REGINA v AGRIPPA 1980 ZLR 49 (G)

Author: Trodat Zimbabwe

REGINA v AGRIPPA 1980 ZLR 49 (G)

1980 ZLR p49

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Flynote

Road Motor Transportation Act [Chapter 262] — section 36 — failure E to produce road service permit or certificate of fitness on demand — meaning of “fails to comply” — whether blameworthiness element of offence — whether driver of vehicle my be convicted of offence.

Headnote

Blameworthiness is an element of the offence of failing to produce a road service permit or certificate of fitness on demand in contravention of section 36 (2) _F as read with 36 (1) (a) of the Road Motor Transportation Act [Chapter 262].

Although the driver of a public service vehicle has no duty to secure the carriage of the relevant road service permit and certificate of fitness, if through his own blameworthiness he makes it impossible for himself to comply with a request to produce one of those documents he could be convicted of contravening section 36 (2) of the Road Motor Transportation Act [Chapter 262]. _G

Cases cited

Jaga v Dönges, NO and Another? Bhana v Dönges, NO and Another 1950 (4) SA 653 (A)?

R v Jack, 1953 (2) SA 624 (AD)? _H

R v Chimhanda, G­S­26­80 (unreported).

Judgment

Waddington J: The accused in this case was charged with the offence of contravening section 5 (1)

(b) of the Road Motor Transportation Act [Chapter 262], alternatively with the offence of contravening

1980 ZLR p50

Waddington J section 36 (1) (a) of the same Act. The alternative allegation was that the accused, being the driver of a public service vehicle and having been stopped by a police officer, inspecting officer, examiner or appropriate officer, and unlawfully failed to produce on demand the road _A service permit issued by or on behalf of the Controller authorizing the use of such vehicle. The accused was acquitted on the main charge but was convicted on his plea of guilty to the alternative charge. When the plea was taken, the accused’s reply was cryptically recorded by the _B magistrate in the following terms: “Breakdown in Mount Darwin and couldn’t collect permit. I had it but wasn’t carrying it.”

When the matter came before a scrutinizing magistrate he entertained _C some doubt regarding the propriety of the conviction because a driver of a public service vehicle who, through no fault of his own, does not possess the appropriate road service permit cannot be criminally responsible for failing to comply with a lawful request to produce it. The scrutinizing magistrate accordingly submitted the case for review. I have _D obtained the views of the Attorney­General who does not wish to support the conviction.

Section 36 of the Road Motor Transportation Act [Chapter 262] provides, inter alia: _E

“(1) Any police officer, inspecting officer, examiner or appropriate officer may stop any public service vehicle and ­

(a)      demand from the driver thereof production of the road service permit or other permit issued by or onbehalf of the Controller authorizing the use of such vehicle? F

(b)      require the driver thereof to produce for inspection the certificate of fitness in respect of that vehicle?

(2) Any person who fails to comply with a request lawfully made In terms of subsection (1) shall be guilty of an offence.” G .

In the present case we are dealing with a statute which creates a criminal offence and it cannot lightly be assumed that in a matter of this description the Legislature, when it used the words “fails to comply”, did not use that expression deliberately instead of the words “does not _H comply” and that it intended the Crown should not have the burden of proving blameworthiness on the part of an accused person. If it is assumed that the words “fails to comply” are capable in their context of another meaning, namely, “does not provide” they are clearly also

1980 ZLR p51

Waddington J capable of connoting blameworthiness on the part of an accused person.

On this assumption subsection (2) of section 36 is capable of two _A alternative constructions and the construction that should be adopted is the one in favoremlibertatis. (See Jaga v Dönges, NO and Another? Bhana v Dönges, NO and Another 1950 (4) SA 653 (A) at pages 657, 661 and 668.) It seems to me, therefore, that the words “fails to comply” should be considered as connoting blameworthiness on the part on an accused person and not as meaning _B only “does not provide”. (cf. R v Jack, 1953 (2) SA 624 (AD) at pages 626 and 627.)

In the instant case the suggestion implicit in the explanation of the accused is that although he did not comply with the request to produce _C the road service permit in question he was unable to do so through no fault of his own. This explanation, which the Crown did not rebut, was inconsistent with blameworthiness on his part. The position would have been quite different of course had the accused, having been the driver of the public service vehicle in question, deliberately failed to produce _D the permit upon demand had that permit been available for production at the time.

The Attorney­General points out that in further considering the overall provisions of Chapter 262 it is noteworthy that the situations referred to in _E section 36 (1) (a) and (b), namely, carriage of the permit and certificate of fitness are made the responsibilities only of the owner by section 12 (1) (a) and (b) of the Act. Section 12 casts no duty on drivers to secure the carriage of such documents. The Attorney­General submits, therefore, that this in itself is an indication that it was not the intention _F that a mere driver should be liable for a failure to carry either of these documents. I agree with these sentiments. (See the decision of BECK, J, in R v Chimhanda, G­S­26­80, unreported). I would add, however, that the driver of a public service vehicle who, through his own blameworthiness, makes it impossible for himself to comply with a request _G made in terms of section 36 of the Act to produce one of the documents mentioned therein, would not necessarily in my view escape conviction under that section.

In the circumstances, the conviction and sentence must be set aside. _H If the fine of $100 which was imposed has been paid, it must be refunded.

My brother Beck agrees with this judgment.