S v Mudzimu (CRB 1164 of 2002) [2004] ZWBHC 102 (2 September 2004)

Judgment No. HB 102/04 Case No. HC 1571/03 CRB 1164/02 THE STATE Versus FORTUNE MUDZIMU IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 3 SEPTEMBER 2004 Criminal Review NDOU J: The accused was properly convicted by a Gokwe Magistrate for contravening section 6 of the Road Traffic Act [Chapter 13:11], i.e. driving without a valid drivers’ licence in respect of the class of the motor vehicle in question. Since the accused was driving a lorry which in terms of the said Act is a heavy vehicle, the learned trial magistrate, in the absence of special reasons was enjoined to sentence the accused to a term of imprisonment not exceeding five(5) years and not less than six(6) months and to prohibit him from driving motor vehicles of the class to which heavy vehicles belong unless the trial court established that there were special reasons. The accused was sentenced as follows: “6 months imprisonment. In addition 3 months is suspended for 5 year on condition the accused is not convicted within that period of any offence involving driving of a motor vehicle. In addition accused is prohibited from driving all classes of motor vehicles for life.” On scrutiny, the senior Regional Magistrate, Central Division, raised two issues with this sentence in the following terms- “(a) … the sentence imposed by the trial magistrate is incomprehensible and patently incompetent. Apparently accused was sentenced to 6 months imprisonment with labour and in addition to that 3 months imprisonment with labour which was conditionally suspended for 5 years. On the face of it the trial magistrate has given the accused two custodial sentences. My view is that the trial magistrate should either HB 102/04 sentence accused to 9 months imprisonment with labour with 3 months imprisonment with labour conditionally suspended or 6 months imprisonment with labour with 3 months imprisonment with labour conditionally suspended with no need for an additional 3 months imprisonment with labour which are suspended. In his reply the trial magistrate states that he intended to sentence the accused to 6 months imprisonment with labour of which 3 months imprisonment with labour are conditionally suspended for 5 years. May corrective measures be taken. Secondly, the trial magistrate wrongly prohibited the accused from driving all classes of motor vehicle for life. The correct order in terms of the relevant Act is to prohibit the accused from driving for life only in respect of the motor vehicles to which heavy vehicles belong. The trial magistrate again concedes to the error.” (b) I agree with the learned scrutinising Regional Magistrate’s above observations. First, I do not think it is competent in the absence of special reasons, for the trial magistrate to impose a sentence of 6 months imprisonment with a portion suspended. Six months is the minimum period that the court could impose as the accused was driving a lorry. It is trite that a mandatory sentence is a minimum sentence in terms of section 358(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and as such may not be suspended, nor may the offender be given time to pay, if the sentence is a fine – S v de Montille 1979 RLR 105(G); S v Kudavaranda 1988(2) ZLR 367(H); S v Bristow & Ors HB-66-04; Criminal Procedure in Zimbabwe – J Reid Rowland at 25-44; S v Chibay HH-416-86; S v Zhou GS 113-79 and S v Garaiza GS 138-79. In the circumstances, the sentence that the trial court imposed is incompetent because where it has been laid down by the legislature that a specific sentence must always be imposed for a particular crime, then the courts have no option but impose that sentence. They cannot suspend all or a portion of that minimum sentence – Guide to Sentencing in Zimbabwe – G Feltoe page 74. HB 102/04 The issue of two sentences for one crime raised by the learned scrutinising Regional Magistrate falls away because of the trial magistrate’s response. I, however, agree with his observation on the impropriety of imposing more than one sentence for one offence. The sentence by the trial court, in casu, gives the impression that two separate sentences of imprisonment for one offence were imposed. This would be incompetent – S v Musakiwa HH-239-83; S v Musakasa HH-302-83; S v Chipxere HH-314-83; S v Kangachepe HH-443-84; S v Danda HB-21-86 and S v Sibanda HB- 36-86. In light of what I said I am unable to certify these proceedings as being in accordance with real and substantial justice. As far as the prohibition order is concerned I agree that corrective measures are warranted. The prohibition order is deleted and substituted as follows: “In addition accused is prohibited from driving class 2 motor vehicles for life.” I otherwise decline to confirm these proceedings. Cheda J ……………………… I agree