S v MATIMBA 1989 (3) ZLR 173 (S)

Flynote

Appeal — remittal for retrial — particulars of negligence not disclosed at trial although plea of guilty accepted — impropriety of remittal — irregularities in proceedings in trial court — accused prejudiced in his defence — conviction set aside.

Criminal law — motoring offences — negligence — standard of care required — Road Traffic Act 1976 — s 61 — duties of driver following accident — breaches of several duties should not be charged separately.

Criminal procedure — plea — of guilty — explanation of elements of offence — particulars of negligence in motoring case not put to accused — effect of such failure — charges — improper splitting of — breaches of duties under s 61 of Road Traffic Act 1976.

Headnote

When an accused person pleads guilty and the court proceeds in terms of s 255 of the Criminal procedure and Evidence Act [Chapter 59], care must be taken to ensure that the accused understands the elements of the offence to which he is pleading guilty. In the case of an offence involving negligence, the particulars of negligence must be put to the accused. If the charge and the State outline do not disclose the particulars, the court should not record a plea of guilty; instead, it should record a plea of not guilty and proceed in terms of s 255A of the Act. To record a plea of guilty in these circumstances is an irregularity. Although the Supreme Court has the power in terms of s 15(d) of the Supreme Court of Zimbabwe Act 1981 to set aside a conviction and remit the case for trial de novo, it would be wrong to do so because the prosecutor and trial magistrate ought to have been aware of the deficiencies during the trial. The standard of care required of motorists is not the care which the driver takes in his own affairs, nor that which the ordinary or average man would take. It is higher than that: it is that degree of care which would be observed by a careful and prudent man, the father of a family and a man of substance, who would have to pay in case he fails in his duty. Such a person, though, is not a timorous faint-hearted, always in trepidation lest he or others suffer from injury, nor is he a person given to anxious conjecture and morbid speculation. He is required only to take precautions against those possibilities of harm which are real and immediate; and in deciding whether precautionary action is warranted, he might have to weigh the seriousness of the harm, should it occur, against the chances of its happening.

Section 61 of the Road Traffic Act 1976 sets out the several duties of the driver of a motor vehicle involved in an accident. However, a single offence is created for a breach of these duties and to charge the accused separately in respect of each of the duties breached would constitute an improper splitting of charges.

Where there are several irregularities or defects in the proceedings in the trial court, an appeal court must ask itself whether there has been a failure of justice. If the court cannot be satisfied that the appellant was not prejudiced in his defence by the irregularities or defects, it will set aside the conviction.