The
appellant was convicted by the resident magistrate Murewa on 21 August 2006 of
culpable homicide.
He
was driving a Honda Odyssey vehicle and drawing a trailer, when, on 25 February
2005, he hit and killed the nine year old deceased, Shylene Motsi, at the 46,5
km peg along the Marondera Musami Road in Murewa.
On
30 August 2006, the appellant filed the present appeal. He listed eight
misdirections he averred where apparent from the face of the record of
proceedings. He averred that the circumstances in which the fatal collision
took place did not support the finding of negligence reached by the trial
magistrate.
The
facts of the matter are found in the testimonies of four witnesses and four
documentary exhibits. The State called the evidence of Rutendo Mazanhi, Yolanda
Takarova and the Investigating Officer, Sergeant Gift Karonga, while the
appellant was the sole witness in his defence. Rutendo Mazanhi and Yolanda
Takarova, who were nine and seven years old at the time of the accident, were
in the company of the deceased. They were on their way home from school.
Sergeant Karonga wrote in exhibit A, the Traffic Accident Book that he arrived
at the scene thirty (30) minutes after the collision while the appellant stated
that he did so after fifteen (15) minutes.
The
appellant was driving a Honda Odyssey light motor vehicle and was towing a
trailer along the 7-metre wide bituminous Marondera-Musami road. He was with
his wife and two sons in the motor vehicle. He was at the tail end of a convoy
of four cars led by Mrs. Lesley Swart who was the only person who knew the way
to the farm where they were going for a picnic. He had never driven on that
road before. Unbeknown to him, at about 2:15pm, the deceased was walking from
Mabika Primary school in the company of Rutendo Mazanhi, Yolanda Takarova, and
Chenai Murare. The school was on the left hand side of the appellant. Between
the school and the main road is a dust road which runs parallel to the main
road. The ground between the dust road and the tarred road was covered by grass
which was 1, 2m tall. The dust road was connected to the tarred road by
diagonally running foot paths. The school girls were walking along the dust
road. The deceased, Yolanda Takarova, and Chenai Murare used one of the
diagonal paths to reach the edge of the tarred road; a spot some 200m to 250m
from their school. They were all hidden from the appellant's view by the long
grass. The deceased emerged from the grass and ran into the road. When she was
in the center of the road, she realized that there was an oncoming vehicle
traveling in its correct lane. She stopped and hesitated and then ran forwards
into the lane for traffic coming from the opposite direction. The oncoming
vehicle left its lane of travel and went into the lane she had taken and hit
her when she was a metre from the edge of the road. She was thrown into the
air, fell into the road and instantly died.
The
Investigating Officer compiled the Traffic Accident Book…, and drew a sketch
plan, which he later enlarged into exhibit A. He recorded statements from the
two school girls who testified in court. He allowed the appellant and his elder
son to write down their respective versions of events in the Traffic Accident Book.
At
his trial, the appellant testified that he did not notice the Mabika Primary
School sign, the school itself and the Crossing Ahead sign for school children
that were all on his left hand side. It was the uncontroverted testimony of the
Investigating Officer that the latter sign was 600m before the scene of the
accident. He confirmed the testimony of the two school girls on how the
accident occurred. He stated that the deceased suddenly emerged from the long
grass on the side of the road and ran into the road some 5.5m in front of his
vehicle. In order to avoid hitting her, he jumped on his brakes. The little
girl looked at him and appeared to be retreating. He released his brakes,
swerved to his right into the lane for traffic coming from the opposite
direction but the girl carried on running and he hit her with the front of his
vehicle where the number plate is affixed and she bounced off the front of his
car to the right. He went over her without running her with his wheels. He lost
control of his vehicle and went off the road into the long grass on his right
hand side. He travelled in the grass for 21.5m before coming to a stop in the
tarred road in his wrong lane. He produced four photographs of the Danger Warning
sign that were taken by his legal practitioner a year after the accident…,.
In
his well-written judgment, the trial magistrate found the circumstances that
prevailed as the appellant was driving were-
1.
That Mabika Primary School and its sign post were visible to a driver
travelling along the road in question. He, however, found that the danger
warning sign for children crossing ahead was 1.5m high, though partially
obscured by the 1.2m long grass leaving the top portion visible for 30
centimetres, would have been visible to the appellant just as it was visible to
the Investigating Officer who drew it in the sketch plan in the Traffic Accident
Book on the day of the accident.
2.
The 1.2m long grass on both sides of the road made the deceased and her
companions inconspicuous to the appellant.
3.
That the deceased just ran into the road without checking whether it was safe
for her to do so.
4.
That the appellant was traveling at a speed of 100km/hr through a built-up
residential rural area that he was not familiar with. That the maximum speed
permissible for light vehicles on that portion of the road was 120km/hr. He was
driving a light motor vehicle and was towing a trailer. He was traveling in a
convoy and at approximately the same speed with three other vehicles that were
not towing any trailers.
