MATHONSI J: The night of 22 November 2006 was a dark
and stormy one with poor visibility. At
about 2100hours the Appellant, a driver of 37 years clean driving experience,
was driving from Harare to Masvingo when at the 198km peg he suddenly beheld a
huge dark object close ahead of him. It
later turned out to be a heavy army truck loaded with maize seed.
The Appellant tried to avoid ramming
onto the army truck by swerving to the right and did not do a good job of it,
succeeding in only hitting the rear of the trailer with the left side of his
Isuzu KB truck before being confronted by a Mercedes Benz E240 motor vehicle
which was travelling in the opposite direction.
The Appellant managed to avoid a head on collision with the Mercedes
Benz which was carrying Senator T. Mohadi, but side swiped it with the right
side of his vehicle. He battled with the
vehicle and its trajectory took him off the road where he managed to stop
without overturning.
The Appellant, who pleaded not
guilty, was tried at the Gweru Magistrates' Court on a charge of reckless
driving in contravention of section 53(2) of the Road Traffic Act, [Chapter
13:11]. He was convicted of negligent
driving, a permissible verdict on a charge of reckless driving and sentenced to
pay a fine of $150 000-00 (local currency) or in default of payment 2 months
imprisonment.
In arriving at the conclusion of the
Appellant's guilt, the trial magistrate took the following path:
“In
this case can an accused person be said to have overtaken when he saw that
there was oncoming traffic? In my view
evidence led did not conclusively prove that.
The army driver was not called to testify on how the accused tried to
overtake him, on whether or not his car had reflective material or lights. His evidence was necessary.
The
first witness did not see whether the army truck had light or not. The attending detail did not check the lights
were functioning or not, or whether the chevron was reflective or not. Accused's version that the army truck had no
lights and that it had no reflective material was not rebutted, it follows that
he not reckless. His conduct falls short
of recklessness but qualifies as ordinary negligence. I say so because he was driving at around
100km/hr on a very dark night. He saw a
hazard about 25m or 50m. His speed did
not correspond with the distance he could see ahead. He thus failed to take evasive action when
need arose. He was therefore negligent.”
In my view such a conclusion is not
supported by the evidence led. For a
start, the allegations made by the state are that the Appellant tried to
overtake the army truck in front of oncoming traffic as a result of which the
accident occurred. The state did not
disclose that there was a collision first with the rear of the army truck. According to the state, the particulars of
recklessness are:
“- travelling at an excessive speed in the
circumstances.
- failing to keep a proper look out
- overtaking in front of oncoming
traffic.
- fail to keep vehicle under proper
control.
- fail to stop or act reasonably when
accident or collision seemed imminent.”
The evidence led by the state does
not sustain any of the above cited particulars.
The police officer who attended the scene, Constable Mathe did a shoddy
job indeed. Despite the fact that he
obtained a statement from the Appellant at the scene, which is contained in the
traffic accident book, to the effect that the army vehicle was not visible at
all because it had no rear lights, no reflectors and that the tarpaulin
covering the load on the trailer was tied to the base of the trailer thereby covering
the chevron of the trailer, Constable Mathe did not bother to check the army
truck. He testified that the army truck
was not entered in the traffic accident book, he did not investigate it at all,
and he did not put it on his sketch plan.
The Appellant gave evidence. He stated that he was driving at a speed of
between 90-100km per hour when suddenly he saw a dark shape looming in front of
him. Instinctively he swerved to the
right, skidden to the left and collided with the object. As a result of that impact, his vehicle was
thrown off into the right hand side of the road where there was an oncoming
vehicle. He had been unaware of both the
looming object (which turned out to be an unroad-worthy army vehicle) and the
oncoming vehicle because the army truck had no rear lights or reflectors and it
also impeded his view preventing him from seeing the lights of the oncoming
vehicle.
The Appellant stated that he collided
with the oncoming vehicle which was now a second collision. As a result the rear axle of his pickup truck
was torn off but he did his best to keep the vehicle under control, even with
one axle and he avoided rolling steering the vehicle to safety off the road.
