PATEL J: The accused in this case was found guilty on his plea of
guilty to a charge of negligent driving in contravention of section 52(2) of
the Road Traffic Act [Cap 13:11]. The
conviction is in order and is accordingly hereby confirmed.
The
Facts
The
accused committed the offence whilst driving a commuter omnibus with five
passengers on board. He collided into seven stationary vehicles, probably because
of over-speeding combined with defective brakes. All of the vehicles involved
were damaged but nobody was injured.
The
accused is a 46 year old first offender and is married with four children. He
is self-employed as a driver earning US$40 per week. He has no savings but owns
5 bovines by way of valuable assets. He holds a driver's licence in respect of
motor vehicles in Classes 2, 4 and 5.
The
trial magistrate sentenced the accused to a fine of US$200 or 1 month
imprisonment in default of payment of the fine. The accused was further
prohibited from driving motor vehicles in Classes 1 and 2 for a period of 2
years. His driver's licence in respect of Class 2 was also cancelled.
The learned Regional Magistrate who
scrutinised this case is of the view that the accused should not have been
prohibited from driving Class1 motor vehicles, as his driver's licence does not
include that class, but that he should have been prohibited from driving motor
vehicles in Classes 4 and 5 in addition to Class 2. In his response to the
queries raised, the trial magistrate explained that he extended the prohibition
to Class 1 motor vehicles because, if not so prohibited, the accused could have
proceeded to obtain a Class 1 driver's licence, which would enable him to drive
vehicles in all of the other classes, including Class 2, thereby defeating the
object of the prohibition in respect of that class. As regards Classes 4 and 5,
he did not extend the prohibition to those classes because the accused was
convicted of an offence involving a Class 2 vehicle and there was no need to
prohibit him from driving motor vehicles in Classes 4 and 5.
The
Law
Section
52(4) of the Road Traffic Act provides for prohibition from driving upon
conviction for negligent driving. In the case of a first driving offence, the
court may prohibit the convicted person from driving for such period as
it thinks fit. For a repeat driving offence, the court shall prohibit
the convicted person from driving for such period as it thinks fit and
cancel his licence in respect of motor vehicles of the class to which such
prohibition from driving extends. In the case of an offence involving the
driving of a commuter omnibus or a heavy vehicle, the court shall
prohibit the person from driving for a period of not less than two years.
However, the court may decline to impose the mandatory prohibition if it
considers that there are special circumstances which justify so declining, in
which event it must endorse such special
circumstances on the record of the case when passing sentence. Section 52(1) defines the term “special circumstances” to mean “special circumstances surrounding the
commission of the offence concerned, but does not include special circumstances
peculiar to the offender”.
The
provisions of section 52(4) are subject to Part IX of the Act, including
section 65 which stipulates general provisions relating to
prohibition. Section 65(1) provides that a prohibition from driving shall
extend to all classes of motor vehicle. However, section 65(3) allows the court
discretion to order that the prohibition shall not extend to such class of
motor vehicle, other than the class to which the motor vehicle driven by the
accused at the time of the commission of the offence belongs, as it thinks fit.
In terms of section 65(5), where the accused is prohibited from driving for a
period of twelve months or more or for consecutive periods which together
amount to twelve months, the court shall cancel his driver's licence
in respect of all classes of motor vehicle to
which such prohibition extends.
Prohibition
and Cancellation in casu
Turning
to the instant case, the trial magistrate found (without conducting any
specific inquiry into the question) that there were no special circumstances
justifying the non-imposition of a prohibition from driving and then proceeded
to impose such prohibition for a period of 2 years. In so doing, however, he
limited the prohibition to Classes 1 and 2. In my view, this approach is
erroneous and misdirected in that it is the converse of what is contemplated by
section 65(1) as read with section 65(3) of the Act. What the learned
magistrate should have done is to impose the prohibition, in general, and then
indicate the classes of motor vehicle to which the prohibition would not
extend, in particular. Before so doing, he should have considered whether or
not there were any special circumstances surrounding
the commission of the offence which justified such non-extension
and endorsed such special circumstances on the
record, as prescribed in section 52(4).
As regards
cancellation of the accused's driver's licence, section 65(5) of the Act requires that such cancellation be imposed in
respect of all classes of motor vehicle to which the prohibition from driving
extends. In other words, the coverage of cancellation must be co-extensive with
the classes of motor vehicle to which the prohibition extends. Again, the
learned magistrate appears to have misdirected himself by departing from this
requirement.
Corrective Action
In the
circumstances of this case, it is necessary that corrective action be taken at
the earliest opportunity. This is specifically envisaged in section 65(6) of
the Act, where prohibition from driving or cancellation of a licence is
required to be imposed in terms of the Act, and the court for any reason does
not prohibit the convicted person from driving or does not cancel his licence
in respect of all or any of the classes of motor vehicles in respect of which
it is required to be cancelled. In any such case, the court shall cause
notice to be served on the convicted person directing him to appear before the
court at the time and place specified in the notice to show cause why the
prohibition or cancellation should not be imposed or the order should not be
corrected, as the case may be. However, this procedure is subject to section
65(8) which precludes the service of such notice more than six months after the
date of the conviction. (The accused in
casu was convicted and sentenced on 3 and 3 February 2010 respectively).
In the premises, it is directed that
this matter be remitted to the trial magistrate forthwith for him to institute
the procedure enjoined by section 65(6) of the Act and to correct the sentence
imposed in this case, in conformity with the guidelines set out in this review.
KUDYA J: I concur.
