Court hears Zim cellphone driving case

MOBILE

By Alfonce Mbizwo, Harare, Zimbabwe

Zimbabweans caught using a mobile phone while driving cannot be prosecuted under the country’s present laws, says a High Court judge in a landmark judgement.

Justice Maphios Cheda said police were empowered to impose a fine not exceeding USD200 for serious breaches.

“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 in the case of Zaine Babbage.

Babbage was arrested using a cellphone while driving on 23 January last year. Bulawayo provincial magistrate 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 ‘induced a sense of shock’.

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.

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.

The judgment handed down on Justice Cheda’s behalf last Thursday by Justice Lawrence Kamocha, who concurred with the judgement.