He said that he later went to examine
the army truck and noticed that it had no lights, was a 30 tonne trailer pulled
by a scania horse. The trailer
completely had no lights, there were no electrical cables fitted to the trailer
which also did not have any visible reflectors.
It was an old dull trailer loaded with maize seed and wrapped in a dark
coloured tarpaulin completely covering the rear of the trailer as it was
secured right down to the rear bumper.
According to the Appellant when he
quizzed the army driver and his collegues why they had taken to the high way at
night a clearly unroadworthy vehicle which was not visible, they apologized
stating that they had intended to get to their destination before dark but
failed. He had to untie the tarpaulin
and lift it in order to take down the number plate of the trailer which was also
covered. The tarpaulin and its lack of
reflectors made the army truck invisible.
The Appellant called two witnesses
who corroborated his evidence. The first
one, Cuthbert Mazambani who was a prison officer at Masvingo prison was
attracted to the scene as he was passing by.
He confirmed that the reflectors of the army truck were covered by the
tarpaulin, for one to see the reflectors, which were very dirty, one had to
pull the tarpaulin up. The truck had no
lights and where lights should have been located there was nothing but holes.
The Appellant's second witness,
Calden Bismark who is a motor mechanic testified that the damage to the
Appellant's pickup truck, which he had to recover from Mvuma Police station,
were consistent with the fact that it had collided with the army truck as well
as Senator Mohadi's Mercedes Benz vehicle.
The entire evidence led on behalf of
the Appellant was not rebutted at all.
The issue which therefore arises is whether in the circumstances of the
case, he could be said to have been negligent.
I think not. It is not every
wrongful act of a person which constitutes negligence. Where a person is placed in danger by the
wrongful act of someone else and, in the agony of the moment, he conducts
himself with the care expected of him in the circumstances. He cannot be blamed if he does not succeed.
In S v Mauwa 1990(1) ZLR 235(S) Korsah JA stated at 241 B that:-
“Where
a person or third party is placed in danger by the wrongful act of another,
that person is not negligent if, in the agony of the moment, he exercises such
care as may be reasonably expected of him in the reasonable apprehension of the
danger in which he is so placed. He is
not to blame if he does not do quite the right thing in the circumstances.”
If it is accepted that the army
vehicle was in the condition borne by the evidence, then clearly the Appellant
was not expected to see it until it was too late. When he saw it what he did was reasonably
expected of a human being. In fact had
he not taken the evasive action which he did and manoeuvered his vehicle the
way he did, as dictated by the agony of the moment, human life could have been
lost. It is remarkable that no life was
lost in those circumstances.
The doctrine of sudden emergency was
succinctly formulated in Chikosa v Wright
1996(2) ZLR 607(S) at 608G:-
“A
man who, by another's want of care, finds himself in a position of imminent
danger, cannot be held guilty of negligence merely because in that emergency he
does not act in the best way to avoid the danger.”
It is the army driver who created
danger by putting an invisible vehicle on the road. There is a reason why a vehicle is required
to have rear lights and reflectors at the back.
It is to alert other drivers of the presence of that vehicle on the road. That danger required the Appellant to take
avoiding action which led to the collision with both the army vehicle and the
Mercedes Benz vehicle. The Appellant
cannot be said to have been negligent.
It is astonishing to note that the
state tried to create an impression that not only was the army vehicle not
involved but also that it did not exist.
Otherwise there would be no explanation for its exclusion from the
traffic accident book and the signal failure to bring its driver to
testify. It is an attempt to pull the
wool over the court's eye which is as unsavoury as it is unacceptable. It is an injustice that should be condemned.
I am
therefore satisfied that the state did not prove the guilt of the Appellant
beyond a reasonable doubt.
Accordingly,
the appeal succeeds. The conviction of
the Appellant is quashed and the sentence set aside.
Cheda J agrees………………………………………………….
Calderwood, Bryce Hendire and partners, appellant's legal practitioners
Criminal Division, Attorney General's Office,
respondent's legal practitioners
