A Harare magistrate improperly convicted a reckless kombi driver of a lesser offence than was proved and so imposed a “disturbingly inappropriate sentence”, the High Court found on review.
The magistrate sentenced the driver to six months in jail, wholly suspended, even through the kombi driver hit two vehicles while driving the wrong way down a one-way street in the city centre.
A regional magistrate noticed the errors in the judgment and following procedure, the case was then sent for review at the High Court.
Justice Faith Mushure agreed there were errors, corrected the verdict to the more serious reckless driving and remitted the matter back to the trial court for resentencing and ordered training for the blundering magistrate whose name was not revealed.
The regional magistrate, who scrutinised the record of proceedings in the case of a kombi driver Munyaradzi Ronde, was the first to discover the miscarriage of justice.
Ronde was convicted of negligent driving when it was clear that he was initially charged with the more serious offence of reckless driving, and the State established a prima facie case of reckless driving.
On March 4 this year at 6.45pm, Ronde was driving a Foton Minibus west along Robert Mugabe Road in Harare, a one-way street that only allows traffic to proceed east through the city centre. Driving the wrong way down the one-way street and at high speed he hit a stationary Isuzu KB truck giving way to traffic at the intersection of Robert Mugabe Road and Simon V Muzenda Street.
Ronde did not stop, but proceeded undeterred and hit a Honda Fit, which was in the inner lane. Again, he did not stop. He continued driving against the flow of traffic.
He was finally forced to stop at the corner of Kavalamanja Battle Street (previously Orr Street) and Kenneth Kaunda Avenue due to congestion, and was arrested. Ronde was charged with reckless driving and failing to stop his vehicle immediately after the accidents.
When he appeared in court, Ronde initially pleaded guilty to both charges. As the trial magistrate was recording the plea on the first count, Ronde claimed that his vehicle had developed a mechanical fault forcing him to drive against the flow of traffic, so the plea was altered to not guilty and the matter proceeded to trial.
After a fully contested trial, the trial magistrate found the mechanical fault explanation false and convicted Ronde of negligent driving as opposed to reckless driving and sentenced him to six months’ imprisonment which was wholly suspended for five years.
In addition, Ronde was prohibited from driving all classes of motor vehicles for a period of two years.
On count two, he was ordered to pay a fine of $200 (or four months in jail).
The record of proceedings was then submitted to the regional court for scrutiny.
In terms of the law, if it appears to the regional magistrate that doubt exists whether the proceedings are in accordance with real and substantial justice, he or she sends the record to the registrar, who will then forward it to a judge of the High Court in chambers for review in accordance with the High Court Act.
In this case, after scrutiny of the case the regional magistrate’s view was that Ronde’s conviction was improper, and that the consequent sentence meted out by the trial magistrate was “disturbingly inappropriate”.
After studying the record, Justice Mushure confirmed the findings of the regional magistrate and criticised the trial magistrate for blundering in the case.
“In the present case, having been satisfied that the State had proved its case beyond a reasonable doubt on a charge of reckless driving, the trial magistrate made a sudden volte-face and without explanation, convicted the accused of negligent driving,” she said.
“No reasons were given for such a pronouncement. This is what the scrutinising regional magistrate found discomforting, and rightly so, in the proceedings of the trial court. The need to give sufficient reasons for a decision is a well-trodden path.
“It is baffling how the trial court merely stated, in concluding its judgment, that the accused had been convicted on a competent verdict of negligent driving without expounding on its findings.”
“In fact, the need to give adequate reasons became even greater given that the conviction was on a competent verdict. The court a quo ‘s conclusion was therefore an arbitrary decision,” she said.
In the final analysis, the judge said it was clear that the proceedings in this case were not in accordance with real and substantial justice.
In terms of Section 29(3) of the High Court Act provides that, no conviction or sentence shall be quashed or set aside in terms of subsection (2) by reason of any irregularity or defect in the record of proceedings unless the High Court or a judge considers that a substantial miscarriage of justice had actually occurred.
The proceedings in this case, Justice Mushure found, were afflicted with so many irregularities that it was not easy to correct them.
“The facts and the evidence show that he is guilty of reckless driving. Section 29(2) (viii) of the High Court Act allows me in such circumstances, to substitute the erroneous verdict for the correct one. I choose to do so,” she said.
The judge quashed the verdict of guilty of negligent driving and substituted it with a verdict of guilty of reckless driving and the sentence imposed.
“The matter is remitted to the court a quo for the trial magistrate to sentence the accused afresh on a conviction of reckless driving taking into account the principles which inform a sentence for such a conviction.
“In count 2 to properly canvass the essential elements of the charge and if they properly inform a conviction, to thereafter pass sentence on the accused.
“The registrar of this court is directed to avail a copy of this judgment to the Chief Magistrate to ensure proper training of the trial magistrate given the many and basic issues raised by this review judgment.” — Herald
