This
record was referred to me from the Acting Regional Magistrate for
Harare who scrutinised the record. He has raised the following
concerns;
“The
trial court, as part of its sentence, prohibited the accused from
driving for two years on the basis that accused had driven a public
service vehicle. This is in spite of the fact that the charge does
not allege that the vehicle accused drove was a public service
vehicle. The court appears to have inferred that it was a public
service vehicle from the averment in the charge that the vehicle was
a Toyota Hiace, an inference I am unable to support since not all
Toyota Hiaces are public service vehicles.”
In
its response, the trial court accepted that the oversight was not
justified but still contended that it had been brought to the
attention of the accused during the explanation of special
circumstances. The trial court contended that the accused had been
convicted of negligent driving of a public service, namely, a
commuter omnibus vehicle and that he did not dispute this fact. The
court has undertaken to guard against such errors in the future.
The
brief facts surrounding the commission of this offence may be
summarised as follows. The accused appeared before a Harare
magistrate facing charges of contravening section 52(2) of the Road
Traffic Act [Chapter 13:11], thus Negligent Driving. He pleaded
guilty to the offence and was sentenced to 6 months imprisonment of
which 3 months were suspended for 5 years on condition that the
accused performs community service. In addition, he was prohibited
from driving classes of motor vehicle to which commuter omnibus or
heavy motor vehicles belong for 2 years. His licence was cancelled.
The
allegations in the State Outline are as follows.
On
the 27th
of May 2012, the accused was driving a Toyota Hiace along Robert
Mugabe Rd. At the intersection of Robert Mugabe Rd and Wheeler Ave,
Harare, the accused, who was driving and following behind the
complainant's vehicle, failed to observe that the complainant was
indicating to turn, resulting in him colliding with the rear of the
complainant's vehicle.
The
charge of negligent driving reads as follows;
“In
that on the 27th
of May 2012 and at the intersection of Robert Mugabe and Wheeler Rd,
Eastlea, Harare, Gibson Murinda drove a motor vehicle, namely, a
Toyota Hiace registration number ABQ negligently.”
There
is no allegation in the State papers that the accused drove a
commuter omnibus or a public service vehicle but simply a Toyota
Hiace vehicle. The trial court fell into the error of supposing that
the vehicle in issue was a commuter omnibus and a public service
vehicle. After convicting the accused person, the court proceeded to
enquire into special circumstances. When the court was explaining
what special circumstances are to the accused, it remarked as
follows;
“Accused
person you have been convicted of negligent driving of a public
service vehicle, namely, a commuter omnibus.''
The
record does not indicate that a response was elicited from the
accused. The suggestion that the accused had been involved in an
accident whilst driving a public service vehicle was both misleading
and erroneous as the State was not alleging that the accused drove a
public service vehicle or an omnibus.
The
record does not indicate that the accused was appraised of what
special circumstances are. It is incumbent upon a court making an
inquiry into special circumstances to explain fully to the accused
the import of special circumstances. This requirement serves to equip
the offender to understand the nature of the enquiry being conducted
and its purpose. A suggestion to an offender that he has been
convicted of negligent driving of a public service vehicle, namely, a
commuter omnibus is not an explanation of what special circumstances
are. The court tried to elicit essential elements of the offence from
the accused - after it had convicted him of the offence charged.
There is a growing tendency on the part of magistrates dealing with
driving offences where this type of vehicle is involved, to assume
that a Toyota Hiace is a public service vehicle and a commuter
omnibus. This correlation is misplaced. The definition section of the
Road Traffic Act defines a public service vehicle as follows;
“Public
service vehicle” means a motor vehicle in respect of whose
operation an operator's licence is required in terms of the Road
Motor Transportation Act [Chapter 13:15];”
A
Toyota Hiace is not, as a matter of course, a commuter omnibus nor a
public service vehicle. A vehicle which is a commuter omnibus only
becomes a public service vehicle when it is used for the purposes of
ferrying passengers for profit in terms of the legal definition of a
public service vehicle. The vehicle may be an omnibus, but, it can
only become a commuter omnibus when it is used for the purpose of
ferrying passengers. It is not the class of vehicle, type or
description of a vehicle that determines whether it is a public
service vehicle, but, rather, the use to which the vehicle is being
put.
The
fact that it was later suggested to the accused that he was driving a
public service vehicle does not validate a failure by the prosecution
to state and fully outline the nature of the allegations against the
accused in its papers. The trial court failed to pick the anomaly in
the State papers. Unless a charge sheet contains a specific
allegation to the effect that an offender drove a public service
vehicle or commuter omnibus, it is inappropriate to treat an offender
as if he drove such class of vehicle for purposes of sentence in
terms of section 52(2) of the Road Traffic Act [Chapter 13:11].
An
admission by an accused to essential averments not linked to the
offence charged cannot be not an admission of guilt to the offence
charged. Such an admission does not cure the defect in the charge. An
offender cannot be convicted of a crime in circumstances where he is
unaware of the full allegations that make the conduct complained
against criminal. In this case, the accused did not admit that he
drove a public service vehicle or a commuter omnibus. The information
was just thrust down his throat. He was not afforded an opportunity
to respond to the suggestion. I am not satisfied that the accused was
properly advised of the nature of charges he was facing and that his
admission of guilt is a genuine and unequivocal plea of guilt to the
offence of driving a public service vehicle negligently.
The
facts disclose that the accused drove a Toyota Hiace. The accused
admitted that he drove the vehicle negligently. The allegations, as
they stand, are supportive of no more than a case of negligent
driving involving an ordinary vehicle in terms of section 52 of the
Road Traffic Act [Chapter 13:11].
The
conviction is proper.
