THERE is no law that authorises police to refer cases of motorists caught using a mobile phone while driving to court for trial, a High Court judge has said.
In a landmark judgment handed down on his behalf by Justice Lawrence Kamocha in the case of Zaine Babbage, Justice Maphios Cheda yesterday said there is no legal reason why someone who has contravened Section 16B (1) (a) of Statutory Instrument 2999/2002 should be referred to court for sentence for an offence under this section unless the offender is a repeat one or the circumstance under which the offence is committed is aggravated.
Justice Cheda, with Justice Kamocha agreeing, said police are empowered to impose a fine not exceeding US$200 depending on their regulations.
“There is no specific penalty for contravening Section 16B (1) (a) of Statutory Instrument 299/2002 (using a mobile phone while driving but, such penalty is found in the proviso of Section 81 (5) of the Road Traffic Act, Chapter 13:11, which states that no such penalty shall exceed a fine of level 5 or imprisonment for a period of six months or both such fine and such imprisonment,” said the judge.
A level 5 fine is US$200 and the judge noted that it should be reserved for more serious and aggravated cases.
Justice Cheda said after consulting Mr Whisper Mabaudhi of the Attorney-General’s Office, he was advised that the practice of sending cellphone offenders to court was adopted after a meeting between the provincial police command and the provincial judicial committee upon realising that motorists continued to commit the offence.
“However, the practice, despite its good intention, is unlawful as the two provincial structures have no legal authority to alter or amend the provisions of an existing legislation. Such duty is the domain of the legislature or the designated minister.
“The provincial structure cannot arrogate themselves administrative or legislative powers they do not have. It stands to reason that the Zimbabwe Republic Police has authority to assess fines on motorists if the said fines are in accordance with their regulations,” he said.
Justice Cheda said the correct legal position, which should be followed by the relevant authorities, is that where a motorist is caught using a cellphone, he should be issued with a ticket to pay a fine as stipulated in level 5.
Further, the judge said, the ticket should give the motorist a reasonable time within which to pay the fine in accordance with their regulations unless the offender elects to pay the fine on the spot.
“A police officer cannot and should not insist on a spot fine on the basis that he is not in possession of a ticket book, which ticket book is a necessary administrative tool for executing his duty.
“A police officer’s failure to carry relevant stationery cannot be used to curb and or infringe people’s rights,” said Justice Cheda.
Babbage (27) had pleaded guilty to the charge and was sentenced to 14 days in prison despite an assessment by a community service officer that he was a candidate for community service.
Justice Cheda said it was improper for the magistrate to impose the custodial sentence without giving reasons for their decision, as this was a legal requirement.
He added: “The offence is by any civilised standards not serious and at any rate attracts a fine as the appellant was a young and employed first offender. There is a clear misdirection on the part of the learned magistrate as the matter falls within the jurisdiction of the police and not the court.”
The Appeal Court confirmed the conviction and set aside the sentence and substituted it with a US$20 fine or in default of payment five days imprisonment.
The pronouncement of a prison term, the court said, should not be arrived at lightly by the courts, as its consequences are very dire.
“It is not enough for the court to merely state that the said factor has been considered. The said consideration must clearly manifest itself in the sentence the court passes thereafter.
“In this jurisdiction the courts have held that failure to consider community service for a minor offence constitutes a serious misdirection on the part of the judicial officer and will no doubt call for interference by the appeal court,” said Justice Cheda.
He said the courts’ jurisdiction has now moved away from viewing imprisonment as the first port of call and that as such non-custodial sentences are now the general rule as opposed to being an exception.
While accepting that the discretion of sentencing remains the province and domain of the trial court, Justice Cheda said in as much as sentencing remains the trial court’s discretional and onerous responsibility, it should be exercised judiciously failing which the offender can suffer serious prejudice.
“Judicial officers are encouraged to consider opinions and recommendations of other professionals whose objectives are to assist them in arriving at suitable sentences. Where they have reasons to differ with these recommendations, they should proffer reasons for their departure,” he said.
The facts of the matter are that on 23 January last year, at the corner of 12th Avenue and Robert Mugabe Way, Babbage was arrested using a cellphone while driving.
Bulawayo provincial magistrate Mr Sikhumbuzo Nyathi sentenced him to 14 days in prison without the option of a fine.
In his Notice of Appeal filed by his lawyer, Mr Charles Paul Moyo, of Moyo and Nyoni Legal Practitioners, Babbage argued that the sentence imposed was so manifestly excessive that it induces a sense of shock.
It was his contention that the learned magistrate misdirected himself in that he did not consider community service or a fine as an alternative to a custodial sentence.
“The trial record does not show how the learned magistrate arrived at the sentence. The record shows what was said in mitigation only. The learned magistrate in his comments admits that he was ‘slack in not maintaining a full record of his exchange as regards community service’. The fact of the matter is that he did not maintain a record of what transpired during sentencing at all,” submitted Mr Moyo.
He prayed to the court to uphold the appeal and that his client be made to pay a fine of $20.
Mr Lewis Maunze, of the Attorney General’s Office conceded that the sentence imposed by the trial court is excessive and induces a sense of shock adding that the trial magistrate erred in not considering community service or a fine as a form of punishment.
“The respondent will humbly submit that the sentence indeed induces a sense of shock. It cannot in anyway be supported which is why the lawmaker considers a fine or community service in an offence of this nature,” said Mr Maunze.
It is his contention that the sentencing judicial officer clearly misdirected himself which called for the interference by the Appeal Court.