S v Ndlovu (HB 14 of 2006) [2006] ZWBHC 14 (6 March 2006)

Judgment No. HB 14/06 Case No. HC 2087/05 CRB DH 442/05 THE STATE Versus NJABULO NDLOVU IN THE HIGH COURT OF ZIMBABWE CHEDA J BULAWAYO 7 MARCH 2006 Criminal Review CHEDA J: This record was forwarded to me on review. Accused was charged with contravening section 52(2) of the Road Traffic Act Cap 13:11 (commonly referred to as negligent driving). The allegations against the accused is that on 23 May 2004 at about 1845 hours he was driving a Toyota Hiace Kombi vehicle carrying passengers. At the intersection of Lobengula Street/3rd Avenue, Bulawayo he drove through a red robot thereby causing extreme damage to both vehicles. In addition, two passengers sustained injuries. The particulars of negligence are that:­ 1. 2. 3. he failed to obey a lawfully erected traffic light; he was travelling at an excessive speed in the circumstances, and that he failed to stop or act reasonably when an accident seemed imminent. He pleaded guilty to the charge, was duly convicted and sentenced to a fine of $1million or in default of payment 6 months imprisonment and further suspended from driving for a period of 6 months. There are two issues I would like to deal with in this matter. Firstly, the sentence of $1million or 6 months imprisonment for a driver of a public vehicle such as commuter omnibus, whose drivers have gained notoriety for HB 14/06 uncaring driving and general discourtesy is to say the least very lenient. Judicial officers must at all times associate themselves with what is happening around them, lest they be viewed as dispensing justice from ivory towers, Deterrence is therefore called for in order to reduce carnage on our roads. Secondly, the prohibition of the accused from driving for 6 months is incompetent as section 52 of Cap 13:11 has been amended by section 16 of the Road Traffic Amendment No. 3/2000 which reads thus:­ “16. Amendment of section 52 of Cap 13:11 Section 52 of the principal Act is amended­ (a) … (b) In subsection (4)­ (i) … (ii) … (iii) by the insertion after paragraph (b) of the following paragraph – (c) in the case of an offence involving the driving of a commuter omnibus or a heavy vehicle, shall prohibit the person from driving for a period of not less than 2 years.” It is clear therefore that the learned trial magistrate should have prohibited the accused from driving for a period of not less than 2 years – see S v Mhone HC 875/05. The fact that this was not done, is a serious miscarriage of justice. The courts can not and should not ignore a clarion call for justice by society especially where a certain class of our society carry out their businesses at the same time offending innocent passengers. Time has come that, judicial officers should pass sentences that are commensurate with the crimes committed and never should at any stage fail to comply with the law as it is the case in casu. HB 14/06 Both the conviction and sentence is set aside and the matter is referred back to the same magistrate to pass the correct sentence in relation to the period of prohibition in terms of the Road Traffic Amendment No. 3/2000. Ndou J ……………………….. I agree