Review judgement
DUBE
J: The accused appeared before the trial magistrate facing a charge of
contravening s 52(2) of the Road Traffic Act, that is driving a motor vehicle,
namely a Toyota Hiace negligently. The
state allegations are that the accused reversed and collided with the complainant's
vehicle.
The
accused was convicted of the offence and sentenced to 12 months imprisonment of
which 4 months imprisonment was suspended for 5 years on conditions. He was prohibited from driving commuter
omnibuses and heavy vehicles for 2 years and his licence cancelled.
When
essential elements were being put, the accused admitted to driving a Toyota
Hiace negligently. The charge sheet and
State outline do not suggest that the vehicle in issue was a public service
vehicle. Nowhere during the proceedings
did the accused acknowledge that he had been driving a public service. The suggestion that this vehicle was a public
service vehicle came from the magistrate in her explanation of special
circumstances. The accused person was
unrepresented and the assertion went unchallenged.
In
any case where a person drives a public service vehicle and an accident ensues as
a result of such driving, a specific allegation should be made to that effect
in the state papers. It is not good
enough for the magistrate to suggest to the accused drove a public service
vehicle in the absence of such an allegation from the state. The trial magistrate surmised that the
vehicle was a public service vehicle.
Such a suggestion should have been put to the accused person when
essential elements were being canvassed.
Such a suggestion should emerge from state papers. It does not follow that because the vehicle
he drove was a Toyota Hiace or for that matter a commuter omnibus, that the
said vehicle is a public service vehicle. It could well have been a private
vehicle. The magistrate's conclusion was
erroneous.
As
regards sentence, it is clear that the magistrate proceeded from the premise
that the accused was driving a public service vehicle. This is an ordinary case of negligence. I am of the view that a sentence of fine $400
will have met the justice of the case coupled with an order prohibiting the
accused from driving and cancellation of the accused's licence.
The
court had considered that the accused has served over a month of his
sentence. That sentence suffices, the
accused is released immediately from custody.
MAWADZE J agrees ………………….
