The appellant is a haulage truck driver. Besides holding
the normal driver's licence, he has a defensive driving certificate. He was
convicted of culpable homicide arising from the death of seven commuter omnibus
passengers in a road traffic accident which occurred at the intersection of
Dieppe Road and Joshua Nkomo Road, Braeside, Harare on 25 February 2013 around
midday….,.
He appeals to this court against both his conviction and
sentence.
The main ground of appeal against conviction is that the
court erred by totally disregarding the principles governing sudden emergency
situations when the appellant was forced into a sudden emergency situation by
another driver, and, as such, he could not be held negligent in his driving
conduct leading to the accident. Other grounds of appeal amount to an attack on
the factual findings by the trial court.
The essence of this appeal is whether, in disbelieving the
appellant's version of events, the trial court erred.
The learned trial magistrate, in a well-reasoned judgment,
assessed the credibility of both the State and defence witnesses in a
methodical manner and found that there is no evidence to support the
appellant's claim that a runaway commuter omnibus had suddenly crossed his path
of travel thereby creating a sudden emergency. She therefore concluded that his
claim, that there was such an incident in the first place which led to a chain
of events leading to the fatal crash, was false.
It is trite, in our law, that an Appellate Court will not
interfere with the findings of fact made by a trial court and which are based
on the credibility of witnesses. The reason for this approach is that the trial
court is better placed to assess the witnesses from its observation; it
enjoying the advantage of seeing and hearing them first-hand. In S v Isolano
1985 (1) ZLR 62 (SC) DUMBUTSHENA CJ expressed himself thus:
“There are many authorities of this court, and persuasive
authorities from other jurisdictions, on the proper approach of an Appellate Court
to the consideration of a decision based on fact. I find the remarks of LORD
MACMILLAN in Watt (or Thomas) v Thomas [1947] 1 All ER 582 (HL) at 590 B-D very
appropriate in this case. He said:
'The Appellate Court had before it only the printed record
of the evidence. Were that the whole evidence it might be said that the Appellate
judges were entitled and qualified to reach their own conclusion upon the case,
but it is only part of the evidence. What is lacking is evidence of the
demeanour of the witnesses, their candour or their partisanship, and all the
incidental elements so difficult to describe which make up the atmosphere of an
actual trial. This assistance the trial judge possesses in reaching his
conclusion, but it is not available to the Appellate Court. So far as the case
stands, on paper, it not infrequently happens that a decision either way may
seem equally open. When this is so, and it may be said of the present case,
then the decision of the trial judge, who has enjoyed advantages not available
to the Appellate Court, becomes of paramount importance and ought not to be
disturbed. This is not an abrogation of the powers of a Court of Appeal on
questions of fact. The judgment of the trial judge on the facts may be
demonstrated on the printed evidence to be affected by material inconsistencies
and inaccuracies, or he may be shown to have failed to appreciate the weight or
bearing of circumstances admitted or proved, or otherwise to have gone
completely wrong.'”
See also Hughes v Graniteside Holdings (Pvt) Ltd SC13-84…,
(unreported)…,.; S v Mlambo 1994 (2)
ZLR 410 (S).
The trial court interacts with witnesses, both visually and
orally, during trial. It gets the real feel of the events from the description
of the witnesses and therefore is inexorably better placed to say which
witness's evidence is to be preferred over the other for the reasons that the
court will give. Even where no such reasons are not included in its reasons for
judgment, the fact that the trial court commands the first impression on
credibility cannot be lightly overturned. Therefore, when an Appeal Court reads
the record of proceedings, it must give due weight to the impressions made by
the trial court in respect of credibility.
In the present matter, the driver witnesses, who would
have, in all probability, witnessed the alleged run-away commuter omnibus, all
testified that they did not see any such vehicle as would have caused the
appellant to straddle across into the oncoming motor vehicles' lane. The
appellant's version of events was contrasted with the evidence of eye witnesses
before the court settled on rejecting it. There was a police detail on traffic
duty as well as a newspaper vendor. These two would not have an interest in the
outcome of an investigation or the trial as they are independent of the events
which led to the allegations against the appellant. Both did not confirm the
appellant's claim of the runaway vehicle. The police Investigating Officer
produced a diagram drawn upon indications made by the appellant. In it, the
appellant indicated to the investigator the point where he claimed he hit into
this alleged run-away omnibus. Coincidentally, it is the same point where the
two omnibuses involved in the accident collided with the appellant's heavy
vehicle. The facts indicate that the two mini-buses were travelling from the
appellant's opposite side. They were not being pursued by the police, as the
appellant claimed, as the reason for the erratic driving conduct of one of
them.
Given the appellant's own version, which is highly
improbable, the court a quo cannot be criticised for rejecting it.
The fact of the matter is that the appellant drove
negligently in that he suddenly changed lanes, for no apparent reason, when it
was not safe to do so since there was on-coming traffic. He failed to stop or
act reasonably when an accident was imminent resulting in him colliding into no
less than three motor vehicles. His failure to stop when he straddled into the
opposite lane constitutes an act of negligence, more so, if regard is had to
the fact that he was approaching a robot-controlled intersection. He was
expected to stop should the driving conditions require him to. His failure to
have done so may also indicate that he was driving at a speed excessive in the
circumstances. The result of his negligence is that he collided into three
motor vehicles which were lawfully using the road, and on their correct side of
the road. Two of these were commuter omnibuses. From one of them seven people
unnecessarily lost their lives. There is, on the record, sufficient proof of
negligence to justify his conviction.
This court will not disturb that conviction.
