BERE J: On the 13th
of December 2010, around 2100 hours, and along Bulawayo–Gwanda
Road, an accident which claimed the life of one Alfred P. Moyo (the
deceased) occurred. The deceased was the driver of a DAF truck
bearing registration number AAC 4363 which was heading towards
Bulawayo whilst the appellant was driving a freight-liner heavy
vehicle bearing registration number ABB 5780 towing a trailer heading
in the opposite direction. The two vehicles collided along the way
and the appellant was charged and convicted of contravening section
49(b) of the Criminal Law (Codification and Reform) Act [Chapter
9:23] and some other offence for which he was acquitted and is
consequently of no relevance to this appeal.
After trial the appellant was
convicted and sentenced to two and a half years imprisonment and in
addition prohibited from driving certain classes of motor vehicles
for varying periods of time.
Aggrieved by both the conviction
and sentence the appellant lodged this appeal against both. The main
complaint by the appellant is that the court a
quo erred in its
assessment of the evidence that it relied upon in convicting him, the
argument being that he ought to have been acquitted at the close of
the proceedings as the evidence did not support his conviction.
In its response to the appeal,
the respondent has conceded that the conviction was not supported by
the evidence which was at the disposal of the court a
quo. I agree.
It is quite clear that the court
a quo
itself was not impressed by the evidence of the key witnesses in this
case, viz,
the deceased's wife, who was clearly not on a vantage position to
enable her to see clearly how the accident had occurred. Her ability
to see clearly was compounded by the bad weather which was prevailing
at the time. She was the only witness who was expected to give direct
and credible evidence but as the court a
quo noted that
evidence had its own short comings. As regards the 2nd
witness, the court found him to have been sincere but unhelpful and
unable to corroborate any of the other witnesses.
Philimon Mupasiri who claimed to
have been driving in front of the deceased's vehicle before the
impact could not in all probabilities be said to have been able to
give a credible account of what happened since he clearly reacted to
the collision of the motor vehicle. This witness only stopped as a
result of the collision and his evidence could not have assisted the
court a quo
in determining the alleged negligence of the appellant.
The fourth witness, the police
accident evaluator's evidence was largely compromised by not having
been at the scene at the time of the accident. The witness'
testimony created even more confusion when he came up with two
possible points of impact and his sketch plan was found by the court
a quo
not have been comprehensive enough.
The court's view is that, in
the line of the unconvincing evidence led by the State the appellant
should have been believed when he testified that the deceased's
vehicle appeared to have encroached into his lane of travel thereby
causing the accident.
The evidence, looked at in its
totality did not satisfy the threshold of proof beyond a reasonable
doubt and the benefit of doubt should have been granted to the
appellant at the close of proceedings.
In conclusion and in passing, it
should always be noted that in traffic matters a finding of gross
negligence or reckless driving must be properly anchored. Such
findings must accord with the factual enquiry carried out by the
court in any proceedings.
See S
v Mutizwa1
and S
v Duduzile Tracey
Manhenga2.
I am satisfied that the
concession made by the State not to support the conviction was well
made. The conviction is quashed and the sentence set aside and the
appeal is upheld.
Mathonsi J ………………………………I agree
Web, Low & Barry, appellant's legal practitioners
National Prosecuting Authority, respondent's legal
practitioners
1. 1984 (1) ZLR 230
2. HH-62-15
