Motorist appeals against sentence for using cellphone while driving

Reserving judgment in the case of Zaine Babbage, Bulawayo High Court judge, Justice Maphios Cheda, with Justice Lawrence Kamocha agreeing, said they needed to write a judgment in the matter.
In his comments before reserving judgment, Justice Cheda said while driving and speaking on the cellphone was an offence, it should not attract a harsh sentence.

Babbage (27) pleaded guilty to contravening a section of the Road Traffic Act (Chapter 13:11) (use of cellphone while driving).

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 for using a cellphone while driving.
Bulawayo provincial magistrate Mr Sikhumbuzo Nyathi sentenced him to 14 days in prison without the option of a fine.

Reserving judgment in the case, the court took into account that Babbage was granted bail pending appeal soon after sentence on 9 February last year. 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 induced 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 any way 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.