Norman Sibanda v The State

### Preamble
1
HB 255/20
HCA 19/19
---------


NORMAN SIBANDA

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE AND KABASA JJ

BULAWAYO 26 OCTOBER AND 12 NOVEMBER 2020

Criminal Appeal

Mrs J Mugova, for the appellant

B Gundani, for the respondent

KABASA J:	The appellant appeared before a Provincial Magistrate sitting at Lupane Magistrates Court facing a charge of Contravening Section 49 of the Criminal Law (Codification and Reform) Act, Chapter 9:23, namely culpable homicide, to which he pleaded not guilty.  He was however convicted and sentenced to pay a fine of $600 or in default of payment 6 months imprisonment.  He also had his driver’s licence endorsed.

Dissatisfied with the conviction the appellant appealed and took issue with the court a quo’s decision on the following grounds:-

1.	The court a quo grossly misdirected itself on the facts that no court faced with the same facts would have arrived at the same decision in that:

a)	There was actual evidence that the other party encroached into the appellant’s lane thereby causing an emergency.

b)	It unsafely relied on its observation of the scene of the accident and the statements of the other driver made at an inspection in loco which was conducted more than 2½ years after the accident to determine that the appellant should have moved to the extreme left of the road.

c)	The evidence available for the state was interfered with, inconclusive, speculative and unreliable to found a conviction.

d)	The court a quo drew adverse inferences against the appellant in circumstances where the facts admit to more than one inference.

e)	The court a quo did not place any weight and if it did, it placed insufficient weight on, or it did not determine on the effect of, the fact that police interfered with the evidence.

f)	The court a quo misdirected itself in refusing to accept the explanation given by the appellant on how the accident occurred.

FACTUAL BACKGROUND

On 3rd May 2016 at around 0100 hours the appellant was driving a Hino Truck registration number ABV 1388 due north on the Bulawayo-Victoria Falls road with one passenger on board.  On approaching the 111 km peg the appellant encroached into the lane of on-coming traffic and consequently collided with a Toyota Belta vehicle which was being driven by Chenesai Marime who had 2 passengers on board.  Elizabeth Shuvai Marime who was a passenger in Chenesai’s vehicle succumbed to injuries sustained as a result of the accident.  She died on the spot, whilst Chenesai and Itai sustained injuries.

The appellant was said to have been negligent in that:-

(i)	He failed to stop or act reasonably when an accident seemed imminent.

(ii)	He failed to keep his vehicle under proper control.

(iii)	He failed to keep a proper look out.

(iv)	He travelled on the wrong side of the road.

In his defence the appellant contended that he only moved onto the lane of oncoming vehicles in order to avert a collision as the other vehicle had encroached into his lane.  The collision occurred when that vehicle went back to its lane allowing for no time for the appellant to react.

THE EVIDENCE

The court a quo heard from four state witnesses, the appellant testified in his defence and the court visited the scene for an inspection in loco.

The gist of Chenesai’s evidence was that she was driving the Toyota Belta heading towards Bulawayo.  This was the third day of the road trip from Namibia where she was employed as a registered nurse.  Near Insuza area, she met an on-coming vehicle which did not dip its lights; she dipped hers and turned on the right indicator so that the other driver could see the width of her car.  She moved to her extreme left as the vehicles were about to pass each other but her motor vehicle was then hit by the other car. She had a black out and came to whilst in the intensive care unit at Mpilo hospital. She sustained a fracture on the left arm, fractures on both legs, perforated intestines, first degree tear of the liver and 2nd degree tear of the spleen. She was pregnant and lost the foetus.

Chenesai’s brother Itai’s evidence on the cause of the accident was more or less the same.  He observed the other vehicle and equally observed Chenesai dip her lights whilst driving in her lane and as the vehicles were about to pass each other appellant’s encroached into their lane causing a collision. Itai called out to his sister who mumbled a confirmatory message that she was alive. This was not so for Elizabeth who died at the scene as a result of:

“Fractured lower left femur with haematoma, fractured pelvis, multiple bilateral rib fractures and bilateral haemopneumothorax, ruptured liver and haemoperitoneum”

The attending detail and the accident evaluator’s evidence supported the version of the first two witnesses.  The attending detail observed that the collision occurred in the left lane which was the direction of travel of Chenesai’s vehicle.  He concluded that the accident was caused by the appellant who drove on the wrong side of the road.  The accident occurred on a straight stretch of the road.