He
proceeded to apply these circumstances to the three pronged foreseeability test
propounded by W.E. COOPER's Motor Law vol 2 'Principles of Liability' (Juta,
1987)…, and found the appellant culpable for the death of the deceased.
The first question
set out by W.E. COOPER is whether a reasonable man in the position of the
appellant would have foreseen the possibility of harm to others.
The
trial court relied on the concession made by the appellant, under cross-examination,
that his speed was unsafe in a rural residential area which he was not familiar
with and on a road which was bounded on both sides by 1.2m long grass. He found
that his visibility was obscured by the long grass and held that a reasonable
driver in his shoes would have foreseen the possibility of harm to others in
those circumstances.
The second question
set out by W.E. COOPER is whether a reasonable man in these circumstances would
have taken precautions to prevent the harm.
The
trial magistrate reasoned that a speed of 100km/hr was not a safe speed to
travel at for a vehicle that was towing a trailer. His reasoning was based on
two factors. The first was that his companions, who were not towing any
trailers, were also travelling at that speed. The second was the further
concession by the appellant that he did not apply his emergency brakes for fear
of overturning. He also found that the
failure by the appellant to observe the Mabika Primary School, its sign post
and the Danger Warning sign for children crossing demonstrated that he was not
keeping a proper look out. He held that his duty of care towards the deceased
began long before he reached, and not at the point at which he first observed
the deceased. While he accepted that the appellant would not have been able to
avoid the accident at the time he first saw the deceased darting across the
road, he found that the failure to keep a proper look out and the unsafe speed
that the appellant was traveling at prevented him from taking the precautions
that a reasonable man in his shoes would have taken to prevent the harm that
befell the deceased.
The last question
posed by W.E. COOPER was whether the appellant took the necessary precautions
to avert the harm.
The
trial magistrate held that the measures he took on seeing the child at 5.5 m
ahead were compromised by his earlier failures to drive at a safe speed on
approaching a school and on seeing a Danger Warning sign ahead.
In
the final analysis, the trial magistrate agreed with the appellant's counsel of
record that the cases of S v Duri 1999 (3) ZLR 111 (S); S v Ferreira 1992 (1)
ZLR 93 (S); and S v Ball 1993 (3) ZLR 384 (S) were distinguishable from the
present matter in that in those cases the drivers had seen the children at an
appreciable distance before the accident. He, however, opined that while the
long grass and the failure by the child to check the road before crossing
contributed to the accident the appellant failed to reduce his speed to suit
the exigencies posed by the school, its sign and the Danger Warning sign
because he was not keeping a proper lookout. He came to the conclusion that the
contributory negligence of the deceased reduced the appellant's negligence to
ordinary negligence.
Counsel
for the appellant submitted that the
trial magistrate ought to have assessed the negligence of the appellant from
the time he first saw the child dart in front of him. She submitted that the
long grass and the actions of the deceased created a sudden emergency which
exonerated the appellant from any wrongdoing. She further argued that
confronted with the sudden emergency, the appellant, by applying his brakes and
swerving to the right, acted as would a reasonable driver in his shoes. She,
however, conceded that the appellant ought to have seen the school, its sign
post and even the Danger Warning sign before the child suddenly ran into the
road.
Counsel
for the respondent adopted her written submissions and did not support the
conviction. She basically agreed with the appellant's counsel by conceding that
a sudden emergency was created by the long grass and the actions of the
deceased. In fairness to counsel for the respondent, she abandoned her concession
when we sought her comments on the admissions of negligence that appeared to
have been made by the appellant under cross examination in the court a quo.
In
S v Duri 1999 (3) ZLR 111 (S)…, Duri was traveling at a speed of between
90km/hr and 100km/hr when he saw the child 80m in front of him on the side of
the road. The child dashed into the road after his goat when he was 40m away
and Duri hit both the boy and his goat and killed them. At 12F it was found
that even if he had been traveling at 20km/hr he would not have been able to
avoid hitting the boy. His appeal against conviction was dismissed on the basis
that he did not take preparatory steps like slowing down, removing his leg from
the accelerator and placing it adjacent to the brake or carefully watch the
movements of the boy and his goat for the first sign of dangerous activity on
their part that would have empowered him to take evasive action when the
collision seemed imminent. At page 113G McNALLY JA stated that -
“Having
made it impossible for himself to deal with what was then no doubt a sudden
emergency, he cannot call in aid the doctrine of sudden emergency.”
In
S v Ferreira 1992 (1) ZLR 93 (S)…, the appellant's conviction of culpable
homicide arising from the death of a 7 year old boy who dashed in front of his
boat-towing vehicle was upheld after a consideration of the “totality of the
facts.” He had been driving at 90km/hr. He had removed his foot from the
accelerator but had not placed it on the brake pedal. The boy dashed in front of
him and he violently applied his brakes and veered slightly to his left. He was
unable to evade the child…., GUBBAY CJ stated that -
“There
is a very definite duty upon a motorist who knows himself to be in the vicinity
of young children, for they have a propensity for impulsive and sometimes
irrational action. Children should not be credited with the same mature
intelligence and presence of mind as grown-up people. A motorist must
anticipate that a child on, or just next to, the road may unexpectedly decide
to run across oblivious of danger. He must keep his vehicle under such control
as to be able to suddenly pull-up if a child starts to cross the line of his
route. He must prepare himself for such an eventuality. It has been aptly
remarked that young children are "as wide as the road" and are liable
to get into the way of a motorist without any overt warning. Thus, greater care
is demanded towards children than is necessary for the safety of adults.”
At
96F-H, he emphasised the need to drastically reduce speed as a preparatory step
to stopping to avoid a collision in these terms -
“It
is clear to my mind that the scene confronting the appellant was such as to
impose upon him a duty to substantially reduce his speed of 90km/h, albeit
there was no indication at that stage of an intention on the part of any of the
children to cross the road. Obviously, the appellant was alive to the
possibility of a sudden movement into the road by one or more of the children
for he took his foot off the accelerator. But that action was totally
inadequate. The vehicle was traveling along a level stretch of road and the
precaution the appellant took over the rapidly decreasing distance would have
barely, if at all, slowed the vehicle down. He ought, additionally, to have realized
that the braking power of the vehicle would be adversely affected by the weight
of the boat-carrying trailer.”
S
v Ball 1993 (3) ZLR 384 (S)…, McNALLY JA had this to say about the defence of
sudden emergency that was relied on by counsel for the appellant and conceded
by counsel for the respondent-
“In
a series of cases involving the unintentional killing of children this court
has emphasised the high standard of care that must be exercised by motorists
when passing children on the side of the road. See S v Duri 1989 (3) ZLR 111
(S); S v Ferreira 1992 (1) ZLR 93 (S); and S v Beets SC90-93. But there is no
absolute liability. Each case turns on its own facts. In each of the cases to
which I have referred, it could be said that, when the crisis occurred, there
was no way the driver could avoid the child. In each case, therefore, the court
was in effect, ruling that a properly cautious driver would have done something
before the crisis arose to ensure either that he could avoid it, or that he
could prevent it, or both. By slowing down considerably or moving to the centre
or far side of the road, when this is possible, one may be satisfied that even
if the child does suddenly dash into the road one will be able to avoid him. By
hooting or flashing one's lights one may be satisfied that the child is aware
of one's presence. With a small child one may need to take both avoiding and
preventive action. With an older child one or other may be an adequate and
reasonable precaution.”
Similar
sentiments were expressed by CHIWESHE J…, in S v Nortje 2003 (1) ZLR 255 (H)…,.
The
point made in these cases is that the court does not only look at the actions
of the driver when the crisis occurred but also before it does.
The
trial magistrate properly looked at the actions of the appellant when the
crisis occurred and found that there was nothing he could do, at that stage, to
avoid the accident. He, however, found him negligent on the basis of his
omissions before the crisis occurred.
I
am unable to fault his findings or his reasoning.
After
all, under cross examination by State counsel, the appellant virtually admitted
that he drove negligently. He accepted that he failed to see the school, its
sign post and the Danger Warning sign when he ought to have done so. The evidence
of the Investigating Officer also revealed that other school children were
walking along the dust road that was parallel to the school when he arrived at
the scene of the accident. The appellant's focus must have been on keeping pace
with the vehicles that were in front of him. He incapacitated himself from
keeping a proper look out of his surroundings. Had he done so he would have
taken adequate preventive measures to avoid the collision.
In
Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A) CORBETT JA…, makes the
point that a motorist has an even higher duty of care towards hidden children
whose presence he ought reasonably to foresee or anticipate. THRING J adopted
this reasoning in Road Accident Fund v Landman 2003 (1) SA 610 (C) and found a
mother who hit a school girl who suddenly ran in front of her motor vehicle
from behind a bus that was dropping school children at a school pick up and
drop station negligent in that she proceeded at “an unabated speed of as much
as even 40km/hr.”
Before
concluding, I wish to indicate that the appellant was not traveling at a safe
speed.
He
does not appear to have been aware of his speed at the time of the accident. In
the Traffic Accident Book he gave his speed as 60km/hr. In his evidence he said
it was 100km/hr. It seems to me that this contradiction demonstrates that he
was not paying attention to his speedometer. He was therefore not keeping a
proper look out. But, even if he were travelling at 100km/hr, it was not a safe
speed to travel at in the vicinity of a school and on a road with long grass on
its edges. The speed limit for a light vehicle that was not towing a trailer
would have been 120km/hr on that road. In terms of the Road Traffic (Maximum
Speed Limit) Regulations 1995, S.I.63 of 1995, the maximum speed for any light
vehicle drawing a trailer in a bituminous road with a width in excess of 6m was
100km/hr. The appellant was traveling at the permissible maximum speed in
conditions which required a lesser speed.
I am satisfied that the appellant was correctly
convicted. Accordingly, his appeal against conviction is dismissed.
