceedings remain tainted by the earlier procedural impropriety I have adverted to elsewhere in this judgment. That being the case I cannot grant my certificate. Accordingly I withhold my certificate. Bhunu J:……………………………… Guvava J, agrees:…………………….