The last witness, Brian Mubereki was a holder of a certificate in accident reconstruction and evaluation.  He attended the scene and was able to draw a sketch plan.  The appellant first observed the other vehicle at a distance of 39, 1 metres and was therefore in a position to have pulled off the road as there was ample space to do so.  He concluded that it was the appellant who encroached into the lane of the on-coming vehicle resulting in the collision.

Despite the defence’s objections the court a quo went for an inspection in loco and made the following observations:-

1.	The scene of the accident was on a straight stretch of the road.

2.	There was a bus stop and a lay-bye on the appellant’s side.

3.	There were no trees or obstacles that could have hindered appellant from pulling to the left side.

4.	Chenesai confirmed at the scene that there were no noticeable changes at the accident scene.

5.	Appellant pointed out to some tampering that he said had occurred at the scene as there were shrubs and grass on the night of the accident.

6.	The point of impact was on Chenesai’s lane as indicated on the sketch plan.

It was from this evidence that the court a quo rejected the appellant’s version that the other driver created an emergency when she encroached into his lane and subsequently went back to her lane where he had moved to in order to avoid a collision.

The factual findings made by the court a quo cannot be described as outrageous given the evidence the court had to deal with.

“The position is now settled that an appellate court has no power to interfere with the findings of fact made by a lower court unless it is persuaded that the findings complained of are so outrageous in their defiance of logic that no sensible person properly applying his mind to the question to be decided would arrive at such a conclusion.”  (Christopher Samson v Windmill (Private) Limited SC 7-15, Barros and Another v Chimphonda 1999 (1) ZLR 58 (SC).

The court a quo carefully considered the evidence from the witnesses and the observations at the scene during the inspection in loco and its conclusions cannot be faulted.

There was actual evidence of encroachment by the appellant.  Chenesai and Itai’s description of how the accident occurred reads well on record and the court a quo was satisfied they were credible witnesses.

“It is trite that the assessment of the credibility of a witness is the province of a trial court.”   (S v Gilbert Zulu HB 52-2003)

An appeal court ought not to take such assessment lightly and disregard it unless satisfied that it defies reason and common sense.  (S v Mlambo 1994 (2) ZLR 410 (SC)

This was a straight stretch of the road. Itai was sitted on the front passenger seat, it was a moonlit night and Chenesai had not driven from Namibia without resting for it to be suggested that she was so fatigued that she was driving erratically.  She rested twice in Namibia, the first stop was for about 6 hours, the next about 4 hours and the third about an hour.

Granted the two witnesses lost their mother but that in itself is no reason to regard them as unreliable witnesses with an interest to serve. The suggestion that Itai’s observations were incredible because he saw ‘too much’ does not make much sense. He was sitted in the front passenger seat and that position allows for one to observe the road ahead and whatever actions the driver beside them makes. That is not such a feat to warrant the suggestion that it was impossible for Itai to have observed what he testified to.

The evidence was not purely circumstantial as argued on behalf of the appellant.  The circumstantial evidence actually supported the witnesses’ version of how the accident occurred.

The court a quo can therefore not be criticized for drawing inferences not consistent with the proved facts nor can it be said the proved facts called for the drawing of not only one reasonable inference.

The 2 cardinal rules of logic enunciated in R v Blom 1932 AD 202 are relevant where the court is dealing with circumstantial evidence.  There was direct evidence in casu and the circumstantial evidence as it related to the point of impact only bolstered the witnesses’ direct evidence.

The res ipso loquitar maxim became very relevant in light of the evidence from the witnesses. The event did speak for itself.

The court a quo’s decision to go for an inspection in loco was not meant to shore up the state’s case as suggested by the defence.  The trial Magistrate had discretion to allow an application for an inspection in loco not to reinvent the state case but to clarify the evidence led by the parties.

