This is an appeal against the decision of the magistrate,
who, after convicting the appellant on a crime of contravening section 52(2) of
the Road Traffic Act [Chapter 13:11], sentenced the appellant to 8 years
imprisonment, of which 5 years imprisonment were suspended for 5 years on
condition that the appellant does not commit any offence involving negligent
driving. The remainder of the sentence was suspended on condition the appellant
performs community service at Harare Polytechnic College. Further, the
appellant's driver's licence was sent for endorsement.
The appellant was not satisfied with both the conviction
and sentence. He accordingly noted an appeal with this Honourable Court.
At the hearing of the appeal, and after hearing submissions
from counsel for the appellant, counsel for
the respondent abandoned her opposition. Counsel for the respondent conceded that the appeal had merit and
submitted that it be granted.
In our view, the concession by counsel for the respondent was well made.
We were of the unanimous view that the sketch plan, which
is at page 36 of the record of proceedings, shows that it was the second party
(complainant) who hit the first party (appellant)'s car.
Further, it appeared clearly that as one drives due west
towards Dzivarasekwa from Harare town, each party was driving on his own lane.
This portion of the road is a one-way with two lanes. The second party
(complainant) was on the left outer lane in front of the first party. The first
party (appellant) was travelling behind, and was in the inner right lane. Both
parties where going in the same direction. The second party (complainant) then
turned right and rammed into the appellant's car which was travelling in a
straight direction.
Point 'x2', which the appellant says was the point of
impact, as evidenced by motor vehicle debris, shows that as the real point of
impact. The point clearly shows that the complainant had gone past the turn off
into the unmarked road when the accident occurred. It does not support the
complainant's view that he was turning right into an unmarked road. Further,
point 'x', which was recorded as the probable point of impact, has nothing
which supports that proposition as the cars' debris are at 'x2' and not at 'x'.
To complicate matters, the other party, Tendayi Blessing
Mupezweni (complainant), stated in his evidence-in–chief, at page 13 of the
record, that, prior to the accident, he indicated that he was turning to the
left when he was hit on the driver's door and got injured.
There is no turn-off to the left at the scene of the
accident. The damages which he sustained were not consistent with the driver,
or a car, which was turning left but right.
When confronted with this evidence, he changed, in the
course of his evidence-in–chief, and stated that he was turning right. He
further, admitted that the statement taken by the police at the scene was taken
from his relative and not from him. He had already been taken to hospital.
The question to be asked is - who was then driving his
vehicle? Was it the complainant or his relative, as recorded in the Traffic Accident
Book?
In our view, given the above inconsistences, the appellant
should not have been convicted. The trial court should have found the appellant
not guilty and acquitted him. It is for these reasons that we are in agreement
with the concession made by the respondent.
In the result, the appeal is allowed.
The conviction is quashed and the sentence set
aside. The appellant is found not guilty and is acquitted of the charge.
