S v Muchairi (HB 41 of 2006) [2006] ZWBHC 41 (17 May 2006)

Judgment No. HB 41/06 Case No. HC 1260/05 THE STATE Versus RICHARD MUCHAIRI IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 19 APRIL 2006 AND 18 MAY 2006 Review Judgment CHEDA J: This is a review judgement. Accused was charged with four counts of culpable homicide to which he pleaded guilty, was duly convicted and sentenced to a fine of $250 000 or (3) three months imprisonment per count. In addition he was prevented from driving a motor vehicle for 2 years. The facts of the case which are common cause are that accused while driving a Nissan UD, heavy vehicle along Gweru/Mvuma road at Lalapanzi bus stop negligently hit four people resulting in their death. This accident was solely caused by his negligence. The particulars of negligence are that:­ 1. 2. 3. 4. He failed to keep a proper look out He was travelling at an excessive speed in the circumstances. He failed to keep a proper control of the motor vehicle. He failed to stop or act reasonably when an accident seemed imminent. HB 41/06 In view of the apparent lenient sentence, I sought an explanation from the learned trial magistrate and she referred me to the case of S v Mapeka and another 2001 (2) ZLR 90 (H). This case emphasised the need for judicial officers to establish the degree of negligence before sentencing accused persons. The degree of negligence can either be ordinary negligence or gross negligence or recklessness. The trial court should ascertain this before imposing sentence, for it is after the establishment of the said negligence that the trial court will be in a better position to arrive at a suitable sentence. I concur with Chinhengo J’s sentiments in Mapeta’s case that it is not enough for the court to merely state that the negligence was “very high.” In the present case, had the trial magistrate read and understood Matepa’s case before sentence, her understanding would have been clearly reflected in the sentence she passed. This unfortunately was not the case. It is trite, that negligence is the failure to exercise a degree of care and skill a reasonable man (diligens paterfamilias) would have exercised in the circumstances. Therefore the test used in the determination of the driver’s conduct is the reasonable man’s test, which is also known as the objective test. It is only when he fails to meet this standard that is said to have been negligent. A driver should drive at a speed at which he is able to stop his vehicle within the range of his vision because failure to do so results, in negligence. Therefore, a driver, who drives along a public road should anticipate that there may be people or animals in the HB 41/06 way at any moment and he is therefore bound to go no further than will permit of his stopping or deflecting his cause at any moment. In light of the above approach it is clear that there was a possibility of gross negligence on accused’s part, which, with proper enquiry would have been established by the trial magistrate, thereby adopting a proper approach. Her failure to follow this approach has resulted in injustice in this case To sentence the accused to $1,000 000­00 in the circumstances is injustice. In view of the seriousness of this offence and the prevalence of fatal traffic accidents accused should have been sentenced to at least 12 months imprisonment effective. I therefore, can not confirm these proceedings as being in accordance with real and substantial justice. 4