In our view, the important and key factors in conducting an inspection in loco are for the court to have a feel of the scene of the accident and make informed deductions and conclusions.

The fact that such inspection in loco was done 2½ years later is neither here nor there.  This is because that stretch of the road did not change over that period of time.  It did not suddenly become straight when it had curves at the time.  Equally, the trees and obstacles which the appellant sought to suggest were there at the time could not just disappear in the 2 ½ year period.  If there were trees, such trees would still have been there.  Is it suggested that they were completely uprooted?  Even if it is to be accepted that there was grass on the verge of the road, that in itself would not have stopped the appellant from moving off to the left of his lane if indeed the other driver had encroached into his lane. There was no suggestion that there was a gulley into which the appellant’s vehicle would have plunged in had he moved to the extreme left of his lane. There was equally no evidence that there were people in the vicinity who the appellant was trying to avoid. The accident occurred at 0100hrs and it is not surprising that Itai said he tried to get help from the appellant soon after the crash but the appellant appeared to have performed a disappearing act at that juncture. Itai would have sought help from such people if indeed there were any.  He was eventually assisted by other motorists.

It is the totality of the evidence that the court a quo had to consider in coming up with a decision.  The court a quo summed it up as follows:-

“The defence argued that accused acted out of emergency and could not be expected to have reacted in a rational manner as he had no sufficient time to think.  This argument is not convincing because the alleged encroachment has not been described as sudden. In any case the recognized Highway Code rule in Zimbabwe is to keep well left in cases of emergency.  It was the least expected of accused with 24 years of driving experience to react by moving to lane of oncoming traffic in the circumstances given that there was ample space to which accused could have pulled his motor vehicle to.  Moreover, encroachments are a common occurrence against which every reasonable driver is to be on the watch out for accused was expected to keep a proper look out to this common tendency by motorists.  Considering that accused failed to keep to his left and chose to move on the other driver’s lane notwithstanding that there was plenty space to left,(sic) leaves this court with no doubt accused acted negligently and consequently caused the death of Elizabeth Marime.”

We found no fault with this reasoning.  It would amount to splitting hairs to suggest that the court a quo expected the appellant to convince it of the truthfulness of his version and to that extent the court a quo erred because

“The accused need not convince the court as to the truthfulness of his story, whatever explanation he gives, no matter how improbable it may be, the court cannot dismiss it unless it has been shown to be not only improbable but beyond doubt false.”  (R v Difford 1937 AD 370)

We say so because the court a quo’s analysis of the evidence clearly showed why it accepted the witnesses’ evidence as regards the cause of the accident.  The reference by the court a quo to the accused/appellant’s unconvincing argument must therefore be looked at in its proper context and not that the court a quo expected the appellant to prove his innocence.

It was not lost on us that Itai’s testimony revealed that the appellant reversed his motor vehicle after the accident and would have moved it again had it not stalled. One wonders why the appellant appeared more concerned in moving his vehicle rather than render assistance which Itai was calling out for.  Maintaining vehicles in their positions is important until police attend the scene and attempts to interfere can only raise eyebrows and tends to lend credence to the other witnesses’ testimony regarding the cause of the accident.

CONCLUSION

There is sufficient evidence on record indicating that the appellant had indeed encroached into the lane of on-coming traffic.  The final resting position of appellant’s vehicle was on the wrong lane.  His explanation that he had moved to the lane of on-coming traffic to avoid a collision is not supported by evidence at all.  Appellant’s version is wholly improbable and false.  The conviction was safe.

The oral evidence of the witnesses was buttressed by an inspection in loco.  The police details who attended the scene equally buttressed the evidence of the two occupants of the other vehicle.

The attending detail’s confession on tampering with the TAB did not detract from the overall effect of the evidence relating to the appellant’s culpability.

The trial court properly considered all the evidence and properly rejected the appellant’s story.

It is our view that the appeal against conviction lacks merit.

In the circumstances, the appeal is hereby dismissed.

Makonese J……………………………………… I agree

Calderwood, Bryce Hendrie and Partners, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners